Election Litigation in Pennsylvania in 2020

Context « Coronavirus — Voting in a Time of Coronavirus « Expand Vote by Mail? | Pennsylvania « Election Litigation

Notes on Pennsylvania Vote by Mail Litigation

(updated Nov. 29, 2020) Pennsylvania, one of the most critical battleground states, saw perhaps the most robust litigation over vote by mail of any state. The most closely contested issue was the "received-by deadline for mail-in ballots," in other words whether mail-in ballots must be received by Election Day, or if they could be postmarked by Election Day and counted a fixed number of days thereafter. Th U.S. Supreme Court divided on the matter on Oct. 19. On Oct. 28, with the full bench restored by the addition of Justice Amy Coney Barrett, the Court declined to decide the matter on an expedited basis, i.e. before the election. The Trump team raised other issues as well before Election Day. In late June 2020 the Trump campaign and four Republican congressmen from Western PA filed a lawsuit against county election boards challenging some practices including the use of mail ballot drop boxes. There were also questions over minor errors in absentee ballots such as "naked ballots" where the voter neglected to use the secrecy envelope.

The pivotal litigation was Pennsylvania Democratic Party v. Boockvar, filed on July 10 in the Commonwealth Court by Pennsylvania Democrats against the Secretary of State and county election boards. On the "received-by deadline for mail-in ballot," issue, Democrats wanted ballots postmarked by Election Day to be counted if they were received within seven days, i.e. by Nov. 10. A July 29 letter from the U.S. Postal Service general counsel to the Pennsylvania Secretary of State underscored the point; the letter stated that there is "a risk that ballots requested near the deadline under state law will not be returned by mail in time to be counted under your laws." At that point the Department of State, citing the "unmistakably clear and concrete threat" to Pennsylvanians' right to vote, asked the court to allow eligible ballots postmarked by Election Day to be counted if they are received by the third day following Election Day (i.e. Friday, Nov. 6). On Sept. 8 the Pennsylvania Supreme Court ruled that ballots received within three days of Election Day should be counted. On Sept. 28 Pennsylvania Republicans took the matter to the U.S. Supreme Court, filing emergency requests with the Court seeking to block counting of any ballots received after Election Day. On Oct. 19 the Court, short one member following the death of Justice Ginsburg, divided 4-4 and denied a stay. On Oct. 28 the Court declined to take up the case before the election because, Justice Gorsuch wrote, "there is simply not enough time at this late date to decide the question before the election." Gorsuch warned of the potential for "serious post-election problems" and stated that in his view "there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution." There remained the possibility the Court might act after the election; county election boards were instructed to segregate mail-in ballots received after 8 p.m. on Nov. 3 (+).

POST-ELECTION
On Nov. 9 the Trump campaign filed suit in the U.S. District Court for the Middle District of Pennsylvania against the Secretary of State and county election boards, initially making seven claims and seeking to block certification of results. Ultimately Trump v. Boockvar boiled down to a claim which U.S. District Judge Matthew Brann wrote "like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent." In his scathing opinion issued on Nov. 21, Brann wrote:

"In this action, the Trump Campaign and the Individual Plaintiffs (collectively, the “Plaintiffs”) seek to discard millions of votes legally cast by Pennsylvanians from all corners – from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

"That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted. Therefore, I grant Defendants’ motions and dismiss Plaintiffs’ action with prejudice."

If the Nov. 21 opinion were not clear enough, on Nov. 27 the U.S. Court of Appeals for the Third Circuit issued a similar harsh opinion:

"Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

"Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so."

In a (hopefully) final ruling; on Nov. 28 the Pennsylvania Supreme Court dismissed a lawsuit filed by U.S. Rep. Mike Kelly challenging the mail-in provisions of Act 77 and seeking to halt certification of the results.

See:
Democracy Docket: Pennsylvania

Pennsylvania Senate Majority Policy Committee. "Public Hearing on Election Issues." Nov. 25, 2020 [Wyndham Hotel, Gettysburg, PA]. C-SPAN.

Amy Howe. "Pennsylvania GOP leaders ask justices to block order on counting absentee ballots after Election Day (updated)." SCOTUSblog, Sept. 28, 2020.

Jonathan Lai and Ellie Rushing. "USPS says Pennsylvania mail ballots may not be delivered on time, and state warns of ‘overwhelming’ risk to voters." Philadelphia Inquirer, Aug. 13, 2020

___________________

Mike Kelly et al.v. Pennsylvania General Assembly et al.
- dismissed on appeal by the Pennsylvania Supreme Court on Nov. 28, 2020.

