After the Trump campaign appealed five rulings by a Court of Common Pleas judge that allowed the counting of more than 8,000 Philadelphia mail-in ballots, the Philadelphia Board of Elections said Sunday that the Supreme Court of Pennsylvania should skip the lower appeals court and take over jurisdiction of the cases.
"Because the Pennsylvania Supreme Court has exclusive appellate jurisdiction over the campaign's ballot challenge under the Election Code, this court should transfer to the Supreme Court," the board told the Commonwealth Court, where Trump's appeals initially landed.
The board filed identical briefs for the five appeals — one for each batch of votes being contested — asking the Commonwealth Court to transfer the case to the Supreme Court. The Commonwealth Court consolidated the five cases into one Monday afternoon and scheduled video arguments for Wednesday morning.
Republican State Senate candidate Nicole Ziccarelli, who was running just 30 votes behind the Democratic incumbent in a district outside Pittsburgh, asked to intervene in the suit, noting that she had filed an appeal to the Allegheny County Court of Common Pleas over more than 2,000 votes that were counted despite missing dates on their outer envelopes. The Commonwealth Court said she could file a friend-of-the-court brief but did not grant her motion to intervene Monday.
The Trump campaign had sought to bar the canvassing of a total of 8,329 mail-in ballots in Philadelphia whose outer envelopes were signed but missing the date, address or voter's printed name, but Court of Common Pleas Judge James Crumlish ruled Friday that those ballots could still be counted because the instructions to "fill out" and sign the outer envelope were ambiguous, and the date, address and printed name were not features intended to protect against fraud. The campaign filed its appeal of the rulings to the Commonwealth Court on Saturday.
While many of the campaign's legal challenges in battleground states have been dismissed or withdrawn, Pennsylvania's Commonwealth Court judges have handed Trump his biggest wins in the state so far: a ruling that Secretary of the Commonwealth Kathy Boockvar had improperly extended a deadline for voters to verify their identities on mail-in ballots, and a ruling that the campaign's observers could get within six feet of workers tallying votes in Philadelphia. The latter case is being appealed to the state Supreme Court.
Former Vice President Joe Biden's lead in Pennsylvania — the decisive state in his Electoral College victory — stood at about 69,000 votes as of Monday, though Trump has refused to concede and his litigation has aimed to chip away at Biden's lead in the Keystone State.
The Philadelphia Board of Elections said the state Supreme Court should hear the ballot appeals because it has exclusive jurisdiction over cases involving "the right to public office," and it pointed to the justices' 1997 ruling in Commonwealth v. Spano
."'When the results of an election are challenged, the occupancy of a key public office is left uncertain until the legal contest is decided by the courts. For as long as the contest goes on, there is uncertainty over who is the rightful occupant of that office and no policy can be made,'" the board's brief said, quoting the Spano decision. "This reasoning applies here too, where time is of the essence ... immediate Supreme Court review is paramount."
The board said county boards of election have to finish tallying votes by Wednesday and certify them to the state by Nov. 23.
In the alternative, the board's motions argued, the Election Code says that once an election-related issue has been decided by the Court of Common Pleas, "no appeal shall be allowed or granted," though the state Supreme Court had allowed direct appeals under its jurisdiction and the state legislature in 1976 had granted the Commonwealth Court the ability to hear appeals of election and campaign finance matters.
Even with those competing standards, election disputes had occasionally been lifted directly from the Courts of Common Pleas to the state's highest court, and with time running out the justices should do the same here, the board said.
Ziccarelli asked to intervene in the Philadelphia suits because the appellate courts were potentially deciding issues relevant to her case in Allegheny County, whose election board had decided in a 2-1 vote along party lines Nov. 10 to count 2,349 ballots that were signed but not dated.
Ziccarelli, who was challenging Democratic incumbent state Sen. Jim Brewster in a district that includes Pittsburgh suburbs in Allegheny and Westmoreland counties, had appealed the board's decision to the Allegheny County Court of Common Pleas, where the case was still pending Monday.
In her motion to intervene, Ziccarelli said the Philadelphia cases could decide issues pertinent to her challenge, but the tighter race meant she needed to represent her own interests in the appeal.
"Ziccarelli is running for a different elected office than petitioner, and faces a substantially smaller margin, at this point, to win that office. Therefore, petitioner may be willing to make concessions that Ziccarelli cannot," her motion to intervene said.
Brewster led the race by just 30 votes, with a 6,130-vote lead in Allegheny County partially offset by Ziccarelli's 6,100-vote lead in the Westmoreland County portion of the district. The disputed ballots were not yet included in the totals because of the lawsuit.
"There are important issues about the interpretation of the Election Code that are cropping up throughout the state and impacting several candidates, so it makes sense to get these issues resolved as quickly and centrally as possible," said Matthew H. Haverstick of Kleinbard LLC, representing Ziccarelli.
The Philadelphia Board of Elections declined to comment Monday. Representatives for the Trump campaign did not immediately respond to requests for comment.
The Philadelphia Board of Elections is represented by Marcel S. Pratt, Craig Gottlieb, Benjamin H. Field and Lydia Furst of the City of Philadelphia Law Department, and Mark A. Aronchick, Michele D. Hangley, Robert A. Wiygul and John G. Coit of Hangley Aronchick Segal Pudlin & Schiller.
The Trump campaign is represented by Linda A. Kerns of the Law Offices of Linda A. Kerns LLC.
Ziccarelli is represented by Matthew H. Haverstick, Shohin H. Vance and Samantha G. Zimmer of Kleinbard LLC.
The cases is In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020, case number 1136 CD 2020, in the Commonwealth Court of Pennsylvania.
--Editing by Adam LoBelia.
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