The Standard of Review

SCOPAblog Presents: In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election

May 17, 2021 Presented by SCOPAblog Season 1 Episode 3
The Standard of Review
SCOPAblog Presents: In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election
Chapters
The Standard of Review
SCOPAblog Presents: In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election
May 17, 2021 Season 1 Episode 3
Presented by SCOPAblog

Host Corrie Woods interviews fellow appellate attorney Adam C. Bonin to discuss the recent developments in Pennsylvania election law, with a special emphasis on the series of cases related to the 2020 general election.

Show Notes:

Read more about In Re: Canvass of Absentee and Mail-In Ballots and all of SCOPA's cases on SCOPAblog.

Show Notes Transcript

Host Corrie Woods interviews fellow appellate attorney Adam C. Bonin to discuss the recent developments in Pennsylvania election law, with a special emphasis on the series of cases related to the 2020 general election.

Show Notes:

Read more about In Re: Canvass of Absentee and Mail-In Ballots and all of SCOPA's cases on SCOPAblog.

INTRO  0:00  
The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice our laws and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to this standard of review by SCOPAblog.

Corrie Woods  0:27  
Hello, everyone, and welcome to this the third episode of the standard overview, by SCOPAblog. We'll be talking today about a series of cases that if you were anywhere near a computer, or radio or television, or even a carrier pigeon at the end of 2020, need no introduction. That's right. The virtual Farago of election law cases brought to the court involving Pennsylvania's mail in ballot law. litigants brought challenges ranging from attacks on the law itself as unconstitutional to attacks on an individual voters ability to write a date on the back of an envelope, sometimes to win the race, and sometimes to win the news cycle. And then something of a Herculean effort. The court addressed each claim expeditiously thoroughly, and at least in my opinion, fairly. Let's listen. Our guest today is Adam Bonin of the law office of Adam C. Bonin located in downtown Philadelphia, to say that Adam focuses on election and democracy law would be an understatement. Adam represents elected officials and candidates for office on the federal statewide and local levels, as well as corporate labor, nonprofit and other politically active entities on federal state and municipal campaign finance, election law and regulatory compliance matters, including pay to play law, and the regulation of lobbying activities. He's represented candidates for office ranging from President of the United States, United States senator and governor to city council and township Commissioner. Adam, welcome to the standard of review. It's pleasure to be here. Adam, before we get into the case, we're here to talk about proper Can you just give the listeners a little understanding of your your work before you entered into this field and, and how you got into, as we say, the law of democracy and elections?

Adam Bonin  2:09  
Sure, I spent the first seven years of my practice in two large law firms in in Philadelphia, both very good firms doing litigation. And I wasn't happy. And I wasn't entirely sure why, you know, I was doing some high profile work here. So it was on behalf of, you know, clients that I wasn't thrilled about representing or just other things, but I just, I wasn't happy being a lawyer. I took a break from practice, in 2004, wondering if maybe believing that my destiny was to be a lawyer ever since, you know, middle school or whatever, was a mistake. And I worked for a US Senate campaign that year, Joe hopple. In his race against arlen specter, there was a lot that I enjoyed about that year, I enjoyed the camaraderie. I enjoyed having work that excited me every day in terms of the fight that I was fighting. But I missed being a lawyer, I really missed writing briefs and motions and working on that level of complexity. But what I realized was that I needed to be lawyer and more with a purpose that I needed to find a setting in which I was excited about doing what I was doing. cozen O'Connor presented me with that opportunity that was doing political law at all. It was to work on their 911 litigation against the Saudis and others who had funded the attacks for which, you know, for which they needed someone who only wanted to do briefs and motions. But while I was there, a number of fortunate things happened, another number of opportunities, either presented themselves, or I saw it, which got me into this field, just a lot of lucky things happened in the spring of 2005. For me,

Corrie Woods  3:52  
a really interesting time to get into the political world to write. I mean, that's the that's during the national howard dean campaign and the rise of the Internet as a political force really not used effectively before then. Right.

