Even as President Donald Trump’s campaign is waging a well-publicized legal war on the broad rules governing the presidential election in Pennsylvania, its lawyers are engaging in lower-profile but no less important, county-by-county trench battles to disqualify individual votes in Philadelphia and its suburbs over technicalities.
In hearings before county Boards of Elections and Common Pleas Court judges, campaign attorneys have pushed for several thousand mail votes to be cast aside due to voter mistakes like failing to date the envelope.
Meanwhile, they are pursuing record numbers of challenges to “provisional” ballots, in some cases for grounds as small as the name of the county being misspelled.
But just as with the more sweeping lawsuits that Trump has filed in state and federal courts across the state seeking to cast doubt on the overall integrity of the electoral system, few of these county-level skirmishes have anything to do with the allegations of widespread and deliberate voter fraud that Trump and his allies have pushed without evidence for days.
Instead, their filings ask courts and county boards to disenfranchise potentially thousands of legitimate voters in Philadelphia and its suburbs over procedural errors made when filing their ballots.
There is no indication that the votes in question were specifically cast for Joe Biden — in fact, some voters contacted by The Inquirer said they voted for Trump.
And so far, these smaller-scale challenges have not been met warmly in court.
In a Tuesday hearing in Montgomery County, Common Pleas Court Judge Richard P. Haaz appeared baffled by a Trump campaign request to throw out 592 mail ballots because voters had failed to handwrite their address on the outer envelope.
The vast majority already had printed labels with the voter’s address affixed to them. And all of them included a bar code that the county’s counting machines could scan to link the ballot to a person and address in its voter rolls.
“Are you claiming that there is any fraud in connection with these 592 disputed ballots?” the judge asked Trump campaign lawyer Jonathan Goldstein. “Are you claiming that there is any undue or improper influence on the [voter] with respect to these 592 ballots?”
Goldstein’s reply to both questions was: “To my knowledge, at present, no.”
And yet, in Philadelphia, the campaign has appealed to a Common Pleas judge to toss some 8,300 mail ballots with minor defects such as the voter signing and dating the envelope but failing to print their name as well. The City Commissioners, which oversee elections, had voted to approve them.
In Bucks County, 2,251 mail ballots are under review in a similar appeal by the Trump team there.
And in Montgomery County — which is set to hold hearings Thursday on provisional ballots, ones cast at the polls when there is a question about the voter’s eligibility — the Trump camp has contested more than 4,200.
The sheer volume, Montgomery County spokesperson Kelly Cofrancisco said, is like nothing elections officials there have seen before.
“Prior to this election, we have no knowledge of anyone ever raising a challenge to [a board] decision on a provisional ballot,” she said.
This year’s unprecedented increase in the number of mail and provisional ballots statewide has created fertile ground for the Trump campaign’s legal maneuvers.
For the first time in 2020, Pennsylvanians were allowed to vote by mail without providing a reason for why they couldn’t make it to the polls on Election Day. Some 2.6 million voters mailed in their ballots — up from 266,000 in 2016 — under a system that many were unfamiliar with before this year.
Elections officials had anticipated that hundreds — even thousands — of voters would make mistakes such as failing to include their ballot in required secrecy envelopes or to provide required signatures and dates.
The number of provisional ballots cast is larger this year, too, in part because of hundreds of voters requested mail ballots but then opted to cast their vote at the polls Nov. 3 out of concern that persistent mail delivery delays would cause their ballots to arrive late. Voters who failed to bring their unused mail ballots with them to their polling location were required to vote provisionally, meaning their ballot was flagged for a later check against records of people who had already voted by mail.
Typically, though, county election boards weed out the majority of deficient or questionable mail and provisional before disputes over them wind up in court.
In Philadelphia, for example, City Commissioners decided, without prompting from the Trump campaign during a hearing Monday, to exclude more than 4,800 deficient mail ballots — 4,027 of which were “naked ballots,” submitted without the required secrecy envelope.
Commissioner Lisa Deeley, a Democrat, said she struggled with disqualifying ballots cast by legitimate voters even if the law on “naked ballots” was clear.
“These are 4,000 Philadelphia voters,” she said during the proceedings. “Four thousand people who did nothing wrong beyond failing to put their ballots into a second envelope.”
The Trump campaign is appealing decisions made by the commissioners to count other batches of mail votes including, for example, some 1,259 ballots which had been signed, included an address, and were missing only the date.
In her brief to the court Tuesday, campaign lawyer Linda Kerns argued that those ballots clearly do not comport with requirements laid out in the state election code, even if the voter’s intent was clear.
“The Philadelphia County Board of Elections,” she wrote, “is not empowered to rewrite the Election Code or adopt rules, regulations, instructions or decisions that are inconsistent with [it.]”
Democrats have argued when the voter’s intent is clear and they have made a good-faith effort to comply with state requirements, county boards and courts shouldn’t be playing games of “gotcha” to find reasons to exclude them.