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Pennsylvania federal judge: No ground to disenfranchise almost seven million voters






Read the except of the judgement as follows:

Trump plays golf at Trump National Golf Club in Sterling, Varginia. AP


Plaintiffs, v.
KATHY BOOCKVAR, et al., Defendants.
No. 4:20-CV-02078 (Judge Brann)


Pending before this Court are various motions to dismiss Plaintiffs’ First Amended Complaint. Plaintiffs in this matter are Donald J. Trump for President, Inc. (the “Trump Campaign”), and two voters, John Henry and Lawrence Roberts (the “Individual Plaintiffs”). Defendants, who filed these motions to dismiss, include seven Pennsylvania counties (the “Defendant Counties”), as well as Secretary of the Commonwealth Kathy Boockvar.

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.

A. Legal and Factual Background

The power to regulate and administer federal elections arises from the Constitution. “Because any state authority to regulate election to those offices could not precede their very creation by the Constitution, such power ‘had to be delegated to, rather than reserved to by, the States.’” Consequently, the Elections Clause “delegated to the States the power to regulate the ‘Times, Places, and Manner of holding Elections for Senators and Representatives,’ subject to a grant of authority to Congress to ‘make or alter such Regulations.’”Accordingly, States’ power to “regulate the incidents of such elections, including balloting” is limited to “the exclusive delegation of power under the Elections Clause.”

Pennsylvania regulates the “times, places, and manner” of its elections through the Pennsylvania Election Code. The Commonwealth’s Constitution mandates that “[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Recognizing this as a foundational principle, the Pennsylvania Supreme Court has declared that the purpose of the Election Code is to promote “freedom of choice, a fair election and an honest election return.”

In October 2019, the General Assembly of Pennsylvania enacted Act 77, which, “for the first time in Pennsylvania,” extended the opportunity for all registered voters to vote by mail. Following the beginning of the COVID-19 outbreak in March 2020, the General Assembly enacted laws regulating the mail-in voting system. Section 3150.16 of the Election Code sets forth procedural requirements that voters must follow in order for their ballot to be counted.

These procedures require, for example, that voters mark their ballots in pen or pencil, place them in secrecy envelopes, and that ballots be received by the county elections board on or before 8:00 P.M. on Election Day.

Nowhere in the Election Code is any reference to “curing” ballots, or the related practice of “notice-and-cure.” This practice involves notifying mail-in voters who submitted procedurally defective mail-in ballots of these deficiencies and allowing those voters to cure their ballots. Notified voters can cure their ballots and have their vote counted by requesting and submitting a provisional ballot.

Recently, the Supreme Court of Pennsylvania in Democratic Party of Pennsylvania v. Boockvar addressed whether counties are required to adopt a notice-and-cure policy under the Election Code.16 Holding that they are not, the court declined to explicitly answer whether such a policy is necessarily forbidden.

Following this decision, Secretary Boockvar sent an email on November 2, 2020 encouraging counties to “provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected” so those ballots could be cured. From the face of the complaint, it is unclear which counties were sent this email, which counties received this email, or which counties ultimately followed Secretary Boockvar’s guidance.

Some counties chose to implement a notice-and-cure procedure while others did not. Importantly, however, Plaintiffs allege only that Philadelphia County implemented such a policy. In contrast, Plaintiffs also claim that Lancaster and York Counties (as well as others) did not adopt any cure procedures and thus rejected all ballots cast with procedural deficiencies instead of issuing these voters provisional ballots.

Both Individual Plaintiffs had their ballots cancelled in the 2020 Presidential Election. John Henry submitted his mail-in ballot to Lancaster County; however, it was cancelled on November 6, 2020 because he failed to place his ballot in the required secrecy envelope. Similarly, after submitting his ballot to Fayette County, Lawrence Roberts discovered on November 9, 2020 that his ballot had been cancelled for an unknown reason. Neither was given an opportunity to cure his ballot.

B. The 2020 Election Results

In large part due to the coronavirus pandemic still plaguing our nation, the rate of mail-in voting in 2020 was expected to increase dramatically. As anticipated, millions more voted by mail this year than in past elections. For weeks before Election Day, ballots were cast and collected. Then, on November 3, 2020, millions more across Pennsylvania and the country descended upon their local voting precincts and cast ballots for their preferred candidates. When the votes were counted, the Democratic Party’s candidate for President, Joseph R. Biden Jr., and his running-mate, Kamala D. Harris, were determined to have received more votes than the incumbent ticket, President Donald J. Trump and Vice President Michael R. Pence. As of the day of this Memorandum Opinion, the Biden/Harris ticket had received 3,454,444 votes, and the Trump/Pence ticket had received 3,373,488 votes, giving the Biden ticket a lead of more than 80,000 votes, per the Pennsylvania state elections return website.26 These results will become official when counties certify their results to Secretary Boockvar on November 23, 2020 – the result Plaintiffs seek to enjoin with this lawsuit.