Unknown Speaker  4:08  
Yeah. And in fact, that's the first thing that happened, which was in March of Oh, five, the Federal Election Commission announced that they were going to do a rulemaking process to figure out how to how to apply the new mccain feingold rules to the internet. You know, were bloggers going to have to register as political committees. You know, what kind of disclaimers did they need? Could they do both fundraising and advocacy, all sorts of questions like this. And I was friends with a number of bloggers through my political work, mainly, Duncan black, who blogged into the name of atrios and still does and the people of cozen O'Connor were willing to give me pro bono credit for this work, recognizing that it would be an opportunity for me to enter a new field and really market myself and get involved in some exciting first amendment issues. So yeah, I had a you know, a year and a half On which I've spent a lot of time learning Federal Campaign Finance, law and regulation, thinking about how to apply to the new space, presenting written testimony, presenting witnesses before the FTC, lobbying before Congress and presenting my clients testified before Congress, all sorts of just great things in this space that allowed me to learn how to be a campaign finance lawyer and to get known as such in the space. I mean, I remember at the time, you know, the lawyer from the Kerry Edwards campaign, who was presenting their views on this issue post campaign was Mark Elias, who, you know, jumped ahead 15 years later, is unquestionably the leading lawyer in this field. And so I got to know a lot of these people from back then. And they saw what I could do, I learned what I could do. And from there on, both within the firm and outside the firm opportunities kept presenting themselves.

Corrie Woods  6:03  
Yeah, and just to be clear, that FEC rulemaking process came up pretty favorably for for bloggers, right.

Unknown Speaker  6:11  
Oh, absolutely. What they decided was, you know, paid ads required disclaimers, and beyond that they were going to leave bloggers alone. They were going to be treated as exempt from campaign finance laws, either through their volunteer exemption, or and this was really the big thing that we were pushing for, as press that that a blogger doing editorializing was going to have the same protections as print media, as radio, etc. I mean, even back then we were talking about in our briefs that, you know, Sean Hannity would fundraise for candidates on his radio show. So why couldn't a blogger, newspapers obviously could urge people to vote for someone even encourage contributions. And we saw no reason why bloggers shouldn't have the same freedom. There was a there's a good amount of opposition to this, you have to understand, especially from the traditional campaign finance community, which saw this as a loophole for corporate involvement in politics. You know, what if Halliburton had had a blog? What was the big fear that was expressed, we had some really persuasive arguments that people didn't need to worry about that, which I do think have really been borne out over the past 15 years, that online freedom and the small dollar, the small donor revolution that it fomented have only been good for politics?

Corrie Woods  7:36  
I mean, the Halliburton blog if if that were ever to exist, doesn't, doesn't quite evoke the same kind of a following as, as someone who's who's providing sort of insightful commentary, right.

Unknown Speaker  7:48  
Yeah, I mean, credibility matters a ton in these spaces. And if General Electric could own NBC News, who cares if our urban blog did the same thing was happening anyway?

Corrie Woods  7:59  
That's right. That's right. So in the vein of the the opportunities that sort of presented themselves over the years for you, there's been a fair amount of involvement in Pennsylvania specific litigation, and particularly litigation before the Supreme Court of Pennsylvania. Can you just provide listeners with a little bit of a survey of some of the work you've done before the court?

Unknown Speaker  8:21  
Sure, it's been everything from candidate eligibility disputes, all the petition and residency cases? I was involved in the 2011 2012. redistricting litigation, the whole litigation, obviously, over the past year, I was involved in almost every every piece of mail in ballot and, and other litigation which made its way to the court.

Corrie Woods  8:49  
Yeah. So let's talk a little bit about obviously, the case we're here to talk about today is the somewhat less than attractively named NRA canvass of absentee mail in ballots of November 3 2020. General Election, I think we can just call it the mail in ballot case. But if we could talk a little bit about, I guess, the legislation that brought about this new mail in ballot regime and how it develops and how it was an accident in the first place.

Unknown Speaker  9:19  
Sure, act 77 of 2019 was a three way compromise. What had happened was earlier in the year, Governor Wolf put forth a mandate that all of the counties switch over if they weren't already to using voting machines that are that involved some kind of paper receipt, or paper trail of the ballots cast. The counties saw this as an unfunded mandate. They wanted funding for it. And the question was how to get all the parties there. And so a three way deal was was reached. The governor got the funding for the machines through a bond deal. The Democrats in the legislature got no excuse me. Voting, which is on the inside for a long time. And the republicans in the legislature had one major ask. And that was to get rid of the single button straight ticket voting in elections, which they they believe would help them win elections, they would say that they believe that it encouraged more thoughtful voting and more thoughtful consideration of candidates. But look, we're talking about election law, people are doing things because they think it will help them win.

