Two attorneys who were involved in efforts to challenge the results of Pennsylvania’s 2020 presidential election are representing the Lancaster County Board of Elections in a lawsuit recently filed by a labor union-backed group over the counting of mail-in ballots.
Philadelphia-based lawyers Walter Zimolong and James Fitzpatrick are defending the county in the Court of Common Pleas over the rejection of some mail-in ballots in the April 23 primary.
At issue are instances in which voters omitted adding the last two digits of the year to the date under the signature line on the return ballot envelope. In the primary, Lancaster County used redesigned ballots that included two empty boxes next to “20” for voters to fill out the digits of the year.
While Lancaster County officials did not count ballots missing the last two digits of the year, the Pennsylvania Department of State had issued guidance to counties ahead of the primary directing them to do so.
The result was a pattern familiar to Pennsylvanians now: some Democratic-led counties followed the guidance from a Democratic governor’s administration, while some Republican-led counties chose to ignore it.
How the Lancaster County case ultimately plays out could have significant influence on the outcome of the 2024 presidential election and other races on the ballot this fall. And the hiring of two experienced attorneys with deep ties to the Republican Party could signal Lancaster County officials’ intent to vigorously defend their positions on mail-in ballots.
Commissioners Josh Parsons and Ray D’Agostino, who comprise two of the three members of the county Board of Elections, have blasted the 2019 law, Act 77, that introduced no-excuse vote-by-mail to Pennsylvania and called for its repeal.
The commissioners have blamed expanded access to mail-in ballots for sowing distrust among voters on the veracity of elections. Parsons and D’Agostino have said in recent years that Act 77 has inevitably brought more technical problems and administrative errors to Pennsylvania elections, causing unnecessary confusion and chaos to the election process.
“Nobody wants errors to happen,” D’Agostino said in September 2022. “Commissioner Parsons said it very well yesterday, but unfortunately this is going to continue, potentially, to happen all over the state because of the way the law is now.”
The two commissioners have maintained that election practices encouraged by the Department of State or sanctioned by the courts – such as the use of ballot drop boxes and pressures to count mail-in ballots that aren’t properly signed or arrive on time – are not codified in state law and are therefore not legal.
Democrats and voting rights groups have also criticized Act 77 for its vague language, including its directives on mail-in ballots and limits on processing ballots ahead of Election Day. A divided General Assembly has been unable to address some of the law’s biggest warts, leaving election officials across the state to navigate guidance from state officials, judges and county commissioners, some of which changes from election to election.
Parsons and D’Agostino did not respond to a request to comment for this story. Democratic Commissioner Alice Yoder, who was not in office when the commissioners approved a contract with Zimolong’s firm, also did not respond to a request for comment.
Attorney history
LNP | LancasterOnline reached Zimolong on the phone. The attorney said he was in the middle of work and could talk another time. He did not respond to subsequent voice messages.
Zimolong has not yet submitted anything in the case filed only three weeks ago. On Thursday, the case was reassigned to Lancaster County Court of Common Pleas Judge Jeffrey Conrad after Judge Thomas Sponaugle recused himself from the case.
President Judge David Ashworth said Sponaugle stepped away from the case because he will be on the ballot in 2025, when he runs for retention.
Zimolong has long championed anti-union legal causes and, more recently, headline-grabbing lawsuits over pandemic shutdowns, a transgender teacher and a local fight over displays of the “Thin Blue Line” flag.
In the days following the 2020 presidential election, Zimolong filed a federal lawsuit asking a judge to throw out the election results from four Democratic-heavy counties. The legal complaint used claims of voting “irregularities” put forward in court filings by the Trump campaign in another lawsuit in Pennsylvania.
Zimolong withdrew the complaint six days after filing the lawsuit.
An anti-Trump group, the 65 Project, went after Zimolong for his 2020 lawsuit by asking the Pennsylvania court system’s disciplinary board to take action against him.
The group, which seems to have gone dormant in the last year, filed the complaint against Zimolong in 2022. No action was taken, according to the disciplinary board’s website.
More recently, Zimolong has acted as co-counsel with America First Legal, which has filed lawsuits to stop “woke” practices in different venues of American life.
On June 19, Zimolong posted on X that he had met with leaders of the Republican National Committee, including co-chair Lara Trump, on an “election integrity game plan” for the upcoming presidential election. “We will not let a repeat of 2020 occur,” he wrote.
Fitzpatrick, who works at Zimolong’s firm, was an attorney for the Trump campaign four years ago. He pitched a scheme to a number of Republicans to sign onto an alternate slate of electors that would be submitted to Congress ahead of the Jan. 6 certification of the election results, according to previous reporting from LNP | LancasterOnline.
More recently, Fitzpatrick was an attorney for the Nikki Haley presidential campaign, according to his biography.
Zimolong and Fitzpatrick have also represented Lancaster County in a federal lawsuit filed in 2022 by civil rights groups claiming that the rejection of undated mail-in ballots violated a provision in the 1964 U.S. Civil Rights Act that sought to address racial discrimination in voting.
In March, the 3rd Circuit Court of Appeals reversed a previous decision in favor of the civil rights groups, saying the 1964 law only applied to requirements for registering to vote.
The 3rd Circuit declined to reconsider the case in April. Earlier this month, the plaintiffs submitted a new complaint arguing the rejection of undated ballots violates the equal protection clause of the Fourteenth Amendment because Pennsylvania handles overseas and military ballots differently.
Also earlier this month, the York County Board of Elections swapped its counsel in the same case for Zimolong and Fitzpatrick.
The pair of attorneys have been outside counsel for Lancaster County since July 2022, when the board commissioners approved a contract with Zimolong’s firm.
Under the agreement, Zimolong’s rate is $295 an hour and Fitzpatrick is to receive $275 an hour for representing the board of elections in “election law-related matters.”
In April last year, Zimolong gave $3,000 to Commissioner Josh Parsons’ campaign committee.
