Court filing
Memorandum in Support of Motion for TRO — PA Voters Alliance v. Centre County (M.D. Pa.)
Filed September 28, 2020 in Pennsylvania Voters Alliance v. Centre County; one of 21 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of Pennsylvania |
|---|---|
| Filed | 2020-09-28 |
U.S. District Court for the Middle District of Pennsylvania · No. 4:20-cv-01761-MWB · Doc. 5 · 2020-09-28 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Pennsylvania Voters Alliance, Stephanie
Borowicz, Kristine Eng, Theodore A.
Dannerth, Eric Kroner, Eric Nelson, Daryl
Metcalfe, Dawn Wetzel Keefer, Russ
Diamond, Chris Dush, Jim Gregory, Francis
Ryan, Michael Harvey, David Torres, Dasha
Pruett,
Plaintiffs,
vs.
Centre County, Delaware County, and the
City of Philadelphia,
Defendant.
Civil Action No.:
4:20−CV−01761−MWB
Hon. Matthew W. Brann
Memorandum in Support of Plaintiffs’
Motion for a Temporary Restraining
Order
TABLE OF CONTENTS
Table of Authorities ........................................................................................................................... iii
Statement of Facts ............................................................................................................................... 1
The Defendant sought and obtained private federal election grant moneys
to conduct federal elections. .......................................................................................................... 1
I.
CTCL’s 2020 private federal elections grant application process. ..............................2
II. CTCL’s 2020 private federal election grants have gone to local
governments with demographics showing progressive voting
patterns............................................................................................................................2
Argument .............................................................................................................................................. 7
Plaintiffs are entitled to a temporary restraining order. ................................................................. 7
The Plaintiffs satisfy the factors for a temporary restraining order. ........................................ 7
I.
The Plaintiffs are likely to succeed on the merits. ...............................................................7
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 1 of 26
ii
A. The acceptance of private moneys to conduct federal elections lends to
the prospect of undue influence on a core public government
responsibility funded through federal and state appropriations. .....................................7
B. The PVA has a private cause of action and legal standing. .............................................9
1. The Supremacy Clause provides a citizen’s private cause of action
and legal standing to bring preemption lawsuits against local
governments regarding federal elections. ....................................................................9
2. HAVA, 52 U.S.C. § 21112, confers a private cause of action and
legal standing to bring preemption lawsuits against local
governments with regard to federal elections. ..........................................................10
3. The government favoring progressive demographic groups in
elections causes injury to Plaintiffs who favor non-progressive
candidates. ...................................................................................................................11
C. The Cities’ CTCL private federal election grants are within a subject
area, federal elections, where public-private partnerships are
constitutionally impermissible..........................................................................................12
D. The Counties’ and City’s acceptance of CTCL’s $14 million in grants is
preempted by federal law. ................................................................................................14
1. U.S. Constitution’s Elections Clause and Supremacy Clause
preempt CTCL’s private federal election grants to local
governments. ...............................................................................................................15
2. Help America Vote Act (HAVA) preempts CTCL’s private federal
election grants to local governments. ........................................................................16
3. The National Voters Registration Act (NVRA) preempts CTCL’s
private federal election grants to local governments. ...............................................17
II.
The moving party will suffer irreparable injury absent the injunction. ............................18
III. The harm to other interested parties is little or none if the relief is
granted. .................................................................................................................................20
IV. The public interest is aided by the preliminary injunction. ...............................................21
Conclusion .......................................................................................................................................... 22
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iii
TABLE OF AUTHORITIES
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) ....................................................................................... 8
Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687
(1994) .............................................................................................................................................. 13
Christian Legal Soc'y v. Walker, 453 F.3d 853 (7th Cir. 2006) ......................................................... 20
Citizens for Resp. and Ethics in Washington v. Fed. Election Commn., 316 F. Supp. 3d
349 (D.D.C. 2018) ........................................................................................................................... 8
Citizens United v. Fed. Election Commn., 558 U.S. 310 (2010) ............................................................ 8
Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................. 19
Ferguson v. City of Charleston, 532 U.S. 67 (U.S. 2001) ..................................................................... 13
Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205 (3d Cir. 2014) ......................................... 7
In re Nomination Papers of Carlson, 60 Pa.Cmwlth. 170, 430 A.2d 1210 (1981) ............................ 14
Issa v. School District of Lancaster, 847 F.3d 121 (3d Cir. 2017) ......................................................... 7
League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224 (4th Cir.
