Judge Casts Doubt On Bid To Ax Corrected Pa. Mail-In Votes

Law360 (November 4, 2020, 12:17 PM EST) -- A Pennsylvania federal judge on Wednesday morning appeared to throw cold water on GOP-backed claims aimed at invalidating a batch of mail-in ballots in a suburban Philadelphia county where voters were contacted to cure procedural defects including missing secrecy envelopes or signatures.

While an attorney for Republican congressional candidate Kathy Barnette said that Montgomery County's efforts to reach out to voters who submitted faulty ballots was a violation of the state's election code, U.S. District Judge Timothy Savage suggested during a hearing that the process was in keeping with the spirit of the law.

"Wasn't the legislative intent of the statute we're talking about to enfranchise rather than disenfranchise voters?" he asked.

Barnette, who is challenging Democratic incumbent Madeleine Dean in the state's 4th congressional district, claimed in a lawsuit filed on Tuesday morning that the county's work to reach out to voters ran afoul of equal protection principles because the procedure was not being followed by other counties in the state.

By identifying ballots with defects prior to Election Day, she said that Montgomery County was violating 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.

Thomas Breth, an attorney for Dillon McCandless King Coulter & Graham LLP representing Barnette, argued on Wednesday that the issue was akin to that addressed by the U.S. Supreme Court in Bush v. Gore , in which the high court said counties could not adopt their own independent methods for interpreting questionable ballots.

"It's creating the same situation that Florida dealt with in 2000, and it's leading down the pathway where we're going to have all these different counties potentially treating ballots in a nonuniform manner," Breth argued.

In addition to the equal protection issues, Breth said that the county's move to reach out to voters ran afoul of a Pennsylvania Supreme Court decision from mid-September that found that counties were not required to reach out to voters to allow them to cure defects.

But Michele Hangley, an attorney with Hangley Aronchick Segal Pudlin & Schiller representing the county, said that the decision still gave counties discretion to reach out to voters on their own.

"The code gives counties the authority and the discretion to administer elections," she said. "It's a very complicated process and there's a lot of discretion there."

She added that the county in prior election cycles had done the same thing with mail-in votes received with clear errors, and that there had been no complaints from either candidates or political parties.

According to testimony from a county elections official, meanwhile, the number of ballots that were actually corrected as a result of its outreach efforts was slightly fewer than a hundred.

While Breth said that the situation threatened the overall integrity of the election, Judge Savage pushed back.

"I don't understand how the integrity of the election is being affected," he said.

The judge ordered supplemental briefing to be returned by Friday morning, and took the matter under advisement.

Regardless of whether Barnette's argument fails before Judge Savage, Breth is pursuing a similar case in Pennsylvania Commonwealth Court on behalf of two GOP candidates who say that state election officials improperly instructed counties that they had the authority to reach out to voters who'd submitted ballots with clear procedural errors.

Kathy Boockvar, who serves as secretary of the commonwealth, defended the department's guidance at a news conference on Tuesday night.

"There's absolutely nothing in Pennsylvania law that prohibits that practice," she said. "It's an opportunity for all parties, all candidates. ... That's what the provisional-ballot law exists for."

But Boockvar's handling of the situation has prompted calls from some Republican lawmakers in the state for her resignation, including from Senate Majority Leader Jake Corman, R-Centre.

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

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

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 Joseph Hamm et al. v. Kathy Boockvar, case number 600 MD 2020, before the Pennsylvania Commonwealth Court.

--Editing by Katherine Rautenberg and Bruce Goldman.

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



Pennsylvania Eastern

Nature of Suit

Other Statutes: Constitutional - State Statute



Date Filed

November 03, 2020

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