Received 7/18/2021 8:05:36 PM Commonwealth Court of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

ANDREW IOANNIDIS, :
Petitioner : 635 MD 2020
:
v. :
:
TOM WOLF, in his official capacity as :
Governor of the Commonwealth of :
Pennsylvania, :
KATHY BOOCKVAR, in her official capacity :
as Secretary of the Commonwealth of :
Pennsylvania, :
Respondents :

APPLICATION FOR RECONSIDERATION AND RE-ARGUMENT EN BANC

Petitioner applies, pursuant to Pa.R.A.P. 2542 and Pa.R.A.P. 3723, for re-consideration and re-

argument en banc of this Honorable Court’s July 8, 2021 Order (“Order”).

Holding that the Certification of the Election and the Subsequent Inauguration have Rendered
Petitioner’s Claims Moot
1. “[T]he party who brings a suit is master to decide what law he will rely upon, and … does

determine whether he will bring a suit arising under the Constitution or laws of the United States”. Bell

v. Hood, 327 U.S. 678, 681 (1946).1

2. Petitioner prayed for preliminary and permanent injunctive relief, declaratory relief, non-

discriminatory investigation and enforcement of violations, an Order requiring Respondents to satisfy

their duties under the law, an Order requiring Respondents to effectuate a full forensic audit of the 2020

General Election, and any other relief provided by law. Order, p.4-5.2

3. “Because this Court may not grant Petitioner the injunctive or mandamus relief that he

requests, the instant matter is deemed to be moot.” Order, p. 9.3

1
This Court acknowledges that Petitioner unequivocally invoked the First and Fourteenth Amendments as the
basis for his claims. Order, p. 6.
2
See Petitioner’s January 19, 2021 Amended Petition for Review.
3
Petitioner’s claims are redressable. See Section IV(c)(iii) of Petitioner’s May 2, 2021 Brief.

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 4. “The key inquiry in determining whether a case is moot is whether the Court or agency will be

able to grant effective relief and whether he has been deprived of the necessary stake in the outcome of

the litigation.” Consol PA Coal Co. v. DEP, 129 A.3d 28, 39 (Pa.Cmwlth. 2015).

5. “Redressability is ‘easily established in a case where, as here, the alleged injury arises from an

identifiable discriminatory policy.’ While we cannot predict ‘the exact nature of the possible relief …

without a full development of the facts, an order enjoining the policy and requiring non-discriminatory

investigation and enforcement would redress the injury.’” Hassan v. City of New York, 804 F.3d 277, 290

(3rd Cir. 2015) (emphasis added).4

6. “[T]he major purpose of the suit may be to obtain a public declaration that they are right and

were improperly treated,’ along with nominal damages that serve as ‘symbolic vindication of their

constitutional rights.’ Given the range of available remedies, redressability is easily satisfied.” Id. at

293.5

7. “When a right is violated, that violation ‘imports damage in the nature of it’ and ‘the party

injured is entitled to a verdict for nominal damages.’” Uzuegbunam v. Preczewski, 592 U.S. _ (2021) (slip

op., at 9).6

8. This Court’s primary objection seems to be that Petitioner is seeking an injunction that compels

Respondents to de-certify the election.7

9. De-certification of an election after a candidate has been sworn-in is an appropriate remedy. It

has been granted in similar, but less egregious, circumstances, explicitly on Fourteenth Amendment

grounds. Marks v. Stinson, 19 F.3d 873 (3rd Cir. 1994).8

4
Petitioner requested injunctive relief.
5
Petitioner requested declaratory relief. Purely symbolic relief is effective.
6
Petitioner requested any other relief provided by law.
7
Petitioner’s complaint doesn’t explicitly mention de-certification.
8
Admittedly, Marks was a down-ticket race. Nevertheless, the proposition stands and is supported by law, “[t]he
President is vested with the executive power of the nation. The importance of his election and the vital character
of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.”

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 10. “Once a right and a violation have been shown, the scope of a district court’s equitable powers

to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v.

Charlotte-Mecklenburg, 402 U.S. 1, 15 (1971).

11. The icing on the cake is that Petitioner is challenging the constitutionality of the Electoral Count

Act (“ECA”). It’s unconstitutional about 17 different ways, and has never been challenged in 130-years.9

12. When the ECA is found unconstitutional it will mean that the vote count that occurred in

January of 2021 is null.

13. The substance of Pennsylvania’s equal protection clause is coterminous with the Fourteenth

Amendment. William Penn School District v. Dept. of Ed., 170 A.3d 414, 457 & n.3 (Pa. 2017) (remanding

an equal protection claim seeking injunctive and declaratory relief).