2014) ................................................................................................................................................ 20
League of Women Voters v. Blackwell, 340 F.Supp.2d 823 (N.D. Ohio 2004) .................................. 9
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ................................................................. 19
Pennsylvania Democratic Party v. Boockvar, 2020 WL 5554644 ............................................................ 8
Phelps–Roper v. Nixon, 545 F.3d 685 (8th Cir.2008) ....................................................................... 21
Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) .......................................................................... 19
Purcell v. Gonzalez, 549 U.S. 1 (2006) ................................................................................................. 8
Reynolds v. Sims, 377 U.S. 533 (1964) ............................................................................................... 18
Shields v. Zuccarini, 254 F.3d 476 (3d Cir.2001) .................................................................... 7, 20, 21
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) .............................................................. 15
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .................................................................. 15
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 3 of 26
iv
U.S. v. Berks County, Pennsylvania, 277 F.Supp.2d 570 (E.D.Pa. 2003) ......................................... 18
Washington Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash. 2006) ......................... 14
Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986) ............................................................................. 19
Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784 (Del Ch. 2015) ............................ 11, 12, 19, 21
Statutes
25 P.S. § 3046.2 .................................................................................................................................. 11
52 U.S.C. § 21082 .............................................................................................................................. 18
52 U.S.C. § 21083 .............................................................................................................................. 18
52 U.S.C. § 21084 .............................................................................................................................. 18
52 U.S.C. § 21085 .............................................................................................................................. 18
52 U.S.C. § 21112 .............................................................................................................................. 10
52 U.S.C. § 21141 .............................................................................................................................. 18
Other Authorities
2020 CARES Act Grant ..................................................................................................................... 3
Center for Tech and Civic Live” Democratic election operatives masquerading as concerned
voters’ group, critic says, W.J. Kennedy, Legal Newsline (Aug. 24, 2020) ..................................... 1
Help America Vote Act ................................................................................................................ 3, 16
National Voters Registration Act (NVRA), 52 U.S.C. §§ 20501–20511 ............................. 17, 18
Constitutional Provisions
U.S. Const., Art. I .......................................................................................................................... 7, 15
U.S. Const. Art. II ............................................................................................................................... 8
U.S. Const. Art. VI ........................................................................................................................ 9, 15
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 4 of 26
1
The Plaintiffs, based on federal preemption, seek a temporary restraining order
against the Defendants using private federal election grants.
Statement of Facts
The Defendant sought and obtained private federal election grant moneys to
conduct federal elections.
The Defendants sought and received grants from Center of Tech and Civic Life
totaling over $14,000,000:
Centre County -- $863,828
Delaware County -- $2,200,000
Philadelphia -- $10,016,074
CTCL is a Chicago based non-profit organization1 that received $250 million from
Mark Zuckerberg (creator of Facebook) and his wife Dr. Priscilla Chan2 to provide funding
for city and county election officials to perform election operations. CTCL’s mission, in part,
includes the training of public election officials in communication and technology and to
inform and mobilize voters.3
Notably, CTCL can be characterized as a progressive organization.4 While the
organization seeks to “foster a more informed and engaged democracy, and help[ ]
modernize elections” with its team of “civic technologists, trainers, researchers, election
administration and data experts,” it is using millions of dollars to target certain cities in
1 Kaardal Decl. Ex. A-3.
2 Id. Ex. B-2.
3 Id. Ex. A-4–5.
4 A critic of CTCL identified it as a “bunch of Democratic operatives using donations from
left-of-center groups…” Center for Tech and Civic Live” Democratic election operatives masquerading as
concerned voters’ group, critic says, W.J. Kennedy, Legal Newsline (Aug. 24, 2020) Kaardal Ex. D.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 5 of 26
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certain states, which have significant progressive voting patterns, with private federal election
grants for what is normally core government responsibilities—conducting federal
elections—funded normally with federal and state moneys.
I.
CTCL’s 2020 private federal elections grant application process.
On its website, CTCL markets to election offices the federal election grants as
“COVID-19 response grants”:
We provide funding to U.S. local election offices to help ensure they have the
critical resources they need to safely serve every voter in 2020.
CTCL stated that it intends to award $250 million of private federal election grants to local
election offices for the November 3, 2020 elections. Any U.S. election office that is
responsible for administering election activities may apply for a private grant through a
minimal grant application process.5 Minimum grants are $5,000, but the actual amount
awarded is “based on a formula that considers the citizen voting age population and other
demographic data of [the] jurisdiction.”6 Further, combined local government applications
are encouraged for those who share election responsibilities.7
II.
CTCL’s 2020 private federal election grants have gone to local governments
with demographics showing progressive voting patterns.
The voting patterns of the local governments that CTCL have funded are
overwhelmingly progressive. For example, Wayne County, Michigan, voted in 2016 for
Hilary Clinton at 94.95% rate. As the chart below shows, CTCL’s private federal election
grants are targeting cities with demographics showing high rates of progressive voters.
