The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Motion to Recuse Justice Barrett Filed, But County Wants It Withdrawn

The motion was submitted on behalf of the Luzerne County Board of Elections but Luzerne County has voted to have the motion withdrawn.


On Tuesday morning, lawyers for the Luzerne County Board of Elections filed a motion seeking to have Justice Amy Coney Barrett recuse from Republican Party of Pennsylvania v. Boockvar, in which Pennsylvania Republicans are challenging the Pennsylvania Supreme Court's interpretation and application (and, in the plaintiffs' telling, rewriting) of Pennsylvania election law. The motion cites my Monday evening blog post on whether Justice Barrett should recuse from 2020 election litigation.

On Tuesday evening, the Luzerne County Council voted 7-4 to withdraw the motion. Among the reasons is that the attorneys for the County BOE apparently filed the motion without first raising the issue with county officials. From a PAHomepage Eyewitness News report:

Luzerne County officials were surprised to learn lawyers representing the county filed a motion asking Justice Amy Coney Barret to recuse herself in the United States Supreme Court decision over the mail-in ballot deadline in Pennsylvania. . .

Larry Moran of Joyce Carmody and Moran filed the motion along with Joseph Cosgrove of Selingo and Guagliardo. The county hired Moran's private firm when the Trump campaign filed civil action against 67 Pennsylvania counties this summer, citing the handling of mail-in-ballots. Moran says this motion is part of that.

"It was a decision by me, the owner of the firm that was assigned with the task of winning the lawsuit and defending Luzerne County," Moran said. . . .

During Tuesday night's council meeting Vito Deluca said the Luzerne County Office of Law was not involved in the filing.

"We will be just as interested to hear what possible reason there would be for filing this without having any discussion with council and putting Luzerne County in the spotlight," Deluca said. . . .

As detailed in this news report, the County initially voted 6-5 not to request a withdrawal of the motion, but two council members reversed their position after an extensive debate.

According to this report, the lawyer who filed the motion claims other Pennsylvania counties joined in the motion, though no other counties are listed on the motion or otherwise identified as supporting the motion on the docket. While justices will consider any motion to recuse that is filed by a party to a case, such a motion is not necessary for a justice to recuse.