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PITTSBURGH – Boards of election in Bucks, Chester, Montgomery and Philadelphia counties are looking to dismiss litigation initiated by President Donald Trump’s re-election campaign over an allegedly illegal system for submitting and counting mail-in ballots.
Donald J. Trump For President, Inc. initially filed suit in the U.S. District Court for the Western District of Pennsylvania on June 29 versus Pennsylvania Secretary of State Kathy Boockvar and the Boards of Election of all 67 Pennsylvania counties, many of which also recently filed dismissal motions.
In addition to the Trump campaign, plaintiffs in the case are the Republican National Committee, Republican U.S. Reps. Glenn Thompson, John Joyce, Mike Kelly and Guy Reschenthaler, plus voters Melanie Stringhill Patterson and Clayton David Show.
“To be free and fair, elections must be transparent and verifiable. Yet, defendants have inexplicably chosen a path that jeopardizes election security and will lead – and has already led – to the disenfranchisement of voters, questions about the accuracy of election results and ultimately chaos heading into the upcoming Nov. 3 General Election,” according to the lawsuit.
It is the view of the plaintiffs that such concerns are a by-product of Pennsylvania’s decision last year to provide voters with the option to vote by mail without a stated reason for doing so through Act 77.
When the coronavirus pandemic caused Pennsylvania to postpone its April primary election until June, more than 1.8 million voters applied for a mail-in or absentee ballot. State elections officials said more than 1.5 million ballots were returned.
The decision to expand mail-in voting, the plaintiffs said, led to voters submitting absentee and mail-in ballots during the June 2 Primary Election in places such as shopping centers, parking lots, fairgrounds, parks, retirement homes, college campuses, fire halls, municipal government buildings, and elected officials’ offices.
Moreover, the plaintiffs contend these voters took these actions with “the knowledge, consent and/or approval of the Secretary of the Commonwealth.”
“This is all a direct result of defendants’ hazardous, hurried, and illegal implementation of unmonitored mail-in voting which provides fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos,” the suit stated.
“Contrary to the direction of Pennsylvania’s General Assembly, defendants have sacrificed the sanctity of in-person voting at the altar of unmonitored mail-in voting and have exponentially enhanced the threat that fraudulent or otherwise ineligible ballots will be cast and counted in the upcoming General Election.”
A spokesperson for Boockvar offered no comment on the litigation.
UPDATE
The boards of Bucks County, Chester County, Montgomery County and Philadelphia County filed a response on July 24, seeking to dismiss the suit or alternatively, abstain pending resolution of state-law questions in state courts.
Firstly, the county entities cited constitutional sovereign immunity in its argument to dismiss, in addition to the test for determining whether immunity applies, which is whether the entity is acting as “an arm of the state.” Through their duties in conducting elections, the boards’ counsel feel this criterion is satisfied.
“As an initial matter, this Court lacks jurisdiction to adjudicate the claims against the county boards of election by virtue of 11th Amendment sovereign immunity," Mark A. Aronchick of Hangley Aronchick Segal Pudlin & Schiller said.
“Courts have repeatedly found that county boards of election – including, specifically, Pennsylvania county boards – are entitled to 11th Amendment immunity, at least where, as here, the claims against them challenge their alleged conduct in administering federal and state-wide elections.”
The county entities also argued the plaintiffs’ claims regarding ballot-delivery locations and “naked” ballots should be dismissed or abstained from, until their state-law questions are resolved in state courts.
“[The plaintiffs] have not asked the Pennsylvania courts to construe these provisions. Instead, they seek federal-court resolution of state-law issues, tacking on purported federal constitutional claims in an attempt to create federal jurisdiction. But ‘a constitutional suit is not a way to enforce state law through the back door,” Aronchick stated.
“In addition, it is well settled that federal courts will not ‘decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ By the same token, state statutes “should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality.”
Aronchick added that the state-law declaratory claims, the resolution of which may moot the related federal constitutional claims, should be decided by the Pennsylvania courts.
“A parallel proceeding is pending in the Commonwealth Court, raising the same Election Code questions and involving all of the same defendants. Plaintiffs can easily move to intervene and participate. For this reason, too, this case should be stayed to allow the Pennsylvania courts to resolve the complaint’s core claims about the proper interpretation of Pennsylvania statutes,” Aronchick stated.
The counties also felt the plaintiffs’ claims lack Article III standing under the U.S. Constitution.
“Plaintiffs’ constitutional theory here is that the alleged practices they challenge will allow fraud and vote dilution. Indeed, the bogeyman of fraud stalks the entire complaint; the vague specter of fraud and vote dilution is the alleged injury on which all of the complaint’s counts are based. Plaintiffs’ allegations, however, fail to establish the ‘irreducible constitutional minimum of standing, which requires a plaintiff to demonstrate the now-familiar elements of injury-in-fact, causation, and redressability,” Aronchick said.
Finally, the counties argued the plaintiffs’ allegations under poll watching fail to state a claim for relief as the activity of poll watching is not constitutionally-protected.
“As numerous courts have held, poll watching is not constitutionally protected by the right to vote or otherwise. This effectively ends the inquiry. There is also a rational basis for restricting poll watchers to ‘polling places’ and not allowing them to ‘watch’ all ballot-delivery locations. This limitation ensures that poll watchers can be supervised by election officials and diminishes the risk that poll watchers will inappropriately challenge or intimidate voters,” Aronchick said.
As an example, Aronchick pointed out from 1982 until 2017, the Republican National Committee was “subject to a consent decree settling allegations that it intimidated voters on Election Day by posting off- duty sheriffs and policemen...at polling places in minority precincts.”
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00966
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com