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Law360 (October 14, 2020, 12:11 PM EDT) -- The Supreme Court of Pennsylvania agreed on Wednesday to consider before Nov. 3 whether county election officials can throw out mail-in ballots based solely on comparing voters' signatures on the outer envelope to the signatures on their voter registration forms.
Secretary of the Commonwealth Kathy Boockvar had asked the justices to exercise their "King's Bench" jurisdiction and fast-track the issue before the election after President Donald Trump's reelection campaign challenged her September guidance to counties saying that signatures alone should not disqualify ballots.
The justices granted permission for the Trump campaign, the Republican Party of Pennsylvania, the Republican National Committee and the National Republican Congressional Committee to intervene and said all parties would have until Friday to submit any filings to be considered.
Boockvar had advised counties against signature comparisons following a federal lawsuit from the League of Women Voters, which contended that county election officials without training in handwriting analysis risked throwing out valid ballots based on voters' signatures that may have varied over time.
Part of the Supreme Court of Pennsylvania's Sept. 17 ruling on election procedures said that state law doesn't provide any window for mail-in voters to fix deficiencies with their ballots, including signature mismatches. A video update from Boockvar said nearly 2.7 million people had requested mail-in ballots as of Wednesday, and nearly 518,000 had been returned and were awaiting verification and counting starting the morning of election day.
One claim in a federal lawsuit filed by the Trump campaign said the signature comparisons were necessary to prevent fraud and provide equal protection, given that when in-person voters sign in to cast their ballots, their signatures are compared to their registrations. Boockvar had countered that in-person voters whose signatures are challenged can present other proof of their identity, while mail-in voters must offer proof of their identity with a driver's license number or partial Social Security number when requesting their ballots.
The federal judge in the campaign's case dismissed the suit over the weekend.
Justice Max Baer dissented over whether to take up the case, arguing that the federal court already resolved the question in the secretary's favor.
"The federal court ... conclusively determined that the code does not allow for signature comparison of absentee and mail-in ballots," Justice Baer wrote. "All of the county boards of elections were joined in that case and the federal court specifically indicated that the boards were obligated to follow the secretary's guidance."
But Justice Kevin M. Dougherty said they should hear the case, since the federal court's ruling on signatures was not "authoritative" and the state Supreme Court had the final say on interpreting state election law.
Representatives for Boockvar declined to comment. The Trump campaign did not immediately respond to requests for comment Wednesday.
The Pennsylvania Department of State and Boockvar are represented by Daniel T. Donovan, Susan Davies, Michael Glick, Sara Shaw Tatum, Madelyn Morris and Kristen Bokhan of Kirkland & Ellis LLP; Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP; Timothy E. Gates and Kathleen M. Kotula of the State Department's Office of Chief Counsel; Kenneth L. Joel and M. Abbegael Giunta of the Governor's Office of General Counsel; and Josh Shapiro, Karen M. Romano, Keli M. Neary, Howard G. Hopkirk, Nicole Boland and Stephen Moniak of the Pennsylvania Attorney General's Office.
The Trump campaign and the RNC are represented by Ronald L. Hicks Jr., Jeremy A. Mercer and Russell D. Giancola of Porter Wright Morris & Arthur LLP and Matthew Morgan and Justin R. Clark of Elections LLC.
The case is In re: November 3, 2020 General Election, case number 149 MM 2020, before the Supreme Court of Pennsylvania.
--Editing by Alyssa Miller.
Update: This article has been updated with additional details and a response from the secretary.
For a reprint of this article, please contact reprints@law360.com.
