Pa. Justices Fast-Track Whether Voters Can Use Drop Boxes

By Matthew Santoni
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Law360 (September 1, 2020, 6:42 PM EDT) -- The Supreme Court of Pennsylvania will decide whether voters can cast their ballots at drop boxes instead of mailing or delivering them directly to the county boards of election in November, the justices announced Tuesday.

The Keystone State's highest court agreed to use its "extraordinary jurisdiction" power and take up a lawsuit the state's Democratic Party brought against Secretary of the Commonwealth Kathy Boockvar, seeking to affirm the use of drop boxes as an alternative to the U.S. Postal Service or in-person voting amid the COVID-19 pandemic.

The Republican National Committee and President Donald Trump's reelection campaign had filed a lawsuit in federal court seeking to block the use of drop boxes and the counting of mail-in ballots that lacked an inner privacy envelope, but the court paused the case on Aug. 24 so the state courts could weigh in on whether the practices were allowed by Pennsylvania election law. Boockvar asked the Pennsylvania Supreme Court to exercise its special power to elevate especially important cases straight to the highest level, rather than wait for a decision from the Commonwealth Court and then an appeal.

"Secretary Boockvar's application for the court to exercise extraordinary jurisdiction over the Commonwealth Court Case docketed at 407 MD 2020 is GRANTED," the single-page order said.

The order said Chief Justice Thomas G. Saylor and Justice Sallie Updyke Mundy dissented but did not file opinions elaborating upon why.

The Supreme Court gave the parties and intervenors in the case until 5 p.m. on Sept. 8 to file any additional briefs or affidavits to support their positions.

About 20 Pennsylvania counties used drop boxes and mobile collection drives to gather mail-in ballots for the June 2 primary election, which was the first time the state had offered expanded absentee voting to anyone who asked for a mail-in ballot instead of just those who would not be in their districts on Election Day.

The mail-in ballots were supposed to be contained in a mailing envelope with the voter's attestation of their eligibility on the outside and an inner "secrecy" envelope that would keep the actual vote hidden until it was counted. But when voters omitted the inner envelope, some counties still tallied their votes while others discarded them.

The Trump campaign and Republicans filed a federal lawsuit in June claiming that the drop boxes violated state election laws, which they interpreted as requiring all ballots to be mailed or returned in person directly to the county boards of election, and they claimed drop boxes made the vote vulnerable to fraud. They also sought to bar the counting of the so-called "naked ballots" and to do away with the state's requirement that campaign poll watchers live in the county where they are monitoring the vote.

Pennsylvania Democrats, Democratic candidates and a number of voting-rights groups intervened in the federal case and filed a case of their own in Commonwealth Court, asking the state court to affirm that the same practices were legal. Other groups asked state courts to extend the deadline for when mail-in ballots must be returned and to determine whether boards of election must try to reach voters and fix ballots that are deficient.

Boockvar, as the defendant in the state and federal cases, asked the state Supreme Court to let the election suits jump straight to a binding decision by the justices rather than wait for the lower court's decision. She also asked the federal court to abstain from a decision until the state courts had weighed the state election laws.

"We're pleased that the court is moving so quickly; this is obviously a time-sensitive issue," said Ben Geffen of the Public Interest Law Center, representing intervenors including Common Cause Pennsylvania, the League of Women Voters and the Black Political Empowerment Project. "Voters have a particularly strong need for alternatives to voting in person … Pennsylvania can and should offer voters a robust vote-by-mail option."

A representative for Boockvar declined to comment Tuesday.

"This development comes as no surprise given the judge in the Trump campaign's federal case is waiting on the state court to consider the many issues involved in Pennsylvania's dangerous voting system — including ballot harvesting and double voting," said Matthew Morgan, general counsel for the Trump campaign. "We look forward to a swift resolution on these key issues and encourage the state court to guarantee that every Pennsylvania voter has their vote counted — once."

Counsel for the Democrats did not immediately respond to requests for 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 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 NAACP, Common Cause and League of Women Voters are represented by Adriel I. Cepeda Derieux, Dale Ho, Sarah E. Brannon, Sophia Lin Lakin and Witold J. Walczak of the ACLU; Eleanor Davis, Jared V. Grubow, Jason H. Liss, Lori A. Martin, Christopher R. Noyes, Samantha Picans and David P. Yin of WilmerHale; and Benjamin Geffen of the Public Interest Law Center.

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

--Editing by Haylee Pearl.

Correction: An earlier version of this article cited the wrong authority the Supreme Court used to elevate the case. The error has been corrected.

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