Constitutional Law, Courts, Lawyering, Politics

Fetterman Turns to Controversial Clinton Lawyer Marc Elias’ Firm to Strike Down Pennsylvania Election Provisions

Democratic Senate candidate John Fetterman and other Democrats have filed a federal lawsuit to strike down parts of Pennsylvania’s election law after the state Supreme Court ruled that mail-in ballots with incorrect dates or no dates should not be counted. Fetterman is challenging the state law on constitutional and federal statutes. He has turned to a controversial former lawyer for Hillary Clinton to seek to strike down the provision.

John Fetterman, the Democratic Senatorial Campaign Committee (DSCC) and the Democratic Congressional Campaign Committee (DCCC) is suing Pennsylvania’s 67 county boards of elections over the “Date Instruction,” which prevents counties from counting undated or wrongly dated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes). The challenge is brought under the First and Fourteenth Amendments as well as the Materiality Provision of the Civil Rights Act.

The Supreme Court previously ruled that these rules are mandatory in Date Instruction on a Petition for Discretionary Review in In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election, 241 A.3d 1058, 1062 (Pa. 2020). A majority found the language of the law to be clear and mandatory. The requirement is contained in Section 3150.16 of the Election Code:

At any time after receiving an official mail-in ballot, but on or before eight o’clock P.M. the day of the primary or election, the mail-in elector shall, in secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed “Official Election Ballot.” This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election.

25 P.S. § 3150.16(a) (emphasis added).

The majority held that, regardless of the perceived wisdom of such requirements, it is unambiguously required by Pennsylvania after being approved by the state legislature.

Fetterman is now asking the federal courts to negate the state provision as an “unnecessary impediment [under] the Civil Rights Act and the First and Fourteenth Amendments to the U.S. Constitution.”

The problem is that the legislature clearly concluded that such dates are material to the security of the vote-by-mail system.  Fetterman is asking the federal court to simply declare that it is not since Section 101(a) of the Civil Rights Act of 1964 provides:

“No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”

Under the constitutional claims, Fetterman argues that “the Date Instruction serves no legitimate purpose. It is a trivial procedural formality that functions only to disenfranchise eligible voters seeking to vote.”

(MSNBC/via YouTube)

Fetterman is relying on the controversial former Clinton counsel Marc Elias and his Elias Law Group. We have previously discussed the controversial history of Elias, including accusations by reporters of allegedly denying the funding of the Steele Dossier by the Clinton campaign. He has also been sanctioned by the courts and the Clinton campaign was recently sanctioned by the FEC over its hiding of the funding of the dossier through his prior firm.

Elias has also been criticized for challenging elections when he and other Democratic lawyers denounced Republican challenges as a threat to democracy.  Elias later came under intense criticism after a tweet that some have called inherently racist. He was denounced for a tweet where he suggested that Georgia voters could not be expected to be able to read their driver’s licenses correctly.

The use of Elias was a controversy in the prior election when Terry McAuliffe hired Elias to make challenges against now Gov. Glenn Youngkin’s election.

In this case, local counsel is Adam C. Bonin, who signed the complaint below.

Here is the complaint: Fetterman lawsuit

253 thoughts on “Fetterman Turns to Controversial Clinton Lawyer Marc Elias’ Firm to Strike Down Pennsylvania Election Provisions”

  3. Jonathan: Come on! It’s election day. The Fetterman/Oz race is a dead heat. And what are you doing? Still campaigning against Fetterman with this second post in two days. But the campaign is over. People are voting. Did you think we wouldn’t notice this pretty transparent attempt to influence the Senate vote in Pennsylvania? Perhaps you are thinking that voters waiting in line to vote would read your column on their cell phones and be influenced to vote against Fetterman– and polling workers won’t notice. No doubt the stakes are high in this campaign because it could determine who controls the US Senate. But you should know that under Pennsylvania’s election law (25Pa.stat3060) it is illegal to “campaign” or provide campaign related “materials” within 10ft of a polling station. I would argue your post is “campaign material” with the Penn. statute because your post is a blatant attempt to influence the Fetterman/Oz vote. So I am thinking of sending a copy of your post to election officials in Pennsylvania for possible prosecution. So there! Anyone on this blog want to join my complaint? Didn’t think so.

    1. It is clear that McIntyre doesn’t know what news “is.” In furtherance of his support for a mentally impaired person unqualified to serve in the US Senate, he should volunteer his less-than-scholarly services to the likes of Elias’ they could together waste the time of a US District Court judge.

