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The majority agreed with the trial court that
Trump campaign attorney Jeremy Mercer, a Pitts-
burgh-based partner at Porter Wright Morris &
Arthur, was able to appropriately observe that Phila-
delphia County Board of Election employees were
performing their duties under the Election Code on
Nov. 3.
“In sum, we conclude the board did not act con-
trary to law in fashioning its regulations governing
the positioning of candidate representatives during
the pre-canvassing and canvassing process,” Todd Polling location for the 2020 presidential election in
wrote. Philadelphia, on Nov. 3, 2020.

“Critically, we find the board’s regulations as ap- Photo: Lizzy McLellan/ALM

plied herein were reasonable in that they allowed as a matter of law in determining that the Board
candidate representatives to observe the Board of Elections had complied with the Election Code.
conducting its activities as prescribed under the Cannon agreed with lawyers for the GOP who said
Election Code. poll watchers had to be within 6 feet as opposed to
“Accordingly, we determine the Commonwealth 15 feet under Tsai’s order.
Court’s order was erroneous,” wrote Todd in the 19- The Board of Elections filed an emergency peti-
page opinion dated Nov. 17. “Thus, we vacate that tion for allowance of appeal with the Pennsylvania
order, and reinstate the trial court’s order denying Supreme Court on Nov. 5.
the campaign relief.” On Nov. 7—after being called by all major news
Philadelphia attorney Linda Kerns, who represents outlets—Pennsylvania and its 20 electoral votes ulti-
the Trump campaign, was not immediately available mately went to Democrat Joe Biden in his bid to win
to comment on Tuesday’s ruling. Mark Aronchick of the Oval Office from incumbent President Donald
Hangley Aronchick Segal Pudlin & Schiller in Phil- Trump.
adelphia, who represents the Philadelphia County On Nov. 9, the justices agreed to review the case.
Board of Elections, said late Tuesday night: “The In the Tuesday opinion, Todd said the central
Supreme Court’s opinion today was thoughtful, well legal issue in the case—whether its interpretation
reasoned, correct and timely. Once again, the judi- of the provisions of the Election Code established
ciary has demonstrated to the public that our public campaign access requirements to ballot canvassing
servants have been performing admirably in the activities—was still in play.
conduct of this election.” “We conclude that, because ballots are still being
The canvassing case was filed on Election Day canvassed by the Board at the time of this writing,
by the Trump campaign over claims that its poll the legal question before us is not moot,” said Todd.
watchers were not being given proper access to fully The court said Trump attorney Mercer was able
observe the opening and sorting of ballots conduct- to observe the mechanics of the canvassing process
ed by the Philadelphia County Board of Elections, despite the spatial setup.
the defendant. The setup “did not deprive attorney Mercer of
Judge Stella Tsai of the Philadelphia Court of the ability ‘to actually observe the … process in any
Common Pleas denied the challenge Nov. 3, finding meaningful way,’ as the Commonwealth Court con-
that the petitioner was able to observe the process cluded,” wrote Todd.
and was seeking to audit the ballots, which is not In his two-page dissent, Saylor said the Common-
required under the law. wealth Court reasonably directed election officials
On Nov. 4, Commonwealth Court Judge Christine in Philadelphia to move restrictive barriers in the
Fizzano Cannon concluded that the trial court erred
¦ Continued on PAGE 24

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