Thread by @DemocracyDocket

🚨STARTING SOON: Court hearing regarding the refusal to count valid undated mail-in ballots in primary races in 3 Pennsylvania counties.

📺Stream the hearing here:

Get background on the case: democracydocket.com/cases/pennsylv…

Follow along for live updates.🧵

The hearing has started.

Attorneys representing the counties make their opening statements and argue that there is “no case or controversy” before the court, meaning that they believe that the state doesn't have standing to bring this lawsuit

An attorney representing Pennsylvania makes opening statement, saying that “this is not a case to enforce guidance from the Secretary [of the Commonwealth to count these ballots]. This is a case to enforce an order of this court, state law, and federal law.”

The state calls Jonathan Marks, the Deputy Secretary for Elections and Commissions at the Pennsylvania Department of State (DOS), as its first witness. Marks is describing the responsibilities of county boards of elections and the DOS during elections.

Marks says that boards of elections (BOE) are expected, but not required, to follow guidance from the DOS about elections. Marks further explains that courts have "final say" over questions regarding election administration & DOS provides guidance consistent with court decisions.

Marks explains election canvassing, which includes counting ballots and tabulating totals. State attorney asks, “Does the secretary of state ensure that her certification is accurate and complete?” Marks replies, “Yes, yes she does."

Moving on to mail-in ballots, Marks explains that the envelope for mail-in ballots includes a spot for voters to handwrite a date.

Attorney asks Marks if counties use this date to determine if a ballot was returned on time. Marks says no, "there is no administrative purpose for the date written by the voter"

Counties date stamp outer envelope to determine if ballots were timely received, not the date written by the voter. Marks explains that voters often write the wrong date on the envelope. For example, their birthday rather than the day they completed the ballot.

Some voters fail to write a date on the envelope entirely. This creates two categories of ballots that BOEs deal with: wrongly dated and undated ballots.

Marks explains that since September 2020, state guidance has been "that counties cannot, should not, set aside ballots that are wrongly dated, meaning a ballot that has an incorrect date, whether it's a birthdate or some other error by the voter."

In regards to undated ballots, DOS’s guidance going into the May 2022 primary was that undated ballots should NOT be counted. However, after state and federal court decisions said that undated ballots should be counted, the DOS changed its guidance to match the court rulings.

Marks sent a notice to all county BOEs on June 17, 2022 explaining the recent court decisions and saying that counties "should canvass, tabulate and certify votes from undated" ballots if they had not already done so.

The relevant cases involving undated mail-in ballots in Pennsylvania include:
⚖️Migliori v. Lehigh County Board of Elections, where the 3rd Circuit ruled that the undated ballots should be counted: democracydocket.com/cases/pennsylv…

⚖️McCormick v. Chapman, where the Commonwealth Court, the same court this hearing is currently in, ordered undated ballots to be counted in the Republican U.S. Senate primary: democracydocket.com/cases/pennsylv…

After multiple reminders, Berks, Lancaster and Fayette Counties remained the only counties that failed to count and include undated mail-in ballots from primary totals. All counties included wrongly dated ballots in their totals.

The attorney for Berks and Lancaster Counties now begins to question Marks.

The attorney for the counties asks Marks if the voter declaration for mail-in ballots says that "the ballot will not be counted unless the ballot is signed and dated...in the voter's own handwriting." Marks confirms that it does.

Berks & Lancaster counties: "Does the department recognize that the canvassing & counting of absentee ballots is discretionary?"

Marks: "Well, I think...the mechanics of it are discretionary. Whether or not to count legally cast ballots is not discretionary...That's a duty."

Attorney for Berks & Lancaster says that Berks, Lancaster and Fayette submitted certified election results in early June. Marks says it's DOS's position that the counties did not submit complete certification totals since those submitted results did not include undated ballots.

