Pennsylvania's highest court agreed Monday to weigh whether the Commonwealth Court erred in ordering that observers from both sides could get within six feet of the tables where vote counting took place, or whether a Philadelphia Court of Common Pleas judge had been correct in ruling that the more limited observation area was enough to satisfy the Pennsylvania Election Code.
"The petition for allowance of appeal is granted on … whether, as a matter of statutory construction pursuant to Pennsylvania law, the Commonwealth Court erred in reversing the trial court, which concluded that petitioner City of Philadelphia Board of Elections' regulations regarding observer and representative access complied with applicable Election Code requirements," the court's grant said.
The order granting the appeal noted that it was not stopping Philadelphia's ongoing count of mail-in, absentee and provisional ballots, which on Saturday helped push Biden past Trump and gave him the electoral college votes needed to secure the presidency. The city commissioners running the tally said Saturday that there were still approximately 30,000 ballots left to be counted.
Chief Justice Thomas G. Saylor and Justice Sallie Updyke Mundy noted their dissent on whether to grant the appeal, but did not file anything Monday stating their reasons why.
Philadelphia has been one of the Trump campaign's battlegrounds for litigation contesting the election, with Trump's personal attorney Rudy Giuliani claiming without evidence at a press conference last week that 120,000 Philadelphia votes were counted without being observed and should be assumed to be fraudulent. Biden's lead in Pennsylvania on Monday stood at approximately 31,000 votes, tipped by the post-Election Day tallying of mail-in votes primarily from the urban areas of Philadelphia and Pittsburgh.
"Pennsylvania prevented us from watching much of the Ballot count. Unthinkable and illegal in this country," Trump tweeted Monday, above a warning from Twitter that "this claim about election fraud is disputed."
As the mail-in votes were being counted starting on Election Night, lawyers from the Trump campaign challenged their observers' separation from the counting in the Pennsylvania Convention Center, claiming they could not meaningfully observe what was going on from 25 to 30 feet away behind a metal barrier. Common Pleas Court Judge Stella Tsai ruled that night that the Election Code only provided for ballot counting to be observed, not closely audited.
But on appeal, the campaign won what it called a "major victory" when Commonwealth Court Judge Christine Fizzano Cannon ruled that allowing watchers to move closer was in keeping with the spirit of the law.
"Viewing the language of the Election Code sections in question with an eye towards maintaining the integrity of the elective process in the commonwealth, as we must, we find the language … imports upon candidates, watchers, or candidates' representatives at least a modicum of observational leeway to ascertain sufficient details of the canvassing process," she said in an opinion released early Thursday afternoon.
In a federal lawsuit filed after the Trump campaign claimed the board of elections was not following the state court's orders, the campaign and Philadelphia agreed Thursday to allow Democrats and Republicans to bring in 60 observers each to watch the counting process.
Philadelphia's brief to the state Supreme Court seeking an appeal said that the campaign's own attorney and witness at the Common Pleas hearing said he could move and observe each area of the Convention Center from behind the existing barrier, even though he was not close enough to read what was on every envelope. But even if observers were close enough to read the ballots and make their own conclusions about whether they were sufficient to be counted, there was nothing in the law that allowed them to challenge a ballot at that stage in the process, the board of elections brief said.
The Pennsylvania justices said they would also consider whether the observer access question was now moot, and if it was, if there was a chance the circumstances would ever repeat.
A representative of the Philadelphia Board of Elections declined to comment Monday. Representatives of the Trump campaign did not immediately respond to requests for comment.
The Philadelphia Board of Elections is represented by Marcel Pratt and Sean McGrath of the City of Philadelphia Law Department and Mark Aronchick and Robert Wiygul of Hangley Aronchick Segal Pudlin & Schiller.
The Trump campaign is represented by Ronald Hicks and Carolyn McGee of Porter Wright Morris & Arthur LLP and Linda Kerns of the Law Offices of Linda A. Kerns LLC.
The case is In Re: Canvassing Observation, case number 425 EAL 2020, in the Supreme Court of Pennsylvania.
-- Additional reporting by Matt Fair and Suzanne Monyak. Editing by Emily Kokoll.
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