Donald J. Trump for President, Inc. et al. v. Boockvar
- opinion by U.S. Court of Appeals for the Third Circuit on Nov. 27, 2020.
- opinion by U.S. District Court Judge Brann on Nov. 21, 2020.

Pennsylvania Democratic Party v. Boockvar
- complaint filed in the Commonwealth Court of Pennsylvania on July 10, 2020.
- opinion by the Pennsylvania Supreme Court handed down on Sept. 8, 2020.
- denial of expedited consideration of petition for a writ of certiorari by the U.S. Supreme Court on Oct. 28, 2020.
- On Nov. 6, 2020 RPP seeks order from the U.S. Supreme Court requiring officials "to log, to segregate, and otherwise to take no further action related to any mail-in or civilian absentee ballots received after the General Assembly’s received-by deadline."

Disability Rights Pennsylvania v. Boockvar
- memorandum in support of the petitioners filed with the Pennsylvania Supreme Court on May 4, 2020.

Donald J. Trump for President, Inc. et al. v. Boockvar
- complaint filed in the U.S. District Court for the Western District of Pennsylvania on June 29, 2020.
- memorandum in support of motion to intervene filed July 15, 2020.
- amended complaint filed July 27, 2020.

Crossey v. Boockvar
- withdrawing preliminary objections, filed with the Pennsylvania Supreme Court on Aug. 13, 2020.

Statement from Pennsylvania Secretary of State Kathy Boockvar

Here is a statement from Pennsylvania Secretary of State Kathy Boockvar:

The Department of State and county election offices are making every effort to ensure that every eligible Pennsylvanian’s vote is counted in November. These efforts include ensuring that counties send ballots to voters early, and the Department prepaying postage so voters may return their ballots without cost or making a trip to the post office.

The Department of State continues to have great confidence in the vote by mail system, which allowed over a million and a half voters to cast ballots by mail safely and securely during the primary. The Department continues to encourage voters to apply for mail-in ballots early and make sure to return them with plenty of time to be counted.

The United States Postal Service recently informed Pennsylvania that the Postal Service’s current delivery standards may interfere with Pennsylvania’s deadlines for requesting and casting mail-in ballots. The letter made clear that the Postal Service is experiencing significant delays with mail delivery and expects this problem to continue through Election Day.

As a result, we have changed our position in the litigation, and as we have been advocating to the Legislature, we are asking the court to allow eligible ballots to be counted if they are postmarked by Election Day and received by the Friday following Election Day. Any ballots clearly postmarked after Election Day should not be counted. We asked the PA Supreme Court to extend the deadline for voters’ ballots to be received by mail, so that every eligible voter can have confidence that their vote will be cast and counted on time.

Yesterday's filing was simply an effort to make sure that voters who request ballots close to the statutory deadline of Tuesday before the election will have their ballot counted if it is mailed and postmarked by Election Day, November 3.

We encourage all Pennsylvania voters who intend to vote by mail to request their ballots soon and return them promptly. Voters who are on the permanent absentee or permanent mail-in lists will receive their ballots from their counties in advance of these deadlines.

The Department’s action is simple in its goal – to prevent the disenfranchisement of eligible Pennsylvania voters.

ACLU et al.
JULY 15, 2020

VOTERS AND CIVIL RIGHTS ORGANIZATIONS TAKE LEGAL ACTION CHALLENGING TRUMP CAMPAIGN’S VOTER SUPPRESSION EFFORTS IN PENNSYLVANIA

PITTSBURGH, Penn. — Voters are fighting back against the Trump campaign’s illegal attempt to make it difficult for Pennsylvanians to vote by mail and to have those ballots counted during the pandemic.

The American Civil Liberties Union, ACLU of Pennsylvania, Lawyers’ Committee for Civil Rights Under Law, Public Interest Law Center, and WilmerHale took legal action today on behalf of the NAACP Pennsylvania State Conference, Common Cause Pennsylvania, the League of Women Voters of Pennsylvania, and several individual voters.

They moved to intervene as defendants in a recent lawsuit brought by the Trump presidential campaign and the Republican Party. The Trump campaign lawsuit, filed June 29, is attempting, among other things, to block voters in Pennsylvania from depositing their mail ballots in drop boxes instead of mailboxes, a secure and streamlined process often used by states that conduct all-mail elections.

