By Mikaela Phillips

“. . .[B]ad things happen in Philadelphia,” remarked President Trump at the first presidential debate on September 29th, speculating that “anti-Trump bias” was the reason local election officials earlier in the day barred his campaign’s poll watchers access to new satellite offices in the city. On October 1st, the Trump campaign filed a lawsuit against the Philadelphia County Board of Elections and three Election Commissioners, alleging that denying his watchers admission to the satellite election offices on the first day of in-person early voting violated the Pennsylvania Election Code. The campaign argued that “[t]he absence of poll watchers at polling places where registration and voting are occurring threatens the integrity of the vote in elections and denies voters the constitutional right to free and fair public elections under the United States and Pennsylvania Constitutions.”

Section 2687 of the Election Code permits candidates to appoint two poll watchers per election district in which the candidate is on the ballot. While watchers need not be residents of the election district to which they are appointed, they must be qualified registered electors in the county in which the district is located. On Election Day, watchers are permitted at polling places; they may keep lists of voters, challenge voter qualifications, and upon request, inspect the voting checklists. However, poll watchers must remain outside the enclosed space until the close of polls. Section 2650also permits watchers to be present at public sessions of the County Board of Elections, as well as during canvasses and recounts. Lastly, section 3146.8 permits watchers when mail-in ballots are opened and recorded.

On October 9th, the Court of Common Pleas of Philadelphia denied the Trump campaign’s petition to allow poll watchers in the new satellite offices. The court noted the Election Code does not expressly permit poll watchers at “satellite offices.” (Of course not – the satellite election offices were created this year to assist voters in the midst of the coronavirus pandemic.) Engaging in statutory interpretation, the court concluded that satellite offices are not “polling places” or “public sessions” under the Code.

The Election Code defines polling place as “the room provided in each election district for voting at a primary or general election.” In Philadelphia, each ward is an election district. Satellite offices do not conform to the geographic limits imposed by the Code, as they serve the whole county, rather than one election district. Additionally, satellite offices do not conform to the temporal limits of Election Day under the Code, where polls are open from 7 a.m. to 8 p.m. on the designated day. Lastly, the court noted “a polling place is not a place where mail-in ballots can be delivered by voters for the purposes of voting.”

Turning to “public sessions,” the court considered the activities performed at satellite offices – registering voters, processing absentee ballot applications, providing absentee ballots to voters to fill out in private, and receiving completed ballots. Notably absent from this list is counting and recording mail-in ballots, during which poll watchers have a right to be present. These are ministerial, rather than quasi-judicial, activities of the Board. Thus, the court concluded that the legislature did not grant poll watchers “the right to be present in the offices of the Board of Elections while the Board’s employees are performing ministerial activities with respect to mail-in ballots prior to Election Day.”

The campaign’s poll watcher litigation efforts did not end in Pennsylvania state court. Claiming the pandemic undermined the campaign’s ability to staff poll watchers, they filed a federal lawsuit challenging the constitutionality of the county residency requirement. A federal judge ultimately dismissed the suit.

In advance of Election Day, state party officials are hard at work “training a small army of partisan poll watchers.” During the first debate, President Trump urged his supporters to “go into the polls and watch very carefully” and threatened to send law enforcement officials to guard against fraud at polling places. While both parties routinely engage official poll watchers, these comments undoubtedly raise concerns of voter intimidation and suppression. Though the Trump campaign may be out of luck in Pennsylvania regarding poll watchers before November 3rd, eyes will certainly be on polling locations to assess behavior on Election Day.

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