After Bucks County elections officials repeatedly prevented voters from getting in line to vote absentee by request before the Oct. 29 deadline to do so, the campaign for Republican presidential nominee Donald Trump sued voters, alleging. that voters were denied the right to vote. The Republican National Committee and GOP Senate candidate Dave McCormick’s campaign were also named as plaintiffs.
With only days until the election when the lawsuit was filed, Bucks County Common Pleas Court Judge Jeffrey Trauger decided to make a quick decision. The hearing was held on October 30, the day after Trump announced his intention to file a lawsuit. Ultimately, a judge sided with the campaign, ordering the county to reopen three election offices and allow people who were rejected to request and return a completed absentee ballot. It was a scarce decision that found favor with the Trump campaign and the American Civil Liberties Union of Pennsylvania applauding the same result.
The transcript of the court hearing leading up to the decision provides up-to-date insight into how the decision was made. It was recently acquired by Capital-Star. Here’s some of what we learned.
Judge Trauger’s assistant did not respond to the Capital-Star’s specific questions, but recommended reading the transcript. Lawyers representing the Trump campaign and the Bucks County Board of Elections did not immediately respond to requests for comment over the weekend.
Bucks County is a microcosm of election chaos with destitute communication, viral misinformation and legal violations
Pennsylvania’s election code does not specify rules regarding “mail-in ballots upon request.”
“Demand-by-mail voting” is the process by which voters request, complete, and return an absentee ballot during the same visit to an election office. It’s not explicitly written in the state’s election code, but it was implemented in previous elections. It was also advertised as a voting option in many counties, including Bucks, and by the Department of State ahead of the absentee ballot request deadline.
There has been more interest in on-demand voting this year than since Act 77 introduced no-excuse mail-in voting ahead of the 2020 election. The request caused long lines, especially in the final days before the absentee ballot request deadline.
When lines became long enough that voters wouldn’t be able to get to the front before election offices closed, Bucks County election officials and security guards told voters they wouldn’t be able to participate. Sometimes it was several hours before the posted closing times. However, according to the county, these voters still had the option to request an absentee ballot by submitting a paper application or completing an online form.
SEE THE MORNING HEADLINES.
Because the rules for the on-demand voting process are not explicitly spelled out in the state’s election code, the practical and legal decisions about implementing it are “new,” according to Trump campaign lawyer Walter Zimolong. According to Lancaster Onlinein 2020, Zimolong filed and ultimately dropped a federal lawsuit seeking to invalidate election results in some Democrat-leaning Pennsylvania counties due to “irregularities.” On the social media platform X (formerly Twitter) describes itself as “Conservative lawyer. Culture warrior and trial lawyer”
According to Bucks County attorney Amy Fitzpatrick, who represented the Board of Elections in court, officials believed they were not violating any statutory requirements by cutting the lines as long as they still gave voters the option to request an absentee ballot, which they could receive at a designated address or at election office at a later date.
“Our staff has worked tirelessly to find alternative options for these voters so they don’t have to wait in line,” Fitzpatrick said.
Pennsylvania officials continue to race the clock on Election Day to count mail-in votes
While there is no statutory guarantee that voters will be able to vote by mail upon request, Trauger’s ruling was based in part on the state election code’s requirement that voters “immediately” receive an absentee ballot after submitting a request. Immediately, in this case, i.e. during the same visit.
There was confusion over the difference between requesting an absentee ballot and voting by request
Trump campaign lawyers and Judge Trauger sometimes referred to requesting mail-in ballots and requesting ballots interchangeably.
Trump campaign lawyers referenced a post on X’s social media platform through the official account of the Pennsylvania Department of State. On the day of the absentee ballot request deadline, it stated that “if you are in line at the county elections office this evening at 5:00 p.m. to request an absentee ballot, counties must give you the opportunity to do so.”
There was no question of postal voting on request.
Trauger, however, referred to a situation in which “the Secretary assured everyone who was in line at 5 p.m. that they would vote.” The post was similarly characterized by Zimolong.
Fitzpatrick argued that voters can still request absentee ballots even if they don’t receive them that day.
