Trump’s PA Strategy Is to Use the Courts to Toss Votes Out. It’s Not Working.

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Voting Wrongs

Bethany Hallam, an at-large member of the Allegheny County Council and its elections division, was working a polling place in Pittsburgh, Pennsylvania, when the calls started coming in. Poll workers at other local precincts were running out of provisional ballots. Around lunchtime she left to vote at her assigned precinct with a plan to test whether the election was working as it should. Hallam would surrender or “spoil” the mail-in ballot she requested and vote in person, which is legal under Pennsylvania law. However, poll workers told her she could not vote in-person and would have to fill out a provisional ballot instead.

Hallam explained that she is an election official and produced the rulebook for poll workers. It turned out the poll workers had mistakenly directed an untold number of voters who received their mail-in ballot late, or received a mail-in ballot but decided to vote in-person, to vote provisionally. Hallam knew poll workers were making the same mistake elsewhere based on the multiple calls she received reporting shortages of provisional ballots. County officials now estimate more than 17,000 voters cast provisional ballots instead of voting in person — including voters who voted provisionally because their mail-in ballots were not accepted.

“Luckily I had the poll worker manual handy and showed them why it’s wrong and they were like, ‘Oh, we’ve been doing this all day,’” Hallam said in an interview with Truthout on Wednesday.

It was an honest mistake, but Hallam was worried. She knew Allegheny County, with its large number of Democratic voters who were more likely to request a mail-in ballot due to the COVID-19 pandemic, would be one of the last counties in Pennsylvania to report results. Hallam worried about Pennsylvania’s 20 electoral votes that could decide the presidential election, not to mention tight local and state races decided by much smaller margins. Provisional ballots are normally counted, but that process can take up to a week, because election workers must verify that voters did not vote another way. However, this is not a normal election.

“I’m not concerned about [the provisional ballots] not being counted for the next seven days, I am concerned about future litigation,” Hallam said, adding that the Trump campaign had already sued her county elections office multiple times ahead of the election. “At the end of the day, it’s my job to make sure that every vote is counted.”

The Trump campaign and Republicans have filed more than 300 lawsuits nationwide challenging efforts to expand access to the ballot during the pandemic, or opposing lawsuits filed by voting rights advocates seeking to expand ballot access. Hallam said a law passed by Pennsylvania’s GOP-controlled legislature in 2019 that expanded mail-in voting appeared to be convenient when the pandemic hit months later, but she now wonders if the law was “intentionally” written to be “ambiguous,” setting the stage for dozens of legal challenges filed by Republicans and the Trump campaign both before the election and after, as the results trickle in.

Several hours after the polls closed on Tuesday, Trump’s lead in key swing states was withering as more mail-in ballots in large metropolitan areas were tallied. Like clockwork, the Trump campaign prematurely declared false victory and announced his intention to contest the election before the Supreme Court, where Senate Republicans had just rushed to install Amy Coney Barrett at Trump’s request. With the addition of Justice Barrett, the court now has a solid conservative majority. By Wednesday, Trump, his son, and top campaign officials were spreading baseless conspiracies about mail-in voting in a desperate attempt to undermine the results.

“We Want All Voting to Stop”

As Hallam predicted, the presidential race in Pennsylvania had not been called by Thursday morning, when President Trump held a slight lead over former Vice President Joe Biden. The secretary of state’s election dashboard showed that the 22 percent of mail-in ballots yet to be counted — about 581,000 as of Thursday — were mostly mail-in ballots cast in Allegheny County and the Philadelphia area, two Democratic strongholds that are now tipping the state in Biden’s favor. By Friday morning, Biden pulled ahead in Pennsylvania and Georgia, putting the Democrat on a clear path to victory. Hallam and other elections officials had warned for weeks that the results of the election could be delayed due to a flood of mail-in ballots, but Trump had already spent months making baseless claims linking mail-in voting to “fraud.”

“We want all voting to stop,” Trump declared from the White House in the wee morning hours following election night. Fundraising emails from his campaign soon echoed the same line, claiming without evidence that Democrats created “chaos” with mail-in ballots and are trying to “steal” the election. Of course, voting had already stopped at every polling place across the nation by the time Trump took the podium early Wednesday morning. Distorting reality with a lie, Trump was actually demanding that vote counting stop.

The Trump campaign began raising money for a legal fight that the president said should go before the Supreme Court. In the days to come, angry mobs of Trump supporters would gather at vote counting sites in Arizona, Michigan, and Pennsylvania with vague demands to “count the vote,” which election workers were already busy doing. Legal experts quickly pointed out that Trump could not bring a case before the Supreme Court simply because the court is stacked with his appointees; cases must go through lower courts first. In the hours and days that followed, the Trump campaign and its GOP allies filed a flurry of challenges and lawsuits in key swing states demanding recounts or challenging vote counting procedures — including Pennsylvania, where the campaign hopes to intervene in a Supreme Court case over a state deadline for mail-in ballots that could invalidate thousands of votes.

“It’s just a shame that with an election this crucial a sitting president is trying to have it decided in the courts instead of listening to the will of the people,” Hallam said.

GOP Fights to Throw Out Votes in Pennsylvania

Hallam quickly realized she had good reason to be worried about the number of provisional ballots cast in Pennsylvania.

