Confusion reigned over the Pennsylvania ballot count on Thursday afternoon.
First, President Donald Trump’s reelection campaign notched a medium-sized victory mid-morning in an effort to have candidate representatives gain increased access to canvassing of ballots in the key electoral college state.
In a brief one-page order, the Pennsylvania Commonwealth Court reversed a lower court order and demanded accommodations be made “effective immediately” for “all candidates, watchers, or candidate representatives” to “be permitted to be present for the canvassing process pursuant” to the relevant provisions of state law.
That’s nothing new and the campaigns were both previously afforded such access.
But additionally, the court ordered that the campaigns will now “be permitted to observe all aspects of the canvassing process within 6 feet,” which is where Trump’s “win” comes in. Such watchers must “adher[e] to all COVID-19 protocols, including wearing masks and maintaining social distancing.”
Philadelphia later appealed to the Pennsylvania Supreme Court–which agreed to consider their petition. A ruling has not been issued as of this writing.
The upshot of the appeal’s court’s ruling, however, was initially thought to be somewhat muted.
“Here’s the Trump campaign winning one of its lawsuits in Pennsylvania in a ruling that will affect exactly…zero votes,” noted University of Texas Law Professor Steve Vladeck via Twitter.
The Trump campaign previously sued for “closer observation” of ballot counting in Philadelphia. A judge there denied that request by finding that elections officials were fully compliant with Keystone State electoral laws concerning the counting of ballots.
“The Petitioner’s witness provided copious testimony as to his ability to observe the opening and sorting of ballots,” the Philadelphia-based court noted on Wednesday. “His concerns pertained to his inability to observe the writing on the outside of the ballots. Given that observers are directed only to observe and not audit ballots, we conclude, based on the witness’s testimony, that the Board of Elections has complied with the observation requirements under [state law].”
As Law&Crime previously reported, the Trump campaign appealed that lower court order late Wednesday by filing a notice of appeal in the Court of Common Pleas of Philadelphia County.
And while legal commentators noted that the appellate victory did not directly order the counting of ballots to stop, that’s exactly what happened anyway—at least for a little while—in order to put the order into effect.
Kevin Feeley, spox for Philly elections officials, just gave super brief statement:
“The count is going forward. There was a brief pause earlier today in light of the ongoing litigation. But it has resumed in accordance with the law.”
— Jonathan Lai 🙊 賴柏羽 (@Elaijuh) November 5, 2020
And that’s when things got a bit confused.
NBC News anchor Andrew Mitchell reported that the Pennsylvania Supreme Court quickly overruled the appellate court–meaning the Trump campaign’s victory had a half-life of less than a few hours. The implication from Mitchell’s report was that the upturned order was the reason for resumed counting.
But it turns out Mitchell was wrong.
Election lawyer and legal Rick Hasen immediately disagreed with Mitchell’s take–tweeting that his sources said “this is incorrect.”
The Pennsylvania Supreme Court reportedly confirmed the error, as well:
A Pennsylvania court spox tells me that reports saying the PA Sup Ct reversed the Trump win in the state appeals court re: poll watching access is incorrect
Spox: “We have done nothing of the sort. I’m getting ready to send something out to get rid of this rumor”
— John Kruzel (@johnkruzel) November 5, 2020
Notably, the Trump campaign also requested that “all envelopes and other ballot materials” already counted in Philadelphia–and therefore not subject to Thursday’s super access order–be segregated and preserved in order for the campaign “to review and determine if the procedures outlined in the [Pennsylvania] Election Code were properly followed.”
Judge Christine Fizzano Cannon’s order was entirely silent as to that request.
Despite the limited nature of the ruling, the Trump campaign publicized the victory and appeared to take things in stride.
Trumpworld mainstay and Trump-Pence 2020 Senior Adviser Jason Miller tweeted out the order and noted that the campaign’s senior staff discussed the issue during a call on Thursday morning. It is currently unclear what, exactly, the campaign is excited about viz. the order.
Developments in the Commonwealth of Pennsylvania are generally alternating between breakneck and glacial paces as the country watches the excruciatingly long ballot-counting effort play out in real time.
Also on Thursday, a county elections board in the Pittsburgh area made clear that the count would stretch on into Friday at least.
Not just a day off. 29k of 35k left can’t be legally counted until Fri. due to court order. 29k are replacement ballots bc a contracted company delivered wrong ballots last month. Election return board HAS to legally meet tmrw before counting can resume https://t.co/1tvsWBlZiC
— Ryan Deto (@RyanDeto) November 5, 2020
Some 35,000 votes are still outstanding–the overwhelming majority of which are mandated by a court order to be locked away until Friday.
Eventually some process–affecting roughly 6,000 votes–was made on tabulating communities around Pittsburgh:
🚨Allegheny County counting update🚨
Most 35k mail-ins to be counted are the 29k ballots that can’t be legally counted until Friday. No mail-in ballot counting today.
But, 6 in person precincts will be tabulated in Braddock Hills, Homestead, Pittsburgh (2), Shaler & Whitehall
— Ryan Deto (@RyanDeto) November 5, 2020
In sum, there’s vote-counting chaos and delays on both sides of the crucially important state.
This is a developing story…
[image via Chip Somodevilla/Getty Images]
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