Pa. Judge Rejects Ballots Cured After Original Deadline

Law360 (November 12, 2020, 6:09 PM EST) -- A Pennsylvania Commonwealth Court judge ruled Thursday that the state's top election official lacked the authority to extend the deadline for voters to fix issues with verifying their identities and ordered ballots that were cured after the original Nov. 9 deadline to not be counted.

Judge Mary Hannah Leavitt granted the petition by President Donald Trump's reelection campaign challenging Secretary of the Commonwealth Kathy Boockvar's Nov. 1 guidance telling counties that voters could take until Nov. 12 to submit proof of identity if their mail-in ballots were questioned.

The judge said Boockvar lacked statutory authority to change the original Nov. 9 deadline in Pennsylvania's election code. Judge Leavitt had previously ordered counties to segregate any ballots that were fixed after Nov. 9 to maintain the status quo as she weighed the merits of the case. Those ballots now cannot be counted, according to the order.

It is unclear from the filings how many ballots are affected.

Boockvar had advised county boards of election in a Nov. 1 guidance that voters whose ballots were received between 8 p.m. on Election Day and 5 p.m. the following Friday, which was the ballot receipt deadline set by the Pennsylvania Supreme Court, could submit proof of identification by Nov. 12, according to court documents.

The Trump campaign sued on Nov. 4 on the grounds that the state Election Code required proof of identification to be provided by Nov. 9 and that Boockvar did not have authority to change the deadline.

Boockvar defended her actions by explaining that the extension matches the extra time given for receipt of ballots. She said the Nov. 12 verification deadline for late-arriving ballots corresponded to the state Election Code requirement that voters have six days after the election to submit proof of identity. This year, the state Supreme Court had approved a Nov. 6 ballot receipt deadline.

The Democratic National Committee joined the suit, arguing that the Trump campaign and the Republican National Committee lacked standing because they had failed to show that Boockvar's guidance had injured or will injure them.

Attorneys for the parties did not respond to requests for comment Thursday.

The Trump campaign and the Republican National Committee are represented by Ronald L. Hicks Jr., Jeremy A. Mercer and Carolyn B. McGee of Porter Wright Morris & Arthur LLP.

Boockvar is represented by Daniel T. Brier and Donna A. Walsh of Myers Brier & Kelly LLP, J. Bart DeLone, Howard G. Hopkirk, Sean A. Kirkpatrick, Michael J. Scarinci and Daniel B. Mullen of the Pennsylvania attorney general's office, and Daniel T. Donovan, Michael A. Glick, Susan M. Davies, Madelyn A. Morris and Kristen L. Bokhan of Kirkland & Ellis LLP.

The Democratic National Committee is represented by Marc E. Elias, Uzoma N. Nkwonta, Daniel C. Osher, Joel J. Ramirez and Laura Hill of Perkins Coie LLP and Adam C. Bonin of The Law Office of Adam C. Bonin.

The case is Donald Trump for President Inc. et al. v. Boockvar et al., case number 602 MD 2020, in the Commonwealth Court of Pennsylvania.

--Additional reporting by Matthew Santoni and Bill Wichert. Editing by Bruce Goldman.

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