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Litigators of the Week: Kirkland and Myers, Brier & Kelly Protect Voter Access to Ballot Drop Boxes in Pennsylvania

Kirkland partners Daniel Donovan and Michael Glick are recognized as The AmLaw Litigation Daily's 'Litigators of the Week' for their victory for the Secretary of the Commonwealth Kathy Boockvar in litigation in state and federal court challenging steps taken by Pennsylvania election officials to encourage voter enfranchisement. The Kirkland team also included partners Susan Davies and Madelyn Morris and associates Sara Shaw Tatum, Kristen Bokhan, Jaywin Malhi, and Caroline Darmody.

Pennsylvania voters will continue to have access to ballot drop boxes for mail-in voting during this hotly contested general election season thanks in large part to the work of litigators from Kirkland & Ellis and Myers Brier & Kelly.

Led by Kirkland partners Dan Donovan and Michael Glick and MBK name partner Dan Brier, the joint team represented Secretary of the Commonwealth Kathy Boockvar in fast-moving litigation in state and federal court challenging steps taken by Pennsylvania election officials to encourage voter enfranchisement. The Trump campaign in particular took aim at the drop boxes, introduced in many Pennsylvania counties for the first time during the June 2020 primary, as a target for potential voter fraud.

But on Saturday, U.S. District Judge J. Nicholas Ranjan of the Western District of Pennsylvania, dismissed the federal case in full. Ranjan, who was appointed to the federal bench by President Trump in 2018, wrote that the campaign had provided “scant” evidence of voter fraud involving ballot drop boxes and that it’s claims of harm were “speculative.”

Saturday’s ruling came after the team had already convinced the federal court to defer to Pennsylvania courts on issues of state law and scored a key ruling from the state Supreme Court last month which found that the state Election Code allows county boards of election to collect mail-in ballots filed at locations other than their polling places.

The Litigation Daily recently asked Donovan, Glick and Brier, this week’s Litigators of the Week, about the team effort and their strategic approach to the fast-moving multi-track litigation.

Litigation Daily: Who were your clients and what was at stake?

Dan Brier of Myers Brier & Kelly: Our client was Secretary of the Commonwealth of Pennsylvania Kathy Boockvar, who is the chief elections official in Pennsylvania.

Dan Donovan of Kirkland & Ellis: The primary challenge in the case concerned the use of ballot drop boxes, through which hundreds of thousands of Pennsylvania voters are expected to return their ballots for the November election. Plaintiffs also contested certain rules regarding signatures on mail-in ballots, poll watchers, and other election processes.

Who all was part of the team and how did you divvy up the work? 

Donovan: I have had the pleasure of working with Dan Brier and his colleagues at Myers Brier & Kelly on a number of matters and knew that we would work hand in glove. MBK took the lead on a lot of the state court pleadings (which Dan’s partner, Donna Walsh, spearheaded) and Kirkland led on the federal court work (including the discovery and briefing), but we really collaborated throughout on both proceedings. On the Kirkland side, we had the benefit of leadership from Susan Davies and a team of sharp associates, including Madelyn Morris, Kristen Bokhan, Sara Shaw Tatum, Jaywin Malhi, and Caroline Darmody. In addition, we worked closely with Commonwealth counsel in the Governor’s office, the Department of State, and the Attorney General’s office. It was a true public-private collaboration.

There are a lot of moving parts in this case. Perhaps it would be helpful to lay out a quick timeline of everything that led up to Saturday’s ruling from Judge Ranjan.

Michael Glick of Kirkland & Ellis: Plaintiffs filed the federal case on June 29 and stakeholders on a range of issues quickly sought to intervene. We immediately moved to dismiss, but the court allowed expedited discovery to proceed while it resolved the motion. We were nearing the end of discovery when the federal court abstained in favor of the state court proceeding involving overlapping issues that we had successfully petitioned the Pennsylvania Supreme Court to hear on a direct basis. The plaintiffs then sought a preliminary injunction from the federal court, which we opposed and the court denied. The Pennsylvania Supreme Court eventually ruled in our favor on the drop box issue, finding that such drop boxes were permissible under the Commonwealth’s Election Code, but the plaintiffs then went back to the federal court and argued that the use of drop boxes still violated the U.S. Constitution by allegedly allowing for voter fraud/vote dilution. So we went through another round of expedited discovery (including from experts) over the course of six days leading to summary judgment briefing, which was a sprint of its own: The court requested four rounds of briefing between a Thursday and a Monday before issuing its 138-page opinion ruling across the board in favor of the Secretary. Through it all, we knew we had to remain trial-ready, as the court was contemplating a multi-day evidentiary hearing just weeks before the election if he didn’t grant summary judgment.

