HARRISBURG – The Supreme Court of Pennsylvania ruled 5-2 on Tuesday that the City of Philadelphia did not violate state election law, when a polling place observer representing President Donald Trump’s campaign was not allowed “meaningful access” to see election workers counting mail-in and absentee ballots.
The ruling overturns an earlier one from the Commonwealth Court of Pennsylvania, which said Trump campaign observers were permitted to stand six feet away from the ballot counting tables, as long as COVID-19 safety protocols were being followed.
Though the Commonwealth Court ruling affected a small number of ballots, the Trump campaign labeled the decision as a “major win” and used it to propel its claims in several court actions that voter fraud had allegedly taken place.
The state Supreme Court, however, determined that said observers had no right under state law to stand any given distance away from election workers, and it was up to individual counties where observers were permitted to be stationed.
Supreme Court of Pennsylvania Justices Max Baer, Christine Donohue, Kevin M. Dougherty, Debra Todd and David N. Wecht spoke for the Court’s majority, while Chief Justice Thomas G. Saylor and Sallie Updyke Mundy dissented.
Todd authored the majority opinion for the Court.
Todd explained that attorney Jeremy Mercer observed the pre-canvassing and canvassing process from various vantage points over the course of the day, and that Mercer had complained he couldn’t see signature declarations or other markings on envelopes.
But the state Supreme Court countered that Mercer would only have needed such information if his “primary motivation” was to challenge the validity of individual ballots – which state law would not permit him to do, as an observer.
“Such challenges are not permissible under the Election Code. Thus, as found by the trial court, attorney Mercer was able to appropriately observe that the Board’s employees were performing their duties under the Election Code. We conclude the Board did not act contrary to law in fashioning its regulations governing the positioning of candidate representatives during the pre-canvassing and canvassing process, as the Election Code does not specify minimum distance parameters for the location of such representatives,” Todd said.
“Critically, we find the Board’s regulations as applied herein were reasonable in that they allowed candidate representatives to observe the Board conducting its activities as prescribed under the Election Code. Accordingly, we determine the Commonwealth Court’s order was erroneous. Thus, we vacate that order, and reinstate the trial court’s order.”
Justices Saylor and Mundy dissented, and each wrote their own opinion in that measure.
“The Commonwealth Court reasonably directed election officials in Philadelphia to move restrictive barriers in the Convention Center closer to the ballot-canvassing operations, which had been staged up to 35 yards from the areas to which the statutorily-authorized candidate representatives were confined,” Saylor said.
“Under the Commonwealth Court’s order, these representatives could then observe whether ballots were being counted lawfully to the best of their ability, consistent with health and safety restrictions. The record – as well as publicly-available video recordings from the Convention Center – amply demonstrate that this simply wasn’t the case previously.”
Saylor said unless fraud could be shown, he could not see “any real issue.”
“Short of demonstrated fraud, the notion that presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities that have been redressed – thus disenfranchising potentially thousands of voters – is misguided,” Saylor stated.
“Accordingly, to the degree that there is a concern with protecting or legitimizing the will of the Philadelphians who cast their votes while candidate representatives were unnecessarily restrained at the Convention Center, I fail to see that there is any real issue.”
Mundy said the issue is not “capable of repetition but likely to evade review,” as the Court’s majority found.
“Based on the particular circumstances surrounding this election, and the volume of mail-in ballots cast due to the current global pandemic, I disagree with the majority that the ‘issue before us is one which is capable of repetition but likely to evade review.’ As such, I join Chief Justice Saylor’s dissenting opinion in full,” Mundy said.
“[Mercer] was merely requesting the ability to be able to observe the ballots in order to accurately relay compliance information. The Commonwealth Court’s order and the subsequent mutual agreement of the parties in the federal action did precisely that, and I would not disturb it. Accordingly, I dissent.”
Supreme Court of Pennsylvania case 30 EAP 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com