President Judge Dally Conducts Hearing on Challenged Provisional Ballots

At last night's meeting of NorCo Council, Executive Lamont McClure advised our elected guardians of the public purse that the recount in the U.S. Senate race is nearly finished and will be complete tomorrow. But the Elections Commission will be unable to certify the election until outstanding objections to 195 provisional ballots are resolved by President Judge Craig Dally. Those objections were filed by Lansdale Attorney Britain Henry on behalf of then Senate candidate David McCormick as well as the RNC and state Republican party. 

Senate candidate David McCormick is now a Senator-elect. Incumbent Bob Casey conceded yesterday, but not before imposing all kinds of extra work on 67 elections boards, which have spawned numerous county and state challenges to both mail-in and provisional ballots. He's kept lawyers busy, but his intransigence did little to assuage public confidence in our elections system. 

Yesterday, President Judge Craig Dally heard the challenges in a courtroom in which lawyers and party wonks outnumbered the public 2 to 1. Attorney Gary Asteak intervened on behalf of Senator Casey and Democrats, apparently unaware that Casey would be throwing in the towel later that day. Attorney Jacob Shelly, a "voting rights litigator," was there on behalf of Democrats. Attorney Rick Santee, former Solicitor to the NorCo Elections Commission, was representing the county Democrats. Finally, Attorney Michael Vargo was there as the current Solicitor for the Elections Commission. 

If nothing else, the hot air generated by these five lawyers should reduce heating costs at the courthouse for the next several months. 

I previously told you about Henry's petition. Since that time, he's amended it, and Judge Dally will no doubt be deluged with briefs on a matter that is, for all intents and purposes, over. Given Casey's concession, it could be argued that this matter is now moot. That doctrine is inapplicable to situations that can be repeated yet evade judicial review. Another exception is when the matter involved is one of public interest. 

Judge Dally distilled the objections as involving three questions:

1) Should the Court accept provisional ballots from 5 voters who checked in, but were unable to stand in long lines to vote by machine because of work and doctor appointments?

2)  Should the Court accept provisional ballots from 26 voters who failed to sign the provisional ballot envelope, even though the judge of elections and minority inspector attested to these nonexistent signatures?

3) Should the Court accept 164 provisional ballots properly executed by the voters, when either the Judge of Elections, Minority Inspector or both failed to attest to the electors' autographs? 

Let's review the testimony and argument. 

1) Should the Court accept provisional ballots from 5 voters who checked in, but were unable to stand in long lines to vote by machine because of work and doctor appointments?

This is what happened at Bethlehem 1 North, which is at the Cathedral Church of the Nativity. Judge of Elections Michael Kraylik, who testified by phone, told Judge Dally that there was only one voting machine at this location, and that turnout was "unbelievable." Waiting time varied from 45 minutes to 2 1/2 hours. He called the elections office multiple times to request another machine. 

He explained that when voters arrived, the first thing done was to check them in. Elections workers would look for the person's name, find it, and have the person sign in. Then the person was handed a slip of paper and would stand in line until the machine was available. 

Once a voter checks in, he is expected to stay and vote. What sometimes happens, even in light turnout elections, is that a voter leaves the booth thinking he has voted, but he has not. If elections workers can catch this voter before he leaves the voting area, he can be called back and asked to finish. But once he's out that door, it's too late. He will be checked in as having voted, but the final tally for the night from that machine will show that there is one less vote than the number of voters who checked in. This situation is known as the fleeing voter. 

In this case, the voters made clear they were unable to remain. Kraylik called the elections office, and Deputy Registrar Amy Hess instructed that these voters should be allowed to vote provisionally and the determination whether these votes should count would be made during the canvass.

Kraylik stated that all 5 of these were registered voters and eligible to vote in that precinct. All properly signed the provisional ballot and presented ID. All attested that they had not already voted. Kraylik himself stated he was sure they did not vote on the machine. 

If they had voted on the machine as well as provisionally, the tabulation from the voting machine would have reflected these additional votes. It would have shown more votes than the number of people who checked in. 

