Challenge to counting ‘late’ ballots on hold

Issue centers on extension to receive, tabulate mail-in votes

A federal appeals court order issued Saturday delays a challenge to U.S. District Judge Kim R. Gibson’s decision last week denying a restraining order on the counting of votes received by local election boards after the close of the polls today.

Judge Gibson last week upheld a Pennsylvania Supreme ruling that would allow the counting of ballots received by elections boards until Nov. 6, but in his 18-page opinion, he indicated the mail-in and absentee ballots must have a postmark on or before the close of the polls.

Where the judge disagreed with the state Supreme Court was its decision to allow the counting of the late ballots even if they do not have a postmark or if the postmark is illegible.

President Donald Trump and his reelection campaign are signaling they will pursue an aggressive legal strategy to try to prevent Pennsylvania from counting mailed ballots that are received in the three days after the election.

The matter could find its way to the U.S. Supreme Court, especially if those ballots could tip the outcome in the battleground state.

The U.S. Supreme Court refused to block the state Supreme Court’s ruling, but several conservative justices have indicated they could revisit the issue after the election.

Pennsylvania Secretary of State Kathy Boockvar, a Democrat, already has told local elections officials to keep the late-arriving ballots separate, but also to count them. She acknowledged that a post-election court fight could change that.

Judge Gibson called the state Supreme Court’s decision on that point “arbitrary” and declared that it violated the Equal Protection Clause of the United States Constitution.

Despite his finding, Gibson refused to issue a restraining order or injunction because the challenge to the late ballots was filed on the “eve of election.”

The plaintiffs in the case include a congressional candidate from Pennsylvania’s 8th District and four voters from Somerset County.

Through their attorneys David H. Thompson of Washington and Bradley A. King of Greensburg, an appeal to Gibson’s decision was filed Friday with the U.S. 3rd Circuit Court of Appeals in Philadelphia.

It requested a pre-election emergency briefing schedule and hearing.

Pennsylvania’s Boockvar opposed the recommendation for an emergency hearing and suggested any ruling by the 3rd Circuit be delayed until 5 p.m. Nov. 7, a day after the deadline for receiving ballots.

She indicated that by Nov. 7 it could be determined “whether a live controversy exists.”

The Democratic National Committee also opposed the emergency hearing.

In the order issued Saturday by the Chief Judge of the 3rd Circuit, D. Brooks Smith, and Judges Patty Shwartz and Anthony Scirica, it was noted that the proposed briefing schedule was so tight it would prevent the appeals court from ruling by Election Day.

The three appeals court judges ordered the congressional candidate, Jim Bognet, and the four voters, Donald and Debra Miller and Alan and Jennifer Clark, to submit their brief by 3 p.m. Nov. 6, and Boockvar and the Democratic National Committee are to respond by Monday, Nov. 9.

Over the weekend, Trump continued to rail against absentee ballots, frustrated by the U.S. Supreme Court ruling that didn’t deliver a clear GOP win, continuing a monthslong push to sow unfounded doubt about potential voter fraud.

Trump said the high court’s pre-election refusal to rule out the extension was a “terrible decision.” He also said that once the polls close today, “we’re going in with our lawyers.”

The legal issue is whether the extension ordered by the Pennsylvania Supreme Court, relying on voter protections in the Pennsylvania Constitution, violated the U.S. Constitution. The argument advanced by Republicans is that the Constitution gives state legislatures — not state courts — the power to decide how electoral votes are awarded, including whether absentee ballots received after Election Day can be counted.

Roughly 20 states allow for late-arriving ballots, but Pennsylvania’s Republican-controlled legislature did not authorize an extension, even with the huge increase in mailed ballots because of the coronavirus pandemic. Similar ballot-deadline extensions have resulted in court fights in Minnesota and North Carolina.


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