5 Kaardal Decl. Ex. A-5.
6 Id. A-5.
7 Id. A-6.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 6 of 26
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Jurisdiction/City
Grant
Amount
(in
dollars)
Trump
2016
Clinton
2016
Clinton
Percentage
Green Bay City, WI
1,093,400
19,821
21,291
51.78%
Kenosha City, WI
862,779
15,829
22,849
58.98%
Madison City, WI
1,271,788
23,053
120,078
83.89%
Milwaukee City, WI
2,154,500
45,167
188,653
80.68%
Racine City, WI
942,100
8,934
19,029
68.05%
Philadelphia City, PA 10,016,074
108,748
584,025
84.30%
Wayne County, MI-
Detroit
3,512,000
7,682
234,871
94.95%
Flint City, MI
475,625
4,572
24,790
84.42%
East Lansing, MI
8,500
4,147
13,073
75.9%
Lansing, MI
440,000
11,219
32,716
74.46%
Minneapolis
City,
MN
3,000,000
25,693
174.585
87.17%
Fulton County, GA –
Atlanta
6,000,000
110,372
281,875
69.2%
Richland County, SC
730,000
52,469
108,000
67.2%
Delaware County, PA 2,200,000
110,667
177,402
61.58%
Centre County, PA
863,828
35,274
37,088
50.93%
Meanwhile, Pennsylvania received $14,223,603 for appropriations to support
programs under the Help America Vote Act.8 The state matching contribution of
$2,844,721 brought the total to about $17.1 million.9 Another $15,175,567 in federal moneys
was distributed to Pennsylvania under the 2020 CARES Act Grant.10 The state match was
$3,035,114—bringing the total to about $18.2 million.11 So, the total federal and state grants
in Pennsylvania for federal election purposes totaled $35.3 million. The Secretary of the
Commonwealth allocated the federal grants to the counties.12
8 Kaardal Decl. Ex. F-3
9 Id.
10 Kaardal Decl. Ex. G-2.
11 Id.
12 Kaardal Decl. Ex. H.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 7 of 26
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2020 Commonwealth Disbursements of Federal Election Grants to Counties
County
Election Security Grants CARES Act Grants
ADAMS
$55,122.67
$47,235.33
ALLEGHENY
$731,548.78
$626,873.59
ARMSTRONG
$34,271.10
$29,367.35
BEAVER
$89,967.99
$77,094.73
BEDFORD
$26,205.97
$22,456.23
BERKS
$208,993.37
$179,089.12
BLAIR
$61,374.38
$52,592.50
BRADFORD
$29,515.46
$25,292.17
BUCKS
$375,012.49
$321,353.04
BUTLER
$105,268.03
$90,205.53
CAMBRIA
$67,654.72
$57,974.20
CAMERON
$3,750.00
$3,750.00
CARBON
$36,064.90
$30,904.48
CENTRE
$89,411.77
$76,618.10
CHESTER
$291,921.95
$250,151.69
CLARION
$18,900.72
$16,196.27
CLEARFIELD
$37,823.53
$32,411.47
CLINTON
$16,917.16
$14,496.53
COLUMBIA
$31,045.87
$26,603.60
CRAWFORD
$43,550.92
$37,319.34
CUMBERLAND
$145,309.06
$124,517.21
DAUPHIN
$152,642.12
$130,801.00
DELAWARE
$329,614.60
$282,451.01
ELK
$15,599.41
$13,367.34
ERIE
$159,135.12
$136,364.94
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 8 of 26
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FAYETTE
$62,829.54
$53,839.44
FOREST
$3,750.00
$3,750.00
FRANKLIN
$76,896.09
$65,893.25
FULTON
$7,407.49
$6,347.58
GREENE
$17,683.59
$15,153.30
HUNTINGDON
$21,716.98
$18,609.56
INDIANA
$40,670.86
$34,851.39
JEFFERSON
$24,583.13
$21,065.60
JUNIATA
$11,069.52
$9,485.62
LACKAWANNA
$115,921.21
$99,334.38
LANCASTER
$269,895.79
$231,277.18
LAWRENCE
$44,108.77
$37,797.38
LEBANON
$70,602.66
$60,500.33
LEHIGH
$190,896.71
$163,581.85
LUZERNE
$172,116.23
$147,488.62
LYCOMING
$56,134.50
$48,102.37
McKEAN
$19,552.64
$16,754.91
MERCER
$57,471.05
$49,247.68
MIFFLIN
$20,506.39
$17,572.19
MONROE
$89,529.56
$76,719.03
MONTGOMERY
$466,749.74
$399,963.87
MONTOUR
$10,863.40
$9,308.98
NORTHAMPTON
$173,311.28
$148,512.67
NORTHUMBERLAND
$43,883.83
$37,604.62
PERRY
$22,799.14
$19,536.88
PHILADELPHIA
$878,827.50
$753,078.62
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 9 of 26
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PIKE
$33,298.54
$28,533.95
POTTER
$8,693.33
$7,449.43
SCHUYLKILL
$69,579.39
$59,623.48
SNYDER
$18,024.68
$15,445.58
SOMERSET
$37,919.23
$32,493.48
SULLIVAN
$3,750.00
$3,750.00
SUSQUEHANNA
$20,760.77
$17,790.17
TIOGA
$20,523.56
$17,586.91
UNION
$19,523.19
$16,729.68
VENANGO
$25,263.67
$21,648.77
WARREN
$24,891.50
$21,329.85
WASHINGTON
$118,426.63
$101,481.31
WAYNE
$27,144.17
$23,260.19
WESTMORELAND
$195,200.84
$167,270.12
WYOMING
$13,990.48
$11,988.62
YORK
$236,610.33
$202,754.44
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 10 of 26
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Argument
Plaintiffs are entitled to a temporary restraining order.
