FILE PHOTO: Rep. Mike Kelly, R-Pa., looks on in the House Chamber after they reconvened for arguments over the objection of certifying Arizona’s Electoral College votes in November’s election, at the Capitol in Washington, Wednesday, Jan. 6, 2021. Six weeks earlier, Kelly, an ally of President Trump, had filed a lawsuit that, had it been successful, would have canceled the legally cast votes of more than 2 million Pennsylvanians.
Julia Agos is a reporter and the host of All Things Considered for WITF. Previously, she was a political reporter for WFUV News in New York, where she covered New York City and state politics and hosted the Prickly Politics Podcast. Julia grew up in Sacramento, California and graduated from Fordham University.
(Harrisburg) — Two weeks after the 2020 presidential election was called for Democrat Joe Biden, and as President Donald Trump sought to overturn the results, Pennsylvania Republican U.S. Sen. Pat Toomey issued a statement accepting Biden’s win.
The Keystone State’s 20 electoral votes handed Biden the White House. But they had become the target of an unprecedented effort by Trump and his allies to reverse what his Justice Department and eventually over 60 legal decisions would confirm was a free and fair election.
On Nov. 21, U.S. Middle District Court Judge Matthew Brann, who is a member of the conservative Federalist Society, had just tossed out the Trump campaign’s efforts to invalidate all 7 million of Pennsylvania’s votes.
“President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey wrote.
Four days later, Rep. Mike Kelly, a Republican from Butler County and a fervent Trump backer, filed a lawsuit challenging Act 77, which allowed for no-excuse mail voting. Almost every Republican lawmaker voted yes when the state legislature passed it in 2019.
Kelly was asking that all 2.5 million mail in votes be invalidated.
Commonwealth Media Services
Secretary of the Commonwealth Kathy Boockvar on Thursday defended her actions during the 2020 election, which have been upheld in the courts, and called on Republicans to end their ‘lies.’
“It was shocking, to be honest,” said former Pennsylvania Secretary of State Kathy Boockvar. A Republican Congressman, she said, was “trying to disenfranchise millions of Pennsylvania voters.”
The lawsuit became a central piece of the former president’s sweeping campaign to halt the certification of Biden’s win in Pennsylvania and a handful of key states.
The cost of Trump’s effort, along with other election-related lawsuits, hit taxpayers. The Pennsylvania Department of State paid law firms over $3.4 million for work on election-related lawsuits filed before and after election day by any group or political party, according to invoices obtained by WITF through a Right-to-Know request.
All but one of the suits brought by Trump and his allies, before and after the election, failed. Yet they accounted for more than $1.9 million of the overall cost incurred by DOS.
Almost $300,000 of that was spent on post-election lawsuits. Some were rejected with judges citing lack of evidence or standing — raising questions from an election expert and a government reform group about whether Pennsylvania taxpayers spent that money defending suits that never had a chance of succeeding.
Kelly’s lawsuit by itself cost the state $63,688.40. It was denied by the Pennsylvania Supreme Court and later rejected by the U.S Supreme Court.
Republicans like Kelly said they were angry at DOS decisions on things such as the three-day mail-in ballot deadline extension and allowing voters to “cure” mistakes made on their ballots.
Plaintiffs cited those “irregularities,” and said they were trying to address concerns of voter fraud. But those claims were connected to Trump’s election fraud lie, which began in summer 2020. There has been no evidence to support them.
“Our Supreme Court and our courts didn’t have the courage to overturn elections.” — former President Donald Trump
In addition, the lawsuits raised issues that were either litigated before the election — for example, the deadline for when late-arriving mail in ballots could still be counted — or demanded drastic solutions like invalidating millions of legally cast votes.
Trump acknowledged he intended to use the legal system to help him hold on to power. In a March 16 interview with Fox News, he said, “Our Supreme Court and our courts didn’t have the courage to overturn elections.”
David Becker, the founder and executive director of the nonpartisan Center for Election Innovation and Research in Washington, D.C, questioned the lawsuits’ legitimacy, given how long after the election they were filed.
“You want to avoid the sore loser syndrome, where someone complains about a procedure only after they know they’ve lost, rather than having to bring the claim beforehand, because there’s actually legal principle involved. And that was something Pennsylvania saw a lot of,” Becker said.
A cascade of cases
Trump and Republicans were not the only ones who took DOS to court.
