PITTSBURGH – The state’s top election official is not only seeking summary judgment in the lawsuit brought by President Donald Trump’s re-election campaign against herself and county election boards in Pennsylvania, but the intervention of the state Supreme Court, in arguing that the campaign’s claims are “legally flawed and fatally unsupported.”
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.
As of Oct. 6, 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.
Counsel for Boockvar filed a cross-motion for summary judgment on Oct. 3.
“The pleadings and discovery in this proceeding confirm that plaintiffs’ various remaining challenges to the Commonwealth’s mail-in and in-person voting rules are legally flawed and fatally unsupported in fact,” Boockvar’s counsel said.
“Plaintiffs’ opposition seeks to escape that reality by fundamentally distorting the legal standards governing their claims as well as their assertion of Article III standing; Attempting to poison the well with new – but highly irrelevant – ‘evidence’ regarding their drop box claims (while failing to refute the lack of relevant evidence underlying those claims); and distorting the very nature of their signature analysis claims in a futile effort to avoid abstention.”
Subsequently, Boockvar’s counsel filed a petition on Tuesday for the Supreme Court of Pennsylvania to use its “King’s Bench” powers, or extraordinary jurisdiction over the state’s lower courts, to intercede in the case.
“Secretary of the Commonwealth Kathy Boockvar filed a King’s Bench Application with the Pennsylvania Supreme Court to obtain a final ruling regarding whether 1) The Pennsylvania Election Code requires or permits county election officials to reject mail-in and absentee ballots based on subjective signature comparisons; and 2) Whether absentee and mail-in ballots and the applications for those ballots may be challenged by third parties based on signature comparisons,” Boockvar’s notice stated.
The same day, the Supreme Court of Pennsylvania requested that any responsive briefs to the Boockvar’s application be filed no later than noon on Wednesday.
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