The Plaintiffs satisfy the factors for a temporary restraining order.
A preliminary injunction, inclusive of a temporary restraining order, is an
extraordinary remedy granted in limited circumstances. Ferring Pharm., Inc. v. Watson Pharm.,
Inc., 765 F.3d 205, 210 (3d Cir. 2014). Those seeking one must establish that (1) they are
likely to succeed on the merits of their claims, (2) they are likely to suffer irreparable harm
without relief, (3) the balance of harms favors them, and (4) relief is in the public
interest. Id. See Issa v. School District of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017); Shields v.
Zuccarini, 254 F.3d 476, 482 (3d Cir.2001). The plaintiffs satisfy the requirements for a
temporary restraining order.
I.
The Plaintiffs are likely to succeed on the merits.
A. The acceptance of private moneys to conduct federal elections lends to
the prospect of undue influence on a core public government
responsibility funded through federal and state appropriations.
Congress and state legislatures fund election processes to conduct federal elections
to support, improve, and implement election systems. Normally, government moneys fund
federal elections because they are a core government responsibility. Principally, the State has
the “power to regulate [its] own elections[,]” relying on the constitutional authority for states
to regulate “[t]he Times, Places and Manner of holding Elections for Senators and
Representatives.” U.S. Const., art. I, § 4. The Elections Clause provides the state with legal
authority over elections for congressional offices subject to Congressional enactments.
Similarly, Article II of the United States Constitution governs presidential elections,
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 11 of 26
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distributing authority between the states and Congress. U.S. Const. art. II, § 1, cls. 2, 4. The
Electors Clause provides that states appoint presidential electors and Congress determines
the timing of the election and the day of electoral voting.
Federal election laws create regulatory mechanisms which are designed to deter
corruption, prevent particular individuals or organizations from having an undue influence
on federal elections, and assist in enforcement of laws prohibiting foreign contributions in
federal elections, while also protecting the exercise of political speech so crucial to the
functioning of this country's vibrant democracy. Citizens for Resp. and Ethics in Washington v.
Fed. Election Commn., 316 F. Supp. 3d 349, 368 (D.D.C. 2018), aff'd, 971 F.3d 340 (D.C. Cir.
2020) citing Citizens United v. Fed. Election Commn., 558 U.S. 310, 366–67 (2010).
Hence, the federal government and the states have “important regulatory interests” in
fair, honest, and orderly elections. See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Thus,
the conduct of elections is a core government responsibility of government entities because
of the public interest in ensuring the fairness and integrity of Pennsylvania’s elections.
See Pennsylvania Democratic Party v. Boockvar, 2020 WL 5554644, at *32, quoting Purcell v.
Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). (Pa. 2020) (“Confidence in the integrity of our
electoral processes is essential to the functioning of our participatory democracy.”). Because
federal elections are a core government responsibility, federal elections are normally funded
with federal and state moneys.
HAVA ensures that in the disbursement of federal moneys for federal elections, each
state receives a proportionate balance based upon specific criteria. The state then uses those
moneys in a manner directed by law, including in the support of various county, city, town,
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 12 of 26
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or village governmental entities which are required to conduct federal elections as a core
government responsibility.
But, when private organizations provide grant moneys to specific counties and cities
based on favoring demographic groups with progressive voting patterns, there is a conflict
with the federal scheme.