“The only reason the Trump campaign is trying to limit the use of mail voting is to make it more difficult for Pennsylvanians to vote. Drop boxes are a safe and efficient option for people who want to participate in our democracy, particularly in the midst of a highly contagious and deadly pandemic,” said Sarah Brannon, managing director of the ACLU’s Voting Rights Project.

The campaign is attempting to limit “Pennsylvanians’ constitutionally protected right to vote by preventing the use of ballot drop-off locations,” the filing charges. “A limit on the use of mail-in ballots would place unlawful and unwarranted restrictions on the time, place, and manner of voting in the November 3 elections.”

Further, it would “primarily affect people of color and medically vulnerable individuals, who experience disproportionately higher rates of infection, illness, and death due to the pandemic and face grave risks to their health and the health of their communities if they vote in person.”

“Our democracy works when all voters can exercise their fundamental right and cast a ballot that counts,” said Kenneth Huston, president of the NAACP Pennsylvania State Conference. “Accessing the ballot box is particularly challenging for many Pennsylvanians during the COVID-19 pandemic. Reducing access to the vote-by-mail process risks disenfranchising eligible voters. The NAACP has stood with Pennsylvania voters who seek to vote safely and will continue to do so here.”

“Election officials in some counties have tried to make it easier for people to vote in the middle of a pandemic, and the Trump campaign is cynically trying to undercut that effort,” said Reggie Shuford, executive director of the ACLU of Pennsylvania.“No matter who people want to vote for, there should be as few hurdles as possible to exercise that right.”

“The opportunity for all Pennsylvanians to vote by mail proved to be a literal lifeline in this primary. Over 1.5 million Pennsylvanians were able to cast their ballot from home, and drop boxes were a critical part of the vote-by-mail process. Voters cannot be forced to choose between their ability to vote and their health. We will continue to fight so they are never forced to make that choice and to make sure vote by mail is not turned into a partisan football,” said Suzanne Almeida, interim executive director of Common Cause Pennsylvania.

“Due to the ongoing global pandemic, voters must have reliable access to vote-by-mail options. As our leaders consider changes to the voting process in Pennsylvania, the League is asking to step in to ensure that the voices and needs of Pennsylvania voters are represented,” said Terrie Griffin, co-president of the League of Women Voters of Pennsylvania.

“We will not allow this partisan lawsuit to block Pennsylvania citizens’ access to the ballot box. Elections should be about maximizing voter participation, not about forcing voters to choose between their health and their suffrage,” said Ben Geffen, staff attorney at the Philadelphia-based Public Interest Law Center.

“At a time of a public health crisis, when every reasonable step should be taken to make voting more accessible, the Trump campaign has filed this suit to make it less accessible,” said John Powers, counsel at the Lawyers’ Committee for Civil Rights Under Law. “Voting is not a plaything for politicians. It is a fundamental right. It is the voters’ interests that are paramount. The organizations we represent in this motion to intervene will represent those interests, and only those interests, in this case.”

The case was filed in U.S. District Court, Western District of Pennsylvania.

Filing: https://www.aclu.org/legal-document/filing-penn-voting-case

CONTACT:

Inga Sarda-Sorensen, ACLU National
Andrew Hoover, ACLU of Pennsylvania
Marc Banks, NAACP
Jonathan McJunkin, Public Interest Law Center
Don Owens, Lawyers’ Committee for Civil Rights Under Law
Liz Iacobucci, Common Cause
Eileen Olmsted, League of Women Voters of Pennsylvania

Pennsylvania Democratic Party
July 2, 2020

FOUR GOP CONGRESSMEN SUING TO RESTRICT VOTE BY MAIL HAVE A HISTORY OF VOTING BY MAIL

On Monday, Western Pennsylvania’s Republican Congressmen Mike Kelly, Guy Reschenthaler, John Joyce, and Glenn Thompson joined Donald Trump in a harebrained lawsuit to suppress votes and make mail-in voting harder.

It’s well documented that—despite his lies about unproven fraud—Trump himself has voted by mail, and it turns out so have his GOP lapdogs. All four GOP Congressmen in the lawsuit voted by mail in this year’s primary!

In fact, public records show these Congressmen have a long history of mail-in voting:

Mike Kelly voted by mail in every Republican primary from 2011-2018. He also voted by mail in the 2014 and 2016 general elections.

Glenn Thompson voted by mail in the 2012, 2013, and 2016-2018 Republican primaries, and the 2008, 2013-16, and 2018 general elections.

