WASHINGTON — The Pennsylvania Supreme Court threw out one of the Trump campaign's longest-running post-election complaints Tuesday, ruling that officials in Philadelphia did not violate state law by maintaining at least 15 feet of separation between observers and the workers counting ballots.
The ruling is likely to undercut the Trump campaign's case in federal court, where Rudy Giuliani joined a hearing Tuesday afternoon to argue on behalf of President Donald Trump's effort to contest the election results in Pennsylvania.
Republican observers said they were kept so far back, behind a waist-high fence, that they couldn't see any of the details on ballot envelopes or reach any conclusions about whether vote counting procedures were correctly followed. The Trump campaign sued, and a state appeals court said the observers were not given enough access. It ordered the county to move the fence closer to the counting tables.
But the state Supreme Court reversed that ruling by a vote of 5-2. It said Pennsylvania law requires only that observers must be allowed “in the room” where ballots are counted but does not set a minimum distance between them and the counting tables. The Legislature left it up to county election boards to make these decisions, the court said.
In the case of Philadelphia, the local board “fashioned these rules based on its careful consideration of how it could best protect the security and privacy of voters’ ballots, as well as safeguard its employees and others who would be present during a pandemic.”
A Republican observer, Jeremy Mercer, testified during lower court proceedings that he could see employees removing ballots from the security envelopes but could not read any markings in the outer envelopes. But Tuesday's ruling said state law does not allow observers to make challenges while votes are being counted.
Philadelphia’s regulations “were reasonable in that they allowed candidate representatives to observe the board conducting its activities as prescribed under the Election Code.”
Chief Justice Thomas Saylor dissented, writing that he would have declared the case moot, given that the counting is nearly done, rather than ruling. Besides, he said, the state Legislature "is signaling that there will be an intense after-action review of the no-excuse mail-in voting regime."
But he also said it was "misguided" to argue that "presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities." The Trump campaign continues to argue that the lack of observer access should delay or block the final vote canvass.
Giuliani, representing the Trump campaign at a hearing on a lawsuit in federal court Tuesday, said observers in Philadelphia were kept at bay by "the Democratic machine." He said it was part of "widespread nationwide voter fraud."
Edward Foley, an election law expert at the Moritz College of Law at Ohio State University, said Pennsylvania is unusual in allowing observers to be in the vote counting room but not letting them raise objections. "Pennsylvania's rules on this point are bizarre and antiquated. If the state Supreme Court is correct that there is no right to challenge, then all you get to do is watch in the broad sense to look for obvious problems."
Echoing the chief justice’s dissent, Foley said no court would be likely to invalidate ballots "solely because of a procedural flaw concerning observational rights.”
According to NBC News, President-elect Joe Biden won the state by more than 74,000 votes.