The Pennsylvania Supreme Court rejected the Trump campaign’s complaint that observers were not given adequate access to watch the counting process, holding Tuesday that the law did not specify that observers had to be close enough to see details.
Observers complained that they were kept so far away in Philadelphia that they could not see the markings on absentee ballot envelopes.
The campaign lost at the trial court, won on appeal at the commonwealth court, but lost again at the state Supreme Court.
The decision was a 5-2 split for Pennsylvania’s highest court, reflecting the partisan divide among the judges. In September, a majority on the court ordered vote-by-mail ballots to be accepted up to three days after Election Day, even without a postmark. A 5-2 majority also granted a Democratic demand for the Green Party to be excluded from the ballot.
The U.S. Supreme Court allowed the vote-by-mail ruling to stand, 4-4, after Chief Justice John Roberts sided with the liberal minority.
In Tuesday’s decision, the court — which showed little restraint in changing state voting procedures — held that it had to defer to the text of state law on election observers, noting that the legislature had not specified a particular distance for observers:
Section 3146.8(g)(1.1) requires only that an authorized representative “be permitted to remain in the room in which the absentee ballots and mail- in ballots are pre-canvassed,” 25 P.S. § 3146.8(g)(1.1) (emphasis added), and Section 3146.8(g)(2) likewise mandates merely that an authorized representative “be permitted to remain in the room in which the absentee ballots and mail-in ballots are canvassed.” 25 P.S. § 3146.8(g)(2) (emphasis added). While this language contemplates an opportunity to broadly observe the mechanics of the canvassing process, we note that these provisions do not set a minimum distance between authorized representatives and canvassing activities occurring while they “remain in the room.” The General Assembly, had it so desired, could have easily established such parameters; however, it did not. It would be improper for this Court to judicially rewrite the statute by imposing distance requirements where the legislature has, in the exercise of its policy judgment, seen fit not to do so.
Rather, we deem the absence of proximity parameters to reflect the legislature’s deliberate choice to leave such matters to the informed discretion of county boards of elections, who are empowered by Section 2642(f) of the Election Code “[t]o make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of . . . elections officers.” 25 P.S. § 2642(f).
The Trump campaign has argued that nearly 700,000 ballots counted while observers were denied meaningful access to the count should invalidate those ballots, which would likely mean awarding the state to the president rather than to Joe Biden.
Author: Joel B. Pollak