Trump Campaign Loses Challenge To Pa. Voting Rules

Law360 (October 10, 2020, 7:37 PM EDT) -- A Pennsylvania federal judge on Saturday rejected a challenge by the Trump campaign and Republican Party to state rules for mail-in voting and poll watchers, saying their claims of potential voter fraud were based on "uncertain assumptions."

U.S. District Judge Nicholas Ranjan said that the Trump campaign's efforts to limit the use of ballot drop boxes, to require stricter scrutiny of signatures on mail-in ballots and to give more freedom to poll watchers were all doomed by a lack of clear evidence that there was a substantial risk of fraud in the upcoming election.

"While plaintiffs may not need to prove actual voter fraud, they must at least prove that such fraud is 'certainly impending.' They haven't met that burden," the judge said as he denied the campaign standing to pursue its lawsuit. "At most, they have pieced together a sequence of uncertain assumptions."

The lawsuit, which was first filed in June, challenged several rules issued in connection with the state's expansion of mail-in voting last year, including the authorization of standalone drop boxes for ballots and a requirement from the secretary of state that ballots not be disqualified simply because a voter's verification signature on the outside envelope didn't exactly match the signature on the voter's registration record.

In addition, the campaign had sought the ability to allow Trump-affiliated poll watchers to cross county lines to observe voting activities outside their home counties.

In challenging the state's use of drop boxes, the campaign argued that a lack of in-person security created the threat of illegal delivery of ballots and of ballot harvesting on the part of political operatives.

But Judge Ranjan said that evidence of potential fraud was speculative at best, and that the state Assembly's move to significantly expand mail-in voting last year, including the potential use of drop boxes, was a tacit acceptance of minor "garden variety election irregularities."

"Even if the court assumed some 'forged' applications or ballots were approved or counted, this is insufficient to establish substantial, widespread fraud that undermines the electoral process," the judge said. "Rather, limited instances of 'forged' ballots — which, according to plaintiffs' definition, includes an individual signing for their spouse or child — amount to what the law refers to as 'garden variety' disputes of limited harm. As has long been understood, federal courts should not intervene in such 'garden variety' disputes."

In explaining its decision not to require the comparison of signatures on mail-in and absentee ballots, the state said that doing such a comparison was a technical process requiring expertise that local elections officials simply did not possess, and that it was possible for a person's signature to vary over the course of time.

While Judge Ranjan rejected the campaign's challenge to the rules regarding signature verification, he noted that in a separate case the Secretary of State had asked the Pennsylvania Supreme Court last week to exercise jurisdiction over the issue.

The high court has not yet indicated whether it will accept that case.

As for the Trump challenge to state law limiting poll watchers to their county of residence, the campaign argued that it would be unable to find enough individuals to man polling stations in heavily Democratic areas of the state such as Philadelphia.

But Judge Ranjan said that the campaign had failed to specifically identify any portion of the state where it had been unable to recruit a sufficient number of poll watchers.

"This is a win for voters and our democracy," Pennsylvania Attorney General Josh Shapiro said in a statement. "We have been in court for months protecting the right to vote and working to get this outcome for all of you. Vote by mail or in person, however you choose. Your vote will count."

The Trump campaign vowed to appeal.

"Clearly, we disagree with the western district's decision on unsecure drop boxes, and President Trump's team will immediately file an appeal to the Third Circuit to continue our fight to protect every Pennsylvania voter," campaign general counsel Matthew Morgan said in a statement. "We look forward to a swift Third Circuit decision that will further protect Pennsylvania voters from the Democrats' radical voting system."

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 the RNC 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.

--Additional reporting by Matthew Santoni.

Update: This story has been updated to include a comment from the Trump campaign.

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