The new case, filed in the U.S. District Court for the Western District of Pennsylvania, overlapped some claims from the earlier case, which cleared Pennsylvania's Supreme Court in September. Thursday's version, filed in the name of a northeastern county Republican congressional candidate and four western county voters, was described as raising new arguments under federal law.
David H. Thompson of Cooper & Kirk PLLC, counsel to the suing voters, told Law360 that plans were in the works to seek expedited handling of the case, with a temporary restraining motion filed late Thursday.
"My clients have an absolute right to have their federal constitutional rights adjudicated by a federal court," Thompson said. "There is some overlap between the issues that were resolved by the Pennsylvania Supreme Court and this case. That doesn't dispose of the matter.
Pennsylvania currently has more than 9 million registered voters, with more than 32%, or 2.9 million, having requested mail-in ballots.
The case upheld by Pennsylvania's justices allowed the counting of ballots postmarked on Nov. 3 to be counted if they arrive by 5 p.m. Nov. 6 unless the "preponderance" of the evidence shows they are late. The court also upheld a plan to consider as mailed on-time ballots without a legible postmark.
Among the additional claims, Thompson said, are vote-dilution allegations that focus on arguments that every vote received and counted after the regular 8 p.m. Nov. 3 deadline "dilutes the votes of a lawful voter, the same way that ballot box stuffing does."
Counts in the suit include two alleged violations of the U.S. Constitution's Elections Clause, as well as violations of its Equal Protection Clause and Congress' authority under Article II to set the time, date and deadline for receipt of ballots.
"The Pennsylvania Supreme Court is not Congress, but nevertheless purported to create multiple election days for presidential electors after November 3, 2020," the complaint said.
The last-minute timing of the federal action could put Pennsylvania's extended vote-counting plan back in front of the U.S. Supreme Court after Judge Amy Coney Barrett's nomination to the high court is likely confirmed — putting a new conservative justice on the bench as it takes up a case that was upheld only on a 4-4 vote.
"It is not a speculative assertion that otherwise late ballots will be counted under the Pennsylvania Supreme Court's policy that defendants must now follow. In fact, it is a near certainty. Pennsylvania's own experience in the June primary shows that there will be late ballots," Thursday's complaint said.
Those who sued include Republican Jim Bognet of Hazleton, a law school graduate and former Trump administration appointee who is challenging incumbent Democratic Rep. Matt Cartwright for Pennsylvania's 8th Representative District. Also joining the suit were four voters in Somerset County, south of Johnstown, Pa. — Donald K. Miller, Debra Miller, Alan Clark, and Jennifer Clark.
The suit argued that Pennsylvania's Supreme Court had created "a 'preferred class of voters' — those who do not have to comply with Congress' set election day." It also said that the extension would conflict with the deadline established by Congress for ballots cast in the elections in which the four named state residents plan to vote.
Voting deadlines and rules have become litigation targets across the country in recent months, with activity surging after the U.S. Postal Service warned that it might be unable to assure delivery of mail-in ballots with ordinary speed because of the volume.
Adding to the concern was a huge nationwide increase in mail-in and absentee ballot requests as the COVID-19 pandemic drove up concern over social distancing at polling places and risks of infection, as well as allegations of voter suppression, which include reductions in numbers of polling places in some states and districts and reports of voter intimidation.
To date, more than 2.9 million mail-in ballots have been requested in Pennsylvania, with more than 1.8 million going to Democrats and more than 728,000 to Republicans. Voters without party affliations requested more than 306,000.
Officials with the Pennsylvania Democratic Party and the Pennsylvania Attorney General's Office did not immediately return calls for comment.
Named in the suit was Kathy Boockvar, Pennsylvania's secretary of the commonwealth, as well as all 67 county boards of election. Boockvar's office also did not immediately respond to a question about the development.
Jim Bognet, Donald K. MIller, Debra Miller, Alan Clark and Jennifer Clark are represented by Bradley A. King of King Legal Group LLC, and David H. Thompson and Peter A. Patterson of Cooper & Kirk PLLC.
Counsel information for Kathy Boockvar was not immediately available.
The case is Jim Bognet et al. v. Kathy Boockvar et al., case number 3:20-cv-00215, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Steven Edelstone.
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