avlon reality check
Why Trump's legal team is coming up short
03:09 - Source: CNN
CNN  — 

The Pennsylvania Supreme Court on Tuesday ruled 5-2 that a Trump campaign ballot processing observer in Philadelphia had no right to stand any particular distance away from election workers, and it’s up to counties to decide where poll watchers can stand.

It’s a significant loss for President Donald Trump’s campaign at a moment in which the legal strategy to block President-elect Joe Biden’s win and undermine the election results is crumbling and entering its final throes.

The state high court’s ruling overturns an earlier decision that the Trump campaign had called a major win, even while it affected no actual votes in Pennsylvania. But that small win has propelled the Trump campaign in recent days to argue that vote counts across the state have been unfair and prompted them to push suspicions of fraud.

The campaign’s latest loss in court comes amid a break in a hearing where Trump’s personal attorney, Rudy Giuliani, is arguing to a federal judge there could have been widespread fraud in absentee voting in the Keystone State.

That hearing, with arguments that began this afternoon in Williamsport, is on a break because an audio phone line that allowed public access to the hearing went down.

The Pennsylvania Supreme Court spelled out how the Trump campaign’s observer, Jeremy Mercer, was able to do everything he was allowed under the law when he was observing the absentee ballot processing in Philadelphia. This factual record undercuts core claims the Trump campaign is still trying to make in court.

Mercer had complained he couldn’t see signature declarations or other markings on envelopes, but the court said he would have only needed that information if his “primary motivation” was to challenge individual ballots – which he, as an observer, was not allowed to do under the state law.

“Specifically, Attorney Mercer witnessed Board employees inspecting the back of ballot envelopes containing the voter’s declaration, before sending them on for processing; witnessed ballots being removed from their secrecy envelopes, and naked ballots which had been delivered to the Board without a secrecy envelope being segregated from ballots which arrived within such envelopes; saw that the ballot processing methods utilized by the Board were not destroying the ballot envelopes containing the voter’s declaration; and perceived that the ballot secrecy envelopes were being preserved during their processing,” the Pennsylvania Supreme Court wrote in its opinion.

“As found by the trial court, Attorney Mercer was able to appropriately observe that the Board’s employees were performing their duties under the Election Code.”

All seven justices disagreed with the Trump campaign’s suspicions of fraud and legal arguments aiming throw out potentially thousands of votes after the fact.

The chief justice of the Pennsylvania Supreme Court, Republican Thomas Saylor, wrote that the Trump campaign’s apparent aim to throw out votes would be disenfranchisement.

Saylor wrote in his dissent that he “fail[ed] to see that there is a real issue here.”

He pointed out that issues over how an election is administered could largely be addressed by courts before the election, and even by trial courts early during ballot counting – not well after, as the Trump campaign has tried to do.

“There have been, and will always be, some localized irregularities,” Saylor wrote of elections. “This is why courts are open throughout the election cycle, as here, to remedy these just as quickly as possible. It is also one of the reasons why we have a Commonwealth Court, with expertise in election matters, and organized to act expeditiously via single-judge consideration. … Short of demonstrated fraud, the notion that presumptively valid ballots cast by the Pennsylvania electorate would be disregarded based on isolated procedural irregularities that have been redressed – thus disenfranchising potentially thousands of voters – is misguided.”

Saylor and another justice, Sallie Updike Mundy, split with the rest of the court because they believed the case was now moot since ballot processing in Philadelphia is nearly complete, according to Saylor’s dissent.

This story has been updated with more from the decision.