A federal judge had some pointed questions but did not immediately rule Friday on a request that Pennsylvania election officials take new steps to verify the identification and eligibility of soldiers and others living overseas.
U.S. District Judge Christopher Conner corrected a lawyer for the six Republican members of Congress and the conservative voting organization who are suing when the lawyer called it "a pedestrian" case about federal laws preempting state law.
"I would characterize it as creative," Conner said near the end of about an hour and a half of an oral argument in the case that was filed late last month.
At issue are thousands of ballots in Pennsylvania, a pivotal swing state that could decide the presidential contest between Vice President Kamala Harris and former President Donald Trump.
Conner asked why the plaintiffs "took so long" to file a complaint over procedures that have been in place for years and pressed the lawyers about whether their clients have the sort of injury required for such claims, something that affects them in an individual way.
The plaintiffs want Conner to declare current practices violate federal law and to have the two sides confer about how to verify the identity and eligibility of people casting votes this fall under the U.S. Uniformed and Overseas Citizens Absentee Voting Act. They also want overseas and military ballots segregated during the current election season until that added verification step takes place.
"It's insulting that there had to be an argument about whether or not our votes should be set aside or counted," said Kate Marsh Lord after she attended the hearing. She is communications director for Secure Families Initiative — a group of about 10,000 military spouses and family members that, among other things, educates and registers voters.
The lawsuit was filed by PA Fair Elections, a group led by Heather Honey, an election researcher whose work has fueled right-wing attacks on voting procedures. The other plaintiffs are six of the state's eight Republican members of the U.S. House: Reps. Guy Reschenthaler, Dan Meuser, G.T. Thompson, Lloyd Smucker, Mike Kelly and Scott Perry.
Earlier Friday, U.S. Rep. Chrissy Houlahan, a Democrat from a suburban Philadelphia district, called the lawsuit "part of a very extensive and ongoing effort to undermine and destabilize the U.S. elections in general."
Houlahan, an Air Force veteran, said during a streamed news conference sponsored by the veterans group Vet Voice Foundation that the plaintiffs "themselves are in Congress because somebody voted for them. Two of them actually served in the military. And I believe they should, frankly, know better."
Attorney Erick Kaardal said the congressmen are concerned that if the verification doesn't take place, "then the likelihood of invalid votes being counted goes up." He said they object to "forced participation in an illegal structure." The lawsuit does not claim overseas and military ballots have been prone to fraud or other problems.
But Thomas Howell with Democratic Gov. Josh Shapiro 's general counsel's office argued that the congressmen and PA Fair Elections are saying valid votes could be diluted by improper votes. Howell told Conner that is not sufficient grounds for the judge to act.
"They're looking for something this court can't give," Howell said. "That's an advisory opinion."
Howell represents defendants Secretary of State Al Schmidt and Jonathan Marks, a top elections official under Schmidt.
Lawyers for Schmidt and Marks have argued federal laws exempt overseas voters "from identification requirements imposed on other voters who register to vote by mail" and that it's too late to pursue the lawsuit, with Election Day now a little more than two weeks away.
"Plainitiffs proffer no excuse for their delay," lawyers for the state officials wrote. "Nor do they provide any reason for bringing this action at the eleventh hour — after voting in the 2024 General Election has already commenced and after over 25,000 overseas ballots have been sent to voters."
Military voters are more likely to be more Republican, while other overseas voters tend to lean Democratic. The Democratic Party is spending money this year in an effort to boost their turnout.
