Delco judge rips GOP’s ‘emergency’ election suit
MEDIA COURTHOUSE » Common Pleas Court Judge John Capuzzi issued a scathing opinion Wednesday denying with prejudice two petitions that sought to sanction the Delaware County Board of Elections with fines and prison time, and enjoin U.S. Rep. Mary Gay Scanlon, D-5 of Swarthmore, from executing the duties of her office.
“While the petitioners seek sanctions against the Board of Elections, they come before this court with unclean hands and they themselves are the ones whose conduct is contemptible,” Capuzzi wrote.
The opinion stems from an emergency petition filed by the Delaware County Republican Executive Committee Nov. 4 seeking increased access to ballot counting operations at a Chester facility where the votes for the 2020 Presidential Election were being tabulated.
Capuzzi issued an order that same day allowing representatives from the Republican and Democratic parties to observe “the resolution area at all hours while ballots are being resolved,” as well as a ballot sorting machine area while the machine was in use. Two observers – one from each party – were also allowed to enter the ballot room in five-minute intervals every two hours, under the order.
Capuzzi notes in Wednesday’s opinion that the Delaware County Republican Executive Committee has not raised any issue with the way the Board of Elections handled his Nov. 4 order. There was no response to that order at all in court filings until the proposed interveners here – Republican 5th District Candidate Dasha Pruett and observers Gregory Stenstrom and Lean Hoopes – filed an emergency petition Dec. 22, and no response from the executive committee to that petition.
The proposed interveners, represented by Upper Darby attorney Deborah Silver, alleged observers were only allowed access to the “back room” beginning at
11 a.m. Nov. 5, and were placed in a “pen” 25 feet from where the ballots and envelopes were being counted. They additionally claimed the board failed to abide by the two-hour time-table, with observers only first gaining access to that area at 1:30 p.m. Nov. 5.
The petition also alleged that interveners had witnessed ballots being scanned numerous times before they were counted, that a “shocking number” of mail-in ballots appeared in counties after Nov. 4 (mail-in ballots were allowed to be received and counted three days after the Nov.
3 election) and that there was no opportunity to observe the uploading of votes using machine USB drives.
The petitioners sought sanctions of $1,000 against election board members with one year in prison for allegedly violating the election code and Capuzzi’s Nov.
4 order. They also sought access to computer event logs, the USB machine cards, chain of custody documents and outer envelopes of mail-in votes so that a forensic investigation could be completed.
“By this filing, petitioners are making a baseless attempt to cast doubt on the outcome of an election that was properly and lawfully conducted by the board under the watchful eye of the Delaware County Republican Executive Committee and the supervision of this court,” said Board of Elections Solicitor J. Manly Parks in a response.
Two board of election members testified at a previous, unrelated hearing that a review board made up of nine Republicans and nine Democrats had found some discrepancies during 11 days of work on the results, but no evidence of fraud or manifest error in any election. All election results in the county were certified Nov. 24.
Parks provided images of observation areas and observers in the response that directly contradicted some of the claims in the emergency petition, and argued that the petitioners lacked legal standing because none of the proposed interveners had a legally cognizable claim for relief.
Parks argued that the petitioners had no expectation of personal rights to observe the canvassing procedures, only that one or two members of each party be granted access. Regardless, he said the board had not only complied with the Nov. 4 order, it went above and beyond by providing additional observation points and live-streaming all canvassing at the Chester facility using 11 different cameras.
Parks added that this filing for emergency relief was “untimely in the extreme,” coming some two months after the events in question – a point Capuzzi picked up on in his opinion as well.
The judge initially denied an “emergency” certification, and noted in Wednesday’s opinion that the petitioners could have challenged the manner with which the BOE complied with the Nov. 4 order at any point in the following 30-day period or filed an appeal to Commonwealth Court, but did not. Even assuming the allegations “enjoyed even a smidgen of merit,” the judge found the remedy rested at the time of occurrence, not seven weeks after the fact.
There was additionally no case or controversy for the petitioners to actually intervene in, Capuzzi found. The original petitioner – the Republican Executive Committee – did not challenge the Nov. 4 order, nor did it answer the emergency petition put forth by the proposed interveners. If they truly believed there had been some violation, the interveners should have filed a new action under a separate docket number, he said.
Capuzzi, who is also a Republican, cited several other issues with the petitioners, including a failure to serve Scanlon as an “indispensible party” with a direct interest in the matter and that fact that the Pennsylvania Supreme Court has already ruled on almost identical issues concerning the count at the Philadelphia Convention Center.
The opinion notes the Philadelphia matter was decided Nov. 9 and published Nov. 17, and held that state law required only that authorized representatives be permitted to “remain in the room” in which absentee and mail-in ballots were pre-canvassed, but boards of elections may set the actual proximity parameters.
“Strikingly, at the time of the filing of this frivolous action, the issue now brought forth by the petitioners had been adjudicated by the highest court in the commonwealth, i.e. the Delaware County Board of Elections had full authority to establish observation areas as it deemed fit,” the opinion states. “Consequently, there is a total absence of legal merit in the petitions.”
The judge went on to castigate Silver for failing to even reference that Supreme Court decision in her filings more than a month later and found this lack of due diligence to be “unconscionable and inexcusable,” wasting valuable court resources in deciding an outcome that was preordained.
“I’m extraordinary pleased by the judge’s decision,” said Delaware County Solicitor Bill Martin. “The county has been fighting a series of baseless litigations relating to this election, and this case is probably the worst. It’s shameful that we had to spend the time and money to make these fights just because the people who lost the election refused to acknowledge they lost.”
Silver argued that the actual merits of her petitions had not yet been decided, however, saying the elections board failed to adhere to the Nov. 4 order and the election code provisions that allow observers to be present for the opening and canvassing of ballots. Silver added that the dismissal has also precluded her from obtaining election materials so that she could conduct a forensic audit and independently verify the results.
“I was not seeking to change the rules, just to enforce them,” she said. “It was the Board of Elections that was trying to change the rules by raising their ridiculous ‘live streaming to the world’ defense as an excuse for their non-compliance with the election code and with Judge Capuzzi’s order.”
Silver said she did not know as of Wednesday whether she would appeal the ruling or try a different tactic, but was in discussion with her clients about next steps.
“While the petitioners seek sanctions against the Board of Elections, they come before this court with unclean hands and they themselves are the ones whose conduct is contemptible.”
— Common Pleas Court Judge John Capuzzi