Corrie Woods  10:28  
Yeah, and so when that deal was reached, and pretty strong support, obviously, in the General Assembly, I think x 77 passed with all but I guess x 77. Proper passed with overwhelming support of the majority and then act 12 of 2020 passed unanimously, is that right?

Unknown Speaker  10:48  
That's right, the opposition that was there to act 77 was largely among Philadelphia area Democrats, who thought that it was a bad deal because of getting rid of the straight ticket ballot. And obviously, let's put this in context. This happened in October of 19. This happened well, before COVID was an issue. Pennsylvania law was and these elections were going to be crazy this year, regardless, because it was going to be the first year of widespread mail voting.

Corrie Woods  11:17  
Yeah. So before we get to COVID, I guess I want to drill down just on the constituencies at issue a little bit before the mail in ballots regime when we're still with just absentee ballots, who is eligible to vote by absentee ballots, and in practice, who does

Unknown Speaker  11:33  
the people who are eligible to vote for absentee ballot were people who were going to be absent from their municipality of residence on Election Day, and that was it, or people who based on ability issues could not leave their home to vote. And that was it. And typically, it would be, you know, no more than one to 2% of voters who would be voting absentee, essentially, because one of the areas that I've been very heavily involved in before actually Seven, eight, and was included in Act 77, thank goodness was with the rights of hospitalized voters, people who had been hospitalized before election day, but who didn't know until the week of election day that they wouldn't be out in time to vote in person had a very cumbersome process to defend their right to vote, they needed to have forms filled out and signed by a doctor who you know, attesting to their illness. And the doctor had to test this in front of a notary. And so I'd worked with law students at Penn and doctors, nurses and medical students at Penn Presbyterian and the hospital of the University of Pennsylvania so that they could develop protocols to enable more people to vote patterns. And you know, in systems that started spreading to Jefferson hospital and others in the region, act 77 got rid of all of that and just allowed the hospitalized voter to self affirm his or her deed to vote absentee on Election Day, and really streamline things a

Corrie Woods  13:01  
heck of a heavy lift, if you're you're already dealing with an illness or a major injury or potentially, you know, surgery. And suddenly you've got to, you got to bring in a notary so that you can vote for, you know, township supervisors.

Unknown Speaker  13:14  
And that was a lot of the work was finding notaries who could go into hospitals and sit down with the doctors to just mess sign these applications to the vote and basically do it on the day before election day or on election day.

Corrie Woods  13:30  
So, early 2020. We are all sort of waylaid by the pandemics onset. And then obviously, there are political fissures that kind of develop after the pandemic onsets that kind of switch absentee ballots, which I think tended to lean a little republican or be somewhat even to a situation where really you can almost tell who was who was voting democratic, and who was voting republican based on their their method of voting. Are you able to speak to sort of a little bit of how that sorting process worked out over the course of the spring in the summer?

Unknown Speaker  14:07  
Sure. Democrats believed that they could do and especially before COVID hat believe that they could do a better job of marshalling their resources by encouraging as many people to vote by mail as possible, making sure they applied and then pushing them to get their votes cast soon, so that people so you could narrow the universe of people to reach on election day itself, because you knew who you would know who had already voted at that point. I'm not sure that Republicans generally would look at it any differently in terms of their ability to do that here. But the political climate created by President Trump and the hostility to vote by mail, and the the suspicions of fraud that he pushed from Well, before anyone had voted in this election, Republican hostility from the top towards mail in voting, it meant that local Republicans had no ability to do what they would have done otherwise. And if you go to the PA, PA GOP websites at the time during 2020, they were promoting Mellon voting as an easy and safe option. But they had no support from the top on that. And so they really, you know, as a cultural matter, we're stuck with in person voting.

