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Pa. judge says in-person votes cast to fix erroneous mail ballots can be counted

The judge said these votes should be separated, though they can still be counted if found to be eligible during the standard provisional ballot review process.

"Naked" ballots are stacked and sorted inside a secure facility within the Erie County Courthouse.
"Naked" ballots are stacked and sorted inside a secure facility within the Erie County Courthouse.Read moreRobert Frank / For Spotlight PA (CUSTOM_CREDIT) / Robert Frank / For the Inquirer

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HARRISBURG — A Pennsylvania appellate court judge on Friday rejected an eleventh-hour request by Republicans to block counties from counting provisional ballots cast by voters whose mail ballots contained mistakes and were going to be disqualified.

Commonwealth Court Judge P. Kevin Brobson ordered those ballots be separated, but said they could be counted if they are found to be eligible through the normal process counties use to verify provisional ballots.

The Republican defeat in Commonwealth Court comes as President Donald Trump’s campaign escalated legal challenges to the vote count in this and other contested states. For the first time Friday, former Vice President Joe Biden took the lead in Pennsylvania and Georgia, and was leading in Nevada and Arizona. But Trump remained focused on Pennsylvania, which he must win to have a chance at a second term.

Feeling the national spotlight, Republicans in Pennsylvania amplified their attacks on the state’s top election official, Kathy Boockvar, contending she undermined confidence in the election results by making last-minute changes to the vote-by-mail process.

“What we didn’t want was a disputed election,” Senate Majority Leader Jake Corman (R., Centre) said during a news conference Friday. “Unfortunately, the actions of the Department of State have brought that into question.”

Those claims came despite impressive wins across the state for Republican lawmakers, who held onto majorities in the state House and Senate and were poised to gain seats. The GOP also won the state auditor general race for the first time since 1992.

Corman, joined by House Speaker Bryan Cutler (R., Lancaster), acknowledged he had “no knowledge of any misdeed — other than the process.”

Among the issues the GOP is upset about is a three-day extension for counties to receive mail-in and absentee ballots, as long as they are postmarked by Election Day. That issue is at the center of a separate legal battle that the U.S. Supreme Court has signaled it may decide.

On Friday, the state GOP again urged the high court to overturn the three-day grace period, arguing that it was unclear whether counties were following Boockvar’s instructions to temporarily set aside these ballots. Republicans insisted the ballots shouldn’t be added to any tally until the Supreme Court determined their validity.

“Given the results of the Nov. 3, 2020 general election, the vote in Pennsylvania may well determine the next President of the United States — and it is currently unclear whether all 67 county boards of elections are segregating late-arriving ballots,” the party’s lawyers wrote. The filing did not provide any evidence that any counties were not following the guidance.

Trump has also urged the justices to intervene in the case, part of an overall bombardment of legal action seeking to cast doubt on the integrity of Pennsylvania’s vote.

The case before Brobson on Friday had to do with a different group of votes Republicans are targeting.

At issue is guidance Boockvar’s office gave to counties on the night before the election. Counties were told that as they began to process ballots on Election Day, they could share information with political parties about ballots that contained deficiencies, such as a missing signature or date, or a missing secrecy envelope.

That, in turn, allowed the parties to contact voters to let them know about the problem, and urge them to go to the polls on Election Day and submit a provisional ballot. (In some counties, elections officials were the ones who contacted voters directly about problems.)

Though there was no hearing in open court, lawyers for the two Republican candidates and four voters who sued Boockvar had argued that the state’s election code does not permit counties from sharing that information with political parties. They had asked for an injunction to prevent Boockvar from “permitting invalidly submitted absentee and mail-in ballots to be `cured'.”

Brobson’s five-paragraph order did not address whether he thought the Department of State’s guidance to counties was lawful, as Boockvar had argued.

Instead, he ordered all provisional ballots cast by voters who had initially mailed ballots with mistakes be “segregated and secured” from other provisional ballots, and assessed for legitimacy. But from a practical standpoint, the order will not require counties to do anything differently, since they already examine provisional ballots separately to determine their validity.

Still, lawyers for Republicans emerged from court portraying the ruling as a win.

“It brings uniformity to the counting of these provisional ballots throughout the commonwealth,” said Thomas E. Breath, a lawyer who represented the GOP. “It directs each local county board of elections to handle these provisional ballots in the same manner. That was sorely needed.”

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