A Pennsylvania state court judge has issued a preliminary injunction preventing Pennsylvania from taking any further steps to perfect its certification of the election, including but not limited to the appointment of electors and transmission of the necessary paperwork to the Electoral College, pending further court hearings and rulings.
The ruling upholds an injunction from earlier in the week and is significant because of the findings made in the Opinion released Nov. 27.
The issue in this case is whether legislative expansion of absentee balloting to broad mail-in balloting violated the Pennsylvania Constitution. It’s not clear what the relief would be; the petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.
Earlier in the week, Judge Patricia McCollough issued a temporary halt to the certification process, and that now is on appeal to the PA Supreme Court. The Judge issued this Opinion to extend that halt pending futher hearings, and to set forth the basis for the injunction, which could be relevant to the appeal:
As this Court’s November 25, 2020, Order of an Emergency Preliminary Injunction has been appealed to the Pennsylvania Supreme Court, this opinion shall set forth the basis for said Order and shall also satisfy the requirements of Rule 1925 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925….
Here is the Judge’s description of the claim:
In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.
The Judge found, among other things, that the plaintiffs were likely to prevail on their PA constitutional claims, and that the matter was not moot even though PA had “certified” the results, because there were more steps to be taken [emphasis added]:
Accordingly, in careful consideration [on November 25] of the exigencies and time constraints in this matter of statewide and national import, and the longstanding constitutional mandate that every citizen of this Commonwealth is entitled to no less than a fair and free election, it was necessary [on November 25] to preliminarily enjoin, on an emergency and temporary basis, Executive Respondents from undertaking any other actions with respect to the certification of the results of the presidential and vice presidential elections, if indeed anything else needs to be done, pending an evidentiary hearing to ascertain the facts of this matter and to determine if the dispute is moot….Based upon the record before it, this Court has sufficient grounds to enjoin Respondents from further certification activities on an emergency preliminary basis, pending the results of the evidentiary hearing it had scheduled for this date, after which the Court would have determined if a preliminary injunction should issue.4 Since the Court is sitting in equity it has the power to fashion such relief as it is vitally important that the status quo be preserved pending further judicial scrutiny….Additionally, Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.
The Judge expressed grave concern as to what a remedy would be if she were to rule the mail-in balloting unconstitutional, so even if she ruled for the petitioners on the merits, it’s not clear if that would change the result:
That being said, this Court is mindful that one of the alternative reliefs noted by Petitioners would cause the disenfranchisement of the nearly seven million Pennsylvanians who voted in the 2020 General Election. Specifically, Respondents claim that a temporary stay would disenfranchise voters as the legislature would appoint the electors to the Election College. However, as noted, the legislature is not authorized to appoint the electors to the Electoral College until December 8, the “Federal Safe Harbor” date for certifying results for presidential electors. The Court agrees it would be untenable for the legislature to appoint the electors where an election has already occurred, if the majority of voters who did not vote by mail entered their votes in accord with a constitutionally recognized method, as such action would result in the disenfranchisement of every voter in the Commonwealth who voted in this election – not only those whose ballots are being challenged due to the constitutionality of Act 77. However, this is not the only equitable remedy available in a matter which hinges upon upholding a most basic constitutional right of the people to a fair and free election. Hence, Respondents have not established that greater harm will result in providing emergency relief, than the harm suffered by the public due to the results of a purportedly unconstitutional election.5
The Judge concluded:
For all of the above reasons, the Court respectfully submits that the emergency preliminary injunction was properly issued and should be upheld pending an expedited emergency evidentiary hearing
A Republican poll observer from Pennsylvania’s Delaware County told a Senate GOP Policy Committee hearing in Gettysburg on Nov. 25 that he witnessed a range of Election Day irregularities, including 47 USB cards that went missing.
Greg Stenstrom, also an expert in security fraud, told the hearing that he witnessed a number of chain-of-custody violations, including around mail-in ballots, the balance of votes from drop boxes, and the handling of USB card flash drives.
These are clear rule violaitons defined by the Delaware County Board of Elections and the election process review.
“They didn’t follow one,” Stenstrom said. “It shocked me that this could happen.”
He described witnessing a situation in which data on USB cards was uploaded to voting machines by a warehouse supervisor without being observed by a poll watcher, which he said he saw happen at least 24 times.
“He’s walking in with baggies, which we have pictures of and that were submitted in our affidavits,” Stenstrom said, adding that Democratic poll watchers also witnessed this occurrence.
Stenstrom said he was told by an attorney that it’s normal for several USB cards to be left in machines and then brought back by the warehouse manager for input into tally systems. He added that when he later raised the issue with U.S. Attorney William McSwain and some law enforcement officers, he was told it is unusual for more than two drives to be left in voting machines.
He said he was later told that “these 24 to 30 cards that were uploaded” were unaccounted for, adding that “as of today, 47 USB v-cards are missing.”
“People ask me all the time, how do people commit crimes? I know there’s a lot of theories here. And I always look for the simplest thing. People that stick USB sticks in, putting ballots in—a very simple thing. Only takes a couple of people, doesn’t take a big conspiracy,” he said.
“As a forensic computer scientist, my interest is in the data—where did it go? Where did the spoilage go? How did the data come in and go out of the system?” he said.
Stenstrom also said that it recently emerged that “virtually all chain of custody logs, records, yellow sheets, everything was gone” in Delaware County.
“They had a signing party where they sat down and coworkers were invited back to recreate those logs,” he said. “And our understanding as of today was that they were unsuccessful in getting them all.”
He said the situation is that there are up to 120,000 ballots that remain “in question.”
“There’s no cure for this, no remedy for this,” he said. “I don’t believe, as a citizen and an observer to this, that anybody could certify that vote in good conscience.”
At the same hearing, President Donald Trump’s attorney Rudy Giuliani said that the type of election irregularities that witnesses described in Pennsylvania also occurred in other battleground states.
“What we’re going to describe to you, with these witnesses, happened in roughly the same way in Michigan, Wisconsin, Nevada, and Georgia—the primary device was mail-in ballots,” Giuliani said, characterizing the election in Pennsylvania as a “sham.”
“We don’t want to disenfranchise anyone. We want to disqualify 672,000 votes so 72 million people are not disenfranchised,” Giuliani said. “Because that’s what happened by the cheating that went on here.”
Nuclear Option: Giuliani also suggested to Pennsylvania Republican state senators that they have the power to vote and choose their own electors, saying that in case of tainted results, the Constitution stipulates that state legislators have the authority to nullify a state’s electors and can send their own to the Electoral College.
Pennsylvania’s House and Senate are both controlled by Republicans. The Electoral College meets on Dec. 14.
On Nov 24, Pennsylvania Gov. Tom Wolf, a Democrat, announced that the results of the election were certified by the Secretary of State’s office. Georgia Gov. Brian Kemp and Michigan’s Board of Canvassers also certified their elections, although legal challenges are pending.
However, Pennsylvania Commonwealth Judge Patricia McCullough on Nov. 25 ordered the state to not take any further steps to complete the certification of the presidential race. She also blocked the certification of all the other election results.