Philly Judge Rejects Trump Bid For Election Office Access

Law360 (October 9, 2020, 1:13 PM EDT) -- A Philadelphia judge on Friday rejected a bid from President Donald Trump's reelection campaign to require the city's Board of Elections to allow poll watchers into recently opened satellite offices where voters have been able to request, complete and return mail-in ballots.

Judge Gary Glazer in the Philadelphia County Court of Common Pleas ruled that the state's election code, which was amended last year to accommodate a major expansion of mail-in voting, makes no mention of poll watchers being allowed in local election offices.

"For this court to read into the election code the right of watchers to be present in Board of Elections' offices, which the legislature did not expressly provide, would be the worst sort of judicial activism," he said. "This court will not engage in such improper conduct, which would be a clear usurpation of the legislative function."

The campaign filed suit last week alleging that the Board of Elections had run afoul of state law by blocking poll watchers from the newly opened satellite offices on grounds that the sites did not constitute official polling places under Pennsylvania election law.

The board opened the first of a planned 17 satellite offices around the city earlier this month to accommodate an expected deluge of mail-in ballot requests as a result of the ongoing coronavirus pandemic.

The campaign's lawsuit came after Trump, as part of a broader barrage of voter fraud claims he's made in recent weeks, warned during his debate with Democratic presidential nominee Joe Biden this month that the move to bar his poll watchers was a sign that "bad things happen in Philadelphia."

The campaign argued in court that the board had essentially converted the offices into polling places by allowing voters to request, complete and return mail-in ballots in one trip.

But Judge Glazer found that the state's election code only allowed for poll watchers at polling places, and that polling places were strictly defined as "the room provided in each election district for voting."

"Since the Board of Elections' satellite offices serve the entire county and not just one election district or ward, they do not appear to be polling places as contemplated by the election code," the judge found.

In looking at provisions added to the election code as part of the state's expansion of mail-in voting last year, the judge noted that poll watchers were specifically allowed to be present when absentee and mail-in ballots are opened, but that the legislation said nothing about the ability of poll watchers to sit in at local election offices.

"The legislators who drafted [the mail-in voting expansion] were clearly aware of the existence of poll watchers, and even made express provision for them with respect to mail-in ballots," Judge Glazer said. "However, neither those legislators nor any preceding drafters of the election code's provisions chose to give watchers the right to be present at the offices of the Board of Elections while the board's employees are performing ministerial activities with respect to mail-in ballots prior to Election Day."

The Trump campaign slammed the decision in a statement to Law360 and said it had launched an appeal to the Commonwealth Court.

"Philadelphia's liberal officials are checking transparency and accountability at the door as they repeatedly and illegally deny Trump campaign observers access to voting locations across the city," campaign spokeswoman Samantha Zager said in a statement. "What are they trying to hide? Every campaign has a right to have watchers observe the voting process and make sure all rules are being followed, and President Trump is boldly standing up for that right."

Lisa Deeley, the chairwoman of the city commissioners, who oversee the city's elections, said that poll watchers would be more than welcome to polling places on Election Day.

"We are pleased that the court has reaffirmed our position that there is no right under the Pennsylvania election code to have poll watchers inside satellite election offices," she said. "On Election Day, Nov. 3, we will welcome authorized poll watchers to perform their statutory duties. In the meantime, we are continuing to work to ensure that all voters will be able to vote safely and securely."

The Trump campaign is represented by Ronald Hicks Jr. and Carolyn McGee of Porter Wright Morris & Arthur LLP and Linda Kerns of the Law Offices of Linda A. Kerns LLC.

The city is represented by City Solicitor Marcel Pratt, and Benjamin Field, Sean McGrath and Michael Pfautz of the City of Philadelphia Law Department.

The case is Donald J. Trump for President Inc. v. Philadelphia County Board of Elections et al., case number 200902035, in the Philadelphia County Court of Common Pleas.

--Editing by Jack Karp.

Update: This story has been updated with more information about the ruling and comments from the parties.

For a reprint of this article, please contact reprints@law360.com.

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