3rd Circ. Won't Ax Pa. Mail-In Ballot Deadline Extension

Law360 (November 13, 2020, 6:17 PM EST) -- The Third Circuit on Friday shot down a legal challenge from a Republican congressional candidate and four voters aimed at striking down a three-day extension for mail-in ballots that was ordered by the Pennsylvania Supreme Court in September.

A three-judge panel ruled in a published decision that Jim Bognet, who was declared the loser last week in his bid to unseat Rep. Matt Cartwright, D-Pa., and four Somerset County voters did not have standing to pursue claims that the extension ran afoul of the separation-of-powers doctrine and equal protection principles.

"We reach our decision ... having carefully considered the full breadth of statutory law and constitutional authority applicable to this unique dispute over Pennsylvania election law," the court said in an opinion penned by Chief Judge D. Brooks Smith. "And we do so with commitment to a proposition indisputable in our democratic process: that the lawfully cast vote of every citizen must count."

The legal challenge came after the Pennsylvania Supreme Court ruled in September that the twin complications of the coronavirus pandemic and delivery delays with the U.S. Postal Service warranted allowing mail-in ballots postmarked by Election Day to be counted if received by county election boards by 5 p.m. Nov. 6.

Bognet, a candidate for the state's Eighth Congressional District, and the voters claimed in their lawsuit that the order ran afoul of constitutional provisions giving state legislatures the sole power to set the time, place and manner of elections.

A trial judge rejected the lawsuit at the end of October, and the Third Circuit ultimately agreed with the decision in a 55-page opinion Friday.

In rejecting the appeal, the panel ruled that only the legislature had standing to challenge the Pennsylvania Supreme Court's decision, and that Bognet and his co-plaintiffs could not claim any specific injury by the extension.

"Plaintiffs here are four individual voters and a candidate for federal office," the panel said. "They in no way constitute the General Assembly, nor can they be said to comprise any part of the lawmaking processes of Pennsylvania."

Republicans in the state legislature are indeed looking to overturn the deadline extension in an appeal pending before the U.S. Supreme Court.

According to state officials, approximately 10,000 ballots were received by county election boards during the three-day extension period.

The Third Circuit on Friday also ruled that the four voters did not have standing to claim that accepting ballots after the statutory deadline on Election Day would unconstitutionally dilute their votes in violation of equal protection principles.

The panel concluded that the voters did not have any particular claim to an injury as a result of the alleged dilution, and thus did not have grounds to pursue their case.

"Such an alleged 'dilution' is suffered equally by all voters and is not 'particularized' for standing purposes," the panel said.

Even if Bognet and the voters did have standing, the court said, the suit had been filed too close to the election for the judiciary to take action.

It said that U.S. Supreme Court precedent in Purcell v. Gonzalez generally prevented judges from taking action to change election procedures that voters had come to rely on too close to Election Day.

"Plaintiffs' requested relief would have upended this status quo, which is generally disfavored under the 'voter confusion' and election confidence rationales of Purcell v. Gonzalez," the court said.

Representatives for the parties did not immediately return messages seeking comment Friday.

The challengers are represented by Brian Barnes, Peter Patterson and David Thompson of Cooper & Kirk PLLC.

The respondents are represented by Mark Aronchick, Michele Hangley and Robert Wiygul of Hangley Aronchick Segal Pudlin & Schiller, J. Bart DeLone, Sean Kirkpatrick and Keli Neary of the Office of the Attorney General of Pennsylvania, Joe Tucker Jr., Dimitrios Mavroudis and Jessica Rickabaugh of Tucker Law Group LLC, Elizabeth Dupuis and Molly Meacham of Babst Calland Clements & Zomnir PC, Christine Steere of Deasey Mahoney & Valentini Ltd., Edward Rogers and Elizabeth Wingfield of Ballard Spahr LLP, Stephen Edwards, Frank Lavery Jr. and Andrew Norfleet of Lavery Law, and Thomas Shaffer of Glassmire & Shaffer Law Offices PC.

The DNC is represented by Marc Elias, Uzoma Nkwonta and Courtney Elgart of Perkins Coie LLP.

The case is Bognet et al. v. Boockvar et al., case number 20-3214, before the U.S. Court of Appeals for the Third Circuit.

--Editing by Adam LoBelia.

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

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Case Information

Case Title

Jim Bognet, et al v. Secretary Commonwealth of PA, et al


Case Number

20-3214

Court

Appellate - 3rd Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

October 29, 2020

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