Republican Rep. Mike Kelly of Pennsylvania, a Trump ally in Congress who defeated a progressive Democrat for reelection, and five other plaintiffs filed a lawsuit against Pennsylvania Secretary of State Kathy Boockvar in state court on Tuesday. Republicans in Congress called on Boockvar to resign. Boockvar’s alleged wrongdoing? Issuing a guidance allowing election officials to notify voters whose mail-in ballots were rejected, often due to simple mistakes like a missing security envelope, so they could cast provisional ballots on Election Day. The lawsuit claims the practice of “curing” mail-in ballots with a provisional ballot runs afoul of state law and created confusion, a charge denied by Boockvar, who has pledged to count all legitimate votes. The lawsuit demands the provisional ballots be thrown out and follows a similar challenge against election officials in Montgomery County, a Democratic-leaning area in the Philadelphia suburbs.

Thanks to the 2019 election law passed by the state legislature’s Republican majority, Pennsylvania election officials were not allowed to start counting the unprecedented numbers of mail-in ballots until Election Day. Similar restrictions were passed by the GOP-controlled legislatures in Wisconsin and Michigan, two other swing states that became nail-biters as officials scrambled to count mail-in ballots and the Trump campaign’s lawyers swooped in. Hallam agreed that these restrictions contributed to delayed results in Pennsylvania, giving the Trump campaign space to spread disinformation and file legal challenges.

“There were no surprise ballot dumps, and it’s important to remember that Wisconsin, Michigan and Pennsylvania were all blocked by GOP legislatures from counting ballots early despite requests from both Republican and Democratic local election officials in those states wanting do so,” said Vanita Gupta, a civil rights attorney and member of the National Task Force on Election Crisis, during a Wednesday press briefing. “And so that is why we find ourselves with these delays in this moment.”

Hallam said that, in the past, Pennsylvania election officials were allowed to open mail-in ballots a week before the election, giving them time to notify voters if their ballots were rejected. So, officials in Allegheny County and others began “pre-canvassing” on Election Day by opening the mailing envelope without opening ballots concealed in security envelopes inside. That way, election workers could identify common defects that invalidate a ballot under state law: a missing security envelope for example, or a political message like “Trump 2020!” scrawled across it.

“As you can imagine, folks don’t always read instructions,” Hallam said.

In Hallam’s county and others, voters with rejected mail-in ballots were notified, often by telephone, so they could cast provisional ballots on Election Day. These are the ballots Rep. Kelly and other Republicans want thrown out, arguing that earlier court rulings block Pennsylvanians from correcting their ballots and casting a vote that will count. The Trump administration also moved to intervene on Wednesday, announcing multiple legal challenges in Pennsylvania and demanding that vote counting be halted. On Friday, judges in Philadelphia and Georgia threw out lawsuits from the Trump campaign attempting to halt vote counting.

Kelly’s lawsuit is directly connected to the case the Trump campaign wants to litigate before the Supreme Court, especially if the presidential race comes down to Pennsylvania. Last month, the Supreme Court deadlocked 4-4 on a Republican request to block a Pennsylvania Supreme Court order allowing election officials to count mail-in ballots received up to three days after Election Day. Similar to efforts in some other states, Pennsylvania’s Supreme Court recognized there could be postal delays in delivering ballots, and ordered ballots to be counted unless there is clear evidence the ballots were postmarked after Election Day. After the U.S. Supreme Court refused a last-minute plea from Republicans last week to fast-track the case just days ahead of the election, Trump falsely claimed the decision would “incite violence.”

Republicans argued the Pennsylvania Supreme Court thwarted the will of the state’s legislature, while Pennsylvania’s Democratic attorney general argued the court acted within its authority to protect “free and equal elections.” At least three conservative members of the U.S. Supreme Court hinted that they would consider overturning the order after the election. Barrett has since taken the bench and has not recused herself from hearing the case, despite concerns among Democrats that Senate Republicans rushed her nomination to give Trump leverage in a major election challenge.

Kelly and other Republicans now claim Boockvar told the Supreme Court that mail-in ballots received by mail after 8 p.m. Election Day would be “segregated” from those received before the polls closed in case the Supreme Court takes up the Republican challenge against the deadline extension. They argue that guidance from Boockvar allowing election officials to pre-canvass mail-in ballots and notify voters that their ballot was rejected complicated the effort to “segregate” ballots in some counties. A Pennsylvania state judge on Friday denied the bulk of Kelly’s lawsuit and counts of provisional ballots continued.

In a press conference, Boockvar said her guidance conformed to state law, and that she checked in about canvassing and segregating ballots with vote counters, who said it wouldn’t be a problem.

“We will oppose every effort to at any point shut down the vote,” Boockvar said on Wednesday. “We get to decide when the last vote is counted.”

The legal wrangling is complicated, but the Trump and GOP post-election strategy in Pennsylvania is clear: Use the courts to throw out as many votes as possible, especially those that arrived in the mail after the polls closed, despite postage delays that observers say were engineered by the Trump administration. While legal challenges filed by the Trump campaign in other swing states have little to do with mail deadlines — the Biden campaign argues they simply serve to cast a shadow over the legitimacy of the election — it’s the challenges to votes in Pennsylvania that may have the potential to swing the election in Trump’s favor.

However, election law experts say it’s somewhat unlikely the Supreme Court will hear a case over ballots in Pennsylvania. The election would have to come down to Pennsylvania alone, and by a slim margin. Biden appears to have clinched Arizona and is currently leading in Nevada, which would give him enough electoral votes to win the presidency.

Meanwhile, the Trump campaign continues to fight to throw out legitimate votes in a desperate attempt to cling to power.

“Why should any voter who voted by the 8 p.m. election deadline have their vote invalidated?” Hallam said.

This story has been updated.