Commonwealth Court Judge P. Kevin Brobson's order Friday night denied the eight voters' petition to stop the weekend operation of the mobile voting center at Subaru Park in Chester, Pennsylvania. The judge ruled that Delaware County Court of Common Pleas Judge Spiros E. Angelos was not "palpably erroneous" in his ruling that the elections board had not violated Pennsylvania's Sunshine Act, and so the appellate court would not grant an emergency injunction.
"The court has examined Sections 709 and 710(a) of the Sunshine Act, which appellants claim the election board violated," Judge Brobson wrote. "The court will not disturb on appeal the trial court's conclusion that appellants did not show a likelihood of success on the merits of their complaint and thus failed to establish an essential prerequisite for preliminary injunctive relief."
The complaint had claimed that while the board of elections had discussed the potential for using a $2.2 million grant to open mobile voting centers around Delaware County, and the Subaru Park location was one of several floated in memos to the board in September, the board did not include anything on its October meeting agenda about a vote to approve such a center for Subaru Park that would operate from Friday through Sunday, Oct. 16-18.
In addition to not giving the public the opportunity to comment on the location of the pop-up location for registering, applying for mail-in ballots and returning ballots, the board had denied other parts of the county equal access to the center, the lawsuit claimed.
Judge Angelos said he reviewed the minutes of the board meetings and ruled Oct. 15 that the challengers had failed to establish that the vote violated the Sunshine Act, rejecting their request to bar the center from opening.
His order in the lower court did not get into specifics as to why, but he noted that the case was likely to be appealed and said the county should be prepared to "secure" any votes it collected at the stadium. The ballots remained segregated per the judge's order, an attorney for the election board said. The attorney had no further comment.
Judge Brobson said he could only look at whether Judge Angelos erred in failing to grant the injunction.
"This court's standard of review in such matters is very narrow and highly deferential to the court whose order is challenged on appeal," he wrote. "The court does not look into the underlying merits of the parties' dispute. Instead, the court examines the record only to determine whether the court below had 'any apparently reasonable grounds' for its decision."
After video arguments before him on Friday, Judge Brobson said the lower-court judge had "apparently reasonable grounds to be dubious" of the Sunshine Act claims.
Counsel for the voters did not immediately respond to requests for comment Monday.
The voters are represented by Rocco P. Imperatrice III, Joel L. Frank, Scot R. Withers and Kathleen S. O'Connell of Lamb McErlane PC.
The Delaware Bureau of Elections and the board of elections are represented by Thomas F. Burke and Robert J. Clark of Ballard Spahr LLP and William F. Martin of the Delaware County solicitor's office.
The case is Mark Carroll et al. v. Delaware County Board of Elections et al., case number 1015 CD 2020, in the Commonwealth Court of Pennsylvania.
--Editing by Jack Karp.
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