Judge Orders Defective Montco Ballots Cannot Be Counted Tuesday

MONTGOMERY COUNTY, PA — A federal judge has granted an injunction ordering that no potentially defective ballots be counted in Montgomery County on Tuesday evening, marking the first chaotic judicial turn on a historic Election Day.

The order comes following a lawsuit earlier in the day from Republican congressional candidate Kathy Barnette alleging that Montgomery County illegally alerted voters of ballot errors, allowing voters to fix issues and return them. She wants some 1,200 ballots to be discounted entirely, a major development in the decisive swing state of Pennsylvania which Donald Trump won by just 44,000 votes in 2016.

U.S. District Judge Petree Tucker's order states the halt on counting these ballots be put in place until a hearing at 9 a.m. Wednesday in the Eastern District of Pennsylvania. Montgomery County Commissioner Ken Lawrence said late Tuesday night that this order only affects 49 ballots.

>>Montco Downplays Lawsuit: 'Everything Within Election Code'

Specifically, Barnette and the Pennsylvania GOP claim in the suit that the county “pre-canvassed” ballots for errors before they could legally be processed in Pennsylvania, at 7 a.m. Tuesday.

"I told y'all, I'm not rolling over for felonious foolishness and dishonesty," Barnette said on Facebook Tuesday afternoon. "I am a fighter. I will fight for you and your family. Each LEGAL vote matters. Period."

Barnette is running against incumbent Democrat U.S. Rep. Madeleine Dean in the heavily blue 4th Congressional District, which covers most of Montgomery County and a part of Berks County.

“We believe our process is sound and permissible under the Election Code,” Montgomery County spokeswoman Kelly Cofrancisco told Patch.

Montgomery County GOP Chair Elizabeth Preate Harvey says that only wealthier, Democrat-controlled counties have the “expensive” machines needed to detect errors.

“It is unfair and unlawful to treat voters in majority Democratic counties differently than voters in majority Republican counties,” she said.

It's especially impactful in Barnette's race because the 4th District pokes into parts of Berks County. The lawsuit says that Berks County voters who made mistakes would not get the same opportunity to fix their mistakes. "At this juncture, in order to make sure that voters in Berks County and Montgomery County are treated equally, Defendants must set aside and declare void any ballots that have been submitted to Montgomery County and subsequently changed," the lawsuit reads.

One error anticipated to be common was the "naked ballot" in which ballots do not include the second secrecy envelope. Pennsylvania ruled over the summer that such ballots cannot be legally counted.

The suit comes two days after the Montgomery County Republican Committee sent a letter to Pennsylvania Secretary of State Kathy Boockvar with similar complaints, urging an investigation.

The final results in Montgomery County and Pennsylvania would not have been available Tuesday night regardless of this lawsuit, as the count of an unprecedented number of mail-in ballots is expected to take at least another day or two. In Montgomery County, a total of 279,827 ballot applications were approved, and around 3.02 million were statewide.

The Dean campaign has not issued a public statement on the issue.