A Pennsylvania federal judge has halted President Donald Trump's challenge to the state's use of drop boxes for collecting mail-in votes, ruling that state courts should have the first chance to interpret the newly implemented election law.
U.S. District Judge J. Nicholas Ranjan put a temporary hold Sunday on the lawsuit, brought by the president's reelection campaign and the Republican National Committee, so that Pennsylvania's Commonwealth Court or the Supreme Court of Pennsylvania could weigh if the way some counties collected and tabulated mail-in ballots in the state's recent primary was allowed under state election laws that were amended in October.
The campaign is asking for a declaratory judgment that the way mail-in ballots were collected and tabulated in the primary was illegal and that it shouldn't be done the same way for the general election in November.
"The court will apply the brakes to this lawsuit, and allow the Pennsylvania state courts to weigh in and interpret the state statutes that undergird plaintiffs' federal constitutional claims," the judge wrote. "With a national election less than three months away, several parallel proceedings pending in state court, and all this unfolding amid an unprecedented pandemic that has paralyzed much of the world, this court cannot afford to issue a decision that could be rendered advisory, unnecessary, or erroneous if the Pennsylvania courts adopt a different interpretation of ambiguous state law."
A parallel case, in which Pennsylvania Democrats asked the Commonwealth Court to affirm the same practices Republicans are challenging in the federal suit, is awaiting a potential skip straight to the state Supreme Court after Secretary of the Commonwealth Kathy Boockvar asked the justices to expedite a decision before the November election.
The Trump campaign's suit, filed in late June, claimed some counties' use of drop boxes and mobile collection drives to gather absentee and mail-in ballots during the primary election had violated the Constitution by treating voters unequally and "diluting votes" by allegedly inviting fraud. The suit also challenged how some mailed-in ballots were counted even if they lacked a "privacy envelope," along with state requirements that poll watchers live in the county where they monitor elections.
In October 2019, Pennsylvania enacted Act 77, which expanded absentee voting to anyone who asked for a mail-in ballot instead of just those who would not be in their districts on election day. With the COVID-19 pandemic, about 20 counties responded to a surge in mail-in ballot requests by allowing votes to be submitted at drop boxes in public places.
The campaign's lawsuit said the drop boxes violated state law requirements that ballots be submitted to county boards of election, which the campaign interpreted as meaning mailed or returned in-person directly to board offices.
For a federal court to abstain under the doctrine the U.S. Supreme Court set in 1941's Railroad Commission of Texas v. Pullman Co. , the case must turn on unsettled questions of state law, a state-court ruling should narrow or moot the federal-court issues, and there must be a risk that an erroneous federal court ruling could disrupt state policies.
Judge Ranjan said that no state courts had ever weighed in on whether ballots must be returned to the election boards' offices or to other locations the board designates, whether those locations must be publicized and monitored like in-person polling places, or whether the counties should count the so-called naked ballots submitted without privacy envelopes.
Though the Republicans had argued the state law was clear, Judge Ranjan said Boockvar and other intervenors had proposed feasible alternative interpretations that the state courts should settle. For example, the sides differ over whether "naked ballots" should be disqualified the same way as provisional ballots that are cast without their privacy envelope, or whether the court should read into the state legislature's use of specific language to bar naked provisional ballots but not explicitly doing the same for absentee or mail-in ballots.
The Supreme Court of Pennsylvania has not yet ruled on whether it would use its "King's Bench" powers to assume control of the state-court lawsuit as of Monday morning.
In response to the campaign's claims that drop boxes could lead to fraud, Judge Ranjan had granted the intervenors' request that the campaign produce any proof it had that fraud had taken place during the primaries. The campaign's response mostly pointed to news reports of cases from prior elections and did not include any fraudulent ballots cast in the primary, but said the problem was the potential for it to occur.
"The president's fight against the problems of Pennsylvania's radical new vote-by-mail system has been running on parallel tracks in state and federal court for some time. The judge's stay today is simply a recognition that the multitude of issues surrounding Pennsylvania's dangerous voting system — including ballot harvesting and double voting — touch both federal and state constitutional issues," said Trump deputy campaign manager Justin Clark in a statement.
A representative for Boockvar said the secretary was pleased the court paused the federal case so the state courts could rule first, as requested in her petition to the state Supreme Court.
"Secretary Boockvar looks forward to a definitive ruling by the state court on these important provisions of the Election Code. The provisions were passed on a bipartisan basis and signed by Governor [Tom] Wolf to modernize Pennsylvania's election system and permit every eligible Pennsylvania voter to exercise their constitutional right to vote," the representative said in a statement.
Counsel for the Democrats did not immediately respond to requests for comment Monday.
"The federal court understood that the Trump campaign is really asking for interpretations of state law that are best left to state court. At its heart, the Trump campaign's lawsuit is an attempt to make it more difficult for people in Pennsylvania to vote safely during the pandemic," said Witold Walczak, legal director of the ACLU of Pennsylvania, representing intervenors NAACP, Common Cause Pennsylvania and the League of Women Voters.
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, 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 House 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 Pennsylvania Democratic Party is represented by A. Michael Pratt, Kevin M. Greenberg, Adam R. Roseman and George Farrell of Greenberg Traurig LLP, Clifford B. Levine and Alex Lacey of Dentons and Lazar M. Palnick.
The NAACP, Common Cause and League of Women Voters are represented by Adriel I. Cepeda Derieux, Dale Ho, Sarah E. Brannon, Sophia Lin Lakin and Witold J. Walczak of the ACLU, and Eleanor Davis, Jared V. Grubow, Jason H. Liss, Lori A. Martin, Christopher R. Noyes, Samantha Picans and David P. Yin of WilmerHale.
The cases are 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, and Pennsylvania Democratic Party et al. v. Boockvar et al., case number 133 MM 2020, in the Supreme Court of Pennsylvania.
Read more at: https://www.law360.com/articles/1303689/fed-court-halts-trump-s-pa-ballot-suit-for-state-court-ruling?copied=1