By Matthew Santoni

Law360 (August 31, 2020, 3:39 PM EDT) -- President Donald Trump's reelection campaign is pressing a court to set aside Pennsylvania ballots cast via drop boxes and keep officials from counting them until state and federal courts rule on whether they're permitted under the state's election law.

A Pennsylvania federal court had previously paused the lawsuit brought by the campaign and the Republican National Committee so that state courts could weigh in on the same issues. But the campaign asked a federal judge late Friday to modify the stay and set aside any ballots cast via drop box or sent in without a blank "secrecy envelope" between the mailing envelope and the actual ballot.

"Defendants plan to utilize drop boxes and to clothe, process, and count ballots lacking an inner secrecy envelope notwithstanding the requirements of Pennsylvania's election laws and the pendency of this and other lawsuits concerning the legality of those practices," the motion said. "Taken together, these facts suggest that defendants intend to proceed with the irreversible commingling of potentially illegally cast ballots with validly cast ballots during the upcoming general election unless enjoined from doing so by this court."

The campaign asked U.S. District Judge J. Nicholas Ranjan for an order to "segregate and maintain intact" and "refrain from pre-canvassing or canvassing" all ballots cast in drop boxes, cast without their privacy envelopes or dropped off in-person by third parties.

Republicans sued the state in federal court in late June, claiming the drop boxes used in the primary election — when the COVID-19 pandemic intersected with a state law allowing unrestricted access to absentee ballots to create a surge of people voting by mail — were illegal and vulnerable to fraud. State Democrats and voting-rights groups intervened in the federal lawsuit and filed a suit of their own in state court seeking to affirm that the practices were actually legal.

Judge Ranjan, a Trump appointee, granted a request from the state and the intervenors to pause the federal lawsuit last week, pending the state courts' first interpretation of the newly modified state election laws.

Citing new guidance Pennsylvania Secretary of the Commonwealth Kathy Boockvar sent out in August, the campaign said the pending setup of drop boxes and distribution of ballots meant the parties could not wait until the Commonwealth Court or the Supreme Court of Pennsylvania decide if the drop boxes or counting "naked ballots" are allowed under the election law. The courts had not yet ruled on Boockvar's request to skip the appeals process and go straight to the state Supreme Court as of Monday afternoon.

"Plaintiffs reserved the right to seek appropriate injunctive relief at such time as the November 3, 2020, general election approached and irreparable harm existed," the campaign's motion said. "That time has now arisen."

The motion said the state's report of the primary election could not break out how many of the mail-in ballots had been submitted via drop boxes, nor could all the counties that counted "naked ballots" say how many there had been. When Boockvar sent out guidance on Aug. 19 on how counties can establish "ballot return sites," it did not include any instructions to separate those ballots from any others, the campaign said.

"Because the comingling and canvassing of ballots will preclude county election boards from later segregating absentee and mail-in ballots by their means of delivery … or by whether they include an inner secrecy envelope with or without marks, text, or symbols on that envelope, the commingling or processing of absentee ballots prior to the resolution of this case would inflict irreparable harm on plaintiffs," the motion said. "When the relief being sought would simply separate ballots out as part of a potential challenge, there exists no harm to others."

With the state's guidance now in place, some counties are already planning how they would deploy drop boxes ahead of the November election, including Delaware County, which planned to set up 50 boxes by Oct. 1, the campaign said. Others were ready to start processing absentee ballot applications and sending out ballots by Sept. 14, if not earlier, so the campaign wants the chance to lift the stay on its suit by then.

The secretary's guidance also directed counties to "clothe" naked ballots by sticking them in a blank envelope if they lacked one and the voter's eligibility had been verified by the outer envelope, then count them along with the rest. Part of the campaign's challenge had been that not all counties counted such ballots, and Friday's motion said that even with the now-statewide guidance, some counties could still disagree.

"Lawrence County reported to the Pennsylvania Department of State that it did not count over 440 of the approximately 8,000 cast absentee and mail-in ballots that were returned without inner secrecy envelopes," the motion said.

The campaign also asked the court to make the state preserve any security footage from cameras monitoring drop boxes and make it available to the plaintiffs or other challengers until the last ballots are counted.

"In our fight for a free and fair election, the Trump campaign has requested that ballots collected from the Democrats' standardless drop boxes temporarily remain separate from other ballots until the conclusion of our litigation," said Matthew Morgan, general counsel for the campaign. "Once drop box ballots are mixed with others, there is virtually nothing the state can do to guard against double voting — which already happened 40 times in the primary, that we know of."

The campaign cited reports from Philadelphia where voters who submitted mail-in ballots also voted in person. Voters who request a mail-in ballot are supposed to be flagged in the register so that if they show up at the polls in-person, they should only get a provisional ballot, but according to the Philadelphia Inquirer article the campaign cited, some voter registries were printed before the deadline for requesting a mail-in ballot.

A representative for Boockvar declined to comment. 

The Pennsylvania Department of State and Boockvar are represented by Daniel T. Donovan, Susan Davies, Michael Glick, Sara Shaw Tatum, Madelyn Morris and Kristen Bokhan of Kirkland Ellis LLP, Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP, 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 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 responses from the state and the Trump campaign.

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