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Rep. Mike Kelly And Others File Lawsuit To Block Counties From Giving Provisional Ballots To Voters with Disqualified Mail-In Ballots

HARRISBURG, Pa. (AP/KDKA) — In a lawsuit filed Tuesday night in a statewide appellate court, Republican U.S. Rep. Mike Kelly of Pennsylvania and five other plaintiffs want to block counties from allowing voters whose mail-in ballots were disqualified to be able to cast a vote by provisional ballot.

A Pennsylvania court has agreed to hold a hearing on Wednesday regarding the suit.

The lawsuit said the state Supreme Court has already ruled that state law provides no such avenue for a voter to fix a disqualified vote. In Oct. 21 guidance to counties, state elections officials said a voter whose mail-in or absentee ballot was rejected could still vote in person by a provisional ballot.

It was not immediately clear how many voters had cast such a ballot, or which counties were allowing the practice.

Blair, Berks, Carbon, Clinton, Dauphin, Lancaster, Lycoming and Perry counties have refused to accept that guidance "because it is contravention" of state election law, it said.

The lawsuits came as voting wrapped up on a day when Pennsylvania recorded its highest single-day total of new coronavirus infections. Voters thronged to polling places, adding their choices to the millions of mail-in ballots already cast, and both government officials and fair-election monitors said serious problems were few.

The pandemic formed an Election Day backdrop that also included a police shooting and civil unrest in Philadelphia in the run-up to the voting and the potential for a drawn-out legal fight over late-arriving mail-in ballots.

Most polls closed at 8 p.m., although a judge ordered two precincts at a Scranton elementary school to remain open an additional 45 minutes because machines had been briefly out of commission earlier in the day.

All of Pennsylvania's 18 congressional seats — currently occupied by nine Democrats and nine Republicans — are also up for grabs.

A pair of Democratic incumbents, Attorney General Josh Shapiro and Treasurer Joe Torsella, are seeking reelection, while Pennsylvania will pick a new auditor general to replace term-limited Democrat Eugene DePasquale.

Control of the state House is also at stake, with Democrats needing nine seats to seize the majority from Republicans after a decade out of power. Democrats also have a gap to make up in the state Senate.

Officials cautioned winners might not be known for days as counties begin tabulating more than 2.5 million votes cast ahead of time in the biggest test yet of the state's new mail-in voting law.

Elections officials said run-of-the-mill glitches popped up, including scattered problems with voting machines and tardy poll workers in the morning.

Some complaints arose about armed constables at polling places in central Pennsylvania, including at a voting location in Lycoming County. "At first blush, yeah, it looks intimidating," said Matt McDermott, Lycoming County's director of administration.

In Pittsburgh, a polling place couldn't open on time because the judge of elections' car was stolen, according to Allegheny County spokesperson Amie Downs. The car contained a suitcase with election paperwork and keys to a ballot scanner but was recovered. At another Pittsburgh polling place, two people were removed for causing a disturbance, Downs said.

And in Philadelphia, a poll worker improperly blocked a Trump campaign poll watcher from entering a voting precinct in the mistaken belief he wasn't allowed to be there, said Kevin Feeley, spokesperson for the Board of City Commissioners, which oversees elections. The poll watcher was eventually allowed in, he said.

A line of about 150 people stretched a city block at one polling site in Philadelphia, where Shavere McLean, 36, a massage therapist, came bundled against the 39-degree chill. She also brought a chair, an apple, an orange and a cup of coffee.

"I tried to be prepared," she said. McLean intended to vote for Biden, saying she is offended by Trump's behavior. "I just want a better leader, someone who cares about everyone."

Sam Goldman helped organize an outdoor watch party on Independence Mall in Philadelphia. Volunteers inflated a giant screen for people to watch election returns and analysis. The location and the event are more than a place to share and alleviate anxiety.

"This is the town square, right? Should Trump declare a victory before the election is over, should he win, should he just say, 'This is over, I'm not going anywhere,' we want to be in a position to respond to whatever happens together," said Goldman, 33.

In Milford, a northeastern Pennsylvania town close to the border with New York and New Jersey, most of the cars passing through the main intersection honked at Gail Just and her Trump-Pence sign. Just, 70, said she supports Trump because he "gets things done."

Trump, the Republican incumbent who scored a surprise victory in Pennsylvania four years ago, and Biden, the Democratic challenger, have frequently visited the state, each seeing victory here as crucial to their chances of winning the White House. Biden visited his childhood home in Scranton on Tuesday before heading to Philadelphia.

Trump relied on his supporters in small-town and rural Pennsylvania, while Biden's hopes hinged on getting huge margins in the Democratic bastions of Pittsburgh and Philadelphia, as well as in the populous Philadelphia suburbs. Polls showed a competitive race.

Trump has tried to sow doubt about the fairness of the election, saying the only way Democrats can win Pennsylvania is to cheat. Without evidence, he said late Monday that a court decision to allow Pennsylvania to count mailed ballots received as many as three days after the election will allow "rampant and unchecked cheating" and will induce street violence.

State election officials have pledged a safe and secure election. Gov. Tom Wolf, a Democrat, promised accurate results, "even if that takes a little longer than normal." Democrats accused Trump of waging a campaign of voter intimidation and suppression.

The county-by-county tabulation is expected to last for several days because of a year-old state law that greatly expanded mail-in voting. The state Supreme Court — citing Postal Service delays, the huge number of people voting by mail because of COVID-19, and the strain on county boards of election — ordered counties to count mail-in ballots received as many as three days after the vote, so long as they were mailed by Election Day.

The U.S. Supreme Court rejected a Republican effort to block the counting of late-arriving mail-in votes, but it could revisit the issue.

The status of mailed ballots arriving after polls closed has the potential to become significant if the nationwide result hinges on the outcome of Pennsylvania's vote, and if the ballots are potentially decisive. The great majority of mail-in ballots have been cast by Democrats, according to state data.

Trump won Pennsylvania by less than 1 percentage point in 2016 to become the first Republican presidential candidate since 1988 to take the state. No Democrat has lost Pennsylvania but won the White House since Harry Truman in 1948.

Gov. Wolf released a statement early Wednesday morning, saying:

This is a partisan attack on Pennsylvania's elections and our votes. Our election officials are working diligently to make sure every vote is counted and everyone's voice is heard. Attacks like this are an attempt to undermine confidence in the results of the election, and we should all denounce them for the undemocratic actions they are. I support our Secretary of State and all of our state and local election officials who are working hard to deliver timely, accurate results and ensure that everyone's vote is counted and protected.

(TM and © Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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