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Pennsylvania’s Democratic election leaders violated state code on Monday when they authorized county election officials to provide information about rejected mail ballots to political party operatives, according to a Republican lawsuit filed in state court and obtained by National Review.
The lawsuit cites an email sent to county election directors at 8:38 p.m. on Monday by Jonathan Marks, Pennsylvania’s deputy elections secretary.
In the email, Marks wrote that “county boards of elections should provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected” so they could be offered a provisional ballot.
Democrats have been winning mail-in voting handily in Pennsylvania and mail votes are key to Joe Biden’s chances of overtaking President Donald Trump’s dwindling lead in the state.
Republicans argue the direction from Marks violates the state’s election code, which states “no person observing, attending or participating in a pre-canvass meeting may disclose the results of any portion of any pre-canvass meeting prior to the close of polls.”
In the lawsuit, filed Tuesday against Secretary of State Kathy Boockvar in part by two Republican state house candidates, the Republicans note that Pennsylvania’s supreme court stated last month that “unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects (to their ballot) in a timely manner.”
But the Republicans argue that the opportunity to cure perceived defects for ballots that overwhelmingly support Democrats is exactly what Boockvar and Marks were allowing. Attempts to reach Boockvar and Marks for comment on Thursday were unsuccessful.
At least eight counties refused to accept Marks’ suggestion that they make voters aware of rejected ballots because doing so violates the state’s election code, according to the lawsuit.
The Monday night email is just one of several pieces of guidance by Democratic election leaders that Republicans say have been inconsistent and confusing.
Lawrence Tabas, the chairman of the Pennsylvania GOP, said high-ranking state Democrats are using their positions to stack the deck against Republicans and President Donald Trump.
“They constantly are changing the rules,” he said. “They have been applying different standards, issuing guidances as they go, changing the rules as they go, and making it difficult for us to be able to establish that there is one clear, uniform standard of how to do this throughout the whole commonwealth. That’s what we want.”
Pennsylvania Republican leaders also have complained about inconsistent guidance to county election directors about segregating and processing mail ballots that arrive after Election Day.
Republicans are challenging a Pennsylvania supreme court ruling that allows for all mail-in ballots that arrive by 5 p.m. on Friday to be counted.
Just last year, the Pennsylvania legislature extended the deadline for mail-in ballots to be received from 5 p.m. on the Friday before Election Day to 8 p.m. on Election Day, the time that polls close for in-person voting. The state supreme court’s elected Democratic majority then further extended the deadline to the Friday after Election Day, a change the legislature had refused to make.
In the case of a dispute about when exactly a ballot was postmarked, or if it wasn’t postmarked at all, the state supreme court ruled that election officials are required to assume it was sent in by Election Day rather than rejecting it, as done under existing state law.
In early October, the U.S. Supreme Court deadlocked on the case, but left open the possibility that the Court could reconsider it.
Pennsylvania officials have urged county election directors to keep late-arriving ballots segregated, but Republicans have said the instructions have been confusing.
State Senate majority leader Jake Corman said at a Wednesday press conference that he believed the State Department has been “weaponized” and influenced by partisan efforts to sway the vote, the Pittsburgh Post-Gazette reported.
“All we want to do is have confidence in the result,” Corman said, according to the Post-Gazette. “We’ll have winners and we’ll have losers, but it seems to be the mission of the Democratic Party to cause confusion in this race.”
Boockvar responded that the state’s guidance has been clear.
“They don’t like the late counting of ballots because they don’t like anything that allows more eligible voters to be enfranchised,” she told the paper.
Tabas worries that without clear guidance about how to process late-arriving ballots, they could be co-mingled with ballots received by Election Day. That could be a problem if the Supreme Court rules that only ballots received by Election Day should count in the final tally.
“There was no clear indication as to how, during that processing, they could remain segregated so we could identify later which ones came in late and are included in the total or not,” he said.
Winning Pennsylvania is key for Trump to have any chance of holding the presidency. He was ahead by about a half-million votes Wednesday, but Biden has cut into his lead as more absentee ballots are counted. Trump’s lead was down to about 100,000 votes on Thursday afternoon.
Tabas said it’s not clear how many outstanding ballots have yet to be canvassed and counted, and it’s not clear how many ballots actually did arrive after Election Day.
He said he remains optimistic about Trump’s chances in the Keystone State, even though many elections experts are projecting that Biden will ultimately pull ahead.
Tabas said Trump “has done very well throughout the state, and part of our confidence and hope and optimism is, our statewide candidates are doing very well.”
“We’ve had greater turnout than expected in our strongholds on Election Day,” he said. “We’ve exceeded our expectations, in some cases very dramatically. Right now we are just waiting to see what is left to be counted and that the rules are being applied equally and uniformly.”
In addition to the lawsuit over ballot counting and the lawsuit over alleged violations of the state’s election code, the Trump campaign also has said it filed a lawsuit in Pennsylvania because its poll watchers have not been actually able to observe ballot counting.
During a press conference Wednesday in Philadelphia, Rudy Giuliani, Trump’s personal lawyer, said poll observers are being kept so far back that they are “never able to see the ballot itself, never able to see if it was properly postmarked, properly addressed, properly signed on the outside, all of the things that often lead to the disqualification of ballots, or make it very easy to dump 50,000 totally fraudulent ballots because they’re not observed.”
“Not a single Republican has been able to look at any one of these mail-in ballots,” Giuliani said. “They could be from Mars as far as we’re concerned, or they could be from the Democratic National Committee. Joe Biden could have voted 50 times as far as we know, or 5,000 times.”
Read the full lawsuit here: Pa. GOP lawsuit