Envelope Errors Not Enough to Strike Ballots, Top Pennsylvania Court Rules

Approximately 100 Trump supporters, some with flags and signs, stood for hours last Tuesday across West Third Street from the Federal Building in Williamsport, Pa. (John Beauge/The Patriot-News via AP)

PHILADELPHIA (CN) — The Trump campaign’s attempt to have thousands of Pennsylvania mail-in ballots tossed over errors on the envelopes met defeat Monday at the Pennsylvania Supreme Court.

Affirming five Democratic victories in Philadelphia and reversing the only Republican win in the Pittsburgh area, the ruling came just in time as Monday is Pennsylvania’s deadline to certify its election results. In spite of numerous Republican-filed legal challenges concerning ballots, Pennsylvania county officials have certified some of the state’s election results on track to award the state’s 20 electoral college votes to President-elect Joe Biden. The state’s tally shows President Donald Trump down by more than 81,000 votes.

“Here we conclude that … failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters,” Justice Christine Donohue wrote, joined by three colleagues either in full or in the result.

Earlier this morning in the Pittsburgh case, Republican state Senate candidate Nicole Ziccarelli demanded an injunction against Allegheny County 13 minutes before the board certified its election results. The Pennsylvania Democratic Party filed an opposing petition, asking the court to deny Ziccarelli’s order as moot, which the court later obliged.

The Pennsylvania Supreme Court agreed last week to weigh whether 2,349 mail-in ballots from the Pittsburgh area should be disregarded for missing envelope information, combining it with a case wherein around 8,300 Philadelphia ballots faced a similar challenge. The Philadelphia ballots were submitted before or on Election Day but with errors on the envelopes, such as omissions of dates, addresses or names.

On Monday, however, Donohue slapped down Ziccarelli’s argument that the lack of written information could be an indicator that voters had cast multiple ballots or could have been untimely.

“Every one of the 8,329 ballots challenged in Philadelphia County, as well as all of the 2,349 ballots at issue in Allegheny County, were received by the boards of elections by 8:00 p.m. on Election Day, so there is no danger that any of these ballots was untimely or fraudulently back-dated,” the 35-page opinion states. “Moreover, in all cases, the receipt date of the ballots is verifiable, as upon receipt of the ballot, the county board stamps the date of receipt on the ballot-return and records the date the ballot is received in the SURE [Statewide Uniform Registry of Electors] system. The date stamp and the SURE system provide a clear and objective indicator of timeliness, making any handwritten date unnecessary and, indeed, superfluous.”

In the state Senate race, Ziccarelli is tied with her Democratic opponent Jim Brewster, who has been winning more mail-in votes than her in the portion of their district in Allegheny County. The Pennsylvania Supreme Court, which will rule on the case, has a 5-2 Democratic majority. The court’s two Republicans, Chief Justice Thomas Saylor and Justice Sallie Mundy, joined a partial dissent by Justice Kevin Dougherty that took issue with the ballots missing a handwritten date being counted.

“I do not view the absence of a date as a mere technical insufficiency we may overlook,” Dougherty wrote, arguing that the dating of the envelope provides proof that the voter completed their ballot in full.

Justice David Wecht, who concurred in the result, said in a separate partial dissent that the state’s General Assembly needs to clarify the purpose of the declarations on the outside of the envelopes.

“I agree with the conclusion that no mail-in or absentee ballot should be set aside solely because the voter failed to hand print his or her name and/or address on the declaration form on the ballot mailing envelope,” Wecht wrote. “These items are prescribed not by statute but by the secretary of the commonwealth under legislatively delegated authority. Absent evidence of legislative intent that what in context amounts to redundant information must be furnished to validate a mail ballot, their omission alone should not deny an elector his or her vote.”

Wecht also disputed the characterization of a voter failing to date and sign the voter declaration as a “minor irregularity.” 

“This requirement is stated in unambiguously mandatory terms, and nothing in the Election Code suggests that the legislature intended that courts should construe its mandatory language as directory,” Wecht wrote. “Thus, in future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question.”

The ruling comes after a federal judge obliterated a separate challenge wherein Trump said millions of Pennsylvania votes should have been discounted over differences in how counties helped voters to cast their ballots.

U.S. District Judge Matthew Brann compared Trump’s allegation of an “illegal ‘two-tiered’ voting system” that held voters to different standards depending on whether they voted by mail or in person to Frankenstein’s monster, “haphazardly stitched together.” 

Trump’s personal lawyer Rudy Giuliani, made his first court appearance in about 20 years in Williamsburg, Pa., last week to present the argument. Roundly panned as a disaster, Giuliani appeared confused about which judge was presiding over the case; could not come up with the name of his opposing counsel; and otherwise lobbed bumbling, unsubstantiated allegations of voter fraud. 

The Trump campaign filed Sunday for an expedited review before the Third Circuit, saying it was not asking to block the state’s certification efforts on Monday but would seek decertification “if already certified.” The Third Circuit granted the request Monday morning, giving the campaign a deadline of 4 p.m. Monday to file its brief and Pennsylvania a deadline of 4.p.m. Tuesday to file its response.

Brian Caffrey, of the Harrisburg-based firm Scaringi Law, is listed as the attorney asking for appeal before the Third Circuit. Giuliani has been absent thus far from the campaign’s appeal filings because he is not a member of the court’s bar. 

“Except for attorneys appointed on a pro-bono basis, this court does not admit attorneys pro hac vice,” the court notified the campaign on Sunday.

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