Attorney Henry insists these provisional ballots should be rejected. He noted that the five voters in question were not in court, adding there is a real danger that they could have voted twice. But Attorney Asteak countered he court would have to reject the credibility of the elections judge to reach that conclusion

Judge Dally was concerned whether the statute providing for a vote by provisional ballot (25 P.S. Sec. 3050) is limited. The statute provides provisional balloting should be available for an elector "who claims to be properly registered and eligible to vote at the election district but whose name does not appear on the district register and whose registration cannot be determined by the inspectors of election or the county election board." But Attorney Shelly argued that there is no real limitation. The Election Assistance Commission has stated in its guidance that provisional ballots are a "safety net" or a "fail-safe" for the voter and can be cast "for a variety of reasons."

2)  Should the Court accept provisional ballots from 26 voters who failed to sign the provisional ballot envelope, even though the judge of elections and minority inspector attested to these nonexistent signatures?

Attorney Henry argued that the law is "extremely clear" and "unambiguous," and he's right. It actually requires the voter to sign twice. There's this: 

Prior to voting the provisional ballot, the elector shall be required to sign an affidavit stating the following:

I do solemnly swear or affirm that my name is __________, that my date of birth is __________, and at the time that I registered I resided at __________ in the municipality of __________ in __________ County of the Commonwealth of Pennsylvania and that this is the only ballot that I cast in this election.

Signature of Voter/Elector

Current Address

Check the Reason for Casting the Provisional Ballot.

Signed by Judge of Elections and minority inspector

And this: 

After the provisional ballot has been cast, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections.

The statute also provides that a provisional ballot must be rejected if either of these required signatures are missing and even requires canvassers to compare that signature to the voter's registration form. That obviously is impossible if there is no signature on the provisional ballot.  

And if that's not enough, there's the Pennsylvania Supreme Court, which ruled on this precise question in September. Its conclusion that the language in the statute is mandatory, and notes that the legislature itself has prescribed that a provisional ballot without the required signatures must be rejected. The legislature itself has determined that a ballot with no signature is fatally defective. 

Attorney Shelly argued that refusal to allow these provisionals is "constitutionally intolerable," referring to the "free and equal" elections clause. But the Supreme Court has previously rejected this assertion. "[W]e are not persuaded constitutional principles require us to ignore such statutory requirements. Although the Board references this Court’s pronouncement that voting regulations may not “deny the franchise itself, or make it so difficult as to amount to a denial,” Winston v. Moore, 91 A. 520, 523 (Pa. 1914), the Board does not indicate how a statute that requires an elector voting by provisional ballot to sign the ballot’s outer envelope denies the franchise or makes it so difficult as to amount to a denial."

Attorney Vargo told Judge Dally that Attorney Henry wants to "have his cake and eat it, too." He noted that while Republicans challenged 26 provisionals, they made no complaint about others with the same defect. Presumably, Vargo is insinuating that Henry would challenge Democratic provisionals with no signature but would allow Republican provisionals with the same defect to slide. 

Henry responded with what basically amounted to "So what?"

3) Should the Court accept 164 provisional ballots properly executed by the voters, when either the Judge of Elections, Minority Inspector or both failed to attest to the electors' autographs? 

Although Attorney Henry insists that the statute requires signatures from both the Judge of Elections and Minority Inspector, you can see for yourself that the mandatory language that applies to the voter is missing for elections officials. Attorney Vargo noted this in his argument to Judge Dally. In fact, while the statute specifically provides that a provisional may not be counted if the voter's signature is missing, it makes no such requirement of elections officials. 

Attorney Shelly told Judge Dally that the five county courts that have considered this issue (Philadelphia, Bucks, Monroe, Chester and Erie) have ruled that those ballots must be counted. "Voting is not supposed to be a trap or an obstacle course," noted Shelly. 

Attorney Santee cited a Commonwealth Court ruling that a voter should not be penalized for "reasonable reliance on a representation, misrepresentation or mistake by an employee or representative of the Board of Elections."

When will Judge Dally decide this case? Quickly. He asked that briefs be in by Monday. 

I felt a little bad for Attorney Shelly after everything was over. I thought Gary Asteak or Rick Santee might treat him to a sandwich or something, but they took off and he was wondering up and down the parking lot because he was unable to remember where he parked. I told him it was in Monroe County.