On May 14, 2020, the Libertarian Party asked a court to allow third-party candidates on the ballot without in-person signatures, arguing the COVID-19 pandemic made it unsafe to collect them.
DOS paid outside firm Myers, Brier, and Kelly, based in Harrisburg, to handle the case, costing the state $172,955.73 from May to October.
But the lawsuits kept coming, and the costs kept rising.
In mid-July, in Pennsylvania Democratic Party v. Boockvar, a group of state Democratic lawmakers and candidates filed suit to ensure mail-in ballots postmarked by Election Day but that arrived by Nov. 6 could be counted, among other challenges to state election law. It also sought a court order to counter claims made in an earlier suit filed by Trump’s campaign.
In September, the court allowed the three-day rule to stand, given the strain on the U.S. Postal Service because of the COVID-19 pandemic.
Myers, Brier, and Kelly handled that case as well, charging $87,432.82.
Julio Cortez / AP Photo
People demonstrate outside the Pennsylvania State Capitol to urge that all votes be counted, Wednesday, Nov. 4, 2020, in Harrisburg, Pa., following Tuesday’s election.
The lawsuits really started coming after the election. At least a dozen were filed in Pennsylvania in November, beginning with three on Election Day. Most came from Trump and his allies.
DOS hired Philadelphia-based law firm Hangley, Aronchick, Segal, Pudlin, and Schiller to handle most of their post-election cases. At least seven lawyers worked on cases, including partners Michele Hangley and Mark Aronchick. The attorneys charged up to $450 an hour.
Lawyers worked with DOS in the months leading up to the election. Beginning in May, the department spent nearly $320,000 for legal advice on how to handle Act 77. It is not clear whether the work was connected to an active case, or why DOS needed that advice. DOS would not comment on specific questions about those charges.
The invoices show some periods of heavy legal work. Between Nov. 1-3, the “Act 77 Advice” documents show, lawyers worked over 62 hours, costing the state nearly $18,000.
This document, which shows a flurry of legal activity on Election Day 2020, is a typical example of the legal invoices produced by the Pa. state department in response to a Right-to-Know request by WITF. The document shows date, name of lawyer, hours billed and total amount billed, but details about the lawyer’s work are redacted. To see the entire ‘Act 77 Advice’ invoice, go here.
Kelly’s suit centered on Act 77 and how DOS implemented the law. On Nov. 25, a Commonwealth Court judge ordered Wolf, Boockvar and other election officials to stop certification efforts. But the administration appealed, and three days later, the state Supreme Court unanimously denied Kelly’s request, saying the lawsuit was too late and its request was too extreme.
The five Democratic and two Republican justices also unanimously denied his request for a stay of their decision on Dec. 3.
Five days later, the same day Pennsylvania certified its election results, Kelly asked the U.S. Supreme Court to hear an emergency appeal on the case. Lawyers for the Wolf administration responded:
“After waiting over a year to challenge Act 77, and engaging in procedural gamesmanship along the way, they come to this Court with unclean hands and ask it to disenfranchise an entire state. They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash.”
The U.S. Supreme Court, displaying no evidence of dissent among the justices, rejected Kelly with one sentence: “The application for injunctive relief presented to Justice Alito and by him referred to the court is denied.”
Lawsuits’ connection to the election-fraud lie
GOP Rep. Mike Kelly’s lawsuit was among those that fed President Trump’s false narrative of widespread fraud in mail-in voting.
Kelly’s filing came amid efforts by Trump to pressure state lawmakers to intervene in Georgia, Michigan and Pennsylvania. Had Trump been able to reverse his losses in those states, he would have won re-election.
The same day Kelly filed his lawsuit, Trump lawyers Jenna Ellis and Rudy Giuliani participated in a state Senate meeting in Gettysburg, where they repeated unfounded claims of widespread fraud.
Trump spoke at the meeting while on Ellis’ speakerphone.
“We have to turn the election over, because there’s no doubt we have all the evidence, we have all the affidavits, we have everything,” he said, despite a lack of credible evidence to support any legal efforts in Pennsylvania or elsewhere. “All we need is to have some judge listen to it properly without having a political opinion or having another kind of a problem….”
Trump tweeted about the commonwealth’s election results at least 21 times, falsely claiming it was rigged, between Nov. 25 and Jan. 8 when he was banned from Twitter.
On Dec. 8, The Washington Post reported the former President twice called the state House Speaker Bryan Cutler the week prior, asking for help with reversing the results of the state’s election.