    2. More Democrat corruption .
      The Professor did not mention that it is a Constitutional provision that the state Legislature determine voting procedures, so this is one Constitutional provision pitted against another. Hard to see one prevailing over another.

    3. Hey DennisMcIntyre, do you have a cell phone? When you open your phone does it show you the date? We know that you believe that people with brown colored skin can’t read the date on their phone or the instructions on the ballot. Why is the date required? So that ballots won’t be created after election day. Being concerned with a properly presented ballot is not electioneering. My prediction is that Fetterman will become an election denier because of undated ballots. You can see the handwriting on the wall. What will you say then Dennis McIntyre?

      1. I think the issue for me is not the ease with which the requirement may be fulfilled but rather its purpose.

        If the PA State Legislature passed a law, saying that mail-in ballots will only be accepted if delivered in green wrapping paper, this would not be a hard requirement to fulfill, but it would still serve no purpose.

        For any mail-in ballots that are timely received but missing a date, what is the rationale for rejecting them? Seems pretty arbitrary and capricious to me.

        Now, for those which were sent before the deadline, but received after the deadline, a date on the envelope should be required.

        Seems like a practical compromise. Anything else is just manipulation by either party to tip the scales in their favor.

        1. You know, if you show up and want to vote tomorrow, you cant. Hard to be more arbitrary.

          1. Notice how you move the goalposts from whether it serves a purpose or not. Having a designated voting day clearly serves a purpose.

          2. Not sure I follow. If the mail-in ballot is received prior to Election Day, then the date on which it was mailed is irrelevant (and hence arbitrary and capricious). If, however, it was post-marked prior to Election Day and received after Election Day, then the date is important.

            How is your message responding to that? Is there a way to complete a ballot after Election Day, yet send the completed ballot before Election Day? That seems contrary to my understanding of time.

            1. In PA, it has to be received by election day, not just postmarked by election day.

      2. RE:”What will you say then Dennis McIntyre?” I’ve long ceased replying to his content. You might consider that as well?

    4. —- 2 WEEKS LATER —-

      “Oh wait, your candidate was ahead by 65K votes on election day? Yeah, he just lost by 119 votes thanks to these mail in votes we found yesterday. Enjoy democracy and the safest election in history”

    5. It’s wonderful that you believe Professor Turley’s blog is so influential. Thanks for the feedback.

    6. Private actors are free to try to persuade voters right up to the doors of the polls.

      As is typical – left wing nuts try to pretend things they do all the time are immoral – when used against them.

      I have been listening to a whole slew of election commentators all day – left and right.
      Some where idiots. none were doing anything wrong.

    7. Typical left wing nut twisted legal mangling.

      I was at a poll in PA at 11am to vote. Democrats and republicans had election material outside.

      I was free to take anything I wanted and carry it into the poll with me and read it.
      And many did

    8. Dennis criminally mangling the law is unfortunately not a crime – or it would be you facing the music in PA.

  4. The day isn’t over, the count yet in and the games are in play.

    One vote, in person with ID. Let’s end the mail in nonsense.

  5. Fetterman, with cognitive impairment, is a tool for the darkness that envelopes the Democrat Party leadership. Their Machiavellian ways have forced millions to abandon the Democrat Party. They refused to concede defeat as “bitter clingers” that their ways were rejected. No wonder historically Democrat voters are either staying home today or voting Republican. With any luck the election will drive the nails into the coffins of the DNC.

    Why I Won’t Vote Tomorrow: I often vote Democrat or left-of-that. Not this time.
    Matt Bivens, M.D.
    https://mattbivens.substack.com/p/why-i-wont-vote-tomorrow

    1. A tool for darkness… Sounds pretty ominous. Are you adopting the doomsday language of the Democrats, now?

      1. RE:”Are you adopting the doomsday language of the Democrats, now?..” It appears to me that he’s employing a creative writing style reflective of a well educated physician. Borrowing from popular culture, the expression often employed is ‘the dark side’, to which ‘Darth Fetterman’ and his minions have turned in service to the POTUS and the Democrat Empire.

  6. Meanwhile back in Doublestandardstan we can watch Stacey Abrams, not an election denier, complain that losing by about 1 million votes proves that there is voter suppression and a need to ban voter IDs.

