A federal judge in Pennsylvania on Wednesday weighed arguments by Republicans seeking to stop a suburban Philadelphia county from counting mail-in and absentee ballots that voters had been permitted to correct.
US District Judge Timothy Savage in Philadelphia appeared skeptical of arguments by the plaintiffs’ lawyer, which lawyers for Montgomery County election officials and the Democratic National Committee said could disenfranchise voters.
A decision could have implications for the national presidential race between Republican incumbent Donald Trump and Democratic rival Joe Biden.
Results in several states are unclear, and Pennsylvania is a battleground as mail-in ballots are tabulated. Trump appeared at the White House early Wednesday to falsely claim victory in the presidential race and make unsubstantiated allegations of electoral fraud.
The Pennsylvania lawsuit had been filed by Kathy Barnette, a conservative political commentator projected to lose her race for a House seat in the state’s 4th Congressional district, and Clay Breece, chairman of the Republican Committee in Berks County.
They accused Montgomery County election officials of having illegally “pre-canvassed” ballots for mistakes and allowing voters to correct them, and sought a temporary restraining order blocking them from being counted.
Thomas Breth, a lawyer for the plaintiffs, likened the case to the 2000 election, when the Supreme Court in Bush v. Gore settled a dispute over vote-counting in Florida, enabling Republican George W. Bush to capture the White House.
“It pains people to mention Bush Gore, but that’s the analysis that applies,” Breth said.
“It is creating the same situation that Florida created in 2000,” with “all of these different counties treating ballots in non-uniform manners,” he added. “There’s a solid argument that you’re voting twice.”
Savage, however, questioned Breth on the fairness of blocking voters from correcting mistakes on their ballots.
“So what happens to my vote?” the judge asked.
Breth said it could be “potentially disqualified.”
“But I was never given the opportunity” to fix it, Savage responded. “I am losing my vote.”
Election officials countered that there was no equal protection violation, and accused the plaintiffs of filing a last-minute lawsuit to undermine voters’ right to vote.
“No one is changing their ballot. No one is voting twice,” said Michele Hangley, a lawyer for the election officials.
She added that voters like the plaintiffs “don’t have a free-floating right to police other people’s votes.”
County officials estimated that only 49 votes were at issue in the lawsuit, while the plaintiffs estimated 1,200.
Savage was appointed to the bench by Bush in 2002.
As of 10:30 a.m. EST (1530 GMT), Barnette trailed Democratic incumbent Madeleine Dean in their House race by 15 percentage points with 84% of the vote counted, The New York Times said, citing data from the National Election Pool/Edison Research.
Dean was ahead by 16 percentage points in Montgomery County, portions of which comprises most of the district.
The case is Barnette et al v Lawrence et al, U.S. District Court, Eastern District of Pennsylvania, No. 20-05477.
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