3 GOP-controlled counties are insisting that the incomplete results they submitted must be certified

[Nevilledog]

Link to tweet

Tweet text:

Marc E. Elias
@marceelias
·
Follow
🚨This is the crux of the issue in PA and why it is so dangerous. 3 GOP-controlled counties are insisting that the incomplete results they submitted must be used in certification by state. If this prevails, we have a full-blown constitutional crisis.

Democracy Docket
@DemocracyDocket
Replying to @DemocracyDocket
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.
8:22 AM · Jul 28, 2022

Link to tweet

Tweet text:

Democracy Docket
@DemocracyDocket
·
Follow
🚨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: https://democracydocket.com/cases/pennsylvania-counties-undated-mail-in-ballots-primary-certification/…

Follow along for live updates.🧵

democracydocket.com
🚨 New Lawsuit Filed in Pennsylvania
Read the complaint.
6:45 AM · Jul 28, 2022

Unrolled thread
https://threadreaderapp.com/thread/1552651336969101322.html

🚨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.🧵

🚨 New Lawsuit Filed in Pennsylvania
Read the complaint.
https://www.democracydocket.com/cases/pennsylvania-counties-undated-mail-in-ballots-primary-certification/
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:

🚨 Migliori v. Lehigh County Board of Elections Appealed
Read more.
https://www.democracydocket.com/cases/pennsylvania-lehigh-county-undated-ballots/
⚖️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:

McCormick v. Chapman⚖️
Learn more.
https://www.democracydocket.com/cases/pennsylvania-senate-primary-undated-ballots/

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.⤵️

🔴 LIVE UPDATES: U.S. House Committee Hearing on the Independent State Legislature Theory
Read more here.
https://www.democracydocket.com/alerts/hearing-on-the-independent-state-legislature-theory/
• • •

[Scrivener7]

1. November is going to be rough. I hope our lawyers are teeing up.

[Hermit-The-Prog]

2. MAGAts have pushed out election workers.