14. Pennsylvania’s Due Process Clause is substantially equivalent to the Fourteenth Amendment.

Krenzelak v. Krenzelak, 469 A.2d 987, 991 (Pa.1983).

15. In Bognet v. Degraffenreid, __U.S.__ (U.S.), No. 20-740) the Plaintiffs sued before the election

alleging that the deadline extension was unconstitutional because mail-in voters would have more time

to vote and that their lawful votes would be diluted by unlawful late votes. They sought an order

enjoining the counting of ballots received after November 3, and a declaration that the deadline

extension in conjunction with the presumption of timeliness were unconstitutional. They immediately

moved for a preliminary injunction. The District Court found their dilution claim to be generalized and

speculative, but found that they were likely to succeed on the more-time-to-vote claim. The 3rd Circuit

disagreed. The Supreme Court dismissed the claim as moot because it’s pointless to enjoin conduct that

has already occurred – the ballots had been counted. Further, the deadline-extension was for this

election only, which also made it pointless to declare it unconstitutional after-the-fact. The Supreme

Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, J., concurring). This has never been done before, but there’s a
first time for everything.
9
See Petitioner’s February 3, 2021 Reply.

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Court didn’t deny certiorari, it ordered dismissal pursuant to U.S. v. Munsingwear, 340 U.S. 36 (1950),

and thereby opened the door for re-litigation in the past-tense – exactly as Petitioner is doing here.10

16. In Conant v. Brown, 248 F. Supp. 3d 1014 (D. Or. 2017)., Plaintiff brought an equal protection

claim relating to electoral college votes, not general election votes. The Court decided that claim on

standing. Plaintiff also brought a facial challenge to Oregon Statutes that governed the processes for

voting in presidential elections, seeking to enjoin the ascertainment of electors and a declaration that

the statutes were unconstitutional. The Court decided that claim on standing as well, not mootness, but

found “that jurisdiction over Plaintiff’s claims is appropriate to the extent they seek declaratory relief.”

17. Sibley v. Alexander, 916 F. Supp. 2d 58 (D.C. Cir. 2013) was not a Fourteenth Amendment case.

It was decided on standing because the Plaintiff failed to allege fairly traceable harm. To the extent the

Court touched on mootness, it found it pointless to enjoin conduct which had already occurred, akin to

Bognet, because Plaintiff specifically sought “a declaratory judgment that Defendants as electors cannot

cast their Twelfth Amendment votes for . . . Obama . . .” and an injunction to the same effect.

18. “It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v.

Madison, 5 U.S. 137, 2 L.Ed. 60 (1803), it has been well-established that the separation of powers in our

tripartite system of government typically depends upon judicial review to check acts or omissions by

other branches in derogation of constitutional requirements.” William Penn School District, 170 A.3d at

418.

19. “[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue

injunctions to protect rights safeguarded by the Constitution, and to restrain individual state officers

from doing what the 14th Amendment forbids the state to do. Moreover, where federally protected

10
Courts can compel restoration of the status quo ante via injunction. Petitioner’s dilution claim isn’t that unlawful
votes diluted lawful votes. It’s that unlawful Democrat votes diluted his non-Democrat vote. His claim that he had
less-time-to-vote surpasses Bognet’s because it alleges de facto classification. See Section IV(b)(iv) of Petitioner’s
May 2, 2021 brief.

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rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their

remedies so as to grant the necessary relief.” Bell, 237 U.S. at 684.

Conflating Pennsylvania’s Declaratory Relief Act and Election Code with Constitutional Equal
Protection, Substantive Due Process, and First Amendment Jurisprudence
20. “An action seeking declaratory judgment is not an optional substitute for established or

available remedies and should not be granted where a more appropriate remedy is available.” Order, p.

9-10.11

21. “Petitioner utterly failed to avail himself of the foregoing appropriate statutory remedy thereby

precluding the grant of the requested declaratory relief.” Order, p. 11.12

22. This logic was applied to each of Petitioner’s claims, even though there is no support for the

proposition that the Election Code provides any remedy, let alone an appropriate remedy, for

Petitioner’s signature verification, third-party challenge, more-time-to-vote, voter opportunity, and

freedom of association claims. Constitutional jurisprudence dictates that declaratory relief is most

appropriate, and the Pennsylvania Supreme Court has affirmed. William Penn, 170 A.3d 414.13

23. “[I]f a constitutional claim is covered by a specific constitutional provision, … the claim must be

analyzed under the standard appropriate to that specific provision”. U.S. v. Lanier, 520 U.S. 259, 272 n.7

