Lawsuit over Pennsylvania vote handling faces skeptical federal judge

Republicans point to Bush v. Gore as precedent

An election-themed sign is on display in West Philadelphia on Tuesday, Nov. 3, 2020. (Caroline Brehman/CQ Roll Call)
An election-themed sign is on display in West Philadelphia on Tuesday, Nov. 3, 2020. (Caroline Brehman/CQ Roll Call)
Posted November 4, 2020 at 1:17pm

A federal judge in Pennsylvania expressed skepticism about a Republican challenge to the handling of mail-in votes Wednesday, as multiple lawsuits hang over ongoing counting efforts in the key swing state.

Kathy Barnette, the Republican challenger to Democratic Rep. Madeleine Dean, argued election officials in suburban Montgomery County violated election law by opening some ballots early and letting voters correct any deficiencies.

The Associated Press has called the race in Dean's favor, by some 40,000 votes.

But the suit plays into broader criticisms of the handling of mail-in voting by Democrats in the state, particularly Secretary of State Kathy Boockvar.

The attorney for the plaintiffs, Thomas Breth, argued that state law has no provision to let voters correct deficiencies, such as a missing secrecy sleeve, and have their vote be counted.

“I mean there, there is concrete evidence that this, this could result in impacting not only the congressional candidate selection versus Barnette but also the entire election in the Commonwealth of Pennsylvania,” Breth said.

However, U.S. District Judge Timothy Savage had trouble bridging the gap from a county deviation from the state norm to a concrete harm to the election process.

“I don't understand how the integrity of the election was effected. That's what I'm looking for,” Savage said.

Additionally Breth argued the state would effectively be treating voters differently based on the county they lived in, which runs afoul of the Supreme Court decision in Bush v. Gore that tossed several Florida counties’ recount procedures.

Savage similarly questioned that analogy, noting that the Bush v. Gore case dealt with a post-election process.

Just after noon Wednesday, the state had finished counting just over half of more than 2.5 million mail-in ballots. President Donald Trump preliminarily lead the state with 53 percent of the vote to former Vice President Joe Biden’s 45 percent.

The plaintiffs argued for an injunction sequestering the ballots Montgomery County has opened and potentially set them aside.

A prior state supreme court decision held that ballots mailed without a secondary secrecy sleeve could be rejected.

Michele Hangley, defending Montgomery County, argued that state law has no provision preventing a county from helping voters correct their ballots.

“It’s consistent with the code and also consistent with every notion of due process and justice,” Hangley said. ”The election code is not meant to be a trap, it’s not meant to trick voters into losing their vote.”

The parties in the case, which also includes interventions from the Democratic National Committee and state Democratic party as defendants, will file briefs Thursday and Friday.

Rep. Mike Kelly, R-Pa., along with several Republican officials in the state, filed a separate suit Tuesday arguing a broader violation of election law brought on by Boockvar.

The suit alleged Boockvar sent “extraordinary” instructions to county officials statewide on Monday, allowing them to open ballots to see whether they were contained in the secrecy sleeve. Officials could then contact voters to allow them to cast a provisional ballot, which the suit argued violates state law.

The Kelly case is scheduled for a closed hearing Wednesday afternoon in a Harrisburg state court.