Pennsylvania Judge: Provisional Ballots from People Who Already Voted to Be Set Aside, Reviewed

Electoral workers count postal ballots in Philadelphia, Penn., November 6, 2020. (Eduardo Muñoz/Reuters)

A Pennsylvania commonwealth judge on Friday ordered that all provisional ballots cast by voters who had previously cast an absentee or mail-in ballot be set aside until county election directors ensure they meet state code and can legally be counted.

The order, by Commonwealth judge Kevin Brobson, was in response to a lawsuit filed by state Republicans on Election Day that alleged some county election officials allowed voters to cast provisional ballots after they learned from political operatives that their absentee or mail-in ballots were defective and had been rejected.

Brobson ordered all provisional ballots cast on Election Day by voters whose absentee or mail-in ballots had been “timely received” to be “segregated and secured from other provisional ballots” until it can be determined that they are valid and in compliance with the state’s election code.

“These provisional ballots are to be the last ballots counted,” said Thomas Breth, the lawyer who filed the lawsuit. “They should be holding these provisional ballots until they get through all the other ballots, and then they should start the process of reviewing these provisional ballots. That gives everybody the opportunity to review the ballots, review them for legal correctness and make any objections or challenges for legal deficiencies in those ballots.”

According to the lawsuit, the state’s Democratic election leaders violated state code on Monday when they authorized county election directors to provide information to political party operatives about voters whose absentee or mail-in ballots had been rejected.

The suit cited an email sent on Monday night by Jonathan Marks, Pennsylvania’s deputy elections secretary, who wrote that “county boards of elections should provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected” so they could be offered a provisional ballot.

Republicans argue the direction from Marks violates the state’s election code, which states “no person observing, attending or participating in a pre-canvass meeting may disclose the results of any portion of any pre-canvass meeting prior to the close of polls.”

Some county election boards provided party operatives with voters’ names, addresses and even email addresses, along with explanations of their ballot defects, Breth said.

Democrats have been winning mail-in voting handily in Pennsylvania and mail votes have been key to Democrat Joe Biden overtaking President Donald Trump’s lead in the state.

In the lawsuit, filed Tuesday against Democratic Secretary of State Kathy Boockvar, the Republicans note that Pennsylvania’s supreme court stated last month that “unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects (to their ballot) in a timely manner.”

Brobson’s order will bring uniformity across the state in regard to how county election officials are handling the provisional ballots, Breth said.

“We want to make sure that none of the boards of election are prematurely tabulating these provisional ballots,” he said. “Once they’re mingled, you can’t unmingle them.”

It’s not clear exactly how many provisional ballots were cast by voters whose absentee or mail-in ballots had been rejected, Breth said. He said the review of the provisional ballots in question should start in the coming days.

Read the full lawsuit here: Pa. GOP lawsuit

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Ryan Mills is a media reporter at National Review. He previously worked for 14 years as a breaking news reporter, investigative reporter, and editor at newspapers in Florida. Originally from Minnesota, Ryan lives in the Fort Myers area with his wife and two sons.

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