Cutler, who signed a letter asking members of Congress to object to Pennsylvania’s legal electoral votes for President Biden despite no significant evidence of voter fraud, told Trump the legislature did not have the power to replace the state’s electors, according to his spokesperson.
In addition, state Senate Majority Leader Kim Ward, who signed a letter asking Congress to delay the certification of Pennsylvania’s election results, told the New York Times in a December 9 article, “If I would say to you, ‘I don’t want to do it,”… I’d get my house bombed tonight.”
Trump’s election-fraud lie, which began last summer, led many of his supporters to believe incorrectly that the election had been stolen. The effort was amplified by state legislators, who claimed they were simply responding to constituents’ concerns. But those concerns were tied to Trump’s lie. Now, Pennsylvania Republican lawmakers are holding a series of election-related hearings, despite no evidence that would call Pennsylvania’s 2020 results into question.
“We need to be calling them out. We need to be holding them accountable,” Boockvar said. “And if we don’t, we’re letting them win. We’re letting them tear down the strength of our democracy.”
On Dec. 11, Kelly asked the U.S. Supreme Court for an expedited review of the state Supreme Court’s decision, assailing no-excuse mail-in voting and alleging Act 77 was unconstitutional. The court turned him down.
Even a decision that would affect future elections, Kelly said, would be a “win” — because, he claimed, “voting laws were changed without amending the Pennsylvania Constitution.”
Trump’s election-related lawsuits in Pennsylvania came to an end on Feb. 22 when the Supreme Court unanimously declined to hear Kelly’s case.
Kelly did not respond to multiple requests for comment.
Boockvar: We saw it coming
“We always knew that it was going to be a big year and Pennsylvania would have a significant impact on the 2020 election cycle. But, each stage of it just increased that intensity,” Boockvar said.
Normally, election-related lawsuits are handled by DOS’ in-house counsel. But the pressure of the 2020 cycle prompted the agency to hire outside counsel, said DOS spokeswoman Wanda Murren.
As lawsuits were filed and worked their way through courts, Trump was called out by Republican allies, including then-Senate Majority Leader Mitch McConnell and former New Jersey Gov. Chris Christie, both of whom said Biden won and the lawsuits were without merit.
Boockvar, a Democrat, said she thinks the legal system was abused.
“We saw that again and again in the opinions issued by the court. The language used by these judges was pretty extreme,” Boockvar said.
For example, Trump appointee Judge Stephanos Bibas on Nov. 27 denied the former president’s effort to stop certification in Pennsylvania. Bibas wrote: “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
The lawsuits had costs in addition to the bills paid by taxpayers.
“When (Philadelphia) Commissioner (Al) Schmidt or Secretary Boockvar are being deposed, they’re not managing elections. There are things that could go wrong because election officials are distracted by frivolous lawsuits,” said Becker, from the nonpartisan Center for Election Innovation and Research.
Boockvar said she and deputy Jonathan Marks were deposed, and data staff had to pull information for the cases.
A ‘safeguard’ for taxpayer money?
Boockvar said she would like to see sanctions and bar association penalizations “against those who are not only wasting taxpayer dollars, but also working to disenfranchise millions of voters with no basis for doing so,” she said.
At least one governor of a state targeted by Trump lawsuits is working to recoup taxpayer money. Gov. Tony Evers of Wisconsin asked a judgeto order Trump and his attorneys to repay the state the $144,000 it spent on legal fees.
But the Wolf Administration is not seeking sanctions or recovering lawyers fees.
Common Cause Pennsylvania is looking into how to protect taxpayers from having to foot the bill for defense against baseless lawsuits. They are advocating for a third-party investigator within the government who can determine a lawsuit’s merit on the front end.
The group’s Executive Director Kalif Ali said if the lawsuit is found to be without merit, the plaintiffs should have to pay the legal fees.
“Not that there isn’t a need for suits to settle doubts or to ensure the validity of a process, but instead, (we’d like to see a) safeguard to prevent frivolous lawsuits that will cost the taxpayers unnecessary money,” Ali said.
It is important to adequately fund election agencies so they can defend against both legitimate and meritless lawsuits, Becker said. And if an agency sees a lawsuit as wasting taxpayer money, they should seek sanctions and recovery of lawyer fees.
“There are some times when litigation is important and necessary to clarify the rules. And we have to be able to allow for that to happen,” Becker said. “And when it’s frivolous, we have a system in place for that.”
Former WITF reporter Emily Previti contributed to this story.