The Kansas City Star
Hawley proved he’s not just antidemocratic in coup attempt. He’s also a sloppy lawyer
Alan Howard – February 10, 2022
A prime example of bad lawyering is when a lawyer loses a possibly winnable case because he misses an important legal deadline. A recent decision by a Pennsylvania court suggests that is essentially what Sen. Josh Hawley of Missouri did when he waited until Jan. 6, 2021, to oppose Pennsylvania’s “no excuse” mail in voting law on the floor of the U.S. Senate.
Late last month, by a 3-2 margin, a lower court in Pennsylvania decided in the McLinko v. Commonwealth of Pennsylvania case that the state’s no-excuse mail-in voting law conflicted with a provision of the state constitution. But all of the five lower court judges, Republicans and Democrats, unanimously reaffirmed what the Pennsylvania Supreme Court had previously ruled in the December 2020 case of Kelly v. Pennsylvania: that after an election is held, the no-excuse mail-in votes must be deemed legally valid because it is legally too late to disqualify those votes. But that is exactly what Hawley tried and failed to do on Jan. 6.
In addition to being legally invalid, Hawley’s objection to the Senate certification of Pennsylvania’s Electoral College votes for President Joe Biden was inequitable and antidemocratic. Hawley challenged the legitimacy of America’s 2020 presidential election, and sought to cancel millions of votes legally cast by the people of Pennsylvania, on the basis of a legal argument that had already been rejected by the highest state and federal courts. Hawley falsely suggested that the United States, the longest continuous democracy on the planet, allowed its citizens to cast and count millions of illegal votes for the most powerful political office in the world. By improperly seeking to discredit and disallow Pennsylvania’s electoral votes for Biden, Hawley collaborated with Donald Trump’s corrosive effort to convince the American people — and the world — that America’s presidential election was improper and illegal.
As a matter of law, Hawley was wrong to base his attack on Pennsylvania’s votes on a legal premise that had already been rejected by the state’s Supreme Court in the Kelly case. As a trained lawyer, Hawley must have understood that the argument he made on the floor of the Senate had already been rejected by the judiciary on the basis of an overriding procedural doctrine, the doctrine of laches, which applied equally to Hawley’s untimely objection.
In applying the doctrine of laches to uphold the legitimacy of the mail-in votes cast in Pennsylvania, the state Supreme Court correctly held that there was an overwhelming need to protect the legitimate reliance of the Pennsylvania voters on a then-unchallenged state law that clearly authorized their no-excuse mail-in votes at the time the votes were cast. It is a shame that Hawley did not apply such an enlightened and legally grounded approach to respect and protect millions of legally cast votes by American citizens when he made his theatrical stand in the Senate.
The laches law applies equally Hawley’s Electoral College challenge. Like the tardy and defeated plaintiffs in Kelly, Hawley was seeking no less than the “disenfranchisement of millions of Pennsylvania voters,” as the Pennsylvania high court phrased the issue, contrary to applicable law as already determined by the applicable and final judicial rulings.
All of the judges in the recent McLinko case, Republicans and Democrats, sent a powerful message to anyone — Hawley, Trump, or anyone else — who thinks, however without basis, that mail-in votes are inherently a threat to electoral integrity that they must bring their legal challenges before voters reasonably rely on the laws to cast their ballots. Nothing stopped anyone with standing from challenging the Pennsylvania no-excuse mail-in voting law before the 2020 presidential election. (Indeed, that is what the plaintiffs have so far successfully done in the McLinko litigation for the next Pennsylvania election.)
Hawley’s failure to enlist a plaintiff in Pennsylvania to do so before the 2020 election, but instead asking the U.S. Senate to unfairly disenfranchise millions of Pennsylvania voters after the election in violation of the controlling equitable doctrine of laches, was a colossal example of bad lawyering — but far more important, it was shamefully inequitable, anti-democratic and anti-American voter.
Alan Howard is a professor of law emeritus at the St. Louis University Law School, where he taught constitutional law. He co-authored this with his brother Bruce Howard, an attorney in Los Angeles and a former professor of law at the University of Southern California Law School.