Marks: “It was our determination based on the case law that counties had a duty to certify results that included...undated ballots, and that failing to do so...would...mean that the counties have not completed their statutory duty to certify votes from all legally cast ballots."

The attorney for Fayette County asks Marks if the secretary of the Commonwealth has the authority to ask the court to order counties to include undated mail-in ballots in the results. The state objects & the judge says that is a legal question for the court to decide, not Marks.

The Fayette attorney asks Marks to confirm that the counties certified the election results. Marks reiterates that it's DOS's position that the counties have NOT properly certified election results because they have refused to include undated mail-in ballots.

Earlier Marks said he is not aware of any administrative use for the handwritten date because counties time stamp ballots when they're received to determine timely delivery. The Fayette attorney argues that the handwritten date prevents fraud & provides a bizarre hypothetical.

The court is in recess until 1:00 pm ET. See you then!👋

In the meantime, check out what's happening in a congressional hearing on the threats of the independent state legislature theory to our democracy here.⤵️ democracydocket.com/alerts/hearing…

To catch up on where we are so far, the Pennsylvania Department of State and Acting secretary of the commonwealth are suing Berks, Lancaster and Fayette counties for failing to include undated mail-in ballots in their certified primary results.

While state guidance at the time of the primary election was that undated mail-in ballots should not be included in election results, state and federal court rulings since then have said that the ballots should be counted.

The PA Department of State issued new guidance to count the undated mail-in ballots. 64 PA counties did so, except Berks, Lancaster and Fayette. The state is asking the court to order that the counties include the undated mail-in ballots in their certified election totals.

The ballots at hand were mail-in ballots cast by eligible voters & returned on time; they're just missing the voter's handwritten date on the outer envelope. State & federal courts ruled that the handwritten date is immaterial to a voter's eligibility & the votes should count.

For context: Even if a voter writes the wrong date on the outer envelope, the mail-in ballot is counted. An election official testified that there's no administrative use for the handwritten date. Ballots are time stamped by counties when received which determines timely delivery

And the hearing is back. The Fayette County attorney continues questioning Jonathan Marks, the Deputy Secretary for Elections and Commissions at the Pennsylvania Department of State.

The Fayette attorney asks Marks a few quick questions and wraps up. The attorney for Pennsylvania begins questioning Marks again.

Attorneys for PA & the counties ask Marks a few more clarifying questions about DOS' position on if Berks, Lancaster & Fayette Counties had properly certified their primary results and if the counties were required to include undated mail-in ballots. Marks finishes testifying.

Next witness is Scott Dunn of the Fayette County Board of Commissioners. In addition to his role as a county commissioner, where he carries out usual BOE duties, Dunn *thinks* he is also the Fayette County Board of Elections secretary.

PA Attorney: "You don't use the date written on the outer envelope to determine when the ballot was received, correct?"

Dunn: "That is correct."

PA Attorney: "And you don't use that date written, assuming there is a date, to exclude ballots?"

Dunn: "We do not."

PA attorney: "After this court entered its injunction on June 2 [to count undated mail-in ballots], did the [Fayette] board meet again to discuss whether undated ballots should be counted?"

Dunn: "We did not."

Dunn explains he believes that there is a lot of ambiguity around the court orders and state laws about if undated mail-in ballots should be counted.

PA attorney: "So you chose not to follow this court's order as a result?"

Dunn: "Yes."

Following some questions about teamwork from the Fayette attorney, Dunn wraps up his testimony. Next witness is Ray D'Agostino, chair of the Lancaster County Board of Commissioners.

D'Agostino says that Lancaster uses the county time stamp, not the date handwritten on the ballot by the voter, to determine timely delivery, but Lancaster does "believe that the date is material that could go to the validity and authenticity of the ballot received."

Learn more about what "material" and "immaterial" mean and how this definition could affect your vote. democracydocket.com/news/this-civi…

D'Agostino says that Lancaster County BOE practices that ballots with incorrect or absent dates are subject to challenges and that undated ballots should not be counted.

