Pennsylvania Legislative Special Elections Challenge

Cutler v. Chapman

Filed: December 9, 2022

Decided: March 9, 2023

Lawsuit brought by state Rep. Bryan Cutler (R) against Acting Pennsylvania Secretary of State Leigh Chapman (D) and the Board of Elections of Allegheny County challenging state Rep. Joanna McClinton’s (D) ability to issue writs of election to fill vacancies in the Pennsylvania House. The complaint alleges that “Representative McClinton issued the writs of election [setting special elections for the three vacant state House seats] without constitutional or statutory authority as she is neither Speaker of the House of Representatives nor is she Majority Leader.” The complaint states that former state Rep. Anthony DeLuca (D) passed away on Oct. 9, 2022 but his name appeared on the Nov. 8 ballot and, “despite his death, he was reelected to the House of Representatives.” Because DeLuca has passed, the petitioner argues that DeLuca’s seat cannot be counted toward the Democratic majority. The lawsuit also points to the resignations of two Democratic members who won elections to other offices, thereby reducing the “membership of the Democratic Caucus of the House of Representatives to 99 members,” to argue that McClinton was not legitimately the speaker of the state House when the writs were issued. The plaintiff alleges that “writ of elections at issue in this action are invalid.”

Outside of this lawsuit, on Jan. 3, Pennsylvania Democrats and Republicans came together to elect a different speaker of the House, Mark Rozzi (I), who approved McClinton’s writ of elections scheduling all three elections for Feb. 7, 2023. On Jan. 3, the court signed an agreement reached by the parties stating that the special election for DeLuca’s seat in the 32nd House District will be held on Feb. 7, 2023. However, the parties still disagree as to whether the writs issued for special elections for the 34th and 35th House Districts are valid. The court heard oral argument regarding the matter on Jan. 11, 2023. On Jan. 13, a Pennsylvania court denied Cutler’s requested relief and ordered the special elections for the 34th and 35th House Districts to be held on February 7, 2023. The case was dismissed as moot on March 9.

Courtroom Updates

On Wednesday, Jan. 11, a three-judge panel of the Commonwealth Court of Pennsylvania heard oral argument in this case. The focus of today’s hearing was only on the writs for the 34th and 35th House Districts special elections.

The court first heard from the attorney representing Cutler (the leader of the Republican Caucus of the Pennsylvania House of Representatives), who argued that the writs of election that McClinton issued are invalid because she was not the majority leader when she issued them due to the three vacant seats previously held by Democrats that eliminated the party’s one-seat majority. When a judge asked Cutler’s attorney why he is okay with one special election for the 32nd House District on Feb. 7, but not special elections on the same day for the two adjacent districts, the attorney responded that the circumstances surrounding the vacancies are different. He added that “we have lived in the world of questioning elections for the last four or five years” and McClinton’s issuance of writs “casts doubt” on the electoral process. He stated that without an injunction, Cutler would suffer “personal harm.”

The attorney representing McClinton opposed Cutler’s requested relief and argued that the question before the court is a “nonjusticiable political question,” meaning that it is a matter that should be resolved by the Pennsylvania House of Representatives, rather than the court. McClinton’s attorney specifically asserted that McClinton was acting in compliance with state statutes and the Pennsylvania Constitution when she issued the writs of elections to fill the vacancies in the 34th and 35th House Districts. The attorney continuously reiterated that this matter pertaining to writs for special elections should be left to the Pennsylvania House of Representatives to sort out, without interference from the court. For this reason, McCinton’s attorney concluded that Cutler’s requested relief should be denied because it would undermine the public interest. He also urged the court to dismiss this lawsuit as moot, given that the current state House speaker, Rozzi, ratifiedMcClinton’s writs for Feb. 7 special elections for the 34th and 35th House Districts.

The attorney representing the Pennsylvania Department of State argued that the secretary of the commonwealth’s position is that the writs of election that were ratified by Rozzi are valid and that preventing the elections from moving forward would be both unprecedented and cause confusion.

The attorney representing the Allegheny County Board of Elections similarly argued against Cutler’s requested relief. The attorney noted that election officials in Allegheny County — the county where the races for the 34th and 35th House Districts are set to occur on Feb. 7 — are in the midst of preparing for these special elections.

Finally, the attorney for the Pennsylvania Democratic Party argued that the party should be permitted to intervene because it has both a direct role as the entity that nominates candidates and an associational role in representing Democratic voters. He argued that Cutler’s requested relief should not be granted as preparation for these special elections is already underway and an injunction would harm the public. In reference to the delays in Pennsylvania’s election certification, the Pennsylvania Democratic Party’s attorney argued that the only reason that all races were not certified by Nov. 30, 2022 was because “with mail-in voting and the refusal to allow pre-canvassing and…the delays that followed, and then the baseless election denial litigation that followed that has stretched this out, we’ve had this situation where something went beyond Dec. 1.” In reference to election contests filed by proponents of the “Big Lie” that delayed certification, he added that the “microscopic facts of the case are crystal clear:” He added that “Actions [such as] bad faith litigation by several actors, particularly the Republican Party of Berks County, and individual Republicans in Westmoreland County [and]Allegheny County…[were] the only reason [certification] wasn’t done in time.”

A judge stated that a decision would be reached “relatively quickly,” after which the court adjourned.