Law360 (July 13, 2020, 8:42 PM EDT) -- President Donald Trump's reelection campaign shouldn't get to conduct expedited discovery or a speedy hearing in a lawsuit accusing Pennsylvania of making it possible to stuff ballot boxes, at least not until after the state and 67 counties have a chance to try to dismiss the case, attorneys for the commonwealth said Monday.
Pennsylvania Secretary of State Kathy Boockvar told a Pittsburgh federal court the request for a speedy hearing and expedited discovery filed by the Trump campaign and various Republican lawmakers should be denied as premature, since the defendants haven't had a chance to challenge the claims that the state invited fraud by allowing absentee ballots to be left at "drop boxes" during the COVID-19 pandemic rather than mailed directly to boards of elections.
"Plaintiffs' request to serve broad discovery on an expedited timeline — the crux of plaintiffs' motion — is especially inappropriate," the state's response to the discovery motion said. "Burdensome discovery before the viability of plaintiffs' claims is tested is counterproductive here and inefficient, especially when motions to dismiss can be briefed and decided on a shortened schedule."
Boockvar, whose office oversees statewide elections planning, asked the court to deny the campaign's motion and instead set up a shortened schedule for motions to dismiss the suit. She said the state would publish a report Aug. 1 on the implementation of the primary election that would address some of the information the campaign sought through discovery.
The state proposed that motions to dismiss be filed by July 24, with a hearing sometime the week of Aug. 24 in order to toss the case or streamline discovery on any claims that survive.
Joined by Republican U.S. House members from Pennsylvania Glenn Thompson, Mike Kelly, John Joyce and Guy Reschenthaler, along with the Republican National Committee and two would-be poll watchers, the campaign's lawsuit claimed that the drop boxes used to collect ballots in 20 counties violated state laws that said ballots had to be mailed directly to elections offices, or that polling places had to be properly publicized and monitored by campaigns' poll watchers.
The suit claimed that unmonitored drop boxes made it possible to submit improperly "harvested" absentee ballots.
The campaign filed its motion for a speedy declaratory judgment hearing and expedited discovery on July 1, and U.S. District Judge J. Nicholas Ranjan set Monday as the deadline for the state and counties to file responses.
Boockvar's answer claimed the demand for a declaratory judgment to stop practices that hadn't yet been decided for the November general election was actually an attempt to avoid seeking a preliminary injunction, which would require the plaintiffs to demonstrate that their case stood a chance of succeeding.
"Plaintiffs' ... motion merely attempts to end run the obvious flaws in the merits of their claims as well as the lack of imminent harm here by pursuing a preliminary injunction schedule without actually seeking such an injunction," the state's response said. "A speedy hearing motion is neither a mechanism to avoid this court's scrutiny of plaintiffs' claims nor plaintiffs' burden to plead facts that plausibly show that they are entitled to the relief they seek."
Boockvar denied the lawsuit's claim that Pennsylvania had mishandled the June 2 primary election, where the state's new no-questions absentee/mail-in ballot policy under Act 77 of 2019 had been given sudden importance by the COVID-19 pandemic. And she said that with after-action reviews of that election wrapping up and planning for the November general election ongoing, the Trump campaign is asking the court to issue a declaratory judgment on decisions that had not yet been made.
"Plaintiffs' alleged controversy is, at best, speculative," the state's response said. "The purported claim of imminent harm is undermined by the nature of plaintiffs' allegations. For example, plaintiffs spill a lot of ink in their complaint describing perceived flaws and violations with regard to the June primary election, but notably do not allege any actual harm they suffered from that primary, nor do their claims even concern that primary."
And while the complaint argued that if the drop boxes were allowed to continue, they should be properly advertised ahead of time, Boockvar noted that the deadline for announcing poll locations was only 20 days before the election — more than three months from when the lawsuit was filed.
The suit also sought to throw out a Pennsylvania rule that said poll watchers have to reside in the county where they are monitoring votes, citing shortages of volunteers in districts where one party or another has few voters. But the state's response said the rule had been in place for 16 years and withstood a challenge before the 2016 election in Republican Party of Pa. v. Cortes .
While the complaint had focused on whether Pennsylvania had adhered to its own election rules, a statement from the campaign Monday portrayed it as a broader fight against the state's pre-coronavirus expansion of mail-in voting.
"The Trump campaign will continue fighting against Act 77, which jeopardizes election security and will lead to chaos in November by forcing the implementation of unmonitored mail-in voting and allowing fraud in the form of ballot harvesting, manipulation or destruction of ballots, and sowing of confusion. We are focused on ensuring there is a free, fair and safe election," said Justin Clark, who entered his appearance as a member of "Elections LLC" but was also identified as an adviser and senior counsel to the campaign.
Representatives of the Pennsylvania Department of State declined to comment.
The Trump campaign and House Republicans are represented by Ronald L. Hicks Jr., Jeremy A. Mercer and Russell D. Giancola of Porter Wright Morris & Arthur LLP, and Matthew Morgan and Justin R. Clark of Elections LLC.
The Pennsylvania Department of State and Secretary Boockvar are represented by Timothy E. Gates and Kathleen M. Kotula of the State Department's Office of Chief Counsel, Kenneth L. Joel and M. Abbegael Giunta of the Governor's Office of General Counsel, and Karen M. Romano, Keli M. Neary, Howard G. Hopkirk, Nicole Boland and Stephen Moniak of the Pennsylvania Attorney General's Office.
The case is Donald J. Trump for President Inc. et al. v. Boockvar et al., case number 2:20-cv-00966, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Jack Karp.
Update: This article has been updated with a response from the Pennsylvania Department of State.
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