D'Agostino wraps up his testimony. Christian Leinbach, chair of the Berks County Board of Commissioners, is the next witness.

Leinbach: “I don't have the discretion to determine whether a date is material or immaterial, I simply am obligated to look at the clear language of the law that says undated and/or unsigned ballots will not be counted.”

After the DOS sent an email saying that counties should count undated mail-in ballots following court rulings, Leinbach responded that he "believe[s] the rulings are anything but clear" and says that he "could not in good conscience vote to certify undated ballots."

Leinbach: "I also noted that this type of issue is what is causing a lack of trust in the system."

If you're leading 1 of the 3 counties that are refusing to follow multiple court orders to count undated mail-in ballots, maybe you're causing the issue.🤔

PA attorney: "The 3 counties in this case, Your Honor, are holding up final certification of the primary election because they refuse to complete the certification of every lawfully cast ballot."

PA attorney: "It's neither the secretary nor the county BOEs that decide that ultimately decide what constitutes a lawfully cast ballot. It's an order of this court, it's Pennsylvania law and it's federal law."

PA attorney: "And all 3 of those in this case, Your Honor, require that the ballots at issue here be included in final certification of the 2022 primary election and until the counties provide the secretary with a certification that includes the ballots at issue here..." 1/2

"the secretary cannot complete her own duty to finally certify the results of the primary election." 2/2

PA attorney: The secretary cannot directly order counties to do things, but she is not a "rubber stamp" for election certification. When there are clear errors, she raises that with the counties. And when there are valid ballots being excluded, she cannot certify the election.

Lancaster & Berks attorney argues that Migliori, where a federal court ruled undated mail-in ballots should be counted, does not apply to all PA elections.

Judge: "How could you argue that it would not apply?"

Attorney: “Well, I would argue that it is wrong.”

Attorney for Lancaster & Berks argues that the lawsuit from the secretary is not "timely" because it was filed after July 1 and that the secretary doesn't have standing to bring the lawsuit because she is not an aggrieved candidate or voter.

Lancaster & Berks attorney: "I still think there has to be a candidate or, you know, some outcome that would be hanging in the balance for this.”

You don't count valid ballots because they might change the results; you count valid ballots because they're valid ballots.

Lancaster & Berks atty: "I cannot imagine that [this court's] order meant what the acting secretary says it means...that these undated ballots must be counted and therefore included in the certified results."

Judge: "Yes, well, I stand by my opinion in the order, of course."

Lancaster & Berks atty: "I urge the court to consider..that the dating requirement doesn't go to the qualification about the voter, it goes to whether the vote that was cast will be counted. It's not disenfranchising."

How is NOT counting a valid ballot NOT disenfranchisement?

The judge asks why should wrongly dated mail-in ballots and undated mail-in ballots be treated differently. The Lancaster & Berks atty says that he believes challenging wrongly dated ballots will be the next set of lawsuits.

Judge: "We still do have a 3rd Circuit opinion that is in effect" that undated mail-in ballots should be counted.

Fayette atty: "Yes, except it's also on appeal."

Note: the petition to pause the ruling as the case is appealed was denied by SCOTUS. democracydocket.com/cases/pennsylv…

PA atty: "It is correct to say the secretary cannot certify results if she received from the county's incomplete certifications by virtue of them excluding lawfully cast ballots." 1/2

"She does not have the independent authority to decide what constitutes a lawfully cast ballot or not. That's up to the courts. And in this context, the courts have spoken as to what qualifies as a lawfully cast. So she's here trying to give effect to the courts' decisions." 2/2

The judge wraps up the hearing, thanking all parties for participating. The court is adjourned.

Today's hearing has ended but the fight about undated mail-in ballots in Pennsylvania isn't over yet. Subscribe to our free newsletter to know when the judge releases her ruling in this case and more.⤵️ democracydocket.com/subscribe-demo…