By Matthew Santoni

Law360 (July 27, 2020, 5:15 PM EDT) -- Pennsylvania election officials say President Donald Trump's reelection campaign can't sue the state over "hypothetical" allegations that its mail-in ballots or residency requirements for poll watchers will lead to voter fraud, and are urging a Pittsburgh federal court to dismiss the lawsuit.

In a motion to dismiss filed on Friday, Secretary of the Commonwealth Kathy Boockvar argued that the lawsuit improperly asked the federal court to rule on how state officials should implement state law for the November general election as they also weigh how to protect voters from the COVID-19 pandemic — all based on "speculative" claims that some counties' use of drop boxes for collecting mail-in or absentee ballots would leave the election vulnerable to fraud.

"Plaintiffs fail to allege a concrete, imminent injury, but instead ask this court to advise on the legality of how Pennsylvania election officials might enforce the Election Code, and to enjoin those officials from taking actions under state law that plaintiffs speculate might cause them harm. They also plead injury stemming from the acts of hypothetical third-party fraudsters undertaking criminal activity that may never occur," the state's brief in support said. "Election officials are still in the process of preparing for the election and will take numerous steps in the interim that will altogether obviate the need for this court's intervention or at least sharpen the issues in dispute."

Boockvar, whose office helps oversee elections in Pennsylvania, said the campaign's claims should be dismissed, because they were speculative, unripe and unsuited for a federal court to decide both as questions of state law and because a similar lawsuit had been filed in state court.

The primary election in June was the first since state legislators implemented Act 77 of 2019, which allowed voters to request a mail-in ballot without needing to cite a reason. The COVID-19 pandemic gave many a reason: to avoid crowds and lines at polling places. Boockvar's brief said 1.8 million voters requested mail-in ballots and 1.5 million cast their votes by mail.

The Trump campaign, joined by the Republican National Committee, sued the state and every county board of elections in June over claims that some counties' use of drop boxes or mobile collection drives to gather ballots invited fraud, which they said diluted the rest of the votes and violated voters' constitutional rights.

They also claimed that counties had inconsistent policies for counting mail-in ballots that hadn't been returned in a blank privacy envelope, and that the state's policy requiring poll watchers to live in the counties where they were monitoring the vote unfairly limited campaigns in recruiting volunteers and again raised the fear of fraud.

The campaign sought a declaration from the federal court that the drop boxes were illegal under the election code and should be blocked in the general election, or at least constrained by notice requirements and monitored by poll watchers.

Numerous parties, including the state Democratic Party, sought to intervene. The Democrats filed a lawsuit in the Commonwealth Court of Pennsylvania seeking a declaration that the same practices the Republicans challenged were legal and proper.

Boockvar's motion on Friday said the campaign was seeking relief for harms that had not happened during the primary election, or had not happened yet given that the state was still planning for the November general election.

"The complaint presents a textbook example of a ripeness defect because it is premised on defendants failing to take actions (such as publicizing polling locations) that even plaintiffs concede defendants are not required to have taken at this point in the election schedule," the brief said. "Those actions, when taken, will likely obviate the need for this court's involvement."

Boockvar said the federal court should not decide the case, both because the Eleventh Amendment of the U.S. Constitution barred federal courts from telling state officials to follow state law, and because the first interpretation of the state law was still pending before a state court. Act 77 had not yet been reviewed by any state courts, she said, and any judgment by federal courts would disrupt the Commonwealth Court's efforts to interpret the same law.

When considering a challenge to the voting process, Boockvar's brief said, the court has to weigh the alleged constitutional harms against the state's reasons for handling the election the way it did, under the framework the U.S. Supreme Court established in Anderson v. Celebrezze and Burdick v. Takushi .

In this case, the state had an interest in promoting participation by all voters through Act 77, and protecting voters from the pandemic, Boockvar said.

"Even if the Commonwealth's mail-in voting procedures minimally increased the prospect of vote dilution — and they do not — the Commonwealth has weighty interests in the implementation of its chosen procedures," the brief said. "The unprecedented circumstance of COVID-19 further justifies the Commonwealth's 'sufficiently weighty' interest in additional measures to facilitate mail-in voting for all citizens regardless of party so that individuals who might fear for their health and safety will have the opportunity to exercise their constitutional right to vote."

U.S. District Judge J. Nicholas Ranjan, who agreed to fast-track the suit for a hearing in September, encouraged the parties to file their motions to dismiss by Friday. Responses to motions to intervene were due on Monday.

Representatives of Boockvar's office and the Trump campaign declined to comment on Monday.

The Trump campaign and 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 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 Nicole Bleier.

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