Special elections for two Pa. state House vacancies will be held Feb. 7, court rules

The special elections to fill two vacant seats in the Pennsylvania state House — the subject of a contentious fight between Democrats and Republicans — will be held Feb. 7, the Pennsylvania Commonwealth Court ruled Friday.

That’s a victory for Democrats, who had sought to hold the elections that day to bring the chamber to full capacity as quickly as possible. House Democratic Leader Joanna McClinton of Philadelphia had issued writs to schedule the elections on that date, but House Republican Leader Bryan Cutler of Lancaster County had issued competing writs for May 16, the date of the primary election.

Both claimed to be the majority leader with control of the state House — leading to the legal showdown over which writs were valid. The court said Cutler, who had brought the lawsuit, hadn’t met the bar for blocking McClinton’s writs. But it stayed away from answering the underlying question of which party had a majority. Judge Michael H. Wojcik, elected to the bench as a Democrat, wrote in the order that the majority question is a political one, not a legal one for the courts.

Cutler disagreed with the ruling Friday, leveling heavy criticism at the court: “Instead of resolving a dispute where the answer was self-evident based on the numbers, the court took the path of least resistance and thereby weakened the foundations of our republic and faith in the rule of law.”

A spokesperson for Cutler and House Republicans declined to comment on whether they were considering an appeal to the state Supreme Court.

House Democrats applauded the court, with a spokesperson calling the decision “good news for the nearly 200,000 Allegheny County residents currently without representation in the state House.”

The question of when to hold elections to fill vacancies is normally simple: The Pennsylvania constitution says the presiding officer of the state House issues writs to schedule special elections when vacancies occur. That’s normally the speaker of the House; when there’s no speaker, the majority leader takes on those responsibilities.

In December, when there was no speaker, both Cutler and McClinton claimed to be the majority leader — thus issuing the competing writs.

The question of which party had a majority had become a bitter fight between Republicans, who held control for more than a decade, and Democrats, who won the slimmest of majorities in November’s election.

Shortly after Democrats won 102 of the House’s 203 seats, it became clear that control of the chamber would be complicated: One Democratic incumbent died shortly before winning reelection, and two others were also elected to higher office. That left Democrats with only 99 seated members when the session began this month — fewer than Republicans’ 101-member caucus.

“This case was about who can exercise certain functions based upon simple numbers,” Cutler said in Friday’s statement. “House Republicans remained steadfast and consistent in our desire to hold elections and fill these seats in the normal course of business, and not through illegitimate loopholes.”

Both Cutler and McClinton issued writs for a Feb. 7 special election for the 32nd District seat left empty by the death of Rep. Tony DeLuca; though they both claimed to have sole authority to schedule that election, they told the court they were in agreement on that date, and it was quickly settled.

But they fought over the other two seats.

The 34th and 35th Districts — which, like the 32nd, are Democratic districts in the Pittsburgh area — were left empty after Summer Lee was elected to Congress and Austin Davis was elected lieutenant governor.

They submitted their resignations in early December, after the 2021-22 legislative session ended Nov. 30 — and before the new two-year session began this month.

And in that interregnum, McClinton said she was majority leader and issued the writs for Feb. 7.

Cutler said he was majority leader, accused McClinton of trying to seize power — a “paperwork insurrection” — and filed writs of his own for May 16.

In its order early Friday afternoon, the court declined to step into that fight, saying the majority leader question is “nonjusticiable,” or a political question to be handled in the political realm, not a legal one to be answered in the courts.

Wojcik said an opinion explaining the order would come later, so there was no further immediate explanation from the court. Issuing an order before an opinion is uncommon but allows courts to quickly make a decision in important and time-sensitive matters. Pennsylvania courts have done so several times in election-related litigation in recent years.

A panel of three judges — Wojcik; Lori Dumas, an elected Democrat; and President Judge Renée Cohn Jubelirer, elected as a Republican — held a virtual hearing in the case Wednesday.

Time was short in this case.

Elections are complex, and decisions have to be made far in advance, such as finalizing polling places, securing enough poll workers, printing and sending mail ballots, and testing voting machines.

Allegheny County had begun preparations to hold an election Feb. 7 in all three districts, and a lawyer for the county urged the judges to move quickly.

“The vendors have not begun to mail [ballots], but I do want to be mindful in explaining to the court that of course that has to happen next week for practical purposes if Feb. 7 is a go,” lawyer Lisa G. Michel said at the hearing, “then they have to get into the hands of those voters and returned to us by mail or by delivery to our offices. So that’s a short window.”

A county spokesperson said Friday she didn’t immediately know when ballots would begin to be printed and mailed.

“We’re glad that this issue has been resolved and that voters now have certainty on when they will go [to] the polls to fill all three of the current House vacancies,” Allegheny County spokesperson Amie Downs said in a statement. “As we have indicated previously, the Elections Division had begun preparations in earnest for the upcoming special elections and will continue to proceed full speed ahead with its work.”

Staff writer Gillian McGoldrick contributed to this article.