Commonwealth Court Judge P. Kevin Brobson partially granted a preliminary injunction requested by state representative candidates Mike Kelly and Joseph Hamm. The judge ordered the segregation of any provisional ballots cast on Election Day by voters who had also submitted their mail-in ballots on time, so it can be determined if one or the other were valid and could be counted.
"All provisional ballots cast on Election Day where the elector's absentee ballot or mail-in ballot was timely received by the county boards of elections [shall] be segregated and secured from other provisional ballots pending compliance with the procedures set forth in … the Election Code for determining the validity of the provisional ballot and whether the provisional ballot, if valid, can be counted," the court's order said.
Judge Brobson did not rule on the merits of the case, which claims Secretary of the Commonwealth Kathy Boockvar gave illegal guidance to counties that allowed them to share which voters had their ballots tossed out over issues like missing signatures or privacy envelopes so that counties, campaigns and political parties could reach out and invite those voters to cast provisional, replacement ballots in person.
The Republicans had sought an injunction throwing out all provisional ballots that were intended to "cure" deficient mail-in ballots, arguing that releasing information about whose mail-in votes were canceled during the pre-canvassing process violated the state's prohibition on sharing "results" of the process.
The Democratic National Committee sought to intervene in the case Wednesday. A similar federal case, filed against the board of elections in Montgomery County, was withdrawn Thursday in recognition of the state-court challenge to Boockvar's guidance.
Judge Brobson heard arguments Friday at the Commonwealth Court in Harrisburg.
Counsel for the candidates and representatives of the secretary did not immediately respond to requests for comment.
The Republican challengers are represented by Thomas E. Breth and Thomas W. King III of Dillon McCandless King Coulter & Graham LLP.
Boockvar is represented by Daniel T. Brier, John B. Dempsey and Donna A. Walsh of Myers Brier & Kelly LLP, and Keli M. Neary and Karen M. Mascio of the Pennsylvania Attorney General's Office.
The case is Hamm et al. v. Boockvar, case number 600 MD 20, in the Commonwealth Court of Pennsylvania.
--Editing by Jack Karp.
Update: This article has been updated with more information about the lawsuit.
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