(Credit: Bucks County)
Because the election was only days away when the lawsuit was filed, Bucks County Court of Common Pleas Judge Jeffrey Trauger moved to decide quickly.
After Bucks County election officials repeatedly blocked voters from lining up to vote by on-demand mail ballot ahead of the Oct. 29 deadline to do so, the campaign for Republican presidential nominee Donald Trump sued, alleging voters were denied the right to vote. The Republican National Committee and the campaign for GOP Senate candidate Dave McCormick were also named as plaintiffs.
Because the election was only days away when the lawsuit was filed, Bucks County Court of Common Pleas Judge Jeffrey Trauger moved to decide quickly. A hearing was held on Oct. 30, the day after the Trump campaign announced its intention to sue. Ultimately, the judge sided with the campaign, ordering the county to reopen three election offices and allow those turned away the chance to request and return a filled out mail ballot. It was a rare decision that found the Trump campaign and American Civil Liberties Union of Pennsylvania applauding the same outcome.
A transcript of the court hearing preceding the decision offers new insight into how it was decided. It was recently obtained by the Capital-Star. Here’s some of what we learned.
A judicial assistant for Judge Trauger did not answer specific questions from the Capital-Star, but said to review the transcript. Lawyers representing the Trump campaign and the Bucks County Board of Elections, did not respond immediately to requests for comment over the weekend.
Pennsylvania’s election code is not clear on rules around ‘on demand mail ballot voting’
“On demand mail ballot voting” is a process where voters request, fill out and return a mail ballot all in the same visit to an election office. It is not spelled out explicitly in the state’s election code, but has been 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 mail ballot request deadline.
This year, interest in the on-demand method of voting was higher than it had been since Act 77 created no-excuse mail ballot voting ahead of the 2020 election. The demand created long lines, especially in the final days ahead of the mail ballot application deadline.
When lines became long enough that voters would not be able to reach the front by the time election offices closed, Bucks County election officials and security guards told voters they would not be able to participate. Sometimes this was several hours before advertised closing times. However, the county says, those voters were still allowed an opportunity to apply for a mail ballot by submitting a paper application or filling out an online form.
Because rules for the on-demand voting process are not explicitly set in the state’s election code, practical and legal decisions around its implementation are “novel,” according to Trump campaign attorney Walter Zimolong. According to Lancaster Online, in 2020, Zimolong filed and ultimately withdrew a federal lawsuit seeking to discard election results in certain Democrat-leaning Pennsylvania counties over “irregularities.” He describes himself on the social media platform X (formerly Twitter) as a “Conservative Attorney. Culture warrior and litigator.”
According to Bucks County solicitor Amy Fitzpatrick, who represented the Board of Elections in court, officials believed they were not violating any statutory requirements by cutting off lines, as long as they were still giving voters the opportunity to apply for a mail ballot which they could receive at their provided address or at the election office at a later date.
“Our staff worked tirelessly to try to find alternative options for those voters so that they didn’t have to stand in line,” Fitzpatrick said.
While there is no statutory guarantee that voters be able to vote by mail on demand, Trauger’s ruling was decided, in part, on the state election code’s requirement that voters be “promptly” given a mail ballot after their application is submitted. Promptly, in this case, meaning in the same visit.
There was confusion around the difference between applying for mail ballots and voting on demand
Trump campaign lawyers and Judge Trauger sometimes interchangeably referred to applying for mail ballots and voting on demand.
Trump campaign lawyers referred to a post on the social media platform X by the official Pennsylvania Department of State account. It said, on the day of the mail ballot application deadline, “if you are in line at a county elections office tonight at 5 p.m. to apply for your mail-in ballot, counties must give you an opportunity to do so.”
There was no mention of voting by mail ballot on demand.
But Trauger referred to this as when the “Secretary assured everybody if they were in line by 5:00 that they would vote.” The post was similarly characterized by Zimolong.
Fitzpatrick argued that voters were still allowed to apply for mail ballots, even if they wouldn’t receive them that day.
