“This isn’t disenfranchising voters,” insisted Thomas Breth, an attorney for Barnette. “They can’t do this unless the election code provides them the authority to do this.”

But Savage chafed at the lawyer’s suggestion that a miscast absentee vote blocked a voter from fixing that ballot or casting a provisional ballot at the polls.
“It counts as your vote, but your vote is not counted,” the judge said quizzically.

The suit zeroes in on the practice of election officials in suburban Montgomery County to allow voters to fix so-called “naked ballots” as well as others with technical errors. The case appeared to challenge the county’s outreach effort as well, but Breth said Barnette isn’t objecting to that, only to the decision to permit so called “curing” of the ballots.

Montgomery County Chief Operating Officer Lee Soltysiak testified at the hearing that while he told reporters Tuesday that 49 ballots were cured, he now believes there are 93 votes in that category. He said they’re now in a locked cabinet under 24-hour surveillance.

Breth said even that limited number of votes could be pivotal.

“These ballots may determine the outcome of the election,” the GOP attorney said. “There is concrete evidence that this could impact not only the congressional [race], but also the entire election in the commonwealth.”

During the legal arguments, Breth repeatedly invoked the 2000 U.S. Supreme Court decision in Bush v. Gore, saying that it established the principle that the Constitution’s guarantee of equal protection of the laws was violated when election officials in a particular state followed different procedures in different jurisdictions.

“I know it pains people to mention Bush/Gore, but that’s the analysis that would apply to this,” the GOP lawyer said. “There’s a disparity between those that have submitted defective ballots and those that have been able to ‘cure,’ to use their terminology, and those that have not….It is creating the same situation that Florida dealt with in 2000.”

An attorney for Montgomery County, Michele Bagley, urged the judge not read into the code a prohibition that it does not contain.

“The election code is not meant to be a trap. It’s not meant to trick voters into losing their vote,” said Bagley. “The code gives counties the authority and the discretion to administer the election law….It’s a very complicated process. There’s a lot of discretion there.”

Democrats also argued that Barnette and another voter Breth represents lack legal standing to pursue their claims. Treating every potential election law violation as grounds for a federal equal protection lawsuit would lead to legal chaos, the Democratic lawyers contended.

Breth asked the judge to order that the absentee ballots that were corrected in Montgomery County be set aside and not counted until their validity can be determined.

However, Montgomery election officials said their policy has been in place for years, so the plaintiffs should have filed suit well before they did so on Election Day.