The justices, fresh off denying the campaign's claims that its observers weren't close enough to the ballot counting, accepted the Philadelphia Board of Elections' petition to use the court's "extraordinary jurisdiction" and fast-track the Trump campaign's appeal seeking to stop technically incomplete ballots from being counted.
"Does the Election Code require county boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed their ballot's outer envelopes but did not handwrite their name, their address, and/or a date, where no fraud or irregularity has been alleged?" asked the Supreme Court order defining the issue for appeal.
The justices told the Commonwealth Court, where the five separate appeals of different batches of ballots had initially landed, to immediately transfer all briefs and records to the state Supreme Court. Chief Justice Thomas G. Saylor and Justice Sallie Updyke Mundy dissented on whether to take up the case.
Trump's 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, and the Board of Elections filed briefs asking the Commonwealth Court to transfer the case Monday, or for the Supreme Court to use its powers to elevate the appeal on Tuesday.
"The campaign's contention that various technical deficiencies on ballot-return envelopes mean that votes should be discarded raises important and novel issues of statutory interpretation that will impact the rights of not only 8,329 Philadelphia voters, but of voters throughout the commonwealth in this and future elections," the board wrote in its petition to the high court.
Similar cases had arisen in neighboring Montgomery County, where the Trump campaign was appealing another 592 ballots that were missing dates, and in Allegheny County, where Republican state Senate candidate Nicole Ziccarelli had challenged the counting of 2,349 ballots without dates in her much closer race against the incumbent. Ziccarelli, who was running 30 votes behind Democrat Jim Brewster in the state's 45th Senate District, had sought to intervene in the Trump campaign's appeal.
Allegheny County Court of Common Pleas Judge Joseph M. James ruled Wednesday that the incomplete ballots in that county should not be discarded, either, finding that the Election Code's language saying voters "shall then fill out, date and sign" the outer envelope was "directory, not mandatory." He said the ballots had been electronically dated in the state's computer system when they were scanned as received.
Matt Haverstick of Kleinbard LLC, representing Ziccarelli, said he thought the case was decided incorrectly but said he would be filing an appeal to the Commonwealth Court and an application for the Supreme Court to take up his candidate's case as well.
Philadelphia's appeal of the issue to the Supreme Court also raised the possibility that ongoing litigation over the ballots could delay the finalization of the state's vote count, where former Vice President Joe Biden led Trump by about 82,000 votes as of Wednesday. Trump's litigation in state and federal courts around Pennsylvania has sought to chip away at Biden's lead or stop the state from counting votes, particularly in cities and counties that favor Democrats.
"If this court does not immediately exercise extraordinary jurisdiction over this case, it will threaten the board's, and potentially the commonwealth's, ability to meet statutory reporting and certification deadlines, as the fate of these 8,329 ballots will be the subject of ongoing litigation," its petition said.
Representatives of Allegheny County and the Trump campaign did not immediately respond to requests for comment Wednesday.
"We look forward to the court's attention to this matter and will vigorously defend the Philadelphia County Board of Election's decision to count the mail-in ballots at issue against the Trump campaign's continued efforts to disenfranchise voters in Philadelphia," Philadelphia City Solicitor Marcel Pratt said Wednesday.
The Philadelphia Board of Elections is represented by Mark A. Aronchick, Michele D. Hangley, Robert A. Wiygul and John G. Coit of Hangley Aronchick Segal Pudlin & Schiller and Marcel S. Pratt, Benjamin H. Field, Lydia M. Furst and Craig Gottlieb of the Philadelphia Law Department.
The Trump campaign is represented by Linda A. Kerns of the Law Offices of Linda A. Kerns LLC and Ronald L. Hicks Jr. of Porter Wright Morris & Arthur LLP.
Nicole Ziccarelli is represented by Matthew H. Haverstick, Shohin H. Vance and Samantha G. Zimmer of Kleinbard LLC.
The Allegheny County Board of Elections is represented by Andrew F. Szefi, Virginia S. Scott and Frances Liebenguth of the Allegheny County Law Department.
The cases are In re: Canvass of Absentee and Mail-In Ballots of the Nov. 3, 2020, General Election, case numbers 89 EM 2020, 90 EM 2020, 91 EM 2020, 92 EM 2020 and 93 EM 2020, in the Supreme Court of Pennsylvania, and Ziccarelli v. Allegheny County Board of Elections, case number GD-20-011654, in the Court of Common Pleas of Allegheny County.
--Editing by Janice Carter Brown.
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