The Republican Party of Pennsylvania's last-minute attempt to legalize presidential nominee Donald Trump's call for poll watchers to roam the state on Election Day ran into skeptical questioning Friday from a federal judge.
U.S. District Judge Gerald Pappert peppered the GOP's lawyers with questions, noting they were appearing in court 11 days before the Nov. 8 general election and after the General Assembly did not pass legislation to approve the same change sought by the party.
The party, in a lawsuit filed Oct. 21, claims a provision of the state Election Code requiring poll watchers to be registered to vote in the county where they serve is unconstitutional.
"So there is a constitutional crisis because the General Assembly didn't pass the legislation?" asked Pappert, a Republican and former state attorney general. "Is it the role of this court to step in and act on behalf of the General Assembly?"
A Republican state representative from Allegheny County introduced legislation in January 2015 to allow poll watchers from any county to serve anywhere in the state. It never came up for a full vote in the GOP-controlled House, which wrapped up its session Thursday.
The Election Code, which became law in 1937, originally required poll watchers to be registered in the specific election district - known as a division in Philadelphia - where they would serve. The Assembly expanded that in 2004 to allow poll watchers to serve anywhere in the county where they are registered.
Pappert, who is expected to rule next week, noted there have been two presidential elections since the 2004 change took effect in 2005 with no requests to change the rules for poll watchers until now.
"What has changed, other than the names of the two candidates?" he asked the GOP's lawyers.
Trump, in rallies in Pennsylvania and other states, has repeatedly claimed the election is "rigged" and exhorted his supporters to travel from their homes in other counties to urban areas like Philadelphia to watch for voter fraud.
Kenneth Joel, a chief deputy for the state Attorney General's Office, representing the Pennsylvania Department of State, told Pappert the legal gambit was "inviting chaos to the process."
Joel said the Republicans could have acted any time after the Election Code was revised in 2004.
"There is no need to rewrite the rules and change them 11 days before the election," Joel said. "If there's this problem and they think they need extra poll watchers because there was going to be shenanigans, I don't know why they waited 12 years."
Rebecca Warren, a lawyer for the Republican Party, told Pappert there was no rational reason to limit poll watchers to the counties where they are registered.
"They're precluding fair elections by preventing certain people from serving as poll watchers," she said of the state officials opposing the rule change.
Jonathan Marks, commissioner of the state Bureau of Commissions, Elections and Legislation, testified that the Republican Party needs just 4.1 percent of its 123,307 registered voters in Philadelphia to serve as poll watchers to fully staff the 1,686 divisions in the city.
"Isn't a better solution to simply work on that 4.1 percent, to get them to turn out?" Pappert asked Warren. "Wouldn't that make a lot more sense?"
Pappert also pressed Warren on the Republican Party's motive for seeking the change in poll watcher rules, asking more than once if it was driven by concerns of potential voter fraud in Philadelphia.
Warren pivoted carefully away from the question each time it was asked.
That caution was likely driven by a separate federal court case happening across the Delaware River.
The Democratic National Committee on Wednesday asked a federal judge in New Jersey to hold the Republican National Committee in contempt for allegedly violating a consent decree and to block the GOP from participating in what it called Trump's "organized campaign of voter intimidation."
The 1982 consent decree "arose from the RNC's efforts in the early 1980s to interrogate and intimidate registered voters in predominantly African American precincts in New Jersey," that filing said.
The DNC's filing also cites as alleged proof of the RNC's consent decree violation Trump's "racially charged" statements at rallies about watching for voting fraud in Philadelphia and the Republican Party of Pennsylvania's attempt to change the rules for poll watchers.
"The express purpose of the lawsuit is to permit Trump's supporters from anywhere in the state to watch voters in Philadelphia - precisely as Trump directed at several rallies in Pennsylvania," the DNC filing said.