11
This Court finds that a more appropriate remedy is available, but dismisses the case as moot. The case cited to
support this proposition relates only to actions pursuant to the Declaratory Judgements Act. Pittsburgh Palisades
Park, LLC v. Pennsylvania State Horse Racing Commission, 944 A.2d 62 (Pa.Cmwlth. 2004).
12
Respondents did not raise these arguments. Commonwealth v. Dorler, 588 A.2d 525 (Pa.Super. 1991) is a case
about an intervenor-appellant failing to invoke procedural rules to appeal a decision. In re Twenty-First Senatorial
District Nomination, 126 A. 566 (Pa. 1924) was explicitly an election contest initiated under the Commonwealth’s
prior election code, not a constitutional claim. Of course the Election Code applies to actions initiated under the
Election Code.
13
The Election Code is wholly inappropriate to address Petitioner’s dilution claim. He can’t petition to open ballot
boxes in Philadelphia or Allegheny County under Section 1701, or voting machines under Section 1702. These
sections only provide for recanvassing and recounting which would result in simply reprocessing illegal ballots, not
identifying and disqualifying them. Section 1731 is not practicable for citizens like Petitioner who are not affiliated
with any political party and are not involved in politics. Section 1756 relates only to claims that the Primary or
General Election was illegal. The enforcement and penalty provisions of Section 1800 were not pursued and
enforced. See Bradway v. Cohen, 642 A.2d 615 (Pa.Cmwlth. 1994) (holding that the Election Code is inadequate to
address violation of rights).

5
(1997); See also, Commonwealth v. Colavita, 993 A.2d 874, 890 (Pa.2010), Graham v. Connor, 490 U.S.

386, 395 (1989).

24. The Election Code does not abrogate the Constitution. U.S. Const. Article VI, §2. Nor does it

provide exclusive remedies for constitutional violations.

25. The U.S. Supreme Court does not dismiss constitutional civil rights claims for failure to invoke

state Election Code procedures.

26. The Election Code is incapable of addressing Petitioner’s claims.14

Conflating the Election Code with Mootness Exception Doctrines

27. “[W]e are not inclined to apply any of the foregoing exceptions to the mootness doctrine in this

case because Petitioner failed to avail himself of the statutory remedies provided in the Election Code

prior to filing the instant Amended Petition for Review.” Order, p. 9.

28. Metcalfe v. Wolf (Pa.Cmwlth., No. 636 M.D. 2020, filed December 9, 2020) is not applicable. The

Plaintiffs were political and alleged Election Code violations. Petitioner alleged Constitutional violations.

The Pennsylvania Supreme Court has not held that their past cases have firmly adhered to the principle

that proper remedies for violations of the Constitution are to be found within the comprehensive

legislative framework of the Pennsylvania Election Code.15

29. There is no precedent for the proposition that the Election Code must be adhered to in order to

satisfy any exception to mootness in constitutional cases.

14
Justice Thomas lends further support: https://www.supremecourt.gov/opinions/20pdf/20-542_2c83.pdf
15
Much has been said about Petitioner’s original Petition and December 11 Emergency Application. Petitioner
graduated from law school in 2018. He just turned 29 years old. Out of law school he worked for a non-profit
representing poor people in domestic violence cases. Then he represented PennDOT in eminent domain cases. He
had no experience litigating torts or against the government. He had no experience with the Election Code or the
First and Fourteenth Amendments. He’s not ashamed to learn from smarter and more experienced attorneys. He
only pleaded Election Code violations in his December 11 Application in order to challenge the ECA. See ¶93-106.

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 30. In sum, this decision holds that the Election Code must be observed only if a Petitioner seeks

declaratory relief or a mootness exception in a constitutional civil rights case.

Deeming Petitioner’s Challenges to the ECA Waived

31. “Petitioner first raised the issue regarding the constitutionality of the Electoral Count Act of

1887, 3 U.S.C. §§5 and 15, in his January 8, 2021 Reply and Application for Leave Nunc Pro Tunc relating

to one of his emergency applications; therefore, as it was not originally raised in his Amended Petition

for Review, it is waived.” Order, p.7 n.5.

32. Petitioner may challenge the ECA because it relates to his claims. This Court can “pronounce any

statute, either of a State or of the United States, void, because irreconcilable with the Constitution”

when “it is called upon to adjudge the legal rights of litigants in actual controversies.” Brouillette v. Wolf,

213 A.3d 341, 351 (Pa.Cmwlth. 2019).

33. The case cited to support this holding is off-target. It was decided on a motion for summary

judgment, not a motion to dismiss as moot. The issue concerned a regulation promulgated during the

course of litigation that clarified the statute that Plaintiffs were alleging to be unconstitutionally vague.

