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Donald’s Last Days: Penn SC Rejects Trump Campaign Lawsuit Over Election Observers

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The Supreme Court of Pennsylvania has rejected allegations of state law violations made by President Trump’s campaign over election oversight in Philadelphia county.


The case concerned the processing of mail-in and absentee ballots received from voters in Philadelphia County in the Nov 3, 2020, U.S. Presidential Election. The complaint was originally lodged by President Donald Trump’s campaign (the “Campaign”) who alleged that their representative(s) were not allowed “proximate access” to the canvassing activities conducted by the Philadelphia County Board of Elections (the “Board”). The Philadelphia County Court of Common Pleas rejected the claim made by the Campaign, which when appealed at the Commonwealth Court was reserved, finding against the Board. An appeal was then made by the Board to the Supreme Court of Pennsylvania. 

The Supreme Court of Pennsylvania

The Supreme Court began its 20-page judgment by restating the facts of the case; taking particular notice of the workspace, the Board had arranged for its employees at the Philadelphia Convention Center. It noted that the Board had arranged the facility in a manner that is considered best suitable for the processing and maintenance of the security of the estimated 350,000 absentee and mail-in ballots it had anticipated of receiving, while simultaneously ensuring that the social distancing protocols for Covid-19 recommended by the Centres for Disease Control (CDC) were complied with by voters and, that the voters’ privacy to their ballots were protected, and equally allowing candidates and/or their representatives’ reasonable opportunity to observe pre-canvassing and canvassing activities. 

The Court reminded the parties that the Election Code, permitted designated observers, or indeed the candidates themselves to physically enter the Convention Center hall and observe the pre-canvassing and canvassing process. Even though the Board had erected a waist-high security fence to separate the observers from the workspace of the Board employees by 15-18 feet, it did not per se, impede the ability of the observers to take reasonable notice of the ballots.

The Court then moved to the testimony provided by the designated representative Attorney Jeremy Mercer, representing President Trump’s campaign, who claimed to have seen Board employees “removing ballots” in secrecy envelopes from the return envelopes. The Court reiterated the findings of the trial court, which had held that under Section 3146.8 of the Election Code, the designated observers were not required to be given “meaningful observation”; but merely to be allowed to have been “present”. The Court also took notice of the reverse-judgment given by Judge Fizzano Cannon sitting at the Commonwealth Court. In the reverse-judgment, the parties argued significantly different interpretations of Section 3146 with the Board arguing that the Code only required the observers to have been physically present in the room(s) where the ballots were counted; and the contrary position of the Campaign, which contended that the Code required the observers could notice the counting “meaningfully”, in addition to being physically present. Judge Fizzano Cannon deemed each interpretation to have been reasonable and hence, declaring the statutory language to be ambiguous. Nevertheless, the judge held that the fencing affected the ability of the observers to “meaningfully” observe the ballot counting process. Hence, stating that the Court of Common Pleas erred as a matter of law in determining that the Board had complied with the Election Code, the Court rejected the Board’s arguments. 

In a 5:2 ruling, the Supreme Court of Pennsylvania held that the observers’ rights to watch ballots counting were adequately provided for by the appellant Board and its employees. The majority took their decision based upon the fact that the Election Code did not specify any minimum distancing parameters and thus, under the CDC proposed social distancing measures, the Board had provided sufficient opportunity to “proximate[ly] access” the pre-canvassing and canvassing process. Nevertheless, a dissenting judgment was given by the Chief Justice Thomas G Saylor, who was joined by Justice Mundy. Their dissent consisted of rejecting an argument that, even if observers were not able to meaningfully watch the process, it did not mean ballots would be disqualified. Chief Justice Thomas Saylor noted that “[s]hort of demonstrated fraud, the notion that presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities that have been redressed – thus disenfranchising potentially thousands of voters – is misguided.”


The decision of the state Supreme Court undermines all future efforts made by the Trump campaign to further secure a favoured ruling at the federal Supreme Court. With the Trump Campaign’s other lawsuits failing in other states, the decision of the Supreme Court of Pennsylvania only cements President Trump’s final departure from the Oval Office. Although the President is not legally required to concede to President-Elect Joe Biden, the array of floating misinformation over unsubstantiated claims of voter fraud, and the election being rigged undermines the electoral system of the United States. Moreover, the unashamed series of tweets from President Trump claiming victory for himself only creates a further divide between the Democrat-Republican electorate. As it seems, “the Donald” is counting his final days in the Office of President of the United States. 

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