By Matthew Santoni

Law360 (August 18, 2020, 6:04 PM EDT) -- Pennsylvania's top election official asked the state's highest court to take up Democrats' state lawsuit seeking to affirm the legality of drop boxes for mail-in and absentee ballots, arguing that the suit and a competing federal case filed by Republicans threaten to cause confusion and delay.

Secretary of the Commonwealth Kathy Boockvar asked the Supreme Court of Pennsylvania to exercise its special "King's Bench" jurisdiction over a case the Democratic Party of Pennsylvania brought in Commonwealth Court seeking to affirm the use of drop boxes. Boockvar asked the justices to weigh in before the Nov. 3 election — and before the federal court in Pittsburgh decides a similar case, brought by the Republican National Committee and President Donald Trump's reelection campaign, claiming the same drop boxes are illegal.

"The Secretary of the Commonwealth and the 67 county election boards are being challenged from opposite ends by these two competing theories as to how the Election Code should be interpreted. The longer these challenges remain unresolved and the closer we move towards Election Day, the more disruptive the litigation will be to the orderly implementation of the Election Code on Election Day," the petition said. "There is simply insufficient time to litigate these novel constitutional and statutory issues of statewide importance twice."

Boockvar filed the petition to the Supreme Court late Sunday and sent a copy to the federal court Monday to support her request that U.S. District Judge J. Nicholas Ranjan dismiss or delay a ruling on the Republicans' case until after the state courts have interpreted the state's election law.

Even before the COVID-19 pandemic made voters leery of long lines and crowded, consolidated polling places, the Pennsylvania legislature had passed Act 77 of 2019, which allowed for no-excuse mail-in voting, Boockvar's petition noted. The ongoing pandemic, along with potential delays in mail delivery brought on by cuts to the U.S. Postal Service, made the drop box issue one of pressing importance suited for the Supreme Court's power to immediately elevate and decide cases from the lower courts, Boockvar said.

The Trump campaign filed its federal suit against Pennsylvania in late June, claiming that the use of drop boxes in the primary election and their potential return for the general election violated state laws that say ballots must be returned to the county boards of elections, leaving the vote open to fraud.

State Democrats intervened in the federal suit and filed their own version in Commonwealth Court, asking state judges to affirm the same practices the Republicans wanted to throw out. In her motion to dismiss the federal suit, Boockvar argued that the state court should get first dibs on deciding issues of state law, even if the Republicans tried to argue there were federal constitutional violations at stake.

Last week, Judge Ranjan granted the Democrats' motion to make the campaign turn over any evidence it had to support its fraud allegations. Court records show the campaign's responses were handed over on Monday but did not yet indicate what they said.

A third lawsuit, asking to extend the deadline for when ballots must be postmarked and received by the elections offices in order to be counted, was already awaiting review by the state Supreme Court.

Boockvar's petition to the Supreme Court defended the drop boxes, arguing that the Election Code allowed ballots to be returned to places other than counties' central elections offices. A "county board of elections" was a municipal body, not an address, and could have multiple offices or designate multiple places where it would collect ballots, she said.

"The Election Code contemplates that 'ballot boxes and returns' may be received 'in the office of the county elections board, or received in such other places as has been designated by the board,'" the petition said. "To deny this authority would contravene the plain language in the Election Code and otherwise inhibit the abilities of county election boards to respond to voting issues caused by the COVID-19 pandemic."

Ballots that don't have a second, unmarked envelope inside the mailing envelope — nicknamed "naked ballots" in the lawsuits — should still be counted, Boockvar said, siding with Democrats over the Republicans. The Election Code says that once the voter's declaration of eligibility on the outer envelope has been verified, mail-in ballots can only be rejected or challenged on the basis of whether a voter is qualified or if the privacy envelope had been marked with identifying information, not for the absence of the privacy envelope, she wrote.

"The counting of 'naked ballots' does not otherwise permit fraud. The ballot is still sealed in an envelope which is either mailed or hand delivered by the elector. The sealed ballot is still certified by the elector," the petition said.

While Boockvar agreed with state Democrats on the necessity of a deadline extension due to possible mail delays, she argued for a shorter, three-day extension rather than the eight-day delay the Democrats sought.

"This court should order that ballots mailed by voters on or before 8:00 p.m. on Election Day be counted if they are otherwise valid and received by the county boards of election on or before the third day following the election. Such relief is narrowly tailored to address the injury at issue — namely, the threat of mail-delivery delays during an ongoing pandemic — and firmly anchored in judicial precedent," Boockvar wrote. "A three-day extension of the deadline is feasible to administer while not disrupting other aspects of election administration. Receiving all ballots by the Friday after the election will not significantly delay the reporting of Pennsylvania's election results."

The Democrats' other request, that voters be given a chance to correct mailed-in ballots where their signatures in the declaration do not match their voter registration records or were otherwise defective, was impractical and should be handled by the state legislature, Boockvar said. Yet another lawsuit, filed Aug. 7 by the League of Women Voters, sought similar relief.

"The Democratic Party presents no explanation as to how the county boards would go about notifying voters or how they would, in turn, correct those errors. Such logistical policy decisions are more properly addressed by the legislature, not the courts," Boockvar said.

Lastly, Boockvar defended the state's practice of only allowing campaigns' and parties' poll watchers to monitor voting in the counties where they live, noting that the requirements have been the same for decades and were recently upheld by a federal court in the 2016 election.

The Republicans accused their opponents of "playing games" with the competing cases.

"The Democrats have done everything in their power to muddy the water on this case, including playing games with the court system, because they know the standardless procedures they're trying to implement violate voters' rights," said Matthew Morgan, the Trump campaign's general counsel, in a statement. "President Trump is fighting to protect every Pennsylvania voter's right to cast their ballot safely and securely this fall."

Representatives of Boockvar declined to comment on Sunday and Monday's filings.

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 Josh Shapiro, Karen M. Romano, Keli M. Neary, Howard G. Hopkirk, Nicole Boland and Stephen Moniak of the Pennsylvania Attorney General's Office.

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 Democratic Party is 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 and Lazar M. Palnick.

The cases are 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, and Pennsylvania Democratic Party et al. v. Boockvar et al., case number 133 MM 2020, in the Supreme Court of Pennsylvania.

--Editing by Haylee Pearl.

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