Judge dismisses claim that Delaware County violated rules for poll watchers in the presidential election

A Delaware County judge on Wednesday dismissed an election challenge brought by two Republican poll watchers and a failed congressional candidate, saying their petition lacked a “scintilla of legal merit.”

The challenge, filed Dec. 22, sought sanctions against the county’s Board of Elections, saying poll observers were kept too far away from the areas where absentee and mail-in ballots were being counted in the November election. The challengers said the practice violated the terms of a judge’s Nov. 4 order clarifying the rules for poll observers.

But Judge John P. Capuzzi Sr., who issued that order, dismissed those claims Wednesday and chastised the group’s lawyer for filing the challenge so long after the matter had been ruled on by the state Supreme Court, calling the petition “frivolous” and “contemptible.”

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“Strikingly, at the time of the filing of this frivolous action, the issue now brought forth by the petitioners has been adjudicated by the highest court in the Commonwealth, i.e. the Delaware County Board of Elections had full authority to establish observation areas as it deemed fit,” Capuzzi wrote. “Consequently, there is a total absence of legal merit in the petitions.”

The attorney who filed the challenge, Deborah Silver, said Wednesday that she hasn’t decided if she is going to appeal the case, given the “current legal climate.”

“I did the best I can, I have nothing to be sorry for,” Silver said. “It’s in everyone’s best interests, the entire country, to have a fair, free, transparent election. All this case was about, all I was seeking to do is to enforce what the election code and Judge Capuzzi’s order said, to allow observers to at least be in the room where these votes and ballots were being counted.”

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In his ruling, Capuzzi noted that the state Supreme Court issued a ruling Nov. 9 in response to a legal challenge by President Donald Trump’s campaign, saying the election code requires only that authorized representatives be allowed to “remain in the room” while ballots are being processed. It does not, the judge noted, set a mandatory distance for their observation.

Silver’s petition — filed on behalf of poll observers Gregory Stenstrom and Leah Hoops, and Dasha Pruett, a Republican challenger to U.S. Rep. Mary Gay Scanlon — asserted that Stenstrom and Hoops couldn’t properly see how the absentee ballots were being counted. They also were only let into a back room where the ballots were being kept for five minutes every two hours.

“Consequently the BOE created a system whereby it was physically impossible for the political candidates’ and political parties’ observers to view the ballots and verify that illegally cast ballots were not opened and counted,” the challenge said.

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Their petition called for the county to hold an evidentiary hearing on the issue, and for the court to take disciplinary action against the election staff who had denied them further entry.

The county’s Republican Executive Committee initially called on Capuzzi for clarity on the rules, leading to the issuing of an order by the judge late on Nov. 4. But Capuzzi, in Wednesday’s order, noted that the executive committee did not file its own legal challenge saying the order was violated and did not support the petition filed by Silver.