The judge’s decision seemed to err in the direction of providing greater voting access
At the beginning of the hearing, Trauger asked Fitzpatrick a blunt question: “Don’t we want more people to vote rather than fewer?”
Fitzpatrick agreed, and making that point was central to the Trump campaign lawyer’s argument.
That question seemed to guide Trauger in his decision-making, both in his final ruling and in his decision to extend absentee voting by request for days.
When Fitzpatrick asked on behalf of the county to limit the extended request voting period as much as possible by any legal means, preferably to one day, Trauger denied the request.
One of the three Bucks County voters who signed an affidavit saying they were rejected actually requested an absentee ballot
To substantiate its claims that Bucks County voters were denied the opportunity to vote, the Trump campaign produced three affidavits from Bucks County residents that read: “County officials told me I would not be able to request, receive, vote or submit a ballot sent by post and that I would have to come back another day.”
The three declarations contained the same language. The complaint cites evidence that “voters were excluded from voting by mail.”
Fitzpatrick, however, described the declaration’s language as “devoid of specificity.” She also noted that one of the three declarants applied for a postal ballot, which was printed and waiting for them at the election office.
“This is one of the whistleblowers in this case who says he was unable to vote,” Fitzpatrick said.
The state and county allegedly advertised on-demand voting without communicating the limitations of the process
“The Secretary of the Commonwealth for Commonwealth Elections came out and said that if you lined up, you would be able to vote, and that just wasn’t happening in Bucks County,” Zimolong argued.
It is unclear when Secretary Al Schmidt said this. Zimolong pointed out post from the official account of the Pennsylvania Department of State X, guaranteeing those in line by 5 p.m. the opportunity to apply for an absentee ballot. There is a section on the Department of State website that describes on-demand mail-in voting. It does not warn voters that they may be denied entry if the elections office is unable to accommodate them before the announced closing time.
If you are in line at your county election office tonight at 5 p.m. to request an absentee ballot, counties must give you the option to do so. Our team continues to work with all counties to ensure that every eligible voter who wishes to vote by mail can do so. https://t.co/Px4MfTo0eQ
— PA Department of State (@PAStateDept) October 29, 2024
A State Department spokesman did not immediately respond to questions on Saturday.
Similarly, the Bucks County Board of Elections described the process at its Oct. 7 meeting, also failing to warn people that they could be turned away if lines become too long.
As evidence, the Trump campaign sent out a viral tweet containing misinformation about “early voting.”
In their complaint, Trump’s legal team linked to a video posted on social media platform X in which a security guard tells a woman she cannot get in line to vote upon request. The author of the entry wrote: “tHey, you don’t let people vote.
However, the woman in the video receives a paper leaflet with a QR code leading to an application for a postal vote. She was never told that she would not be able to vote, only that she would not be able to vote on request that day. This flyer was submitted as evidence by the county.
Zimolong referred to the video during the hearing as evidence that district employees had “breached.”[ing voters’] statutory right to vote in person upon request.”
Election commission employees were concerned that extending the deadline for on-demand voting would affect the integrity of the elections
Fitzpatrick argued that extending the deadline for on-demand voting could jeopardize the integrity of the election
Tyler Burns, director of the Bucks County Board of Elections, testified in this case.
He said election officials were working overtime under duress and would continue to do so ahead of the election. Their duties included submitting requests to the state for election day supplies. They also had to process absentee ballot applications and ensure that data sent to each polling place reflected who had requested one and who had not. Otherwise, he said, voters could vote twice, once by mail and once in person.
Work on these datasets was to take place after the application deadline, on days when election offices were ordered to work longer hours to accommodate voters upon request.
Burns worried that, in a worst-case scenario, he wouldn’t have time to prepare the logs if on-demand voting reopened. And if that happened, they would have to separate each absentee ballot to make sure it wasn’t submitted by people who voted in person after the election. This would ponderous down the results significantly.
“That’s where the administrative burden and rubber stamp starts,” Burns said. “We need to be able to manage and track everything that happens during this election. If we change it now, it will be… administratively it will be a nightmare, Your Honor.
YOU MAKE OUR WORK POSSIBLE.
Correspondent Christina Kristofic contributed
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