How did you get the federal court to defer initially to the state court on the underlying state law issues?

Brier: These were issues of first impression stemming from Pennsylvania’s very recent expansion of mail-in voting, so they were truly unsettled issues, and ripe for Pullman abstention. On top of that, Pennsylvania law has a procedure known as the “King’s Bench” petition, whereby a party can ask the Pennsylvania Supreme Court to directly resolve issues of exceptional importance. These voting and election issues fell squarely within that framework.

How did the possibility of ending back up in federal court shape how you litigated the state court case?

Donovan: As we represented the Secretary of State, our focus was always on protecting the Pennsylvania voter and the fair and free election process the Secretary oversees. We knew we needed clear and final rulings.

Brier: The state court case really involved questions of pure statutory interpretation as to what the Pennsylvania Election Code allowed or required. We knew that the state’s highest court needed to resolve what the Election Code required and then we would live to fight again back in federal court.

How did you counter the Trump campaign’s contention that these ballot drop boxes are a target for voter fraud?

Glick: It was just a matter of bringing to light, through both fact and expert discovery, the record and history of drop box usage in both Pennsylvania (from June’s primary) and across the United States. Of course, similar U.S. mailboxes have been used for years. And, the fact is that ballot drop boxes have been used for years across the country without being the subject of the types of fraud or vandalism that plaintiffs speculated about. Plaintiffs’ doomsday hypotheticals were just that—hypotheticals—which the court observed in finding they had not suffered an injury in fact, and thus lacked Article III standing.

You were litigating against the Trump campaign for a Democratic Secretary of State in Pennsylvania, a potentially key swing state. But I gather you don’t see this as a partisan cause. How is that?

Donovan: We don’t see it as a partisan issue, but rather a right-to-vote issue. The Secretary is committed to ensuring that every Pennsylvania voter has the ability to cast their vote safely this November and have that vote counted. It may sound old-fashioned, but she—and we—are pro-voting. In fact, the very bill that expanded mail-in voting in Pennsylvania was enacted on a bipartisan basis, passed by a Republican General Assembly and signed by a Democratic Governor.

Brier: It’s important to note that there were aspects of the state court case where we were adverse to the Pennsylvania Democratic Party as well—where the Democrats were asking for certain relief and the Secretary pushed back and took an adverse position based on the Election Code.

Glick: We recognize that the franchise is foundational to all other rights and feel privileged to have the opportunity to help protect it.

Will you continue to represent the Secretary of State in other litigation that might spring from this election season?

Brier: MBK has represented the Commonwealth for years and we will see what happens. I am looking forward to a smooth election process and hope that Secretary Boockvar has no need for our post-election representation.

What will you remember most about handling this matter?

Brier: I will remember the close cooperation between Commonwealth counsel and the outside counsel. There were expedited parallel lawsuits in separate jurisdictions, briefing and discovery that required a highly coordinated approach. We truly enjoyed the public-private partnership and all of the collaborative work by the teams.

Donovan: I will remember the speed, the range of issues, and engagement by all counsel and the state and federal courts. The courts accommodated the parties at all hours of the day and the weekend. I really have to thank Judge Ranjan and the Pennsylvania Supreme Court on behalf of all the counsel for their accommodations. We are obviously in unprecedented times and drop boxes are important to so many voters’ ability to exercise their right vote, who both want to make sure that their ballots get returned but also want to do so safely and without the risk of exposure to the virus, not to mention other issues in life that make it hard for many people to vote. We know that voters across Pennsylvania will take advantage of them, no matter who they are voting for.

Glick: I will also remember the lightning process—even against the reality that all voting litigation usually moves very quickly. It took tremendous teamwork and junior lawyers stepping up to take leadership roles on key tasks. The teams took depositions across the summer, the fall, in mornings and afternoons. I took one of the lead depositions in a virtual world in the middle of a family vacation. But we all knew the importance of this case and our whole team made sacrifices throughout, because we knew what was at stake.