(CN) — Pennsylvania’s 67 counties will continue tallying votes into the night, after a federal judge slapped down a lawsuit filed by President Donald Trump’s campaign to stop the count Thursday.
Trump’s team filed the complaint in the Eastern District of Pennsylvania on Thursday afternoon, asking the court to stop the Philadelphia County Board of Elections from counting votes unless campaign representatives are allowed to closely observe the count. U.S. District Judge Paul Diamond issued an order denying the request without prejudice Thursday night.
The two-page complaint accused the board of refusing to follow a Pennsylvania Supreme Court order that “requires that representatives and poll watchers to be present and observe the canvassing of all mail-in and absentee ballots.”
Democrats have appealed a state judge's order that would put Trump’s representatives within 6 feet of votes being tallied.
Commonwealth Court Judge Christine Fizzano Cannon had ruled that monitors were being kept too far from the vote-counting process at the Philadelphia Convention Center.
In the campaign's reply brief to the state Supreme Court on Thursday, it quoted a Trump lawyer as saying the county Board of Elections had designated an observation area that was about 20 feet from the nearest machine used to extract ballots from envelopes.
The Pennsylvania Supreme Court has yet to decide whether it will take the city's appeal,.
Pennsylvania’s vote counting was briefly halted by the appeal on Thursday morning, but resumed by midday.
“The count is going forward,” the Philadelphia City Commissioners tweeted at 12:30 p.m. “There was a brief pause in light of the ongoing litigation, but it has resumed in accordance with the law.”
The new complaint by the Trump campaign follows a similar move in Michigan to stop vote counting.
Pennsylvania Secretary of State Kathy Boockvar noted during a press conference Thursday evening that the “vast majority” of votes have been added up, but several hundred thousand votes remain uncounted. In a tight race, that could make all the difference.
“It’s very close in Pennsylvania,” Boockvar said. “There’s no question.”
Trump’s Pennsylvania vote tally stood overnight Thursday at 3,285,648 — just a few thousand ahead of Biden’s 3,267,774 — with 95% reporting in the state. The remaining ballots left to be counted are mostly mail-in ballots, which are expected to favor Democrats.
Trump has cited transparency as a basis to stop all vote counting in Pennsylvania, even as Philadelphia streams the ballot-canvassing process live on Youtube.
"Because of the need for staff to circulate unimpeded and the security and privacy concerns involved with handling ballots, the board cannot permit outsiders to wander freely through this workspace," city attorneys wrote in today's appeal, co-filed with lawyers from Hangley Aronchick. "Accordingly, the board has set up a location from which candidates and party representatives, potentially in large numbers, can view the room without impeding the operation."
But in their response brief, the Trump campaign’s attorneys emphasized that the farthest table in the “cavernous” canvass room is about “100 feet away, with no ability to approach.”
“Standing at one end of a room the size of a football field, which coincidentally is about the size of the Philadelphia Convention Center, does not provide the ability to be ‘present’ or ‘watching’ the canvassing process, which takes place between the hands of the board of election employees,” says the reply brief, which is co-signed by Philadelphia attorney Linda Kerns and Ronald Hicks with the Pittsburgh firm Porter Wright.
Trump’s lawyers say poll watchers have a duty to “actually observe that which the election employee is doing and thus observe the actual ballot.”
“In previous years, this included the ability for observers to interact with canvassing officials in a manner that did not interfere with their vote, observing their actions with sufficient detail to ensure that canvassing was being conducted in a manner that upholds state law, and able to raise objections if violations occur,” the brief states.
As for the city's claim that Covid-19 protocols make this different than any other year, Trump's lawyers ask that they "produce bone fide healthcare guidelines that justify the 18–100 feet of distance."
"CDC Guidelines require only six feet," the campaign's brief proclaims.
Trump surrogate Pam Bondi was outside the convention center this morning to hold up Judge Cannon's order for a crowd of supporters. Though the campaign touted the order as a decisive win, it had also announced victory in Pennsylvania on Wednesday night, when only approximately 84% of the state's votes were counted.
Pennsylvania Attorney General Josh Shapiro played down the Trump team's alarms, saying there was nothing to worry about Wednesday.
“Volunteers and clerks from our communities are counting the votes,” he tweeted. “They will provide a fair, accurate count.”
In the campaign's brief, it urged the court to hold Philadelphia accountable.
"Under its reading, the county currently could erect a large black curtain in front of the barrier restricting the representatives. ... Similarly, if a football field-sized convention area were used for the canvass, with observers kept over 500 feet away from the canvassers such that the observers cannot even see if the canvassers are outright stuffing some ballots and destroying others, that too would not violate the statute," the brief states. "Instead, the statute should be read in a manner that allows reasonable observation to detect violations."
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