Guy Reschenthaler voted by mail in special elections in both 2017 and 2018, the 2018 Republican primary, and the 2001, 2007, 2009 and 2018 general elections.

John Joyce voted by mail in the 2018 Republican primary.

So if these Trump stooges are so fond of mail in voting, why are they trying to stop voters across the Commonwealth from voting safely at home?

The answer is simple, and their intentions are clear. Republicans know that the more people vote, the more likely they’ll lose power.

This desperate lawsuit has far less to do with safety and security than it does with Democrats’ massive advantage in mail-in voting! Team Trump fears that millions of Pennsylvanians will reject their far-right agenda in the fall, so they want to stop those Pennsylvanians from voting.

Hypocrisy in the Pennsylvania GOP is nothing new, but taking legal action to make voting harder in a global pandemic is pretty low, even for them. Perhaps they should spend more time helping their constituents, and less time trying to subvert our democracy.

Interested in voting by mail?

Visit PADems.com/mail to request your ballot. Voting from home is safe, easy, and available to every voter.

Pennsylvania Democratic Party
June 29, 2020

PA DEMS STATEMENT ON TRUMP LAWSUIT TO SUPPRESS PENNSYLVANIA VOTERS

PENNSYLVANIA — Today, Pennsylvania Democratic Party Executive Director Sinceré Harris released the following statement on the Trump campaign and Congressmen Mike Kelly, Guy Reschenthaler, Glenn Thompson and John Joyce pushing a lawsuit to suppress the votes of Pennsylvanians in the 2020 election.

“Donald Trump and Washington Republicans are trying to suppress the voices of Pennsylvanians because they know the easier it is for everyday people to vote, the more likely it is that they will lose — Trump has said so himself. Statewide vote-by-mail was a bipartisan proposal passed by Republican majorities in Harrisburg. It’s sad but predictable that once Pennsylvania Democrats blew Republicans out of the water in vote-by-mail sign-ups — to the tune of 1.28 million to 528,000 — Trump and his enablers decided to scream and yell about it. Maybe they should spend their energy trying to match Pennsylvania Democrats’ organizing efforts in the Keystone State instead.”

On March 30, President Trump said in an interview that he opposed increasing funding for absentee and mail-in voting because it would lead to “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”

# # #

Donald J. Trump for President, Inc.
May 15, 2020

Trump campaign statement on PA Supreme Court action on election integrity

"Pennsylvania voters won a great victory today to protect election integrity. The Pennsylvania Supreme Court dismissed a left-wing challenge to the state's election rule for mail-in ballots, which sought to allow ballots to be counted days after Election Day. President Trump continues to champion what should be a non-partisan issue to protect our free and fair elections. Yet, the Democrat-led leftist efforts only continue to try to remove safeguards from elections across America. We believe the resolution in this case is a very good sign and a victory for the people of Pennsylvania to protect their important voice at the ballot box."

- Jenna Ellis, Trump 2020 Senior Legal Adviser

_________________________

ed. The case was Disability Rights Pennsylvania v. Boockvar [PDF] filed in advance of the June 2 primary. Excerpt From the petitioners' memorandum:

But the rules for voting by mail in Pennsylvania—and in particular, the deadline by which county boards of elections must receive completed absentee and mail-in ballots—were written for a pre-pandemic world. The deadline for Pennsylvania voters to apply for an absentee or mail-in ballot is just one week before election day. For the many voters who apply for a ballot on or near this deadline, a number of things need to happen in the short span of a week for these voters to have their votes counted. First, the county board of elections must process the application, review and approve it, and send the voter a ballot via the U.S. Postal Service (USPS). County election officials have testified that this manual review process has already created a “bottleneck” because counties are just “not built” to handle the unprecedented number of applications. Id. at 1. Counties “are falling behind daily,” and given the “exponential explosions of applications” expected “in the weeks leading up to” the June 2 primary, officials have warned that “we ain’t seen nothing yet.” Id. at 2. And once a county board of elections processes and approves a voter’s application, USPS must deliver the ballot to the voter, and USPS is experiencing its own delays due to the pandemic.

As a result of these delays, tens or even hundreds of thousands of Pennsylvanians who timely request an absentee or mail-in ballot will receive the ballot only days (or less) before the June 2 primary. At that point, the voter cannot be sure that if she mails the ballot it will be received by the board of elections by election day. These voters will then face a choice: either mail the absentee or mail-in ballot and risk that it will arrive too late and will not be counted, or vote in person and risk their lives and the lives of their families and neighbors.