EASTON, Pa. — A Northampton County judge heard arguments Thursday in a case that will determine about 200 provisional ballots cast in the county, most of them missing a signature, will ultimately be counted.
The judge who will decide the case, Northampton County Court of Common Pleas President Judge Craig Dally, could issue a ruling as soon as Tuesday.
State rules require voters casting a provisional ballot to sign the ballot’s outer envelope in two places; the judge of elections and minority inspector at the polling place must also sign.
In a three-day hearing that ended Tuesday, Northampton County’s elections commission voted to approve provisional ballots missing one or both officials’ signatures, as well as ballots a voter signed only once.
In response, attorneys for the Republican National Committee, the state republican party and David McCormick’s Senate campaign filed a lawsuit seeking to keep most of those votes from being counted.
The suit also seeks to throw out provisional ballots cast by five voters in Bethlehem who signed into their polling place, left the building and returned later in the day.
Similar court cases are playing out in county courts across the state.
In a lawsuit filed Monday in Lehigh County court, the Casey campaign asked officials to count 211 ballots which Lehigh County’s elections commission tossed out. Most of them were only signed once by a voter.
No matter the outcome of suits in county courts, party officials are all but certain to appeal the issue to state courts.
Provisional ballots have taken on unusual importance because of the extremely close race for one of Pennsylvania’s U.S. Senate seats, between Democratic incumbent Bob Casey and Republican challenger David McCormick.
Unofficial results show McCormick ahead by less than 17,000 votes, about 0.24% of the votes cast; the Associated Press called the race in his favor. Because the leading candidates are separated by less than 0.5%, an automatic state-wide recount is underway.
Britain Henry, appearing on behalf of the McCormick campaign and the Republican party, told the court that the rules governing provisional ballots clearly require all four prescribed signatures for the vote to count.
“We think on this point the law is extremely clear,” Henry said of the rule that voters must sign a provisional ballot twice.
The law “requires both signatures to be on the ballot," he said. "They both serve separate and distinct purposes."
Signatures from both a judge of elections and minority inspector are also required, he said. Without them, “it’s an incomplete process.”
Attorneys for the Democratic Senatorial Campaign Committee, the Pennsylvania and Northampton County Democratic parties, Senator Bob Casey’s reelection campaign and the elections commission told Judge Dally members of the election commission were right to approve the challenged ballots.
Federal law does not allow for votes to be thrown out because of a mistake by poll workers or elections officials, they said, such as a judge of elections or minority inspector failing to sign a provisional ballot.
Voters who signed their ballot only once were following bad instructions from officials, said Michael Vargo, an attorney representing the elections commission.
Northampton County trains poll workers to sign provisional ballots after a voter finishes filling it out. Because every ballot challenged for missing a voter signature was signed by both required officials, said Vargo, they apparently thought the voter did everything correctly.
“Those voters would have had to say, ‘no, judge of elections, you’re doing your job wrong,’” said Jacob Shelly, a lawyer for the DSCC and the Casey campaign. “That’s not a reasonable expectation.”
Further, state election laws do not say that ballots can be thrown out for missing officials’ signatures, they said.
Trouble at Bethlehem 1 North
During Thursday’s court hearing, Vargo looked to explain why five voters from Bethlehem’s First Ward, Northern Precinct signed the polling place’s pollbook, left the premises, came back and submitted a provisional ballot.
The polling place’s judge of elections, Michael Kralik, testified that because the polling place had only one voting machine, voters had to wait as much as two and a half hours between signing the poll book and casting a ballot.
The five voters at issue all had to leave because of other commitments — for example, a doctor’s appointment — after they signed in, but before making it to the voting machine, Kralik said, and poll workers told them they could come back later to vote.
Lawyers representing the Democratic party and Casey campaign told the court that, because voters were just following instructions, their ballots had to be counted.
Henry, meanwhile, argued that signing the pollbook and leaving the building amounts to casting a ballot, so the five affected voters were essentially trying to vote twice.
While there was “clearly an issue with operations,” Henry said, “these voters chose to leave, and by doing so either voted or forfeited their vote.”
