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WILLIAMSPORT – Attorneys for President Donald Trump’s campaign are seeking permission to file a second amended version of a lawsuit that alleges unfair and unconstitutional election procedures in Pennsylvania caused the president to lose the state in the 2020 Presidential Election.
The suit alleged that the Commonwealth of Pennsylvania lack of uniform procedure based in election law created an unconstitutional and “two-track” ballot counting system that gave the win to President-Elect Joe Biden.
According to the complaint, originally filed in the U.S. District Court for the Middle District of Pennsylvania on Nov. 9 before Judge Matthew W. Brann, the Trump campaign is further seeking to prevent the certification of the Presidential Election results in Pennsylvania.
The suit was filed against Secretary of the Commonwealth Kathy Boockvar and the Boards of Elections of the following seven counties: Allegheny, Centre, Chester, Delaware, Philadelphia, Montgomery and Northampton.
It claimed that observers were not permitted to witness the counting of over 682,000 votes in heavily-Democratic Philadelphia and Allegheny counties, and further seeks the dismissal of additional mail-in ballots which the campaign said were allowed to be cured, despite being defective.
“Through the arbitrary and illegal actions of the Secretary, Pennsylvania created a two-track system of voting resulting in voters being treated differently depending on how they chose to exercise their franchise,” the suit stated.
“The first, marked by voters appearing personally at the polls complied with transparency and verifiability requirements of Pennsylvania Election Code. The second, marked by a mass of paper ballots received through the mail, was cloaked in darkness and complied with none of those transparency and verifiability requirements. This two-track election system not only violates plaintiffs’ rights guaranteed by the United States Constitution, but also violates the structure of the Constitution that elections in the states must be carried out as directed by their respective legislatures.”
An amended version of the suit filed on Nov. 15 dropped the improper poll-watching claims, and what remained were allegations targeting county election officials for their supposed improper handling of mail-in ballots and violation of state election law.
However, the litigation still wishes to prevent statewide certification of the results.
At the present time, President-elect Joe Biden is nearly 70,000 votes ahead of Trump in Pennsylvania and any ballots which may be affected by the litigation will not be enough to overturn the previously-reported result.
Despite being the projected loser of Pennsylvania’s 20 electoral votes on Nov. 7, the Trump campaign asserted that the granting of its requested actions by the Court could lead to the president winning the state.
Attorneys for Boockvar said in a dismissal motion also filed on Nov. 15 that the first amended version of the complaint added “no new claims for relief and instead materially narrows the pending allegations to a single claim under the same theory alleged in the original complaint.”
UPDATE
Counsel for the Trump campaign filed a motion for leave to file a second amended complaint on Wednesday, claiming that the Court should have all necessary allegations before it in order to rule fairly, that counsel found itself the subject of extraordinary circumstances and that claims were “improperly withdrawn” from the first amended complaint.
“Attorney Linda Kerns took over representation of the plaintiffs after the withdrawal of Porter Wright. That firm’s withdrawal, which came about due to threats and outside pressures placed on the firm, was itself extraordinary and unusual. Ms. Kerns herself has been the subject of threats of harm, to the point at which the involvement of police and U.S. Marshals has been necessary to provide for her safety,” the motion stated.
“Additionally, undersigned counsel and attorney [Rudolph] Giuliani became involved as counsel of record for the plaintiffs on Nov. 16 and 17, 2020, respectively. Because of the lack of clear communication over the weekend of Nov. 13 to 15, certain counts were improperly withdrawn from the amended complaint. A reasonable period of time was needed for the newly constituted legal team to cohere, which occurred under great time pressure. Particularly in these circumstances, plaintiffs are entitled to counsel of their choosing and to be in a position to advance their best claims and theories in this extraordinarily consequential case.”
Trump campaign counsel said it has “no interest in any dilatory tactic” and is instead seeking “limited discovery”, with which to establish that many of the 1.5 million mail votes received in the defendant counties were counted “in violation of Pennsylvania law.”
“Plaintiffs will also show that defendants’ conduct was part of an improper scheme to favor Joe Biden over President Donald Trump by counting improper votes in violation of the Equal Protection, Due Process, and Electors and Elections clauses under the Constitution and Civil Rights Act,” the motion said.
“Ultimately, plaintiffs will seek the remedy of President Trump being declared the winner of the legal votes cast in Pennsylvania in the 2020 General Election, and, thus, the recipient of Pennsylvania’s electors. As in Marks v. Stinson, defendants’ various other arguments raised in pending motions to dismiss, including abstention, no constitutional violation, no appropriate remedy and failure to exhaust state remedies have no merit and should be rejected.”
U.S. District Court for the Middle District of Pennsylvania case 4:20-cv-02078
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com