A Johnstown federal judge on Tuesday heard arguments from attorneys on both sides of a lawsuit challenging the Pennsylvania Supreme Court’s recent decision to allow the counting of some mail-in ballots received by county election officials up to three days after Election Day.
U.S. District Judge Kim R. Gibson, of the Western District of Pennsylvania, said he will issue a decision “as quickly as possible” on whether to grant plaintiffs’ request for a temporary restraining order and an injunction that would prevent election officials in Pennsylvania from accepting any ballots that are received after Nov. 3.
The Pennsylvania Supreme Court ruled on Sept. 17 that mail-in ballots can be counted if they are postmarked before the time polls close on Nov. 3 and are received by county election boards by 5 p.m. Nov. 6. The court also allowed counting of ballots without a clear postmark unless there was evidence that they were mailed after the polls closed.
The U.S. Supreme Court considered the matter and was split 4-4, resulting in the state court’s ruling being upheld. Chief Justice John Roberts sided with Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer in voting to uphold the ruling, while Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas would have prevented the state from counting ballots received after Election Day. Neither side issued opinions to explain their reasoning.
After the Senate voted Monday night to confirm new Justice Amy Coney Barrett to the Supreme Court, filling the seat left vacant by the death in September of Ruth Bader Ginsburg, the Republican Party is now reportedly seeking to have the Supreme Court reconsider that case.
The lead plaintiff in the case now before Gibson, Jim Bognet, is the Republican candidate in Pennsylvania’s 8th Congressional District, which includes Scranton and Wilkes-Barre. Also listed as plaintiffs are four people identified in Bognet’s complaint as registered voters from Somerset County – Donald K. Miller, Debra Miller, Alan Clark and Jennifer Clark.
They filed suit against Pennsylvania Secretary of State Kathy Boockvar and each of the state’s 67 county elections boards. Their main argument, according to their written complaint, is that the extension of the deadline violates Congress’ Constitutional power to establish Nov. 3 as the “single, uniform, national Election Day” this year.
David Thompson, managing partner of the Washington, D.C.-based firm Cooper & Kirk, presented arguments Tuesday on the plaintiffs’ behalf, echoing the claim in their written complaint that the Pennsylvania Supreme Court “effectively rewrote Pennsylvania election law and added multiple election days, vitiating the uniform Election Day set by Congress.”
Thompson compared a voter whose mail-in ballot arrives after Election Day to a voter who leaves their home at 7:59 p.m. on Election Day to vote in person, gets stuck in traffic and thus arrives at their polling place after it’s closed: “They haven’t been disenfranchised,” he said. “They’ve failed to comply with well-established rules.”
Michele Hangley, of Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, argued on Boockvar’s behalf that the plaintiffs were asking the court to “change the rules one week before the election, in a way that would turn the election upside-down.”
That echoed the introduction of defendants’ written response to plaintiffs’ motion for an injunction, which stated in part that granting that request “is guaranteed to cause confusion, disrupt polling places and drain election administrators’ resources” and would “likely disenfranchise tens of thousands, if not more, of the 1.3 million Pennsylvania voters who have not yet returned their absentee and mail-in ballots.”
Another attorney, Uzoma Nkwonta, a specialist in elections law and voting rights for the Washington, D.C., firm Perkins Coie, presented arguments to Gibson on behalf of the Democratic National Committee. He repeatedly referred to the Supreme Court’s “Purcell doctrine,” which holds that federal courts generally should not cause confusion by changing election laws just before an election, and drew a distinction between the case at hand and a similar case out of Wisconsin that was recently ruled on by the Supreme Court.
In that Wisconsin decision, the Supreme Court decided by a 5-3 vote Monday that elections officials there can’t count mail-in ballots received after Election Day.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote in his opinion on the Wisconsin case.