Pa. Supreme Court rules against Trump campaign

Election workers scan ballots at the Pennsylvania Convention Center. Officials anticipate that the task of scanning mail and absentee ballots will be completed Thursday.

Election workers scan ballots at the Pennsylvania Convention Center. (Emma Lee/WHYY)

The Pennsylvania Supreme Court dealt yet another blow to President Donald Trump’s faltering legal challenges over the 2020 election.

On Tuesday, the state’s highest court overturned a lower court ruling that supported a Trump campaign claim that observers had been kept too far away from a Philadelphia mail-ballot counting area to “meaningfully” monitor the tallying. The Supreme Court ruled 5-2 in favor of the city’s Board of Elections, which had appealed the lower court ruling. The majority opinion from the court affirms that campaign observers had been given adequate access to the counting area throughout the election.

The court determined that state law “did not set a minimum distance” between certified observers and canvassing. The ruling notes that the Republican-controlled state legislature could have established such guidelines but had never done so –– effectively leaving this to the discretion of respective county election boards.

This ruling is the latest in a string of setbacks for the campaign, which has vowed to litigate its Keystone State electoral loss on both procedural grounds and still unsubstantiated voter fraud claims. Along with the dismissal of ballot challenges and other litigation, the campaign has seen much of its existing legal team replaced by a new group of lawyers operating under former New York City Mayor Rudolf Giuliani, who is also Trump’s personal attorney.

A legal advisor for the Trump campaign said the court erred Tuesday  — and that another legal challenge could come soon.

“It’s inexplicable that five justices on the Pennsylvania Supreme Court would conclude that watchers observing from distances up to 100 feet away is reasonable,” said Trump legal adviser Jenna Ellis. “We are keeping all legal options open to fight for election integrity and the rule of law.”

While other legal actions remain, the Pennsylvania Supreme Court decision will have the side effect of weakening Giuliani’s similar claims in a more high-profile lawsuit that is currently pending in federal court in the Middle District of Pennsylvania. Although that suit, which had hearings Tuesday, was recently amended to narrow its scope, it generally seeks to block certification of Pennsylvania election results over the observation issue and various procedural flaws.

Democratic election lawyer Kevin Greenberg said Tuesday’s ruling offered a clear signal to observers.

“The Supreme Court’s position is clear that the Philadelphia board got this right,” said Greenberg. “This has been the clearest and most scrutinized election I’ve ever witnessed under unimaginable political and public health pressures and they ran the process fairly and well.”

However, Greenberg noted that even the dissenting justices on the Supreme Court had broken with their colleagues only on the grounds that the observation issue was moot, as ballot counting had concluded.

“That makes clear that any argument about where a watcher could observe from should never disenfranchise voters who properly cast their votes,” he said.

Trump has personally gone further, falsely stating that his observers were barred from counting areas in Philadelphia altogether. But the latest ruling specifically notes that the campaign’s own former lawyer, Jeremy Mercer, testified in court that he was granted entry and observed the ballot counting area.

“According to Attorney Mercer’s testimony … from his vantage point, he could view the entirety of the pre-canvassing and canvassing process,” it reads. “Clearly then, [he] had the opportunity to observe the mechanics of the canvassing process.”

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