The judge’s decision appeared to err towards ensuring greater voting access
Early in the hearing, Trauger asked Fitzpatrick a blunt question: “Don’t we want more people to vote than less?”
Fitzpatrick agreed, and the framing was central to the Trump campaign’s lawyer’s argument.
This question appeared to guide Trauger’s decision-making both around his ultimate ruling and the decision to have a multi-day extension for on-demand mail ballot voting.
When Fitzpatrick asked on behalf of the county that any legal remedy limit the extended on-demand voting period as much as possible, ideally to a single day, Trauger rejected the request.
One of three Bucks County voters who signed a declaration that they were turned away actually did apply for a mail-in ballot
As evidence for its claims that Bucks County voters were denied the opportunity to vote, the Trump campaign submitted three sworn declarations by Bucks County residents reading “I was told by county officials I would not be able to request, receive, vote, and submit a mailed-in ballot and that I would have to return on a different day.”
The three declarations contained that identical language. The complaint described that as proof the voters were “precluded from voting by mail-in ballot.”
But Fitzpatrick described the language in the declarations as “lacking in specificity.” And she noted one of the three declarants had applied for a mail-in ballot, which was printed and waiting for them at an election office.
“That’s one of the declarants in this case who says that they were not able to vote,” Fitzpatrick said.
The state and county allegedly advertised on-demand voting without being clear about the process’ limitations
“The Secretary of the Commonwealth, who’s responsible for elections in the Commonwealth came out and said, if you’re in line you will be able to vote, and that simply did not happen in Bucks County,” Zimolong argued.
It’s unclear when Secretary Al Schmidt said this. Zimolong pointed to a post from the official Pennsylvania Department of State X account guaranteeing those in line by 5 p.m. a chance to apply for a mail-in ballot. The Department of State’s website does have a section describing on-demand mail ballot voting. It does not warn voters they could be denied entry if the election office would be unable to accommodate them ahead of the advertised closing time.
A spokesperson for the Department of State did not immediately respond to questions on Saturday.
Similarly, the Bucks County Board of Elections described the process in an Oct. 7 meeting, also not warning people they could be turned away if lines got too long.
The Trump campaign submitted a viral tweet containing misinformation on “early voting” as evidence.
In its complaint, the Trump legal team linked to a video posted to the social media platform X that showed a woman being told by a security guard that she could not get in line to vote on-demand. The post’s author wrote, “they are refusing to let people vote.”
However, the woman in the video is handed a paper flyer with a QR code linking to a mail ballot application. She is never told she will not be able to vote, only that she will not be able to vote on-demand that day. That flyer was submitted as evidence by the county.
Zimolong referred to this video in the hearing as proof of county employees “violat[ing voters’] statutory right to vote on-demand in person.”
Election staff worried that extending the on-demand voting deadline would affect election integrity
Fitzpatrick argued that extending the deadline for on-demand voting could threaten the integrity of the election
Tyler Burns, the director of the Bucks County Board of Elections testified to this point.
He said election officials had been working forced overtime and would continue to do so ahead of the election. Their tasks included submitting requests to the state for supplies for Election Day. They also had to process the mail ballot applications and ensure the data that would go to each polling place reflected who did and didn’t request one. Otherwise, he said, voters could have been able to vote twice, once by mail and once in person.
Work on these datasets was supposed to happen after the deadline to apply during the days the election offices were ordered to open for extended hours to accept on-demand voters.
Burns worried that, in the worst case, they would not have time to prepare their logs if on-demand voting was re-opened. And if that happened, they would have to segregate every mail ballot to ensure they weren’t submitted by people who voted in person after the election. This would significantly slow results.
“That’s really where the administrative burden and the rubber hits the road,” Burns said. “We need to be able to manage and keep track of everything that’s going on in this election. If we change it now, it’s going to be — administratively, it’s going to be a nightmare, Your Honor.”
Correspondent Christina Kristofic contributed.
Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: [email protected]. Follow Pennsylvania Capital-Star on Facebook and Twitter.
