Judge Casts Doubt On Barnette Lawsuit Against Montco Over Ballots

MONTGOMERY COUNTY, PA — No ruling was issued during a hearing in federal court Wednesday morning over the mail-in ballot lawsuit filed against Montgomery County, though a federal judge cast doubt on the validity of the claims brought forth Republican Congressional candidate Kathy Barnette. It's one of the more notable court cases challenging election results in the crucial swing state of Pennsylvania, which could determine the presidency.

Attorney Thomas Breth fielded dozens of questions in U.S. District Court in Philadelphia from Judge Timothy Savage, who sought clarity on the lawsuit's allegation that it is illegal for elections officials to review ballots for errors and allow voters to fix them.

“It counts as your vote, but your vote is not counted?" Savage asked at one point. He even argued back with Breth at one point, saying that fixing erroneous mail-in ballots was analogous to a poll worker helping an in-person voter who had an issue with a machine.

Breth was adamant that the case could turn the tide of election results in Pennsylvania. The exact number of ballots at stake here remains unclear: the GOP lawsuit demands that at least 1,200 ballots be discounted, while Montgomery County Commissioner Ken Lawrence said Tuesday night that only 49 ballots had been changed.

"We believe that everything was done was within our Election Code," Lawrence said Tuesday.

Among the errors fixed by Montgomery County elections officials were the "naked" ballots, where ballots submitted without secrecy envelopes cannot be counted.

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

Barnette has declined to concede the election despite the Associated Press declaring a sweeping victory for Dean Tuesday evening. Dean holds a 142,231 to 101,750 lead as of early Wednesday afternoon, with around 44,000 mail-in ballots still to be counted.

But while Dean's victory is secure, the larger implication of the case is the presidential election. Ballots are still being counted around the state and the final tally in Pennsylvania, and in Montgomery County, one of its most populous counties, could swing the outcome.

>>Barnette Doesn't Concede To Dean: 'The Enemy Will Be Thwarted'

Barnette's team also argued that Montgomery County, as a wealthier county than others in the Commonwealth, had access to superior election machinery which could detect these errors and then contact voters.

Breth repeatedly mentioned the 2000 Bush v. Gore Supreme Court case, comparing the way that different counties in Florida handled different ballots.

But Savage, who was appointed by President George W. Bush in 2002, said he did not follow how enfranchising more voters compromised the election.

"I don't understand how the integrity of the election was affected," he said.

Savage declared recess Wednesday and gave both sides until Friday to file additional briefings. No further hearings are scheduled for Wednesday.

Though the suit was filed against Lawrence, fellow Commissioner Val Arkoosh, and voter services director Frank Dean, the Democratic National Committee filed a motion to intervene in the case early Wednesday. The motion was accepted by Savage, meaning that DNC lawyers are now litigating the case with Montgomery County.