Thread:
This is a grossly simplistic mischaracterization of the litigation over ballot-watching in Philadelphia. https://twitter.com/CPotterPgh/status/1325451144395698187

If @CPotterPgh actually took the time to read the court record, including the memorandum opinions, in Phila. Common Pleas case #201107003, he would see that it centers on an important dispute about the meaning of PA Election Code concerning ballot watchers.

Specifically, the dispute concerns the meaning of Election Code provisions that allow ballot watchers and campaign reps. "to be present" during canvassing, and that allow a limited number of candidate and party reps. "to remain in the room" during canvassing.

In a memorandum appellate opinion and order issued 11/5/2020, PA Commonwealth Court Judge Christine Fizzano Cannon synopsized the dispute thusly:

In uncontradicted testimony, Jeremy Mercer, an official ballot-watcher for the Trump campaign, said that on Election Night at the Phila. Convention Center, he was blocked from getting closer than 15 ft. to any of the dozens of tables where ballots were being processed.

A waist-high metal fence inside the convention hall separated him from the tables, with the furthest table being over 100 feet away from him, according to Mercer's testimony during a hearing before Philadelphia County Common Pleas Judge Stella Tsai on Election Night.

"As a result of these distances and barriers, Mercer explained that he was unable to observe the ballots being processed, the envelopes that contained them, whether the secrecy envelopes were present, or any markings on those envelopes," Judge Fizzano Cannon's opinon states.

"Mercer explained that he even used binoculars to attempt to get a better view of the proceedings and ballots, but to no avail," it continues.

In a hearing on Election Night, the Trump campaign asked Judge Tsai to order the Board to provide closer access to the ballots. The Philadelphia County Board of Elections "presented no evidence at the hearing," Fizzano Cannon notes.

The next morning, Judge Tsai issued an order denying the campaign's request. The campaign appealed.

On appeal, the Board "argues that by using the terms 'presence' and 'to remain in the room,' the Election Code requires simple physical presence of an observer in the room where ballot canvassing occurs, and nothing more," Fizzano Cannon states.

But the campaign "argues that the goals of transparency and accountability require that candidates’ representatives be allowed an opportunity to observe the canvassing process beyond mere physical presence in the room where the canvassing process is taking place."

The campaign "argues that the Board’s arrangement of and placement of barriers within the canvassing area prevent any meaningful observation by watchers, candidates, or candidates’ representatives."

Acknowledging that the Code is ambiguous, Judge Fizzano Cannon found that the trial court "erred as a matter law in determining that the Board had sufficiently complied with the requirements of the Election Code" and in denying the campaign's bid for better access.

Mercer "was technically in the room where the canvassing was occurring", Fizzano Cannon writes.

But "Mercer's inability to actually observe the canvassing processes in any meaningful way completely frustrates the intent of the Election Code in allowing a representative in his position to be in the room for observation purposes in the first place," she says.

To allow watchers or reps. to be physically "present" or "in the room", yet relegated to a place where meaningful observation of the processes they are there to observe is impossible, "would be an absurd interpretation of the Election Code that we cannot countenance."

Under Judge Tsai's interpretation, "a candidate’s representative being relegated to one corner of a convention center hall while ballot canvassing occurs in the opposite corner of the hall would comply with the Code because the representative is present in the room."

Such an interpretation would "completely undercut the intent of the Election Code by reducing candidates’ representatives to tourists incapable of carrying out the observations allowed by the Election Code for the purposes of reporting to the candidate they represent."