(Part of the legal analysis not includeded in this summary. You may find it here.)

B. Equal Protection
Even if Plaintiffs had standing, they fail to state an equal-protection claim. The Equal Protection Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The principle of equal protection is fundamental to our legal system because, at its core, it protects the People from arbitrary discrimination at the hands of the State.

But, contrary to Plaintiffs’ assertions, not all “unequal treatment” requires Court intervention. The Equal Protection Clause “does not forbid classifications.” It simply keeps governmental decisionmakers from treating similarly situated persons differently. The government could not function if complete equality were required in all situations. Consequently, a classification resulting in “some inequality” will be upheld unless it is based on an inherently suspect characteristic or “jeopardizes the exercise of a fundamental right.”

One such fundamental right, at issue in this case, is the right to vote. Voting is one of the foundational building blocks of our democratic society, and that the Constitution firmly protects this right is “indelibly clear.” All citizens of the United States have a constitutionally protected right to vote. And all citizens have a constitutionally protected right to have their votes counted.

With these background principles firmly rooted, the Court turns to the merits of Plaintiffs’ equal-protection claims. The general gist of their claims is that Secretary Boockvar, by failing to prohibit counties from implementing a notice- and-cure policy, and Defendant Counties, by adopting such a policy, have created a “standardless” system and thus unconstitutionally discriminated against Individual Plaintiffs. Though Plaintiffs do not articulate why, they also assert that this has unconstitutionally discriminated against the Trump Campaign.

As discussed above, the Court will address Individual Plaintiffs’ and the Trump Campaign’s claims separately. Because Individual Plaintiffs premised standing on the purported wrongful cancellation of their votes, the Court will only analyze whether Defendants have impermissibly burdened Individual Plaintiffs’ ability to vote. Further, the Court will consider two issues raised by the Trump Campaign; the first being whether it has stated a valid claim alleging discrimination relating to its use of poll-watchers, and the second being whether the General Assembly’s failure to uniformly prohibit (or permit) the notice-and- cure procedure is unconstitutional.

1. Individual Plaintiffs

States have “broad authority to regulate the conduct of elections, including federal ones.” “This authority includes ‘broad powers to determine the conditions under which the right of suffrage may be exercised.’” Because states must have freedom to regulate elections if “some sort of order, rather than chaos, is to accompany the democratic processes,” such regulation is generally insulated from the stringent requirements of strict scrutiny.

Instead, state regulation that burdens voting rights is normally subject to the Anderson-Burdick balancing test, which requires that a court “weigh the asserted injury to the right to vote against the ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’” Under this test, “any ‘law respecting the right to vote – whether it governs voter qualifications, candidate selection, or the voting process,’ is subjected to ‘a deferential “important regulatory interests” standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote.’”

The Anderson-Burdick balancing test operates on a sliding scale. Thus, more restrictive laws are subject to greater scrutiny. Conversely, “minimally burdensome and nondiscriminatory” regulations are subject to “a level of scrutiny ‘closer to rational basis.’” “And where the state imposes no burden on the ‘right to vote’ at all, true rational basis review applies.”

Here, because Defendants’ conduct “imposes no burden” on Individual Plaintiffs’ right to vote, their equal-protection claim is subject to rational basis review. Defendant Counties, by implementing a notice-and-cure procedure, have in fact lifted a burden on the right to vote, even if only for those who live in those counties. Expanding the right to vote for some residents of a state does not burden the rights of others. And Plaintiffs’ claim cannot stand to the extent that it complains that “the state is not imposing a restriction on someone else’s right to vote.” Accordingly, Defendant Counties’ use of the notice-and-cure procedure (as well as Secretary Boockvar’s authorization of this procedure) will be upheld unless it has no rational basis.

Individual Plaintiffs’ claims fail because it is perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots. Though states may not discriminatorily sanction procedures that are likely to burden some persons’ right to vote more than others, they need not expand the right to vote in perfect uniformity. All Plaintiffs have alleged is that Secretary Boockvar allowed counties to choose whether or not they wished to use the notice-and-cure procedure. No county was forced to adopt notice-and-cure; each county made a choice to do so, or not. Because it is not irrational or arbitrary for a state to allow counties to expand the right to vote if they so choose, Individual Plaintiffs fail to state an equal-protection claim.
Moreover, even if they could state a valid claim, the Court could not grant Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the relationship between right and remedy. Though every injury must have its proper redress, a court may not prescribe a remedy unhinged from the underlying right being asserted. By seeking injunctive relief preventing certification of the Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race. This is simply not how the Constitution works.

