First Post-Election Lawsuit in Pennsylvania Filed on Tuesday With High Stakes

It came to light today that election officials in Montgomery County, Pennsylvania, a suburban Philadelphia County, have been engaged in the practice of “curing” deficient mail-in ballots by contacting the voter and providing them a chance to correct whatever defect was discovered when the ballot envelope was opened.  Pennsylvania law has no provision authorizing a “curing” practice — nor does it prohibit such practices — and the Pennsylvania Supreme Court did not include a include in its earlier decision authorization for “curing” procedures such as those alleged to be taking place.

The lawsuit was filed in the United States District Court for the Eastern District of Pennsylvania by a GOP congressional candidate, Kathy Barnett.  The Congressional district she is seeking to represent represents voters in both Montgomery and Becks Counties.

I’ll go into the legal issues raised by her complaint in a later post once a bit more is known.  One claim is based on the Supreme Court decision in Bush v. Gore, wherein the Court held that inconsistent standards applied across several counties in determining election disputes can violate the Equal Protection Clause of the 14th Amendment since citizens in different counties undergone different treatment in how their vote is determined by the County government.  Plaintiff Barnett claims that because Becks County is not engaging in the “curing” practice that Montgomery County is engaging in, this raises an Equal Protection problem.

The complaint alleges that election officials have illegally “pre-canvassed” ballots by opening the mail-in envelopes and examining them.  I have not researched the issue yet, but my recollection from some of the things I’ve read is that under Pennsylvania law the “mail-in” ballots were not supposed to be opened until election day.

The complaint includes photographs of what it claims are thousands of open ballots left on a cart in the hallway of a county office building.

The case has been assigned to U.S. District Court Judge Patrese Tucker, a 69 year old female judge first appointed to the President Clinton in 2000.  A hearing has been scheduled for Wednesday to address the status of the matter.

This is one of the reasons to be suspicious about the decision of Philadephia County to stop counting votes on Tuesday — creating a period of delay when these kinds of activities can take place before all votes are counted. While this matter is pending, Philadephia County officials can use the time to look for problems with ballots in their county, and extend to voters a chance to “cure” any defects.

I’ll update this post tomorrow after the hearing.