Law360 (September 23, 2020, 7:38 PM EDT) -- Pennsylvania's top election official said a state Supreme Court ruling on the upcoming election should have rendered moot a federal lawsuit from President Donald Trump's reelection campaign that sought to bar the use of drop boxes to collect mail-in ballots.
Secretary of the Commonwealth Kathy Boockvar said Tuesday that the Supreme Court of Pennsylvania's Sept. 17 ruling — which, relevant to the campaign's challenge, said drop boxes were legal, mail-in ballots without a privacy envelope should not be counted, and poll watchers had to live in the county where they monitored voting — should substantially end the campaign's case. On the issues the campaign said remained for the federal court, Boockvar argued the court should first decide whether Trump had standing or had sufficiently pled his case.
"Plaintiffs seek to prosecute a case in federal court against state election officials based on speculation that those officials will intentionally violate the Election Code and that the commonwealth's use of ballot drop boxes (which the Pennsylvania Supreme Court has held are permissible) will nonetheless invite voter fraud and other hypothetical criminal activity," said the state's response to the campaign's notice of remaining claims. "The Supreme Court of Pennsylvania issued a well-reasoned decision … that should end the matter as it relates to those issues. And as to other issues plaintiffs believe persist, the court should address the secretary's and other parties' pending motions to dismiss and put an end to (or at least substantially narrow) this dispute."
Boockvar urged U.S. District Judge J. Nicholas Ranjan to first consider the pending motions to dismiss, then motions for summary judgment on any claims that survive, rather than grant the campaign's request for more discovery and an evidentiary hearing in October.
Judge Ranjan had put the campaign's federal lawsuit on hold while the state courts decided whether the state's election laws allowed drop boxes for collecting mail-in ballots amid the COVID-19 pandemic, along with other questions about deadlines and the counting of "naked" ballots.
But even after the Pennsylvania justices' ruling, the campaign said the state court had not resolved its claims, including that drop boxes were vulnerable to voter fraud that would "dilute" legitimate votes, or the possibility that unequal application of drop boxes could present equal-protection issues.
Boockvar countered that the campaign's lawsuit was merely speculating that there would be fraud or that counties would not follow the now-clear rules set by the state and the Supreme Court. Generalized and speculative claims were not enough to grant the campaign standing to sue, she said.
The campaign had not produced evidence of such fraud, despite its alleged admission that it had been watching the use of drop-boxes during the June primary election, Boockvar said.
"But for all of their rhetoric regarding the ever-present boogeyman of voter fraud, plaintiffs have failed to come forward with material evidence of voter fraud related to drop boxes and no such evidence as it relates to the supposed lack of poll watchers monitoring in-person voting," the response said. "Election officials and political actors in Pennsylvania and around the country have long been vigilant to uncover, investigate, and publicize those rare instances of voter fraud; if drop boxes permitted the types of rampant voter fraud or ballot tampering that plaintiffs foretell, one would expect plaintiffs to have more evidence of it from the June 2020 primary election or other prior elections here or elsewhere."
Likewise, the campaign's claims that some counties could ignore the state's guidance and the Supreme Court ruling on counting ballots, using drop boxes, and barring third parties from dropping off ballots for non-disabled voters were also speculative, the response said. Unequal use of drop boxes was not in itself a state-law or federal constitutional violation, since the counties had the power to tailor their elections to fit their populations and needs, the response said.
The suit, Boockvar said, was impermissibly trying to make federal constitutional claims out of an effort to enforce state laws. Those election laws were clarified by the Supreme Court ruling and should be enforced by state courts if actually violated by any counties, Boockvar said.
"Though nominally a 'federal constitutional claim,' plaintiffs' various claims of vote dilution are, at bottom, only attempts to have this federal court enjoin commonwealth election officials to comply with plaintiffs' preferred interpretation of the Election Code," the response said.
The secretary argued against further discovery or another amendment of the campaign's case, given the looming election.
"Election Day is now just six weeks away and the secretary and Department of State are engaged in the important work of ensuring a free, fair, and transparent election, notwithstanding the unprecedented challenges of the COVID-19 pandemic, as well as repeated and unfounded attacks on the integrity of the election system by the lead plaintiff in this case," the response said. "The time to invent and press new theories of alleged election misconduct has passed, and the court should not permit plaintiffs' attempt at further distraction from the election preparation process."
Representatives for the campaign and Boockvar did not immediately respond to requests for comment Wednesday.
Judge Ranjan on Wednesday granted a brief window for additional discovery and expert reports by the end of September, summary judgment motions in early October and an evidentiary hearing, if necessary, on Oct. 13.
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 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 Haylee Pearl.
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