GOP Hopefuls Challenge Mail-In Ballots In Philly Suburb

Law360 (November 3, 2020, 7:00 PM EST) -- Republican congressional candidates filed suit in Pennsylvania state and federal courts on Tuesday alleging that state guidance and a suburban Philadelphia county following that guidance were improperly giving voters an opportunity to correct errors on more than a thousand mail-in ballots received prior to Election Day.

Kathy Barnette, who is looking to unseat Rep. Madeline Dean, D-Pa., said in her federal lawsuit that voters in Montgomery County were being given an opportunity that voters in other parts of the state were not able to take advantage of.

"Not all counties in the commonwealth of Pennsylvania are giving voters the same opportunity to vote, jeopardizing the integrity of the 2020 election," she said in her complaint.

According to the lawsuit, the county had started reaching out to voters toward the end of October after officials began inspecting ballots and singling out those that lacked signatures or had been returned without the ballot being placed, as required, in the inner secrecy envelope provided to voters.

But Barnette claimed that the county's work constituted a violation of election code provisions that only allow so-called precanvassing of ballots, or the inspection and opening of ballots, to begin on the morning of Election Day.

At the same time, however, she said that voters in neighboring Berks County — a portion of which is contained in the congressional district at issue in Barnette's race — were not given a chance to correct errors with their ballots.

"As a result of Montgomery County's actions, similarly situated voters are being treated differently based on the county where they are required to vote," she said. "In other words, equivalent votes in different counties are being treated differently."

Kelly Confrancisco, a spokeswoman for the Montgomery County Board of Commissioners, said that the issues with the ballots had been "identified in the intake process."

"We believe our process is sound and permissible under the election code," she said.

A similar lawsuit was filed Tuesday evening in state court against Secretary of the Commonwealth Kathy Boockvar by state House Republican candidates Joseph J. Hamm and Mike Kelly, claiming that guidance she issued violated part of the state election code barring any sharing of "results" from the precanvassing process.

According to that guidance from the Pennsylvania Department of State, counties were asked to scan returned ballots into a computer system as they came in — without opening them — in order to notify voters they had been received and to log any potential problems including missing signatures. Additional guidance on Election Day said counties could provide representatives of candidates and parties with information about voters whose ballots had been rejected so the campaigns or parties could do the outreach themselves.

"There's absolutely nothing in Pennsylvania law that prohibits that practice," Boockvar said during a news conference Tuesday night. "It's an opportunity for all parties, all candidates. ... That's what the provisional-ballot law exists for."

The point, according to an email sent to Montgomery County election officials by the department's deputy secretary for elections last month, was to ensure "the voter has warning that their vote will not be counted unless they take further action."

"Our process in no way takes the place of the procedures that are followed as part of the canvass of ballots, and at no point prior to canvass is a determination made on whether a ballot will or will not be accepted," Confrancisco said. "We believe in doing whatever we can to afford those who have legally requested and returned a ballot a fair opportunity to have their vote count."

Thomas Breth, an attorney with Dillon McCandless King Coulter & Graham LLP representing Barnette, told Law360 that the county was trying to "rewrite the law" in order to declare that its actions did not constitute precanvassing.

"It's not about not wanting people to vote, or not counting proper votes," he said. "We're a country that's based upon the rule of law, and individuals and election boards cannot rewrite the rules and the standards."

He said that his firm, which has represented Republican candidates around the state, was looking into about a half dozen other counties that may have engaged in similar practices.

A hearing on the federal case is scheduled for Wednesday morning, and there will be a hearing on the state case Wednesday afternoon.

The challengers are represented by Thomas Breth of Dillon McCandless King Coulter & Graham LLP and the Law Offices of Andrew Tietelman.

The county is represented by Mark Aronchick and Michele Hangley of Hangley Aronchick Segal Pudlin & Schiller.

Counsel information for Boockvar wasn't available yet Tuesday night.

The cases are Kathy Barnette et al. v. Kenneth Lawrence et al., case number 2:20-cv-05477, in the U.S. District Court for the Eastern District of Pennsylvania, and Hamm et al. v. Boockvar, case number 600 MD 20, in the Commonwealth Court of Pennsylvania.

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

Update: This article has been updated with information about a similar state-court lawsuit.

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

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Case Information

Case Title

Barnette et al v. LAWRENCE et al


Case Number

2:20-cv-05477

Court

Pennsylvania Eastern

Nature of Suit

Other Statutes: Constitutional - State Statute

Judge

PETRESE B. TUCKER

Date Filed

November 03, 2020

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