Is This GOP Attempt To Toss Out Ballots In Pennsylvania A Preview Of The Fun In Store?

Can't hardly wait!

The president promised an army of poll watchers descending on Pennsylvania for election day, and it appears this is one promise he’s keeping. This morning a longshot Republican congressional candidate and a state elector filed suit in the U.S. District Court for the Eastern District of Pennsylvania to stop the Montgomery County Board of Elections from contacting voters to allow them to come in and “cure” defective mail-in ballots today.

Pundits have predicted problems with Pennsylvania’s ballots for weeks now due to persnickety signature requirements and a mandatory inner security envelope. Other states have longer experience with mail-in voting and allow election officials to begin counting ballots, or at least preparing them to be quickly counted on election day. But in Pennsylvania, officials aren’t even allowed to open the outer envelopes until the day of the election itself.

The Republican plaintiffs allege that the Montgomery County Board of Elections jumped the gun and started precanvassing ballots outside the presence of poll watchers and before 7 a.m., the statutory starting bell. It’s not entirely clear if they’re accusing the Board of actually slicing the envelopes open — simply weighing the unopened ballots would give officials a pretty good idea of which ones were missing the security envelope or signed declaration.

Worse still, at least in the opinion of the plaintiffs, this morning state officials called up voters who had botched their ballots and invited them to come in and correct the defects today. Which is not allowed, at least according to their complaint.

There’s no Pennsylvania statute that specifically bars voters from repairing defective ballots, so the plaintiffs rely on a single sentence from the recent Supreme Court of Pennsylvania decision In re: November 3, 2020 General Election, No. 149 MM 2020, *12 (Pa. Oct., 23, 2020).

It reads: “Thus, unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects in a timely manner.”

Taken out of context, as the plaintiffs were at pains to present it, this might suggest that the court had barred elections officials from allowing voters to repair their ballots. In fact, the court is paraphrasing U.S. District Judge Nicholas Ranjan’s opinion in Donald J. Trump for President, Inc. v. Boockvar,  banning the use of signature analysis to invalidate mail-in ballots in Pennsylvania. And taken in context, Judge Ranjan was very clearly making a finding of fact based on the practical reality of getting voters in to cure defects in the few hours between opening their ballots and the close of polls.

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Here’s the relevant passage:

Here, imposing a signature-comparison requirement as to mail-in and absentee ballots runs the risk of restricting voters’ rights. This is so because election officials, unstudied and untested in signature verification, would have to subjectively analyze and compare signatures, which as discussed in greater detail below, is potentially problematic.16 [ECF 549-2, p. 19, ¶ 68]; [ECF 549-9, p. 20, ¶ 64]. And perhaps more importantly, even assuming an adequate, universal standard is implemented, mail-in and absentee voters whose signatures were “rejected” would, unlike in-person voters, be unable to cure the purported error. See 25 P.S. § 3146.8(a) (stating that in-person and absentee ballots “shall [be safely kept] in sealed or locked containers until they are to be canvassed by the county board of elections,” which § 3146.8(g)(1.1)-(2) states is no earlier than election day); Boockvar, 2020 WL 5554644, at *20;

Although Judge Ranjan suggests that the Pennsylvania legislature would be wise to craft a remedy for ballots rejected for what amounts to user error, neither his opinion nor that of the state court is evidence that voters have surrendered their right to cure defective ballots in exchange for the convenience of being able to vote from the comfort of their own homes.

Perhaps sensing the weakness of the main argument, the plaintiffs lean hard into their secondary plank — if Montgomery County voters are allowed to fix their ballots, but other Pennsylvanians are not, then it violates the Equal Protection Clause. For which proposition they cite Bush v. Gore. Because of course they did!

And they threw in a bunch of ominous blather suggesting unspecified ballot irregularities.

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So if Pennsylvania is close, tomorrow looks to be a fun, fun day, with dozens of these suits seeking to get ballots tossed.

Deep breaths, everyone. And don’t forget to drink a lot of water.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [Barnett v. Lawrence, Case 2:20-cv-05477-PBT (E. D. Pa., November 3, 2020)]
IN RE: NOVEMBER 3, 2020 GENERAL ELECTION, PETITION OF: KATHY BOOCKVAR, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA
Opinion [Donald J. Trump for President v. Boockvar, Case 2:20-cv-00966-NR (W. D. Pa., (October 10, 2020)]


Elizabeth Dye lives in Baltimore where she writes about law and politics.