    Denying an elections results was good until it was bad and now it will be good again. The media is actually telling the brain damaged voters that they should never vote for anyone that denied an election…oh, and to vote for Abrams.

  7. Democrats try to steal elections by making sure every legitimate voter’s timely vote counts.

    Republicans are always trying to do the opposite.

    1. Seems Democrats aren’t to thoughtful when it comes to military votes. That’s odd???

      Junior, the party that has yelled it is illegal to question election integrity is already questioning the integrity of this election. The hypocrisy of the left is boundless.

    2. Nothing new. LBJ stole the 1948 election for Texas senator. Reagan stole 1980, Bush jr. stole 2000 election. GOP wants to only count votes for their candidates. And so it goes.

  9. The DEMS lost in the DEM controlled PA Supreme Court so now they are in FED court, Good Luck, appeal all the way up to the US Supreme Court and guess who the Supreme Court Justice is Justice Alito – Elas is all over the map, has a good deal going with the DEMS and Elite and Socialist, he gets paid win or lose, Elias will lose, suggest they know it and may be doing this to satisfy their supporters showing they tried and it was Alito that stopped them.

  10. “Controversial election lawyer” = an election lawyer who represents Democrats and often wins.

    1. And often loses spectacularly with the bonus of being booted from his multi-year association with his former law firm. Sanctions provide direction of his methods

    2. Absolutely – Elias wins constantly.
      He wins despite the fact that he pretty much NEVER has a valid legal challenge.

      Elias is singlehandedly responsible for the destruction of the rule of law, and the corruption of elections.

  11. The idea that Fetterman himself decided to do this is sheer fantasy. He makes no decisions. He is non compos mentis, unable to independently conceive or consider such abstractions. To pretend otherwise is idle. He is merely a vessel for his handlers and controllers.

    1. Exactly. That’s why they sent in their big guns, Obama, Biden, etc. to stump for their brain damaged Cyborg.

  13. I guess then that it would make no sense to date (or nowadays “timestamp”) checks, deeds, mortgages, applications for anything at any time for any reason. Isn’t this pretty much a slam dunk against Fetterman and Elias. Doesn’t this border on legally trivial (or whatever the term is), making Elias subject to sanction.

    1. Most of these things if they had a space for a date by a signature and the date was left blank (as it often is) would still be valid and legally binding. It really does not matter if you signed something on Monday or Tuesday in most cases as long as everyone agreed you signed it.

        1. I hope you are correct – because I did not date the signature on my mortgage application so it sounds like I do not have to pay the money back.

        1. Wondering what those “…” stand for? Why does it matter if the ballot arrives before Election Day?

      3. But it would make a difference if you signed it on Wednesday but didn’t date it because you knew Tuesday was the last day of voting, no?

    3. Yep! The US District Court judge should impose sanctions on Elias – and Fetterman’s handlers. (Perhaps, like mrs/dr jill biden, it is Fetterman’s wife who wants to be the wife of someone cmpaigning for federal office. The former so badly wanted to live in the White House that she sacrificed a mentally fragile husband to the D Party.)

  14. Democrats don’t always trivialize technicalities. In 2020, when Al Gore was “engaging in an insurrection” to overturn an election and “destroy democracy”, he objected to overseas military ballots that were not timely postmarked. Quoting CNN:
    “On Wednesday, November 15, 2000, Al Gore lawyer Mark Herron sent a memo to Democratic recount observers telling them how to challenge late-arriving overseas absentee ballots that did not have a valid postmark on them. his would have potentially thrown out the votes of hundreds of military members stationed overseas. . . .
    Democrats argued that they were simply following the laws.
    ‘The idea that people were going to vote after the election and have those votes count, that’s a pretty irregular idea,’ said Ron Klain [!], who served as the Gore campaign’s general counsel.” https://www.cnn.com/2015/11/02/politics/bush-gore-military-ballots
    Yes, that is the same Ron Klain who is now chief of staff to the human houseplant.

    1. It should not matter which Party you belong to.

      WE should all want only citizen’s to vote, only once, only during the election, without anyone looking over their should, and without fear of repercussions over their vote.

      There is only ONE means to do that. Secret ballot in person elections on Election day with ID.

      I would note that the Gore 2000 issue was more complex – because overseas military voters do not mail their own ballots, so the post mark is not when they voted. But that is still a solveable problem.

  15. Isn’t it telling that he hopes to gain by using irregular ballots? Statistically, it should not matter if the improperly marked ballots are ignored. Secondly, this casts suspicion on the validity using improperly marked ballots.

