HARRISBURG – The Supreme Court of Pennsylvania has decided to sanction Fulton County and its counsel for engaging in what it referred to as “bad faith conduct” and disobeying a court order, in a legal dispute over the county granting access to its voting machines for an audit after the 2020 Presidential Election.
A majority opinion handed down on April 19 and authored by state Supreme Court Justice David N. Wecht found that Fulton County and attorney Thomas Carroll “have engaged in a sustained, deliberate pattern of dilatory, obdurate and vexatious conduct, and have acted in bad faith throughout these sanction proceedings.”
The situation began after the 2020 Presidential Election, when GOP legislators such as Sen. Doug Mastriano (R – Gettysburg) and Sen. Judy Ward (R – Altoona) requested that Fulton County, located in Southern Central Pennsylvania, conduct an audit of its voting machines. Fulton County was the only one in the state to do so.
When Fulton County provided access to its machines to a third-party organization, West Chester-based software company Wake Technology Services, Inc., then-Acting Secretary of the Commonwealth Veronica Degraffenreid ordered in a letter to the county dated July 20, 2021 that the machines be decertified and prohibited from being used to record votes in future elections.
Degraffenreid alleged that the unauthorized access constituted a violation of Pennsylvania election law relating to chain of custody, and is not permitting state funds to go to Fulton County to purchase or lease new voting machines.
Degraffenreid then issued a similar directive that any county in the state who follows suit in allowing third parties to audit their voting machines as Fulton County did, will not be eligible to receive such state funds.
President Joe Biden won Pennsylvania by almost 81,000 votes in the 2020 Presidential Election. Former President Donald Trump’s campaign subsequently filed a series of lawsuits alleging mail-in voter fraud, which were later dismissed. A number of GOP legislators supported the Trump campaign’s legal efforts, Mastriano included.
Fulton County filed litigation which challenged the decertification of its voting machines by Degraffenreid, during which the Supreme Court handed down a stay prohibiting additional third-party inspection of the voting machines.
However, Fulton County continued to permit such inspection, claiming that the stay only prevented an individual, specific firm from inspecting the voting machines, not preventing any inspection of the machines at all.
The state Supreme Court’s majority opinion from Wecht stated that Carroll “repeatedly tied up the Special Master [Commonwealth Court President Judge Renee Cohn Jubelirer], this Court and the parties with prosaic eleventh-hour filings that drew resources and attention away from these and other proceedings.”
According to the Court, Fulton County and Carroll would be held accountable for paying Degraffenreid’s legal fees incurred since December 2021, in an amount to be determined by Jubelirer.
“As well, we refer Attorney Carroll to the Pennsylvania Attorney Disciplinary Board for further examination of his conduct throughout the litigation of the appeal of our stay order and throughout these sanction proceedings. We neither urge nor assume any particular disciplinary outcome. We opine simply that Attorney Carroll’s conduct warrants the independent review of his fellow practitioners,” Wecht said.
“We can hope that the sanctions will underscore for the county, attorney Carroll, and other observers that they trifle with judicial orders and time-honored rules and norms in litigation at their peril.”
State Supreme Court justices Kevin M. Dougherty, Christine Donohue, Sallie Updyke Mundy and Chief Justice Debra Todd concurred in the majority opinion, with Dougherty issuing a brief concurring opinion of his own and Updyke Mundy declining to do so.
“No one – not elected county officials, not Pennsylvania attorneys, and certainly not out-of-state attorneys who aren’t authorized to practice here – may ignore, circumvent or frustrate the orders issued by the courts of this Commonwealth, least of all this Court. In fact, let it be known far and wide that this Court can – and will – exercise the full might of its constitutional authority against those who seek to delegitimize this Commonwealth’s elections, or its judiciary,” Dougherty said.
Dougherty added it was “difficult to recall a more brazen abuse of the judicial process during my more than two decades on the bench, nearly 15 years of which I served on the front lines as a trial judge.”
Justice P. Kevin Brobson also issued a concurring and dissenting opinion, where he wrote that while “there are portions of the majority opinion that give [him] such pause that I cannot join it as written”, he added he was “largely aligned with the majority on the remedy” – and “disagreed only with the majority’s decision to impound the subject voting equipment at the further expense of the taxpayers of Fulton County.”
“I would leave it to the Commonwealth Court judge presiding over petitioners’ underlying claims to determine which factual allegations and which relief in the amended petition fall within the ambit of this sanction. This, to me, seems an appropriate alternative remedy to the majority’s order for impoundment and is one that we can impose at no expense to the people of Fulton County,” Brobson said.
Supreme Court of Pennsylvania case 3 MAP 2022
Commonwealth Court of Pennsylvania case 277 MD 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com