After coming under fire on social media, Pittsburgh lawyers Ron Hicks and Carolyn McGee have asked to be removed from a federal lawsuit that seeks to undo votes cast in Pennsylvania.
The attorneys represent the Trump campaign and two Pennsylvania voters in the matter, but on Thursday they requested permission to withdraw from the suit. In a two-page memo, the litigators did not provide a reason for their request, except to say they had reached a “mutual agreement” with the plaintiffs that the “plaintiffs will be best served” if Hicks, McGee, and their firm, Porter Wright Morris & Arthur LLP, bow out of the case.
Neither the firm nor the attorneys could be reached for comment, but their request to withdraw from the suit came two days after the Lincoln Project, an anti-Trump effort launched by Republican political consultants, denounced them on Twitter. Other Porter Wright associates reportedly were alarmed by their firm’s role in the Trump campaign’s legal fight.
The Lincoln Project's Twitter account has 2.7 million followers. On Tuesday, it criticized Porter Wright and another firm closely aligned with the Trump campaign, Jones Day, in several tweets. One encouraged the firms’ employees to resign in protest of their employers’ involvement in election litigation, while another that included Hicks’ and McGee’s photos, along with their work phone numbers and email addresses, was soon deleted.
Their employees should resign in protest. https://t.co/s6LK9uNBwq
— The Lincoln Project (@ProjectLincoln) November 10, 2020
The day before the Lincoln Project targeted them on social media, the attorneys had joined Philadelphia lawyer Linda Kerns in filing a lawsuit that asks a federal judge to stop the state from certifying election results, or to throw out entire categories of mail-in ballots. (Kerns will remain on the case, according to Hicks and McGee’s motion to withdraw.)
The complaint, filed in federal court in Harrisburg, claims that counties mismanaged vote-by-mail procedures. It also objects to the fact that some counties gave voters the opportunity to fix minor errors on their ballots, and it broadens previous allegations that Republican monitors were prevented from observing vote counting.
Pennsylvania Secretary of State Kathy Boockvar filed a motion to dismiss the case Thursday.
Hicks, who was tasked with leading the Trump campaign’s legal efforts in Pennsylvania, also represented the campaign in a lawsuit it won Thursday: A Pennsylvania Commonwealth Court judge barred counties from tallying a small number of mail-in votes from people who failed to provide required identification within six days of the Nov. 3 election.
While the Lincoln Project accused Porter Wright of “trying to overturn the will of the American people,” Duquesne University law professor Bruce Ledewitz said some of the questions its suit raised about voting procedures could be legitimate.
Defend your democracy:
1. Created a LinkedIn account.
2. Message someone who works at @JonesDay or @PorterWright.
3. Ask them how they can work for an organization trying to overturn the will of the American people. https://t.co/Q3NR5xM4tjhttps://t.co/65DOcAUHYb
— The Lincoln Project (@ProjectLincoln) November 10, 2020
“I don't think that people should be upset if claims are brought that are not frivolous and false and exaggerated, but raise genuine legal issues. That seems like an odd criticism to make of a lawyer,” Ledewitz said.
He noted that he “would not bring these cases” himself because, “I think, in fact, the president is using this to undermine democracy in America, and so I wouldn't want to be part of it.” But he added, “that doesn't mean that the lawyers bringing these cases see them the same way: They may see them as legally valid. ... They may be bringing them so that the president's claims can be heard entirely properly, just the way that I used to represent clients I thought were guilty in criminal cases.”
Ledewitz noted that the plaintiffs will eventually be expected to turn over more evidence in Monday’s suit but that, unlike previous matters, it does not focus on allegations of voter fraud, for which there is little to no evidence.
The complaint does, however, briefly mention that nine military ballots in Luzerne County had been discarded, even though election officials had determined the incident was a mistake, not fraud. In addition, the complaint cites a debunked Project Veritas report that accused postal workers in Erie County of backdating mail-in ballots. That report was based on the account of a mail carrier who admitted on the day the lawsuit was filed that he fabricated the allegation.
University of Pittsburgh law professor Jessie Allen said legal claims that revolve around such stories could be deemed frivolous under court rules, unless the Trump campaign can offer additional evidence to back them up.
“What lawyers clearly can't do is make stuff up or misrepresent things, as to suggest that things are real that they know are not real, kind of throw together a lot of vague accusations that aren’t tied to any specific matters, [or] just generally gin up lawsuits that they know are going to ultimately prove to be baseless,” Allen said.
Such transgressions could potentially be grounds for sanctions. But even if a Trump lawsuit were to be dismissed as unfounded, Ledewitz said, “I wouldn’t be shocked if no [disciplinary] action were brought.”
“In general, it’s a pretty rough and ready area of law," Ledewitz said of election law. “And things are said and even written down that are really not proper, sort of all the time.”
Regarding the Trump campaign’s objections to vote-by-mail protocols, both Ledewitz and Allen said the campaign should have brought those claims before the election, when mail-in ballot procedures were already set. Neither professor expects a judge to toss out any votes.
“You don't file these claims after the election,” Allen said. “These [vote-by-mail] procedures, [the plaintiffs] were aware of these for weeks, some of them for months.”
“You can't disenfranchise all these people who relied upon these existing procedures in casting their votes,” she said.