PITTSBURGH – President Donald Trump’s re-election campaign will not be granted an injunction to segregate any presidential election ballots submitted in drop boxes throughout Pennsylvania since the state Supreme Court may rule on their validity prior to the election, according to a federal judge.
Donald J. Trump For President, Inc. first 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 10 weeks since the suit was brought, a flurry of well over 400 filings 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.
With delays in the U.S. Postal Service and the coronavirus pandemic, Pennsylvania is permitting the use of drop boxes for public convenience in submitting both absentee and mail-in ballots. The Trump campaign and state Democrats are also currently battling in both federal and state court over their legality.
In the instant matter, 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.
Counsel for Boockvar filed a supportive reply to a motion to dismiss the lawsuit from the Trump campaign on Aug. 11
“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 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.
U.S. District Court for the Western District of Pennsylvania Judge J. Nicholas Ranjan agreed with the defendants that the federal court should abstain from further proceedings until state law questions pertinent to the instant case are resolved, and stayed the case on Aug. 23.
“After carefully considering the arguments raised by the parties, the Court finds that the appropriate course is abstention, at least for the time being. In other words, the Court will apply the brakes to this lawsuit, and allow the Pennsylvania state courts to weigh in and interpret the state statutes that undergird plaintiffs’ federal- constitutional claims,” Ranjan said at the time.
“The Court is persuaded that the important principles underlying the Pullman abstention doctrine – federalism, comity, constitutional avoidance, error prevention, and judicial efficiency – all weigh strongly in favor of letting state courts decide predicate disputes about the meaning of Pennsylvania’s state election code.”
Ranjan was appointed to the federal bench by Trump, taking office in July 2019.
Trump has repeatedly criticized the mail-in voting process and claimed it would lead to widespread voter fraud – which Ranjan previously ruled that his campaign would need to provide proof of, in order to argue its case.
UPDATE
The Supreme Court of Pennsylvania agreed to consider the case on Sept. 1, without an intermediate ruling from the Commonwealth Court of Pennsylvania first.
Before the Supreme Court ruled on the validity of ballots submitted in drop boxes, the Trump campaign filed a motion for a preliminary injunction on Aug. 28 seeking to segregate drop-box ballots and ones without a privacy envelope from other ballots – fearing they wouldn’t be able to challenge the ballots’ validity if the Supreme Court didn’t issue a ruling on the subject before the election.
“Some of plaintiffs’ concerns are valid. For example, if the Supreme Court doesn’t timely decide whether drop boxes are authorized by the election code, votes could be cast through those locations and, if the ballots are not otherwise traceable, it might then be too late to un-ring the bell in the event that the Supreme Court later finds that drop boxes are not allowed,” Ranjan said.
“That said, while these concerns are valid, they’re also premature. The Supreme Court appears to be on track to decide this, and other questions of importance to the voters and candidates in this Commonwealth, in short order. And that court still has sufficient time to reach these issues before any ballots are cast, collected, or canvassed.”
Ranjan said the Trump campaign had not shown “irreparable harm” in its motion.
“Plaintiffs have not carried their burden to show that votes will ‘likely’ be cast in drop boxes – let alone collected and irreversibly commingled with other ballots – before the Supreme Court decides the correct interpretation of the election code,” Ranjan stated.
“To the contrary, all signs suggest that the Supreme Court understands the urgency and will issue a decision before ballot collection is substantially underway, hopefully in the next several weeks. So long as that happens, plaintiffs will not suffer irreparable harm.”
Ranjan added that state election code precludes the type of ballot commingling the Trump campaign is seeking to prevent through its requested injunction.
“The outer envelopes of mail-in and absentee ballots cannot be opened until after 7:00 a.m. on Election Day, Nov. 3, 2020. Until that happens, election officials have no way of knowing if a ballot lacks an inner secrecy envelope or contains ‘marks, texts, or symbols thereon,’ nor are they able to ‘commingle’ such ballots with others,” Ranjan said.
Ranjan denied granting the injunction to the Trump campaign, but did so without prejudice, in order for the issue to be revisited should the state Supreme Court not act in a timely fashion.
“To be clear, the court’s analysis here is predicated on the Supreme Court deciding these issues in a timely and expeditious manner, and the fact that sufficient time remains before plaintiffs’ commingling concerns materialize,” Ranjan said.
“Plaintiffs’ concern that the Supreme Court may not timely act are well-taken, and thus there could be a point in the run-up to the election where plaintiffs’ assertions of irreparable harm become likely and imminent enough to warrant some type of injunctive relief – provided, of course, that the other elements required to obtain preliminary injunctive relief are satisfied.”
After Oct. 5, the parties can request Ranjan lift the stay on the case.
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