While the Trump campaign pressed a separate election case in federal court in Pennsylvania on Nov. 17, the state’s supreme court issued a ruling in another, addressing how far observers may be kept from election workers who open and process ballots. The Pennsylvania Supreme Court ruled 5-2 that an intermediate appellate court erred in requiring observers to be given visual access to ballot processing. The five justices in the majority are Democrats, and the two dissenters are Republicans. The majority held the law simply required plaintiffs to be allowed in the same room as the processing and counting, and not within sight of anything.
See No Evil
Local election officials stymied Republicans who wished to observe the vote-counting in Philadelphia. The city government mounted a mass operation to process hundreds of thousands of mail-in ballots at the Pennsylvania Convention Center. Philadelphia Democrats then set up viewing areas, but observers and campaign representatives could not get close enough to the ballots to document any issues or record information to challenge votes. Democrats claimed this was done to ensure COVID-19 safety protocols. Republicans said their observation was meaningless if they couldn’t see the writing on the envelopes or ballots.
The Republicans lost at the trial court and then immediately appealed and won a ruling from the state’s Commonwealth Court, an intermediate appellate court. One judge, a Republican, ruled in that case and ordered that the Trump representative and others “be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including, wearing masks and maintaining social distancing.” Democrat Party leaders in Philadelphia appealed that access requirement, and now they have won.
Fair Is Fair
The decision to keep observers 30-plus feet from where the envelopes and ballots were processed was perfectly legal. That’s what the Pennsylvania Supreme Court ruled: the law “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.’” The plaintiffs argued the law required they be allowed “meaningful observation,” but the court was having none of it.
Without irony, this same court is the one that unilaterally changed election law allowing extra days for mail-in ballots to arrive. In that case, it found that its authority included the power to rewrite election law, even though the state’s legislature had just met and exercised the people’s will. That decision benefited Democrat nominee Joe Biden, and curiously this case does, too.
In this case, however, the court would strictly adhere to the letter of the law. So, if the counting room is the size of a football field, Democrats could count the votes in one end zone and keep the observers in the other. Not to worry – we’re told Democratic observers are held to the same distance, so no special treatment was present.
Read more from Scott D. Cosenza.