Controversial Luzerne County Supreme Court justice recusal request formally withdrawn

Luzerne County is no longer seeking new U.S. Supreme Court Justice Amy Coney Barrett’s recusal in a case involving ballot-counting deadlines because its request was formally withdrawn Thursday as requested by county council, the court docket shows.

Attorneys affiliated with Joyce, Carmody & Moran P.C., the county’s outside legal counsel covered by liability insurance, filed the withdrawal notice of its motion to recuse.

The recusal request was related to a request from Pennsylvania Republicans asking the U.S. Supreme Court to reverse a Pennsylvania Supreme Court ruling allowing mailed ballots to be counted if they are postmarked by Election Day Nov. 3 and received by 5 p.m. Nov. 6.

In the June 2 primary, completed ballots had to be physically returned to the county election bureau by 8 p.m. on Election Day, and postmarks did not count. For the general election, the state Supreme Court granted the Democratic Party’s request to order a three-day extension because of the COVID-19 pandemic and mail-service delays.

The county’s now-withdrawn filing argued Barrett should recuse herself from the decision due to her “unprecedented” nomination and confirmation so close to a presidential election.

No expedited decision

In a statement Wednesday, the U.S. Supreme Court declined to reach an expedited decision on the three-day extension before the Nov. 3 general election, but it left open the possibility of ruling on the matter under a shortened schedule after the election.

Justice Barrett “took no part” in the consideration or decision to refrain from deciding the matter before the general election, the statement said. However, there is no stated intention for her to recuse herself from future participation in the matter.

If the state Supreme Court’s decision is ultimately overturned, a remedy is available because the state has directed county election boards to segregate ballots received between 8 p.m. on Nov. 3 and 5 p.m. Nov. 6, the statement said.

The succinct filing withdrawing the county’s Justice Barrett recusal motion points to the Supreme Court’s Wednesday decision as a reason.

“Given the Supreme Court’s refusal to expedite consideration of the petition for a writ of certiorari, thus allowing the Order of the Supreme Court of Pennsylvania to stand presently, we therefore request that the motion be considered withdrawn,” it said.

The county’s withdrawal filing also said the recusal motion was electronically submitted on Oct. 27 but had not yet been “officially filed” due to the Supreme Court’s safety protocols related to the coronavirus.

Haas sought explanation

County Councilman Harry Haas, who vehemently fought the recusal filing, sent an email Thursday asking the administration for further explanation on the wording in the withdrawal.

Haas pointed to an email from a Philadelphia man to council questioning why the withdrawal filing did not refer to a county council majority’s displeasure with the recusal motion.

County Chief Solicitor Romilda Crocamo said outside counsel is preparing a response to the inquiry from Haas.

However, Crocamo said her office reviewed and approved the withdrawal wording.

“We followed the guidance of the clerk of the U.S. Supreme Court in filing what we filed based on where the case was procedurally,” Crocamo said.

The county Election Board was the respondent in the legal matter, which evolved from ongoing election-related litigation filed by Pennsylvania Republicans against Pennsylvania and all 67 county election boards, Crocamo said.