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Courts are evaluating election challenges

State and federal courts are reviewing challenges to the 2020 election in Pennsylvania as the country faces the most election-related litigation since at least 2000.

A legal challenge by U.S. Rep. Mike Kelly, R-16th, and another state Republican was largely struck down last week after the Commonwealth Court ruled that provisional ballots cast on Election Day that “cured” a deficient mail-in ballot must be segregated from the rest of the provisional ballots. That fell short for Kelly, who sought a wholesale dismissal of such ballots.

But efforts to invalidate ballots that arrived between Nov. 3 and Nov. 6 and to force Gov. Tom Wolf to not certify election results from Allegheny and Philadelphia counties are still pending in federal courts.

In an effort to help, Kelly, who overwhelmingly won his election against Democratic challenger Kristy Gnibus, sent an email to supporters Sunday seeking volunteers and legal experts to aid President Donald Trump's ongoing legal efforts in these cases.

While the U.S. Supreme Court declined to issue an opinion that went further than ordering counties to separate mail-in ballots that arrived by Election Day from those that arrived after, the case challenging the extended deadline for mail ballots to arrive still could be adjudicated by the nation's highest court.On Monday, 17 state attorneys general filed amicus briefs with the Supreme Court, all arguing that the court should hear the challenge, launched jointly by the state Republican Party and the four highest-ranking Republicans in the General Assembly.That case asks the court to overturn a Pennsylvania Supreme Court decision that extended the ballot receipt deadline from Nov. 3 to Nov. 6, using the textualist argument that the Constitution delegates to state legislatures the power to determine the “times, places and manner” of elections. The state, in turn, proffers that the Pennsylvania Constitution guarantees “free and equal” elections, and that the court's extension of the deadline abides by that clause due to the ongoing pandemic.Trump's campaign has sought to intervene in the case, but the court has yet to rule on that motion.Secretary of State Kathy Boockvar said last week that a small number of mail votes arrived during the extended deadline, amounting to none in smaller counties to roughly 500 in larger counties. Luzerne County, for example, received fewer than 300 mail-in ballots during the extended deadline, according to a court filing.The number of ballots at play in this case are unlikely to change the outcome of the election for Trump, who trailed Biden by nearly 50,000 votes Tuesday afternoon, according to data from The Associated Press.

At the lower federal court level, the Trump campaign seeks to prohibit Pennsylvania from certifying the tabulated votes on a statewide basis or, at minimum, to not tally votes that were counted while Republican poll watchers were unable to observe.Echoing the equal protection claims from 20 years prior — in Bush v. Gore, the Supreme Court ruled that the different recount methods in Florida counties violated the candidates' 14th Amendment rights — the Trump campaign's lawsuit alleges that Pennsylvania created a “two-tiered” voting system, bifurcating those who voted by mail and those who voted at the polls.“Due to the arbitrary, unauthorized and standardless actions of ... Boockvar, nearly 2.65 million votes were cast through a 'mail-in' process that lacked all of the hallmarks of transparency and verifiability that were present for in-person voters,” the lawsuit claims. “In fact, Secretary Boockvar affirmatively excised nearly every element of transparency and verifiability.”The lawsuit also makes unsubstantiated claims that mail-in ballots were counted “largely in secrecy and with no monitoring,” an argument the campaign has not made in a prior legal pleading.Instead, the Trump campaign has previously argued in lawsuits that observers were not permitted to stand close enough to the actual counting of the votes, rather than that observers were not in attendance.

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