A federal judge greeted with skepticism Republican efforts on Wednesday to disqualify the votes of Montgomery County residents who were given a chance to fix problems with their mail ballots before Election Day.
In a hearing in Philadelphia, U.S. District Judge Timothy Savage repeatedly questioned GOP claims that those corrections had effectively allowed voters to vote twice. He appeared puzzled as the Republican lawyers argued that excluding the votes would not disenfranchise voters.
“How does this affect the integrity of the election?” he asked at least three times during the hearing in federal court Philadelphia. “Wasn’t the legislative intent of the [election law] we are talking about to franchise, not disenfranchise, voters?”
Savage, who was appointed to be bench by President George W. Bush, gave no indication Wednesday on when he might rule. But the proceedings before him offered a preview of the likely GOP arguments in other courts in what is shaping up to be the Republican’s main legal issue to date in contesting Pennsylvania’s vote.
GOP attorneys filed a similar suit in Pennsylvania’s Commonwealth Court seeking to set aside “fixed” mail ballots in all of Pennsylvania’s 67 counties. And similar arguments were made in county courthouses in Philadelphia and Bucks Counties on Election Day, both of which were rejected by county judges.
But it remained unclear how many votes could actually be impacted in state where possibly more than 6 million people cast ballots. In Montgomery County, the GOP challenge appeared to be focused on just 98 votes out of the more than 400,000 cast.
Arguing before Savage on Wednesday, Thomas E. Breth — an attorney representing the case’s plaintiff, Republican congressional candidate Kathy Barnette — likened the issue to the “hanging chads” and “dimpled ballots” that mired the 2000 presidential election in a fight ultimately resolved by the U.S. Supreme Court.
“What Montgomery County is doing is not compliant with the election code. It’s the same situation Florida dealt with in 2000,” he said, adding later: “These ballots may very well determine the result of the election.”
But attorneys for the Democratic National Committee, who have joined in the case, pushed back.
“It would appear based on the timing of this suit that this is not a good-faith effort to enforce the election code, but an effort to disenfranchise voters,” DNC lawyer Terence Grugan said.
Since the issue arose on Tuesday, Montgomery County election officials have said that the number of corrected mail ballots at issue is vanishingly small — especially when compared to the hundreds of thousands they received this year.
In the run-up to Election Day, officials reached out to voters whose mail ballots were in danger of being disqualified due to deficiencies, like a missing signature or a failure to seal it in a secrecy envelope, and offered them the chance to correct it — as they have done in previous election years.
Only 98 voters took them up on the offer, county Chief Operating Officer Lee Soltysiak said, and among that group none were allowed to change or alter their vote.
Still, Breth argued that the same opportunity wasn’t offered to voters in all 67 counties, creating a hodgepodge of voting procedures that were not equally enforced across the state.
Savage’s decision could hinge on how restrictively he interprets the state’s Election Code. Breth argued Wednesday that because the law does not specifically say that counties can allow voters to correct deficient ballots, Montgomery County’s actions were in error.
Attorney Michele Hangley, representing the county, took the opposite stance: If the law and prior court rulings don’t specifically prohibit it, then it is be allowed.
She cited guidance from Pennsylvania Secretary of State Kathy Boockvar earlier this month encouraging all counties to alert voters if their ballots had been filed incorrectly.
“The purpose of the code is not to trap people from voting,” she said. It “The spirit of the code is to allow qualified electors to cast their votes and the Montgomery County practice is in furtherance of that.”
In Philadelphia, court officials set up filing desk Wednesday morning at the Pennsylvania Convention Center, where lawyers could appeal city election board rulings over disputed votes. By mid-day, however, no appeals had been filed there. The election board has been counting votes at the center.
A potentially larger looming question remained Wednesday: whether the U.S. Supreme Court would step in to block Pennsylvania from counting mail-in ballots postmarked by Election Day that arrive by Friday.
That timetable was permitted by Pennsylvania’s Supreme Court, but challenged by Republicans. While the U.S. Supreme Court has twice failed to settle the issue — initially splitting 4-4, then declining to hear an expedited challenge last week — several conservative justices left open the possibility they would revisit the GOP challenge after the election.