Corrie Woods  15:34  
Right. So by the time we get to the actual election, you know, jumping forward, if we're dealing with something like a two to one cross the state advantage for Democrats and Malin votes, and I think in Philadelphia, closer to three or four to one, if I'm not mistaken, is that right? Oh, I think even beyond that, probably. Wow. Wow. Okay. So as we sort of continue down the year of 2020, we get to the election, and it is, at least at at first glance, a pretty close one. So obviously, the presidential election is is close, we're down to a handful of states that are waiting to count these mail in ballots. And Pennsylvania is really at the center have that really earning its reputation as the Keystone state. Can you talk a little bit about the the margins and how many ballots were at issue? Approximately,

Unknown Speaker  16:21  
you know, what, at this peak of that week, in particular, that first week after the election, is somewhat as of a blur. I know, I can say this much, you know, we knew that we were down on election night. But there was a strong sense as to how many votes were still out there, especially in Philadelphia and Allegheny counties. And anyone who could do basic algebra could reasonably predict that Joe Biden was going to take the lead. And it was just a question of how quickly and so that started, you know, on the Friday after election day that he took the lead in Pennsylvania, and that it was late that Saturday morning, that he had crossed the automatic recount threshold of point 5% as Lee, which was the trigger that the network's and the associated press were using in order to formally call Pennsylvania in his favor.

Corrie Woods  17:19  
Right. And so after that, I think it starts with the Trump campaign and kind of trickles down to the, you know, various state and local officials as well, there is sort of a dual political and legal strategy, right, where it's the lawsuits, we're going to file a number of lawsuits, and some of them, the goal is to actually challenge ballots or challenge votes or challenge processes, but part of the goal is to sort of carry the new cycle or, or or use the lawsuits to, to sow doubt.

Unknown Speaker  17:53  
It was, I mean, the early lawsuits were number one, a lawsuit challenging the canvassing operation in Philadelphia, that republican observers did not have sufficient access to view the process. This was challenged in the court of Common Pleas of Philadelphia on election night, which made its way to Commonwealth court the next day, and you know, resulting in an in a ruling that Thursday morning, and then immediate appeal to the state Supreme Court forcing in automatic supersedeas. We can move back to that there was then a suit by the Trump campaign, which challenged the ways in which the counties, some of the counties, at least were encouraging mayline voters who had made errors on the on their envelopes to cure those defects before the end of Election Day, a lawsuit filed in the Middle District of Pennsylvania in federal court, which also later attempted to raise these issues of the observation on the vote canvas. And then subsequent to that you have the Kelley litigation in Commonwealth court and and then the Supreme Court in Pennsylvania, which challenged ak 77, and the provision of widespread bail in voting all together.

Corrie Woods  19:09  
Yeah, it's and so let's let's sort of start at this. This is a tree with a lot of branches. So yes, let's start with the the Kelly litigation, because I guess, conceptually, if you're challenging the whole of X 77. That's sort of the cleanest way to try to get rid of everything. So what were the fundamentally essential claims in the Kelley litigation

Unknown Speaker  19:32  
the essential claim in the Kelly litigation is that the Pennsylvania State Constitution has a provision regarding absentee voting that absentee voting should be allowed for these reasons and that these rules shall be Uniform Act 77 doesn't expand absentee voting per se. It creates a new parallel category of voters called male in voters who have the same rights as absentee voters. So the Kelly challenge was that this is nonsense that what you're really doing is expanding absentee voting. And as such, this needed to have been done via a constitutional amendment, and because it wasn't any votes cast aided by mail in voters should be tossed.

Corrie Woods  20:16  
Right. Obviously, that was rooted in that constitutional provision, and that that provision actually essentially created minimum standards for absentee voting. Is that right?

Unknown Speaker  20:24  
It did. I mean, certainly that that was our argument. And the Supreme Court agreed with it. Right. And it's, it's, it's

Corrie Woods  20:31  
sort of like, you know, if my, my wife sends me the store for a gallon of milk, I'm not allowed to pick up a loaf of bread, it doesn't really hold a lot of logical appeal. Right.

Unknown Speaker  20:39  
But and not only does it not hold appeal on that level, but it faced such severe issues on remedy that really showed the desperation, you know, the idea that you're going to file this sued after the election and not before, and that the remedy would be to toss out all male ballots. When, you know, obviously, these are voters who were told at the time that this was a lawful method of voting, the overwhelming majority of whom could have voted in person if they had to vote in person, and many of whom would have been eligible to vote by mail through the traditional absentee method. And what they were asking for was just staggering. It really I mean, it is unimaginable from a latches perspective that the government could hold out to people that this is a valid way of voting that a challengers could have been brought before they voted wasn't brought until afterwards. And then even if they were right, that they were going to punish the voters.

Corrie Woods  21:39  
Yeah. And particularly in congressman's Kelly's case, right, because he already won a primary and then won a general election using.

