Trump's Bid For Philly Poll Watchers Rejected By Pa. Court

Law360 (October 23, 2020, 1:01 PM EDT) -- A Pennsylvania appeals court on Friday rejected arguments from President Donald Trump's reelection campaign that poll watchers should be allowed to monitor new satellite election offices in Philadelphia where voters have been able to request, complete and return mail-in ballots.

In a 2-to-1 decision, a three-judge Commonwealth Court panel agreed 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.

The ruling upheld and adopted a decision from Judge Gary Glazer in the Philadelphia County Court of Common Pleas that concluded earlier this month that poll watchers are only allowed access to formal polling places.

"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," Judge Glazer said in his decision rejecting the Trump campaign's claims. "This court will not engage in such improper conduct, which would be a clear usurpation of the legislative function."

Meanwhile, a federal judge in Pittsburgh on Friday morning similarly denied a request from two Republican congressional candidates to have poll watchers at "satellite" election offices around Allegheny County for their upcoming final weekend of operation.

U.S. District Judge J. Nicholas Ranjan ruled during a hearing that there was no constitutional right to the presence of poll watchers as it was state law — not federal law — that governed the issue.

"There is no independent constitutional right to serve as a poll watcher. There's no right to be a poll watcher in a specific location," he said in the telephone hearing Friday morning, noting that the short timeline before the satellite offices opened Saturday morning prevented him from writing a formal opinion. "[The county's denial] doesn't limit voters' range of choices ... it won't make the actual casting of votes any harder."

Judge Ranjan said the candidates couldn't show they suffered irreparable harm without poll watchers because they could still have "observers" at the offices as long as they don't interfere with voters or go where ballots are being filled out or scanned into the state's tracking system.

The Trump campaign's legal challenge in Philadelphia came as the city's Board of Elections opened the doors on a number of new early voting sites across the city to accommodate an expected flurry of mail-in ballots as a result of the ongoing coronavirus pandemic.

While the campaign sought to have poll watchers be allowed into the sites, the board claimed that the state's election code only allowed for voting activity to be monitored at formal "polling places."

The campaign argued in a complaint filed in state court at the beginning of the month that the offices had been converted into de facto polling places by virtue of the fact that they allowed voters to actually cast ballots in the election.

But Judge Glazer agreed that polling places were strictly defined under state law as "the room provided in each election district for voting," and that, as such, the satellite offices, which are not tethered to any particular election districts, did not fit the bill.

In what she termed an "emphatic" dissent, Judge Patricia McCullough said the the state's expansion of mail-in voting, which authorized county election boards to accept hand delivery of ballots, created an ambiguity in the law when it came to poll watchers and their ability to oversee voting activity.

"I would … conclude that this ambiguity, in order to protect the intent and spirit of the election process, and to preserve the goal of maintaining the integrity of such process, be resolved to recognize that the voting processes occurring at the satellite offices necessitate their recognition as 'polling places,'" she said.

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 board is represented by Michael Pfautz, Craig Gottlieb, Benjamin Field, Zachary Strassburger and Sean McGrath 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 983 CD 2020, in the Commonwealth Court of Pennsylvania.

--Additional reporting by Matthew Santoni. Editing by Jack Karp.

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

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