Pennsylvania Court Rules Secretary of State Improperly Changed Deadline 2 Days Before Election Day

Judge rules to block late ballots from being counted

A Clark County election worker scans mail-in ballots at the Clark County Election Department in North Las Vegas, Nev., on Nov. 7, 2020. Ethan Miller/Getty Images

A Pennsylvania judge ruled in favor of President Donald Trump’s campaign on Nov. 12, saying Pennsylvania Secretary of State Kathy Boockvar overstepped her authority to change an election deadline two days before Election Day.

“The Court concludes that Respondent Kathy Boockvar, in her official capacity as Secretary of the Commonwealth, lacked statutory authority to issue the November 1, 2020, guidance to Respondents County Boards of Elections insofar as that guidance purported to change the deadline ... for certain electors to verify proof of identification,” Commonwealth Court Judge Mary Hannah Leavitt wrote in her order (pdf) on Nov. 12.

Boockvar, a Democrat, submitted guidance saying proof of identification could be provided to vote until Nov. 12. State law stipulates that voters have until Nov. 9 to correct problems regarding a lack of proof of identification. Boockvar, the top election official in the state, issued the guidance after the Pennsylvania Supreme Court ruled mail-in ballots could be accepted three days after Nov. 3.

Boockvar issued the new guidance on Nov. 1, two days before Election Day. Trump’s lawyers had argued that the secretary had no power to unilaterally change the date.

The court had previously ordered that ballots from voters who provided identification between Nov. 10 and Nov. 12 have to be segregated until a new ruling is issued about what should be done with them.

“Accordingly, the court hereby orders that Respondents County Boards of Elections are enjoined from counting any ballots that have been segregated pursuant to ... this court’s order,” the judge said, meaning that those ballots now shouldn’t be counted. It isn’t clear how many ballots are at stake.

On Nov. 5, the Commonwealth Court of Pennsylvania ruled in favor of the Trump campaign after it argued Boockvar broke the Help America Vote Act (HAVA) when she unilaterally extended the deadline for absentee and mail-in voters to provide any missing proof of identification to Nov. 12 from Nov. 9.

Leavitt’s decision could be appealed to the Pennsylvania Supreme Court.

Earlier this week, Boockvar said that around 10,000 mail-in ballots were received during the contested three-day grace period between when polls closed on Election Day and 5 p.m. the following Friday. Boockvar also said that Pennsylvania’s election officials received 94,000 provisional ballots, and that around 49,000 mail ballots that arrived before polls closed on Election Day remain to be tallied, according to Pennlive.

Trump’s campaign and Republicans are now awaiting a U.S. Supreme Court decision about whether the Pennsylvania Supreme Court acted legally in granting a three-day extension for accepting mail-in ballots. Several Republican attorneys general from other states have issued amicus briefs and joined the lawsuit against Pennsylvania’s top court.

Meanwhile, there are other outstanding legal challenges in Pennsylvania, including one in which they are slated to have a hearing on thousands of ballots that were allegedly improperly counted.