NORRISTOWN – Republican Congressional candidate Kathy Barnette has abandoned litigation against Montgomery County, which had alleged its Board of Elections illegally canvassed mail-in ballots received before Election Day and wrongly gave voters with defective ballots an opportunity to cure them.
Barnette and Berks County elector Clay D. Breece first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 3 versus Montgomery County Commissioners Ken Lawrence and Val Arkoosh, plus Montgomery County Voter Services Director Frank Dean.
“The Pennsylvania Election Code expressly prohibits counties from pre-canvasing any ballots, including absentee and mail-in ballots, before 7:00 a.m. on Election Day,” the suit stated.
“While Berks County, some of whose electors, including plaintiff Breece, share the Pennsylvania 4th Congressional District with the majority of Montgomery County electors, is adhering to the Election Code and the Supreme Court’s ruling, Montgomery County is pre-canvasing mail-in and absentee ballots, before 7 a.m. on Election Day, detecting defects in these ballots, and contacting some mail-in or absentee voters to change their ballots.”
According to the plaintiffs, the Montgomery County Board of Elections also “restricted the ability of candidates and their representatives, the parties and their representatives and other legally constituted watchers to observe the entire canvassing process for mail-in and absentee ballots.”
The suit alleged that Montgomery County elections officials took it upon themselves to correct defective ballots, such as “naked” ballots, where ballots were submitted without secrecy envelopes.
Though the Associated Press has declared a conclusive victory for Democratic candidate Madeleine Dean, Barnette has likewise declined to concede the election. Current results tabulated so far show that Dean garnered over 256,000 votes, while Barnette earned more than 170,000 votes.
The Democratic National Committee and the Pennsylvania Democratic Party filed motions to intervene in the case on Nov. 3 and Nov. 4, respectively.
Also on Nov. 3, the plaintiffs sought a temporary restraining order preventing the defendants from allowing voters to cure their mail-in or absentee ballots, claiming irreparable harm if this was not done. However, they withdrew the motion for a restraining order just three days later.
On Nov. 9, the defendants filed a motion to dismiss the case.
“Plaintiffs’ claim has two independent and equally fatal flaws. First, plaintiffs lack Article III standing because they have not suffered an injury-in-fact. Second, plaintiffs’ constitutional claim fails for multiple reasons, including that the claim is premised entirely on a violation of state law, plaintiffs’ construction of state law is incorrect and enfranchising voters does not implicate equal protection,” per the defense’s motion.
“Neither plaintiff asserts that they personally were not able to vote because of the Montgomery County Board of Elections’ actions. This dooms plaintiffs’ claim. Indeed, multiple federal courts have rejected similar theories of voter standing in recent weeks and months.”
Regardless of if the plaintiffs had Article III, the defendants say, their constitutional claims would not be legitimate and fail as a matter of law.
“The outer shell of their claim is that defendants violated the Election Code by (1) manually reviewing absentee and mail-in ballots and then (2) permitting voters whose ballots were accompanied by potential deficiencies to cure those deficiencies,” the motion said.
“Underneath that layer, plaintiffs assert that because the Montgomery County Board of Elections is violating the Election Code but other counties are not, Montgomery County is valuing some voters’ votes differently from other persons’ votes, in violation of Bush v. Gore. Plaintiffs’ theories, however, do not stack together to form a permissible constitutional claim.”
UPDATE
On Nov. 11, counsel for Barnette and Breece abandoned their litigation attempt.
“Plaintiffs, pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, hereby dismiss all causes of action in the complaint against the defendants herein without prejudice. Defendants have filed neither an answer to the complaint nor a motion for summary judgment as to these claims. Dismissal under Rule 41(a)(1)(A)(i) is therefore appropriate,” the dismissal notice read.
Prior to voluntary dismissal and for violation of the 14th Amendment and its Equal Protection Clause, the plaintiffs were seeking:
• The enjoining the defendants and anyone acting on their behalf from pre-canvassing ballots before 7:00 a.m., Tuesday, Nov. 3, 2020;
• Enjoining the defendants and anyone acting on their behalf from contacting any elector whose mail-in ballot or absentee ballot contains perceived and actual defects and allowing the elector to change their ballot;
• Setting aside, sequestering and declaring spoiled any mail-in or absentee ballots that have been changed by an elector or otherwise not conforming to the Election Code;
• Declaring the defendants’ conduct unconstitutional;
• Awarding plaintiff’s attorneys fees and costs under 42 U.S.C. Section 1983, 1988 and any other appropriate relief.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05477
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com