By Matthew Santoni

Law360 (September 9, 2020, 11:02 AM EDT) -- President Donald Trump's reelection campaign won't get an injunction that would set aside any ballots cast via drop boxes in Pennsylvania, since the state supreme court could resolve the question of their legality before voting begins, a Pittsburgh federal judge ruled late Tuesday.

U.S. District Judge J. Nicholas Ranjan denied the motion to modify his earlier stay on the campaign's federal case while the state courts weigh the same issues, reasoning it was too early to judge the campaign's concerns about mixing mailed-in ballots with drop-box ballots.

"While these concerns are valid, they're also premature. The Pennsylvania Supreme Court appears to be on track to decide this, and other questions of importance to the voters and candidates in this commonwealth, in short order. And that court still has sufficient time to reach these issues before any ballots are cast, collected, or canvassed," Judge Ranjan wrote.

Pennsylvania is allowing counties to use drop boxes to make it easier to return absentee and mail-in ballots amid the COVID-19 pandemic and delays in the U.S. Postal Service; the Trump campaign and Pennsylvania Democrats filed competing lawsuits in federal and state court seeking a determination of whether such drop boxes are allowed under the state election code.

Judge Ranjan paused the federal suit Aug. 23, giving the state courts the first chance to interpret state election law. The Supreme Court of Pennsylvania agreed to take up the case Sept. 1, skipping a ruling from the intermediate Commonwealth Court.

Arguing that drop boxes and ballots could be deployed before the state courts reach a decision, the Trump campaign asked Judge Ranjan to modify his stay on the case and order that any ballots cast via a drop box, or lacking an internal privacy or security envelope, be set aside and not counted until after the justices issue a ruling.

But Judge Ranjan said there was no imminent harm that would compel him to grant an injunction that would preemptively challenge every ballot cast by drop box and preclude them from being counted in the initial canvassing.

"At least at the current stage of proceedings and on the record presently before this court, plaintiffs have not established that they are entitled to the 'extraordinary remedy' of a preliminary injunction," Judge Ranjan wrote. "Plaintiffs have not shown that the harm they fear is 'likely,' or that an injunction is the 'only' way to prevent it, because the Pennsylvania Supreme Court is poised to resolve plaintiffs' claims on state-law grounds in short order, before such harm occurs."

The guidance sent out by Secretary of the Commonwealth Kathy Boockvar, the state's top election official and defendant in the state and federal cases, indicated that returned ballots would be kept in secure transfer boxes and would have forms indicating when and where they were picked up. That meant they could still be traced back to their collection points before they're precanvassed, which would potentially prevent the irreversible commingling the campaign feared, the judge's opinion noted.

Likewise, since precanvassing the ballots can't begin until Election Day under the current rules, the campaign's fears of mixing in the "naked" ballots without privacy envelopes could also be resolved by the state court before they came to pass, he said.

Other guidance Boockvar issued clarified that only voters with a disability can have a third party submit a ballot on their behalf, mooting the campaign's concerns that some counties could allow it.

"It appears that state law will afford plaintiffs full protection from the 'harm' of counties accepting in-person delivery of mail-in or absentee ballots by individuals other than the voter. Plaintiffs have not presented evidence that any Pennsylvania county is 'likely' to disobey the unambiguous election code or the secretary's clarifying guidance forbidding third-party delivery," the opinion said. "And without such evidence, the mere possibility that individual county officials might disobey unambiguous state election code requirements does not rise to the level of federal constitutional concern."

The campaign had also requested that the counties retain any video surveillance footage from security cameras set up around drop boxes, which Boockvar's latest guidance included among the security features required of all ballot collection sites. Judge Ranjan said the state's guidance and the rules of evidence preservation in the various election lawsuits would assure the footage's preservation without requiring an additional order from him. He said the campaign's request to do a "periodic review" would create a significant burden on the counties overseeing their elections.

"While video footage could, in theory, provide some 'color' evidence to support plaintiffs' allegations with respect to the perils of using drop boxes, that really is ancillary to the legal question of whether drop boxes are authorized by the election code," Judge Ranjan wrote in a footnote.

However, the judge left the door open for the campaign to refile its motion if the state justices drag their feet.

"To be clear, the court's analysis here is predicated on the Pennsylvania Supreme Court deciding these issues in a timely and expeditious manner, and the fact that sufficient time remains before plaintiffs' commingling concerns materialize," the opinion said. "Plaintiffs' concern that the Pennsylvania Supreme Court may not timely act are well-taken, and thus there could be a point in the run-up to the election where plaintiffs' assertions of irreparable harm become likely and imminent enough to warrant some type of injunctive relief — provided, of course, that the other elements required to obtain preliminary injunctive relief are satisfied."

Counsel for the state declined to comment Wednesday. Representatives of the Trump campaign 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 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 Marygrace Murphy.

Update: This story has been updated with additional information.

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