When remedying an equal-protection violation, a court may either “level up” or “level down.” This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right, or a court may level down by withdrawing the benefit from those who currently possess it. Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up. In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution. Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed.

Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution. “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.” “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”

Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief.

2. Trump Campaign
Plaintiffs’ brief in opposition to the motions to dismiss spends only one paragraph discussing the merits of its equal-protection claim. Plaintiffs raise two arguments as to how equal protection was violated. The first is that “Defendants excluded Republican/Trump observers from the canvass so that they would not observe election law violations.” The second claims that the “use of notice/cure procedures violated equal protection because it was deliberately done in counties where defendants knew that mail ballots would favor Biden/Democrats.” The former finds no support in the operative pleading, and neither states an equal- protection violation.

Count I of the FAC makes no mention of disparity in treatment of observers based on which campaign they represented. Instead, Count I discusses the use of “standardless” procedures. These are two separate theories of an equal protection violation. That deficiency aside, to the extent this new theory is even pled, Plaintiffs fail to plausibly plead that there was “uneven treatment” of Trump and Biden watchers and representatives. Paragraphs 132-143 of the FAC are devoted to this alleged disparity. None of these paragraphs support Plaintiffs’ argument. A selection below:

 “Defendants have not allowed watchers and representatives to be present . . .”129

 “In Centre County, the central pre-canvassing location was a large ballroom. The set-upwas such that the poll watchers did not have meaningful access to observe the canvassing and tabulation process of mail-in and absentee ballots, and in fact, the poll watchers and observers who were present could not actually observe the ballots such that they could confirm or object to the validity of the ballots.”

 “In Philadelphia County, poll watchers and canvass representatives were denied access altogether in some instances.”

 “In Delaware County, observers were denied access to a back room counting area . . .”
None of these allegations (or the others in this section) claim that the Trump Campaign’s watchers were treated differently than the Biden campaign’s watchers. Simply alleging that poll watchers did not have access or were denied access to some areas does not plausibly plead unequal treatment. Without actually alleging that one group was treated differently than another, Plaintiffs’ first argument falls flat.

Likewise, Plaintiffs cannot salvage their notice-and-cure theory by invoking Bush v. Gore. Plaintiffs claim that the Equal Protection clause “imposes a ‘minimum requirement for nonarbitrary treatment of voters’ and forbids voting systems and practices that distribute resources in ‘standardless’ fashion, without ‘specific rules designed to ensure uniform treatment.’” Plaintiffs attempt to craft a legal theory from Bush, but they fail because: (1) they misapprehend the issues at play in that case; and (2) the facts of this case are distinguishable.

Plaintiffs’ interpretation of Bush v. Gore would broaden the application of that case far beyond what the Supreme Court of the United States endorsed. In Bush, the Supreme Court stopped a recount of votes in Florida in the aftermath of the 2000 Presidential Election. Despite Plaintiffs’ assertions, Bush does not stand for the proposition that every rule or system must ensure uniform treatment. In fact, the Supreme Court explicitly said so, explaining: “[t]he question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” Instead, the Court explained that its holding concerned a “situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.”Where a state court has ordered such a remedy, the Supreme Court held that “there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” In other words, the lack of guidance from a court constituted an equal-protection violation.

In the instant matter, Plaintiffs are not challenging any court action as a violation of equal protection, and they do not allege that Secretary Boockvar’s guidance differed from county to county, or that Secretary Boockvar told some counties to cure ballots and others not to. That some counties may have chosen to implement the guidance (or not), or to implement it differently, does not constitute an equal-protection violation. “[M]any courts that have recognized that counties may, consistent with equal protection, employ entirely different election procedures and voting systems within a single state.” “Arguable differences in how elections boards apply uniform statewide standards to the innumerable permutations of ballot irregularities, although perhaps unfortunate, are to be expected, just as judges in sentencing-guidelines cases apply uniform standards with arguably different results.” Requiring that every single county administer elections in exactly the same way would impose untenable burdens on counties, whether because of population, resources, or a myriad of other reasonable considerations.

Defendants’ motions to dismiss the First Amended Complaint are granted with prejudice. Leave to amend is denied. “Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” Given that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims; and (3) the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020, amendment would unduly delay resolution of the issues. This is especially true because the Court would need to implement a new briefing schedule, conduct a second oral argument, and then decide the issues.

An appropriate Order follows.
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge