The Trump team asked a federal court to pause vote counting in Philadelphia over claims that poll watchers from the campaign and the Pennsylvania Republican Party were not being allowed to observe the ongoing vote count properly in the battleground state that could decide the election between President Trump and former Vice President Joe Biden.
“This action is brought by Donald J. Trump for President, Inc. against the Philadelphia County Board County Board of Elections to seek an emergency injunction to prevent an ongoing violation of Plaintiff’s Constitutional rights, including at least the right to Due Process,” the Trump campaign lawyers said in a short complaint filed with the U.S. District Court for the Eastern District of Pennsylvania on Thursday afternoon. “Pennsylvania law as determined by the Commonwealth’s highest available court requires that representatives and poll watchers to be present and observe the canvassing of all mail-in and absentee ballots. The County Board of Elections is aware of this Order but is intentionally refusing to allow any representatives and poll watchers for President Trump and the Republican Party. The County Board of Elections is nonetheless continuing to count ballots, without any observation by any representatives or poll watchers of President Trump and the Republican Party.”
Trump’s lawyers further claimed: “The County Board of Elections is intentionally violating state law. The County Board of Elections claims it is ‘studying' the Order. It has been studying the Order for over an hour and a half, while counting continues with no Republicans present.” And they called for the vote counting to be stopped “so long as Republican observers are not present as required by state law.”
Judge Paul Steven Diamond, a federal court appointee of President George W. Bush, held a hearing between the Philadelphia board and the Trump campaign on Thursday evening, and the Trump campaign said that there were a “non-zero” number of GOP observers in the counting room, though it insisted it was being denied parity with the number of Democratic observers.
“I would really urge you all to try and be reasonable,” Diamond told the parties at one point, adding, ”the next few days, if not weeks, there’s going to a lot more heat than light generated.”
At the judge's urging, the Trump campaign and the Philadelphia lawyers eventually agreed on 60 observers for each side.
As of late Thursday afternoon, Pennsylvania appeared too close to project a winner. With 88% of votes in, the Associated Press said Trump was sitting at 3,243,520 votes counted, while Biden had received 3,150,093 so far. The New York Times said that, with 93% of the votes reported in the state, Trump had received 50.1% of the vote, and Biden had gotten 48.7%.
The legal maneuver in Philadelphia by the Trump team to get the federal courts involved is just the latest in a flurry of litigation in Pennsylvania.
Notably, the Trump campaign had been pushing the Philadelphia board to allow its in-person poll watchers to watch the mail-in vote count more closely, which the Philadelphia County Court of Common Pleas had initially rejected.
“The Petitioner’s witness provided copious testimony as to his ability to observe the opening and sorting of ballots. His concerns pertained to his ability to observe the writing on the outside of the ballots. Given that observers are directed only to observe and not to audit ballots, we conclude, based on the witness’s testimony, that the Board of Elections has complied with the observation. requirements,” the court had ruled on Wednesday. “We, however, would not discourage the Board from considering the implementation of arrangements to allow for an additional corridor for observation along the side of the canvassing tables if feasible — subject to spatial distancing under COVID-19 and voting privacy requirements.”
But the Commonwealth Court of Pennsylvania sided with the Trump campaign on Thursday.
“It is hereby ordered that the November 4, 2020 order of the Court of Common Pleas of Philadelphia County denying Appeallant’s oral motion to allow closer observation of the canvassing of ballots is reversed,” the higher state court said. “The matter is remanded to the trial court to enter an order not later than 10:30 AM today, November 5, 2020, effectively immediately, requiring that all candidates, watchers, or candidate representatives be permitted to be present for the canvassing process … and be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including wearing masks and maintaining social distancing.”
The Philadelphia County Board of Elections then appealed to the Pennsylvania Supreme Court, claiming, “Here, became Commonwealth Court is wrong, and because it jeopardizes both the safety the City Defendants’ canvass, plus the privacy of voters, immediate allowance of appeal is warranted.” The Pennsylvania Supreme Court agreed to take a look at the case but did not make an immediate ruling in anyone’s favor.
On Wednesday, Trump’s campaign called upon the United States Supreme Court to take up and rule on a case related to Pennsylvania's high court allowing the extension of the counting of mail-in ballots to three days after Election Day as long as they were postmarked by the time polls closed.
“The United States Constitution is clear on this issue: the legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” Trump deputy campaign manager Justin Clark said. “As the President has rightly said, the Supreme Court must resolve this crucial contested legal question, so President Trump’s Campaign is moving to intervene in the existing Supreme Court litigation over the Pennsylvania Supreme Court’s unlawful extension of the mail-in ballot receipt deadline.”
Biden campaign manager Jen O’Malley Dillon said Thursday that “our data shows that Joe Biden will be the next president of the United States” and “because he sees the same data we do and knows he’s losing, Donald Trump continues to push a flailing strategy designed to prevent people’s votes from being counted.”
“President Trump has won Pennsylvania,” Trump's personal lawyer, Rudy Giuliani, claimed during a Philadelphia press conference on Wednesday, echoing the repeated claims from many Trump campaign advisers.
No winner has yet been declared in the state worth 20 crucial electoral votes.
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