Trump, Pa. Debate If Counties Must Use Drop Boxes Equally

By Matthew Santoni
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Law360 (October 5, 2020, 6:11 PM EDT) -- President Donald Trump's reelection campaign insisted to a federal court late last week that ballot drop boxes needed to be staffed and used equally across Pennsylvania's 67 counties for the upcoming election, while Democrats and state officials hit back in court filings arguing that counties could handle voting according to their needs and resources.

The reelection campaign sparred with Secretary of the Commonwealth Kathy Boockvar and intervenors from the Democratic Party, filing competing motions for summary judgment in the campaign's federal lawsuit over the swing state's administration of its election. The motions both focus on the use of drop boxes, the state's residency requirement for poll watchers and whether signatures on returned mail-in ballots have to match with voter registration records.

"The Secretary fails to provide consistent parameters or uniform standards when implementing drop boxes and mobile units, leading to unmanned, unmonitored drop boxes and unsecure mobile collection sites," said the campaign's brief, filed late Thursday night. "Unstaffed drop boxes and mobile collection sites promote the casting of illegal, unreliable, and fraudulent ballots, and fail to contain basic minimum guarantees against such conduct that violate the Constitution by leading to the dilution of validly cast ballots."

But by Saturday, the state and its Democratic defenders sought summary judgment in their own favor on the grounds that the campaign was asking the Pittsburgh-based U.S. District Judge J. Nicholas Ranjan to horn in on decisions that state election law left up to each county.

"Without any evidence of either state action or causal fraud, plaintiffs ask this court to find that routine and election administrative decisions are preemptively and presumptively unconstitutional if not applied precisely and uniformly by all 67 Boards of Elections," the Democrats' brief said. "Plaintiffs are asking this court to step-in and judicially micromanage and second-guess on the ground administrative decision-making by Boards which are best-suited and empowered to conduct elections commensurate with the widely disparate and varying needs of their local electorates."

Trump's challenge to the Keystone State's election procedures had begun with the federal lawsuit in June, but it was paused while the Supreme Court of Pennsylvania decided a host of issues, including whether drop boxes for mail-in ballots or the poll watcher requirement were allowed under the state's election law.

With the state justices' ruling in September that drop boxes were proper, the campaign revived its federal lawsuit focused on whether uneven use and monitoring of drop boxes were constitutional.

The campaign's brief said the only way drop boxes would be acceptable would be if they were applied equally across the state and constantly staffed, but Boockvar's guidance only gave recommendations on placement and security.

"A narrowly tailored drop box policy requires the drop boxes to be secure and attended to at all times by a sworn election official. The election official can verify the identity of the ballot dropper, preventing any illegal third-party ballot delivery, and safeguard that all ballots collected are secured from tampering at the end of each day," the brief said. "The Secretary's guidance memo on these drop boxes creates different voting schemes across the Commonwealth. It is entirely up to each county when deciding whether to allow for the use of drop boxes, whether staffed or unstaffed, located inside or outside a municipal building, a park, garage, or elected officials' office or building, or targeting a particular demographic or group."

Both Boockvar and the Democrats said that those "different voting schemes" were a product of different counties' needs and approaches, and were not constitutional violations. The state legislature had intended to allow counties to run their own elections as they saw fit when lawmakers wrote the election code, Boockvar said.

"The General Assembly had ample reason to afford Boards administrative discretion to establish ballot drop boxes, or not to do so, to account for the differing geography and population, and thus the divergent voting needs of their respective electorate," the secretary's brief said. "A Board's decision regarding whether to utilize drop box sites is no more violative of the Equal Protection clause than a Board's decision regarding the establishment of locations for in-person polling places."

Likewise, the legislature had a reasonable basis for establishing that poll watchers had to live in the counties where they were monitoring the vote since counties could handle their own certification and training of poll watchers, and poll watchers would be familiar with their local voters, local officials and local procedures, the secretary's brief said.

Though the Trump campaign argued that volunteers' fears of the COVID-19 pandemic meant it needed to recruit poll watchers from across county lines to staff every voting location — including county election offices and satellite locations where voters can request and cast their mail-in ballots — Boockvar and the Democrats countered that the campaign hadn't specifically shown where it was having trouble getting enough poll watchers.

"The record evidence shows that the plaintiffs have made minimal efforts to recruit poll watchers. The RNC and Trump campaign's corporate designee James Fitzpatrick testified that the Trump campaign intended to recruit poll watchers for every county in Pennsylvania but they do not know how many poll watchers they need for the General Election," the Democrats' brief said. "Plaintiffs admit that it cannot identify one county where they are unable to obtain 'full coverage' of poll watchers or any county where they have problems recruiting poll watchers for the General Election."

The campaign also attacked Boockvar's guidance telling election workers who will be pre-canvassing mail-in votes not to throw out a ballot based solely on a mismatch between signatures on the outer envelope and a voter's registration records. The campaign argued that the guidance set up stricter standards for in-person voters who could still be challenged if their handwriting didn't match up when they signed in.

But Boockvar said state law allows different systems for in-person and mail-in voters, adding that voters seeking to use mail-in ballots go through additional verification steps during the application process and have to submit information including a driver's license number or partial Social Security number in order to get their ballots.

Counsel for the Democratic intervenors declined to comment Monday. Representatives of the Trump campaign and Secretary Boockvar 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 Democratic Party intervenors are represented by A. Michael Pratt, Kevin Greenberg, Adam R. Roseman and George Farrell of Greenberg Traurig LLP, Clifford B. Levine and Alex Lacey of Dentons Cohen & Grigsby PC, and Lazar M. Palnick.

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 Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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