Unknown Speaker  21:50  
Yeah, I mean, obviously, it's a presidential election, and I get that they want you to try everything. But this. I, you know, I think it's telling that this was not a lawsuit that was brought by major law firms. This was not, you know, from like, you know, from the people in state who are often involved on the Republican side in serious Republican in series election related litigation. And, you know, I'm glad I'm not surprised that the Supreme Court saw it for what it was.

Corrie Woods  22:28  
Yeah. So let's, let's step away from Are we going to blow up mail in ballots altogether? And go to a little bit about the the conduct of the election. Now, you mentioned the the poll watcher case, which I don't think we need to spend a ton of time on because I don't think Well, I think the courts gave it about as much attention as it was worth. So if we could step away from sort of are we going to blow up Malins altogether? to some of the claims that were about the conduct of specific election officials? I believe there was a series of claims about the use of drop boxes in Philadelphia and satellite locations in Allegheny County. Can you tease out sort of just the basic claims there?

Unknown Speaker  23:12  
Sure. I mean, there is a general right on election day to help poll watchers at polling places that each party has the right to nominate named watchers from that county to observe polling places in that county. In both Philadelphia and Allegheny counties, the county set up satellite voting, satellite election centers before election day, where a voter could come in, could register to vote, have the registration process on the spot, could request a mail in ballots have that mail in ballot printed for them, and these polling, and these election spaces provided room for the voters if they so chose to vote their ballots on the spot, put them in the inner envelope, put them in the outer envelope, and hand them over to a board of elections worker, the Republican Party of the Trump campaign said that because this was a place where voting was taking place, that they had the right to send in poll observers to watch this and they were denied. They brought this claim in Philadelphia court of Common Pleas I recall. And it was rejected there. Basically, the court held that these weren't polling places, per se. These were offices of the board of elections. They had the right to control access to their offices, especially during a global pandemic. And that the right to have a poll server was a statutory right. And the statute didn't cover the situation. And ultimately, these claims went before the Commonwealth court as well. And they were denied their two to one decision if I recall.

Corrie Woods  24:50  
Yep. Okay, so let's let's get then to really the case where we're here to talk about which is the mail in ballot case and specifically the claims in that case involved the degree to which voters were able to complete the ballots formal requirements, is that right? That's

Unknown Speaker  25:07  
right. The design of the mail in ballot envelopes had space on the on the backside for the voter to sign the voters name, print the voters name, provide the voters address and provide the date of, of casting the ballot. And the questions presented were what happens if any of them are missing. These are decisions that are initially made by the various County Board of boards of elections in terms of which can be cast, and they are appealable to the court of Common Pleas and up from there within three days of the board's making those decisions.

Corrie Woods  25:46  
Okay, and so there was some degree of variance county by county, is that right?

Unknown Speaker  25:51  
There was and in general, democratic led county board of elections were more forgiving of voter mistakes. Republican county boards of elections were less forgiving, especially in the case of Westmoreland County, which becomes really crucial to the story that we need to tell here.

Corrie Woods  26:13  
And so how does litigation get started?

Unknown Speaker  26:16  
The litigation was started through a statutory appeals of these decisions by the county boards of elections. They were filed at a minimum in Philadelphia bucks, Montgomery and Allegheny counties, and I'm fairly sure well, and Westmoreland County, you know, you know, and each of which the county board of elections makes its decision at an open meeting as to which ballots to count which categories to count. And those decisions get appealed up. And in those counties in Philadelphia bucks, Montgomery and Allegheny the courts of Common Pleas were themselves forgiving of these ballot defects. And in particular, I mean, the counties were fairly united that you had voters had to sign there, but the outside of their ballots, that even though city state law did not require a signature match, you couldn't leave it blank, they also were fairly unified that the voter did not need to provide a printed name or a printed address, because they were already on the outer envelope on the label that was provided by the county board of elections. And then the data issue is the one which really raised the most concern among the courts and becomes the crucial part of this story.

Corrie Woods  27:35  
So the the dispute really centers on what is some degree authentication? And what is sort of, you know, a ministerial act here. Right?

Unknown Speaker  27:44  
Yeah, it really comes down to the basic statutory question of when the shall constitute a mandatory duty on the voters. And where is it merely a recommendation?

