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PITTSBURGH – The battle between President Donald Trump’s re-election campaign and county election boards in Pennsylvania continues, just before the deadline in which a stay in the case can be requested to be lifted, and with less than a month to go before the presidential election on Nov. 3.
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.
Since the suit was brought, a flurry of well over 550 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
“[The] 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 claimed 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.
After Oct. 5, the parties can request Ranjan lift the stay on the case. 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.
Last month, the Supreme Court of Pennsylvania approved the use of drop boxes and a three-day extension to count mail-in ballots.
UPDATE
A flurry of motions and cross-motions for summary judgment were recently filed by various parties to the litigation.
The Trump campaign filed its motion for summary judgment on Oct. 1.
“After the completion of extensive discovery, including numerous depositions and responses to discovery requests, no genuine dispute of material fact exists regarding plaintiffs’ constitutional claims,” counsel for the campaign said.
“Defendants have confirmed the unequal application of Pennsylvania election law regarding signature matching and drop boxes, and there is no dispute that those requirements along with the county poll watcher requirement, will dilute votes in violation of the United States Constitution. Thus, summary judgement is appropriate in plaintiffs’ favor on all of their claims.”
The campaign seeks declarations that Boockvar’s guidance memos dispensing with the signature verification of absentee and mail-in applications and ballots are unconstitutional; that all drop boxes and/or mobile collection sites for the return of absentee and mail-in ballots must be staffed, secured, and employed consistently within and across all 67 of Pennsylvania’s counties to prevent third-party delivery and other improperly cast absentee or mail-in ballots; and the county residency restriction for watchers is unconstitutional as applied to the upcoming General Election.
A series of Democratic intervenors filed their own motion for summary judgment on Oct. 3, which also opposed the Trump campaign’s motion.
“Plaintiffs’ requests for relief turn the principle of federalism on its ear by inviting federal courts to intrude on the sovereign power and authority of the Commonwealth of Pennsylvania to administer even the most mundane and procedural elements of its elections,” according to counsel from the Democratic intervenors.
“Without any evidence of either state action or causal fraud, plaintiffs ask this Court to find that routine and election administrative decisions are preemptively and presumptively unconstitutional if not applied precisely and uniformly by all 67 Boards of Elections across the Commonwealth to standards not required by federal or state law.”
The intervenors added that the plaintiffs “contend that the relief requested is necessary, not because they can prove the actual existence of voter fraud through defendants’ actions or inactions, but merely to prevent some hypothetical or speculative voter fraud that might occur if fraudsters arrive in the night and are not deterred by applicable criminal and civil penalties.”
The Allegheny County Board of Elections also filed its own motion for summary judgment on Oct. 3, explaining it is not using drop boxes for the upcoming presidential election.
“Instead, for the upcoming election, the County Elections Division will receive mail-in ballots at its offices in the Allegheny County Office Building as well as at other Elections Division offices located at County-owned buildings or leased facilities and operating on certain weekends, pursuant to a schedule approved by an Allegheny County resolution on Sept. 17, 2020,” per the Allegheny County defendants.
“Each of these additional County Elections Division offices will have ‘access to the Statewide Uniform Registry of Electors (SURE) system and will be staffed by county employees. Each additional office shall be equipped to accommodate over-the-counter voting and ballot return and will serve voters regardless of where they live in the County.”
The Allegheny County Board of Elections added that it would review the information on each ballot’s envelope for sufficiency and in a case where an election worker was unsure whether the signature of the voter on the envelope was the signature of the voter, Allegheny Elections Manager David Voye testified in a deposition that the envelope would be set aside, and he would make the final determination.
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