  17. I’m sure they shopped this to a leftist judge, known to ignore clear law to advance the leftist agenda.

    2. It really doesn’t matter. No matter how the District goes it will be appealed to En Banc.

    1. Mr. Chappell, with respect, sir, the term is “disbarred,” not “Debarred.”

  19. The cited provision of Federal law seems to relate not to voting itself but to qualifying to vote. From what I can tell, the issue here is whether a mail-in ballot is valid if undated, not whether a date is material to a determination of whether a person is qualified to vote. The PA Supreme Court appears to have held that the legislature said quite clearly that a date is required for validity, and that appears to be what the voting law says. The cited provision of Federal law simply has nothing to say about that.

    1. The way I read it Fetterman seems to have a reasonable case.

      Turley often opines on how he thinks the court should rule. He did not do so here. That makes me uncomfortable.

      1. Daniel and Anonymous: Methinks the Third Circuit’s decision in the Migliori case is of concern…
        To wit:
        “We are asked to determine if a date on the outside of a mail-in ballot, required under state law, is material to the voter’s qualifications and eligibility to vote. However, in resolving that question, we must decide whether private plaintiffs can even bring this suit to enforce the Materiality Provision…We hold that private plaintiffs have a private right of action to enforce § 10101 under 42 U.S.C. § 1983, and further hold that the dating provisions contained in 25 Pa. Cons. Stat. §§ 3146.6(a) and 3150.16 are immaterial to a voter’s qualifications and eligibility under § 10101(a)(2)(B). Migliori v. Cohen,36 F.4th 153 (3d Cir. 2022).
        Notwithstanding the SCOTUS denial of application to stay (Ritter v. Migliori), this will come up again, maybe in another Circuit? …and I actually agree with Justice Alito’s dissent, to wit :
        “I would agree with
        that decision [to deny stay] were it not for concern about the effect that
        the Third Circuit’s interpretation of 52 U. S. C.
        §10101(a)(2)(B) may have in the federal and state elections
        that will be held in Pennsylvania in November.
        The Third Circuit’s interpretation broke new ground, and
        at this juncture, it appears to me that that interpretation is
        very likely wrong. If left undisturbed, it could well affect
        the outcome of the fall elections, and it would be far better
        for us to address that interpretation before, rather than after, it has that effect.”

        1. (There should be closing quotation marks after “…under § 10101(a)(2)(B).” and before the Migliori citation.
          The next paragraph beginning with “Notwithstanding” is mine. Sorry)

          1. (I have not reviewed/read the PA Supreme Court ruling, but it might have narrowed its ruling to the state legislature’s determination that “materiality” attached to “the security of the vote-by-mail system,” (vis a vis the materiality attaching to an individual voter’s eligibility.)

        2. Thanks Lin. I agree that the decision appears concerning. Alito states it’s very likely wrong. Once again, the SCOTUS’s refusal to resolve these questions creates problems.

          The relevant provision of the Federal law relates to eligibility to vote, not whether a vote by an eligible person has been validly cast. The latter is the subject of the provision of PA law in question.

    1. He won’t be. Elias serves the ruling regime; he’s protected. Just like the protestors banging drums outside Supreme Court Justices’ homes against federal law. They are in service to the regime’s agenda so AG Garland allows lawlessness to continue.

    2. John Durham investigated every right wing/Turley conspiracy theory regarding the things Turley alleges about Elias and others and was laughed out of court twice.

      1. Please read the actual court cases and verdicts.

        Sussman and Danchenko both ADDMITTED to lying to the FBI, to Selling a hoax.

        There defense was the FBI KNEW they were lying – therefore the lie was not material.

        Sussman should have been convicted of filing a false criminal complaint – where it is irrelevant whether law enforcement knows he was lying.

        Otherwise the results were correct.

        Elias was heavily involved in this, but he actions were LEGAL, as were Clinton’s and Danchenko’s.

        Repugnant, but legal.

        Something those on the left do not seem to grasp.

        For those of you on the left – everything anyone on the left does is pure – whether legal or not.
        And everything anyone else does is evil AND illegal.

    3. NOO!

      Lawyers are free to argue in court the positions of their clients, or positions that are unconstitutional or wrong.

      Two wrongs do not make a right.

      Elias should NEVER win the cases he brings – but that is a failure of the COURTS, we need to place the blame where it belongs.

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