PENNSYLVANIA RECORD

PITTSBURGH – Counsel for Pennsylvania’s Secretary of State Kathy Boockvar say President Donald Trump’s re-election campaign “continues to propagate speculative predictions of widespread voter fraud and vote dilution” in its lawsuit over mail-in ballots.

Donald J. Trump For President, Inc. initially filed suit on June 29 versus Pennsylvania Secretary of State Kathy Boockvar and the Boards of Election of all 67 Pennsylvania counties.

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.

In the six weeks since the suit was brought, a flurry of filings nearing 300 have been made in the case, including motions to dismiss the case by various counties in Pennsylvania, motions to intervene from outside organizations with a vested interest in the case or join additional parties to the action.

“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.”

UPDATE

Counsel for Boockvar filed a supportive reply to a motion to dismiss the lawsuit from the Trump campaign.

“Pennsylvania has a long and proud history of conducting free and fair elections. To that end, Pennsylvania has consistent procedures to ensure that properly cast ballots are counted and voters are treated equally across the Commonwealth, even in the midst of the current pandemic,” the reply stated.

“Ignoring that reality, plaintiffs’ opposition continues to propagate speculative predictions of widespread voter fraud and vote dilution in an attempt to manufacture an injury-in-fact. But the opposition fails to cure the substantial jurisdictional and other flaws in the amended complaint. In fact, plaintiffs’ concessions confirm this case should be dismissed or the Court should abstain.”

Boockvar’s attorneys countered that the 11th Amendment precludes the Trump campaign from pursuing their claims in federal court.

“Plaintiffs concede – on the opening page of the opposition – that they filed this case in order to ‘enforce the law as it relates to ballot collection and counting’ and to enjoin ‘the counting of ballots that do not meet the Election Code’s requirements for a properly cast ballot,” according to the secretary’s counsel.

“But plaintiffs’ efforts to impose their own interpretation of the Election Code onto Commonwealth election officials runs headlong into the problem that federal courts are barred from directing state officials to comply with state law.”

Boockvar’s counsel called the Trump campaign’s attempt to argue “the broad proposition that federal courts may entertain suits based on state law against non-consenting states so long as the claims are ‘coextensive’ to federal claims” as “a gambit.”

According to counsel for Boockvar, the plaintiffs must also “do more than allege that the Election Code might be enforced contrary to plaintiffs’ preferred interpretation, or that the Secretary has allegedly distributed guidance that runs contrary to what plaintiffs believe the Election Code requires.”

Rather, according to Boockvar’s attorneys, the Trump campaign must allege “a non-speculative injury that will result from those policies and the enforcement (or non-enforcement) thereof” and that otherwise, “would do nothing more than invite an advisory opinion on the meaning of the Election Code untethered from any concrete harm or facts.”

“Plaintiffs [also] offer no defense of their claims premised on the predicted failure of defendants to notice ‘drop box locations’. As the Secretary’s motion made clear, the deadline to notice such locations is still weeks away and any challenge is fundamentally unripe,” the reply stated.

Meanwhile, Boockvar’s counsel also claim the Trump campaign was mistaken as to the relationship between the instant case and a related state court proceeding, and further mistaken that federal courts intervene in state elections, absent good cause.

“Plaintiffs misstate the clear reality: Almost all of the same statutory provisions are central to the state-court proceeding, and far from those provisions being ‘clear and unmistakable,’ some of the disputed issues related to the collection and counting of ballots require an authoritative construction by the Commonwealth Court,” the reply added.

“Federal courts do not intervene in state elections absent serious flaws affecting the fundamental fairness of the election. Here, plaintiffs predict – at most – ‘garden variety’ irregularities, which simply do not give rise to a federal constitutional violation.”

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