Pa. court sides with Dem leader, tosses GOP lawsuit over special House elections | Don’t

HARRISBURG — The Pennsylvania Commonwealth Court on Friday denied the lawsuit filed by House Republican Leader Bryan Cutler who sought to prevent two of three special legislative elections from occurring next month in Allegheny County, as scheduled by the chamber’s Democratic leader, Rep. Joanna McClinton.

The court decision allows county election officials to continue preparations for elections on Feb. 7 to fill vacancies in the 32nd, 34th and 35th legislative districts. All three districts favor Democrats and the outcome could settle which party has majority membership.

Judge Michael Wojcik, in his order issued Friday, sided with McClinton’s legal argument that Cutler’s claims were political questions, not legal questions, with respect to which party leader had the constitutional authority to order special elections.

“Specifically, (Cutler) has failed to prove, inter alia (among other things), that he has a clear right to the relief he seeks, that he will suffer immediate and irreparable harm without the preliminary injunction, and that the preliminary injunction will not adversely affect the public interest,” Wojcik wrote in his order.

Pennsylvania’s constitution grants authority to order special elections to the speaker of the House of Representatives. However, when the speakership is empty, as was the case in this scenario, the authority belongs to the majority leader.

Cutler’s lawsuit argued that McClinton, of Philadelphia, lacked the authority to issue writs of election to order the special elections in the 34th and 35th districts, vacated by former representatives Summer Lee and Austin Davis.

McClinton pointed to the Democrats’ 102 victories in November’s state House elections, giving them a one-seat advantage in the lower chamber. However, three of those districts were subsequently vacated, and Cutler claimed the majority since Republicans then led in membership, 101-99.

In response to the court order, Cutler, of Lancaster County, said the Commonwealth Court “decided to ignore basic math.”

“Instead of resolving a dispute where the answer was self-evident based on the numbers, the court took the path of least resistance and thereby weakened the foundations of our republic and faith in the rule of law,” Cutler said.

“This case was about who can exercise certain functions based upon simple numbers. House Republicans remained steadfast and consistent in our desire to hold elections and fill these seats in the normal course of business, and not through illegitimate loopholes,” he said.


On behalf of the House Democratic Caucus, McClinton’s spokeswoman, Nicole Reigelman, said the decision was “good news for the nearly 200,000 Allegheny County residents currently without representation in the state House.”

She said: “Now county elections officials can proceed to print ballots and make final preparations for special elections in the 32nd, 34th, and 35th legislative districts on Feb. 7.”

There were no legal disputes over the date for the 32nd, vacated following the pre-election death of former state Rep. Tony DeLuca. Both McClinton and Cutler issued writs to fill that seat at an election to be held on Feb. 7.

Cutler’s writ came on Nov. 30 in one of his last acts as House speaker in the past legislative session. He cited Allegheny County’s election certification that week as formalizing the vacancy.

The new session technically began on Dec. 1. McClinton’s order for all three elections came on Dec. 7, shortly after that day’s resignations by Lee and Davis. The two were concurrently elected to higher offices: Lee to Congress, Davis as lieutenant governor.

That day, Acting Secretary of the Commonwealth Leigh Chapman rejected Cutler’s writ.

Special elections must be declared within 10 days of a vacancy.

McClinton’s order put the election 60 days out, the statutory minimum for setting special elections. When she issued the writs, Democrats had 99 members to Republicans’ 101.

The dispute over the election orders played out during the one-month period between two-year legislative sessions when there is no House speaker named because House members hadn’t yet been sworn into office.

Cutler filed an application for emergency relief on Dec. 9. Within a week on Dec. 15, he issued writs for the 34th and 35th districts, scheduling the elections for the same date as the May 16 spring primary election – the statutory maximum for setting special elections.

In effect, the writs were about timing. The date of Feb. 7 is an advantage to Democrats in friendly districts, allowing the vacancies to be filled as soon as possible and likely pursue legislating from the majority position for the first time in 13 years. Holding the elections in May would forestall that likely majority, granting time for Republicans to pursue their own agenda before eventually yielding power.

All 203 House districts are up for election every two years. Members were sworn into office on Jan. 3 and with both parties at odds over majority leadership, 16 Republicans including the entire leadership team voted with every Democrat to name Rep. Mark Rozzi, D-Berks, as House speaker – a move that caught most by surprise including many lawmakers themselves.

But, Rozzi declared from the rostrum that day that he would operate as an independent and wouldn’t caucus with either party. Republicans say he pledged to formally leave the Democratic Party to become independent – reportedly part of negotiations prior to the vote. Democrats say Rozzi pledged to stay in the party but work in a nonpartisan manner.

Rozzi issued an election writ of his own this month setting Feb. 7 as the date for all three special elections, seeking to reaffirm the order from McClinton.

The House is currently mired in recess without movement on operating rules, a session calendar or legislative committee assignments.