A federal judge appeared skeptical of an attempt by Pennsylvania Republicans to prevent a suburban Philadelphia county from counting mail-in ballots that voters were permitted to fix after they were notified of deficiencies.
A Republican candidate for Congress and chairman of the Republican Party in a neighboring county filed a lawsuit against Montgomery County on Tuesday alleging its Board of Elections was contacting some voters with defects in their ballots and allowing them to correct them. The GOP wants the county to halt further outreach to voters and to set aside any defective or revised ballots.
The suit is one of several over ballot tallies in Pennsylvania, a key battleground in a presidential race that early Wednesday remained too close to call. The state already is shaping up to be a legal hot spot in determining who won on Election Day.
Montgomery County and other suburbs of Philadelphia are expected to favor Democrat Joe Biden over President Donald Trump. In 2016, almost 60% of the county’s voters went for Hillary Clinton, and Biden was leading the county by about 295,000 votes as of Wednesday morning, according to preliminary results.
During a hearing in Philadelphia Wednesday, Thomas Breth, a lawyer for the Republicans, told U.S. District Judge Timothy Savage that under the state’s election code, counties can’t allow voters to fix defective ballots. Permitting the practice discriminates against voters in other counties who haven’t been able to fix their defective ballots, and effectively lets some people vote twice, Breth said.
“It is creating the same situation that Florida had in 2000,” Breth said, referring to the contest between George W. Bush and Al Gore that eventually was decided by the U.S. Supreme Court. “It’s leading down the pathway where we’re going to have all these different counties” treating ballots differently.
Michele Hangley, a lawyer for Montgomery County, said the ballots were “intentionally and properly cast” but had a technical error and that no voters are changing their selections or voting twice. The county has sequestered about 93 ballots that were defective and changed by a voter after being contacted by the county. A. Michael Pratt, an attorney for the Democratic National Committee, which has intervened in the case, said the case is not comparable to the 2000 election fights in Florida.
“These are not hanging chads,” he said. “We’re not treating one vote different than another.”
While Savage didn’t immediately rule on the request for a temporary restraining order or suggest which way he was leaning, he aggressively questioned Breth over his assertion that the election code provides no mechanism for a county to allow a deficient ballot to be corrected.
“In other words I am losing my vote?” Savage said.
“The courts have consistently said there are voting requirements,” Breth said. “Courts have said they’re not losing it because they failed to fulfill their obligation to comply with the voting process.”
“So I’ve lost it,” Savage replied.
“You didn’t do it in the correct manner, so yes, you’ve forfeited it,” Breth said. “We’re a country of rules and applications of election law so that does sometime mean ballots don’t count because voters don’t comply with the rules.”
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