Pa. Dems Look To Help Fight Trump's Ballot Box Suit

By Matthew Santoni
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Law360 (July 14, 2020, 10:01 PM EDT) -- The Pennsylvania Democratic Party is seeking to step in and dismiss a lawsuit brought by President Donald Trump's reelection campaign over absentee ballot collection in the Keystone State, arguing that the suit could throw out ballots and make it harder to vote amid a pandemic.

Attorneys said the party and several Democratic candidates in the November election had an interest in the lawsuit and should be permitted to intervene and seek its dismissal. They said they had filed their own suit in state court late July 10 asking the court to declare that the same issues in the campaign's federal complaint — "drop boxes" for collecting mail-in ballots and whether to count mail-in ballots that hadn't been stuck inside their blank "privacy envelopes" — were actually legal under Pennsylvania's recent voting reform.

"The relief plaintiffs demand here would directly and substantially impair the rights and interests of intervenors and potentially disenfranchise thousands of voters who fail to follow procedural instructions," the motion to intervene said. "Indeed, plaintiffs' requested relief – which, if granted, will significantly narrow the locations where voters may deliver their mail-in or absentee ballots and discard or not count certain mail-in and absentee ballots that fail to follow procedural rules – is particularly odious given that the general election will occur against the backdrop of a global pandemic."

Democrats asked the U.S. District Court in Pittsburgh to let them intervene in the case. If allowed to step in, the party said it would ask the federal court to abstain so that the Commonwealth Court could decide the underlying interpretation of Act 77 of 2019, which expanded mail-in voting for Pennsylvanians even before the COVID-19 pandemic.

The Trump campaign filed the lawsuit in late June, joined by the Republican National Committee, Republican members of Pennsylvania's congressional delegation and two would-be poll watchers. It claimed that several aspects of the June primary election invited fraud and violated constitutional rights, including the drop boxes and mobile ballot collection drives, counting ballots without their privacy envelopes and Pennsylvania's requirement that campaign poll watchers live in the county where they are monitoring the vote.

The campaign asked the federal court for a speedy hearing and expedited discovery, but Pennsylvania Secretary of State Kathy Boockvar filed a response Monday arguing that an expedited schedule for motions to dismiss would be more appropriate before reaching discovery.

Democrats said Tuesday that they met the criteria for intervening in the case.

"The intervenors have a significant interest in deterring efforts to undermine the administration and outcome of the 2020 general election, including efforts to cause valid votes to be discarded or to interfere with efforts of counties to administer an election in a manner that allows all voters to exercise their franchise as easily as is feasible in this era of a pandemic," the motion to intervene said. "The relief that the plaintiffs demand here would undermine the fairness of the election and harm the Democratic candidates. The Pennsylvania Democratic Party is entitled to protect and defend the interests of its candidates."

In the motion to dismiss, included as an exhibit to the motion to intervene, the Democrats said the Republicans' constitutional claims were really about the validity of Act 77 and whether the state's efforts to administer the primary election during a pandemic were allowed under the act. Since there was an active case in state court over the validity of the underlying state law, the federal court should dismiss the case before it and abstain on judging the constitutional claims, the Democrats argued.

"Masquerading as alleged constitutional violations, at the core, plaintiffs' claims rest and turn on pure questions of state law involving the interpretation and application of a state statute, questions that should be considered and resolved by a state court," the motion to dismiss said. "An erroneous decision by this court would be disruptive of important state policies, namely voting rights and the election process."

On July 10, the same intervenors had filed a suit in state court against the same defendants as the Trump campaign's federal case, the dismissal request said, asking the Commonwealth Court of Pennsylvania to declare that the state's handling of the election had been in compliance with the law. Prior to the campaign's challenge on constitutional grounds, no courts had weighed Act 77.

Resolving the state case first could render the constitutional issues moot, the Democrats said. For example, the suit said there were equal-protection problems raised by inconsistency over whether counties would count absentee ballots that weren't in their privacy envelopes — referred to as "naked ballots" in the Democrats' response.

The Democrats said the state had issued guidance saying those ballots could be stuck back into blank envelopes by election officials before they were counted, and a Commonwealth Court ruling on that practice could ensure uniformity across the state and eliminate the equal-protection issue. The same would apply to the court making a statewide ruling regarding the drop boxes, the motion said.

Even if the federal court declined to abstain from the case, the Democrats asked it to dismiss the lawsuit's claims related to the state's restrictions on poll watchers. State law has required poll watchers to live in the county where they were monitoring polls since 2004; before that, the law had been even stricter, limiting those watching the polls to the precinct where they voted, the motion said.

The federal court in the Eastern District of Pennsylvania had already upheld the residency requirement in 2016 in Republican Party of Pa. v. Cortés , the Democrats said.

"The court found that the poll watcher residency requirement did not dilute the plaintiffs' votes because the theory was based purely on speculation that fraudulent voters may be 'casting ballots elsewhere in the Commonwealth and ... would be prevented by the affected poll watchers were they not precluded from serving at those locations,'" the motion said.

Statements from Democrats said the lawsuit made unsupported accusations of voter fraud in an effort to limit voting in the state.

"These counterfeit claims of corruption pale in comparison to the very real threat of voter suppression and disenfranchisement we now face. The RNC and [the] Trump reelection campaign's efforts to undermine mail-in voting in Pennsylvania is a direct attack on communities across the commonwealth and American democracy," said State Sen. Sharif Street, Vice Chair of the PA Democratic Party, in a statement. "We will use every method available, the ballot and the courts, to protect free and open elections in our state."

Representatives of the Pennsylvania State Department declined to comment. Representatives of the Trump campaign did not immediately respond to requests for comment Tuesday.

The Pennsylvania Democratic Party and Democratic candidates are represented by A. Michael Pratt, Kevin M. Greenberg, Adam R. Roseman and George Farrell of Greenberg Traurig LLP, Clifford B. Levine and Alex Lacey of Dentons Cohen & Grigsby PC, and Lazar M. Palnick.

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 Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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