Pa. Urges Court To Reject Trump's 'Audacious' Vote-Toss Bid

Law360 (November 19, 2020, 9:36 PM EST) -- Pennsylvania's top election official and seven counties urged a federal judge Thursday to throw out an "audacious" effort by President Donald Trump's reelection campaign to hold back or overturn the state's votes, arguing that the campaign had not proven any of the fraud it alleged swung the election to President-elect Joe Biden.

In reply briefs supporting their motions to dismiss, Secretary of the Commonwealth Kathy Boockvar and attorneys for Allegheny, Centre, Chester, Delaware, Montgomery, Northampton and Philadelphia counties reiterated their arguments that the campaign's claims had no merit and did not warrant the campaign's requested relief of barring certification of the vote count or tossing out enough ballots to declare Trump the winner.

"Casting aside millions of lawful ballots is the only relief that the Trump campaign has requested. An order granting such relief — even temporarily — would be unjust, unfair, and unconstitutional," said the joint brief from Allegheny, Chester, Montgomery and Philadelphia counties. "The Trump campaign persists in its audacious assertion that millions (or 'untold thousands') of lawful votes should be set aside — without a single plausible factual allegation to back up that extraordinary request."

The state defendants agreed.

"Recognizing they are unlikely to win Pennsylvania's electors by popular vote, plaintiffs ask this court to simply 'declare Trump the winner," Boockvar's brief said. "Enough is enough. The court should not countenance this bald-faced attempt to overturn the will of the Pennsylvania electorate."

U.S. District Judge Matthew W. Brann is considering the lawsuit brought by the campaign and two voters, which, in its current form, alleges that the state improperly let counties choose whether to contact voters whose mail-in ballots were rejected on technicalities and allow them to fix or replace their ballots with provisional votes.

Pennsylvania is one of several battleground states, including Georgia and Michigan, where Trump is refusing to concede and trying to disqualify enough voters to flip Biden's 58-vote advantage in the electoral college.

The current lawsuit contended that since more counties that favored Democrats chose to allow "curing" rejected votes and Republican-leaning counties did not, the Republicans' equal-protection rights were violated, their votes were diluted and the Democratic-leaning counties' votes should be rejected.

As they did during oral arguments in court Tuesday, the defendants challenged the standing of the voters and the Trump campaign to bring the suit, since vote dilution is not a particularized injury but a general one that affects all voters and candidates equally, the briefs said. Even if the voter plaintiffs had been harmed by not having their technically deficient votes counted, the proper remedy would be to count their votes, not throw out thousands of others, Boockvar's brief said.

During Tuesday's hearing and at a Thursday press conference, Trump attorney and former New York Mayor Rudy Giuliani made broad, unsupported accusations of a conspiracy to count improper or fraudulent votes in Democratic cities and counties. The campaign asked Wednesday night to file an amended complaint reinstating claims that social-distancing requirements for poll watchers kept the campaign's observers from seeing such an alleged conspiracy being carried out during the vote counting.

Similar claims came up in the campaign's opposition to the motions to dismiss, which Boockvar and the counties said should be disregarded as they weren't part of the operative complaint, having been cut out during the transition from one legal team to another. After Trump's attorneys from Porter Wright Morris & Arthur LLP withdrew, Philadelphia-based solo practitioner Linda Kerns was granted her motion to withdraw Thursday as well, leaving the suit in the hands of Giuliani and local counsel.

"The Trump campaign's opposition attempts to resurrect the due process claims it struck from the amended complaint," the counties' brief said. "No due process claims are at issue because plaintiffs voluntarily removed those claims when they filed their operative first amended complaint — supposedly as a result of some mix of 'confusion' and 'mistake.' But any due process claims would fail on the merits in any event."

The campaign had pointed to the Third Circuit's 1994 decision in Marks v. Stinson as giving it standing to overturn votes it claimed were illegally cast, but the defendants' briefs said there were major differences that meant the precedent didn't apply.

"Marks involved a challenge to absentee ballots that altered the outcome of a State Senate race such that one candidate went from being roughly 500 votes behind to 500 votes ahead, and the plaintiffs pled and proved that the absentee ballots were procured by fraud," said the brief from Centre, Delaware and Northampton counties. "In stark contrast here, the current margin in Pennsylvania exceeds 80,000 votes and the amended complaint does not identify a single fraudulent ballot anywhere in Pennsylvania."

The other counties agreed, noting in their brief that even if there were evidence of fraud, there had to have been enough fraudulent votes to swing the election.

"Even in the face of a substantial record of actual and widespread fraud — not remotely established in this case — the Third Circuit explained that disenfranchisement is not the proper remedy and that the plaintiff has the burden of demonstrating that the fraud was the but-for cause of the election loss," said the brief from Allegheny, Chester, Montgomery and Philadelphia.

The campaign's opposition brief and its amended motion for an injunction blocking certification proposed that if the court granted its discovery requests, it would examine a sampling of ballots from the defendant counties to measure how many it thought were improperly counted, then extrapolate that to the approximately 1.5 million votes cast across those counties to determine how many votes it wanted thrown out and if they were sufficient to change the outcome.

The injunction request also added in allegations, currently winding their way through state courts, that some counties but not others counted ballots that had technical deficiencies like missing hand-written dates, addresses or names on their outer envelopes. With a ruling from a Bucks County Court of Common Pleas judge Thursday, at least 13,400 technically incomplete ballots have been approved for counting, though many are still under appeal, with the Supreme Court of Pennsylvania agreeing to weigh the issue earlier in the week.

Representatives of the campaign and Boockvar did not immediately respond to requests for comment Thursday. Attorneys for the counties declined to comment.

The Trump campaign is represented by Marc Scaringi and Brian Caffrey of Scaringi Law and Rudolph Giuliani.

Pennsylvania is represented by Daniel T. Donovan, Susan M. Davies and Michael A. Glick of Kirkland & Ellis LLP and Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP.

The counties are represented by Mark A. Aronchick, John Coit, Michele D. Hangley, John B. Hill, Christina C. Matthias and Robert A. Wiygul of Hangley Aronchick Segal & Pudlin, Molly E. Meacham and Elizabeth A. Dupuis of Babst Calland Clements & Zomnir PC, and Terence M. Grugan, Timothy D. Katsiff, Edward D. Rogers and Elizabeth Wingfield of Ballard Spahr LLP.

The case is Donald J. Trump for President Inc. et al. v. Boockvar et al., case number 4:20-cv-02078, in the U.S. District Court for the Middle District of Pennsylvania.

--Editing by Michael Watanabe.

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

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Case Information

Case Title

Donald J. Trump For President, Inc. et al v. Boockvar et al


Case Number

4:20-cv-02078

Court

Pennsylvania Middle

Nature of Suit

Civil Rights: Other

Judge

Matthew W. Brann

Date Filed

November 09, 2020

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