Corrie Woods  27:56  
And so what did the statutory text actually say in this case?

Unknown Speaker  28:00  
I mean, so the, as of the date, it did say that the voter shall provide the date, the language was, electors shall fill out date and sign the declaration. And while you know, we can take this, you know, we can skip the Commonwealth court here, for brevity sake, because Lord knows, we could talk about all of this for hours. The court was okay, you know, the Supreme Court uniformly was okay with the notion that fill out was sufficiently ambiguous that it didn't require a printed name or an address because they really added nothing in terms of the state's interests. But the date, you know, with a shell shell fill out date and sign, you know, that the shell date question as to whether that was mandatory presented a different issue? Because one could potentially see ways in which that the date mattered. I know, one of the arguments that was raised by Republicans was that because of how voters move in can move in between the date of voting and Election Day, you could have someone whose vote was valid at the date of voting, but was invalid by election day because of the voters moving or even the voters death. Right.

Corrie Woods  29:18  
So the court interestingly, the court comes with a plurality opinion, and the lead opinion is fairly forgiving when it comes to the ballots. But with respect to the the date question, it's a little less clear, right? Because it's it's an interaction of the lead opinion and justice wax

Unknown Speaker  29:38  
and justice Wex concurring opinion really is the controlling opinion in this case, because justice WEF reads the statute and says, shall mean shall shell and we as a court, run ourselves into trouble and start acting like the super legislature, when we tried to determine which shells are serious and which are optional. And that is a matter of principle statutory interpretation as a matter of leaving election law issues to the General Assembly, which is closest to them, that the shell needs to be read as mandatory, however, as to this election, because voters were not clearly instructed that the show was mandatory, because the design of the envelope did not convey that. And because of the general chaos of this first year of mail in voting, he was unwilling to throw out ballots on that basis this year.

Corrie Woods  30:38  
Yeah. And that makes a little bit of sense. When you think about it, you try to extract the sort of political overlay, right, if if Malin ballots were 5050, you know, Democratic and Republican, you could see everyone sort of coming together and saying, Hey, you know, this is the first year let's give folks a mulligan. But it seems like the division of the electorate into folks who trusted or didn't trust mail in ballots and felt comfortable or didn't feel comfortable going to the polls on Election Day, it really for ordained turning this into a highly stylized decision where it didn't necessarily have to be in the first place.

Unknown Speaker  31:14  
I mean, but let's I mean, let's give a little more context here, which is the reason why this really mattered, which was that you had a state senate race out west, the 46th district between the Democratic incumbent Jim Brewster, and the Republican challenger and Nicole zaccarelli, which would be determined by the handling of these ballots that the election was that close that if the undated ballots counted on in particular as to Allegheny County, that Brewster would win, and if they were not counted in Allegheny County, then zaccarelli would win. Now, what makes us even more complicated is that Westmoreland County, which was also in this district, and had a number of these ballots, chose not to count those ballots, so that even after this Supreme Court litigation, you still then had federal litigation over whether the different treatment of these ballots in the two counties, you know, ballots that were similarly situated, other than the county in which they were cast, whether that presented an equal protection issue. And if so, what was the remedy, you know, whether to level up and count them everywhere, or level down and not count them anywhere?

Corrie Woods  32:29  
Yeah, that's right. So first of all, how did how did that ultimately get resolved? And then what do you see as the legacy of the Court's decisions, I guess, more broadly, in the election cases this year in terms of impact on Election Law going forward in Pennsylvania short,

Unknown Speaker  32:43  
so the Western District of Pennsylvania This was judge Nicholas Ranjan, a Trump appointee who also heard some of the pre election litigation of the Trump campaign was that this did not present an equal protection case that the counties were allowed to have a reasonable degree of variance in how they interpreted some of the details of election law. One of the decisions I believe that this was from judge Beavis, on the Third Circuit, who was here with the federal case was that Bush v. Gore, you know, obviously, the famous 2000 election case, which very much concerned equal protection issues in the handling of absentee ballots and how they were to be interpreted that it did not federalize every jot and tittle of election law. So you know, what, you know, so what are the legacies of this case? Number one is that Jim Brewster is still a senator for the next four years that he was reelected. Number two is that we have clear rules as to how these ballots are to be handled and what voters requirements are. And in fact, one of the things that you see this year is that the outer envelope no longer has a space for the voter to print a name or an address, that it just requires the signing and the dating, and the instructions on the ballot conform with that. And in general, you know, these cases can affirm that there is some wiggle in terms of how different counties can view these issues, obviously, between Congress and the state legislature, and obviously, in all the statewide races. There are many campaigns in Pennsylvania, which straddle multiple counties, and if each time you had a race in multiple counties, any difference between their handling of particular issues could be brought into court, then you could be drastically multiplying the amount of post election litigation that was out there. And the federal courts really put a stop to that here. I'm sure there are other legacies, I just think