When the regulation was issued clarifying the statute, the bottom of the claim fell out. The Plaintiffs’

claim was predicated upon the statute itself being unconstitutionally vague. The Court held that

Plaintiffs couldn’t then pivot to the regulation being unconstitutionally vague because the claim itself

evaporated. There were no legal rights for the Court to adjudge. Pennsylvania Medical Providers

Association v. Foster, 613 A.2d 51 (Pa.Cmwlth. 1992).

34. Only preliminary objections require the Court to resolve issues solely on the basis of pleadings.

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208 (Pa.Super. 2012).16

16
Hence, mootness is properly raised via motion.

7
 35. This Court considers matters collateral to the complaint in deciding mootness. Hamilton

Contracting Co. v. Department of Environmental Resources, 494 A.2d 516 (Pa.Cmwlth. 1985). As does

the Supreme Court. Wiegand v. Wiegand, 337 A.2d 256 (Pa. 1975) (constitutional challenges collateral

to divorce complaint may be raised at trial court level).

36. “Our Supreme Court has frequently stressed the necessity of raising claims at the earliest

opportunity …” Jahanshahi v. Centura, 816 A.2d 1179, 1189 (Pa.Super. 2003).17

37. “If the defendant . . . claims that some development has mooted the case, it bears the heavy

burden of persuading the court that there is no longer a live controversy.” Hartnett v. Pa. State Educ.

Ass’n, 963 F.3d 301, 305-306 (3rd Cir. 2020) (citing Friends of the Earth v. Laidlaw, 528 U.S. 167, 189

(2000)).18

Pa.R.A.P. 2544(a)(3)

38. This Court overlooked and misapprehended a substantial body of controlling and directly

relevant authority pursuant to Pa.R.A.P. 2543(3).

Pa.R.A.P. 2544(a)(4)

39. The opinion associated with the Order is appended hereto as Exhibit A.

The Fight That Counts

40. “The government of the United States has been emphatically termed a government of laws, and

not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the

violation of a vested legal right.” Marbury, 5 U.S. (I Cranch) at 163.

17
Acknowledgment that claims may be raised outside the four corners of the complaint, consistent with Pa.R.A.P.
302(a). See Gross, 382 A.2d 116, 119 (Pa. 1978) (changes in facts/law outside of complaint are relevant).
18
If Defendant has the burden, then there are considerations apart from the complaint.

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 41. It all started in Gettysburg. Petitioner understood that if they were able to do this to someone

as popular as Donald Trump (75,000,000 votes minimum), then there is nothing that will ever be able to

stop them.19

42. The implication of this Court’s decision is that there is literally nothing the average person can

do to enforce their fundamental voting and associational rights. The Governor and the Secretary are

permitted to ravage the Constitution and steal an election – just so long as nobody catches on during

the three weeks that follow.20

43. As it stands, the only citizens allowed to vindicate their rights are those who are extremely

involved in politics and therefore able to perceive violations first-hand, or, those who are willing to risk

everything and file suit based on absolute conjecture from a notoriously loud and disgruntled apparent

loser. Considering Petitioner is neither, this Court’s decision finds that his constitutional rights are

effectively meaningless.

WHEREFORE, Petitioner requests that this Honorable Court reconsider its July 8, 2021, Order en

banc, and enter an Order vacating it pursuant to 42 Pa.C.S. §5505, Pa.R.A.P 3723, and Pa.R.A.P. 2546(b).

Petitioner requests that the vacation Order also overrules Respondents’ Preliminary Objections and

dismisses their Motion to Dismiss as Moot. In the alternative, Petitioner requests that the Court enter an

Order that expressly grants reconsideration of its July 8 Order, in accordance with Pa.R.A.P. 1701(b)(3),

and schedules re-argument en banc. Petitioner requests that this Court enter said Order by August 6,

2021, and grant any other relief it deems appropriate and just.

19
It took Petitioner about a month to prove that the Democrats stole the election. See Petitioner’s January 19
Application. (If a PDF link has a hyphen at the end of a line, then the hyphen doesn’t copy when the link is pasted
into a web-browser)
20
Because state law supersedes the Constitution.

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 Respectfully submitted this 18th day of July, 2021,

By: /s/ Andrew Ioannidis

457 Pleasant View Road
New Cumberland, PA 17070
ioannidisLaw@gmail.com
908-268-7571
Attorney ID: 326060
Petitioner

CERTIFICATION
I verify that the statements contained in the foregoing Application for Reconsideration and Re-

argument are true and correct to the best of my knowledge in part and information and belief in

part. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S.

Section 4904 relating to unsworn falsification to authorities.

I also certify that it complies with the word-count established by Pa.R.A.P. 2544(d)(1).

Respectfully submitted, this 18th day of July, 2021.

By: /s/ Andrew Ioannidis

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