The Pennsylvania Supreme Court on Tuesday ruled to reverse a lower state court decision that guaranteed Republican observers the right to watch ballot counts from no more than six feet away.
In a 5-2 decision, the court said the state’s election code does not set a minimum distance poll observers need to be in order to watch ballot counts and meet the laws’ requirements. The majority added that if the court imposes a distance requirement, as the lower court did, it would be improperly rewriting the statute.
“The General Assembly, had it so desired, could have easily established such parameters; however, it did not,” the majority opinion stated. “It would be improper for this Court to judicially rewrite the statute by imposing distance requirements where the legislature has, in the exercise of its policy judgment, seen fit not to do so.”
Earlier in the month, a Pennsylvania appellate court ruled that “all candidates, watchers, or candidate representatives be permitted to be present for the canvassing process … and be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including, wearing masks and maintaining social distancing.”
Campaign officials said that observers had been forced to watch ballots being counted from as far away as 100 feet.
Election officials used a barricade and some type of security guard to keep observers from getting closer, Pam Bondi, a former Florida attorney general, told reporters in Philadelphia, outside the Pennsylvania Convention Center, where absentee ballots are being tabulated.
Hours after the court ruling, the Philadelphia Board of Elections requested an appeal at the state Supreme Court. The board argued that the election code only authorizes poll observers to remain in the room when ballots are processed.
They argued that the campaign’s representative, Attorney Jeremy Mercer, could see every portion of the “pre-canvassing and canvassing process” and thus “could confirm that the only ballots which were scanned and tabulated were those which had been removed from secrecy envelopes and that the outer ballot envelope had been inspected for sufficiency and then sorted.”
The campaign, on the other hand, focused on the ability to observe the process in a “meaningful way” so that it could “challenge the process through appropriate litigation.
The campaign argues that the board’s interpretation of the election rules means that observing the process from one end of the ballot-processing center that is the size of a football field is sufficient to meet the requirements of the law.
“This, in the Campaign’s view, ‘defies logic and reasonableness,’” the opinion explained.
The majority held that since the law was silent on the distance poll observers are allowed to stand, it means that it was “the legislature’s deliberate choice to leave such matters to the informed discretion of county boards of elections.”
Two of the justices on the state’s top court dissented, writing separating dissenting opinions. Chief Justice Thomas G. Saylor, who was joined by Justice Sallie Updyke Mundy, wrote that the state appellate court had reasonably directed election officials to move restrictive barriers in the Convention Center closer to the ballot-canvassing operations.
Saylor added that the state Supreme Court should not have intervened in the case because the counting of the ballots is nearing its conclusion and the campaign and election officials have an agreement under their federal case, which was filed separately.
The ruling comes as a federal judge hears oral arguments on whether to dismiss the Trump campaign’s lawsuit filed in the U.S. District Court for the Middle District of Pennsylvania. That case seeks an injunction to block the Keystone State from certifying the results of the 2020 General Election, alleging that state election officials had “mismanaged the election process” and that the counting process was “shrouded in secrecy.”
The Trump campaign did not immediately respond to The Epoch Times’ request for comment.
Zachary Stieber contributed to this report.
This case is cited as In Re: Canvassing Observation (Commonwealth Court: 1094 CD 20; Supreme Court: 425 EAL 2020/30 EAP 2020).