Corrie Woods  34:50  
yeah, I mean, I think that's that's consistent with the way I read them, which is to say it's it's almost mini federalism to some degree where you know, Allegheny County and has different needs. And different electrical functions then Philadelphia fan, Cambria than school County.

Unknown Speaker  35:07  
And I'll say that, you know, one of the things that was made clear this year was that the Department of State, you know, the Secretary of the Commonwealth does not have all the powers that she should have in terms of prescribing regulatory regulation in terms of directing the county boards of elections, on matters of election law, that so much of what happened last year, was in the form of guidance to the counties, you know, you can have satellite voting centers, you can have drop boxes, you can allow notice and cure, which the counties often viewed differently and took their obligations differently on these issues. If as part of the election reform that's being talked about in 21, the secretary's office was given that power, you would see a lot more uniformity to elections. I mean, there are very talented people at the Department of State, you know, elections administrators who have been there for years and years who aren't partisan actors. And it really would be valuable. Yet, regardless of which party runs the Department of State to have a little bit more uniformity on these issues. Yeah.

Corrie Woods  36:21  
And since you mentioned it, what prospects for electoral reform or electoral legislation do you think are in the works right now based on the experience of last year's litigation? And you know, what, what do you think we might need?

Unknown Speaker  36:36  
It's unclear what's going to happen. Obviously, the State House government committee, as well as a bicameral bipartisan committee have been looking at electoral Law Reform issues. Over the past five, six months, they've been taking testimony from the Department of State, from the county boards of elections from outside experts and advocates, and we are in the same kind of partisan mess that, you know, we were, we were beforehand, what the counties want more than anything else is pre canvassing. They want the ability to in the days and weeks before election day, to review the outer security envelopes to confirm the voters confirm that these ballots were signed to run them through the machines to extract the ballots to unfold the ballots, you know, to load them on to the their counting, scanners. And you know, even to run them through the scanners, so long as they don't actually tabulate the totals so that voters can have what they expect, which is results on election night as to who won an election. No one likes what happened this year. No one likes the chaos. No one like you know, the so called Blue chef, which for people who wanted to be suspicious about how the votes were being tallied. This gave them a plausible but wrong reason to be suspicious about it. Oh, my God were all these democratic votes coming from I mean, they were coming from absolutely legitimate places. But if you have a conspiratorial bent, you had reason to further your conspiracy there. So that's what the counties want. Here. Democrats want more funding for boards of elections. And they would like to protect the current mailing voting regime as much as possible. I would say the earth thing that Democrats really want is to get rid of the inner security envelope issue, the so called naked ballot issue, which was one on which the state Supreme Court before the election, and again, on one of these legislative interpretation, shell issues, said that a voter who failed to use this inner security envelope that their vote could not count through a massive PR effort after he, you know, effort that decision in the two months before the election, were able to reduce the number of so called naked ballots from as much as five to 7% of the total, which was what happened in the primary, which we which was feared down to below 1%. That number is not that number is not going to be there in every election because that spending isn't going to be there in every election. And since these inner security envelopes don't actually provide any security because these ballots are generally opened by machines and never seen by anyone who could associate a name on the outside with the envelope on the inside. It would be nice to get rid of that as part of a compromise what republicans want are various forms of what they will call balance security, whether it is in rolling back mail in votes altogether in terms of just the ability to vote by mail without an excuse to requiring signature matching of mail in ballots that how you signed your ballot in 2021 needs to look like however you signed when you register to vote or apply for your driver's license years ago. And obviously a matching process which is not being done by signature experts but by whoever you know. The clerk is at At the county board of elections that they who's looking at your envelope to allowing poll observers to be appointed from outside the county of residence, which is saying that Republicans have long litigated about in Pennsylvania long sought because there just aren't enough republicans in Philadelphia.

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