B. The PVA has a private cause of action and legal standing.
The PVA13 has a private cause of action and legal standing to seek a pre-election
injunction against the Cities accepting and using CTCL’s $6.4 million in private federal
election grants for the November 3 election. The Supremacy Clause and HAVA confer a
private cause of action and legal standing.
1. The Supremacy Clause provides a citizen’s private cause of
action and legal standing to bring preemption lawsuits
against local governments regarding federal elections.
The Supremacy Clause of the United States Constitution, Article VI, clause 2,
provides a federal jurisdictional basis for a suit brought to enforce the provisions of federal
election law. In League of Women Voters v. Blackwell, 340 F.Supp.2d 823 (N.D. Ohio 2004), the
court held that the Supremacy Clause of the U.S. Constitution (U.S. Const. Art. VI, cl. 2)
provides a basis for federal court jurisdiction of the League’s suit that challenged an election
official’s actions relating to balloting procedures in federal elections as violative of HAVA,
which has preemptive effect. Id. at 827–28
13 For convenience, “PVA” includes all named Plaintiffs unless otherwise specifically
identified.
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Similarly, in this case, the Supremacy Clause provides the private cause of action and
§ 1331 provides federal issue jurisdiction. Like League of Women Voter, the PVA asserts that
the Cities actions violate a federal law which has preemptive effect. Specifically, the PVA’s
claim is that federal law preempts the Cities and its officials from accepting their respective
CTCL’s private federal election grant to conduct federal elections. As a federal preemption
claim, the Supremacy Clause provides the cause of action and federal jurisdiction.
2. HAVA, 52 U.S.C. § 21112, confers a private cause of action
and legal standing to bring preemption lawsuits against
local governments with regard to federal elections.
HAVA, 52 U.S.C. § 21112, confers upon the PVA a private cause of action and legal
standing. It fits the statutory category of “any person who believes that there is a violation
of any provision of subchapter III (including a violation which has occurred, is occurring, or
is about to occur).” As to the PVA’s prospective remedies sought in this Court, HAVA, 52
U.S.C. § 21112, titled “Establishment of State-based administrative complaint procedures to
remedy grievances,” guarantees an “appropriate remedy” to “any person who believes that
there is a violation of any provision of subchapter III (including a violation which has
occurred, is occurring, or is about to occur)” of HAVA. Under section (a) of 52 U.S.C.
§ 21112, Pennsylvania, having received federal HAVA payments, is “required to establish
and maintain State-based administrative complaint procedures which meet the requirements
of paragraph (2).” Paragraph (2), among other things, requires that Pennsylvania provide
that:
(F) If, under the procedures, the State determines that there is a violation of
any provision of subchapter III, the State shall provide the appropriate remedy.
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(Emphasis added.)
However, in this case, 25 P.S. § 3046.2 has failed to provide the federally required
“appropriate remedy” to “any person who believes that there is… [a HAVA] violation which
has occurred, is occurring, or is about to occur” because there is effectively no pre-election
injunctive relief allowed under 25 P.S. § 3046.2. 25 P.S. § 3046.2 is the proverbial “slow boat
to China” and does not provide the immediate injunctive relief required to stop Philadelphia
from accepting and using CTCL’s private federal election grants before the November 3,
2020 election. 25 P.S. § 3046.2 authorizes no one, not even the Pennsylvania Attorney
General, to pursue injunctive relief for HAVA violations against Pennsylvania’s local
governments. 25 P.S. § 3046.2 is legally insufficient to satisfy the federal “appropriate
remedy” requirement for “any person” filing a HAVA complaint in Pennsylvania to obtain
pre-election injunctive relief.
3. The government favoring progressive demographic groups
in elections causes injury to Plaintiffs who favor non-
progressive candidates.
A government’s election policy favoring demographic groups in elections is an
equivalent injury to disfavoring demographic groups. “Parity of reasoning suggests that a
government can violate the Elections Clause if it skews the outcome of an election by
encouraging and facilitating voting by favored demographic groups.” Young v. Red Clay
Consol. Sch. Dist., 122 A.3d 784, 858 (Del Ch. 2015). Here, the Plaintiffs complain that the
CTCL’s nationwide federal election grants are skewed towards progressive voters injuring
the plaintiffs because close elections will be lost by plaintiffs’ favored non-progressive
candidates because of the Pennsylvania counties and cities favoring progressive demographic
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 15 of 26
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groups. At least one Pennsylvania state election official in 2020 has recognized the danger of
private federal election grants to our non-partisan elections.14
C. The Cities’ CTCL private federal election grants are within a
subject area, federal elections, where public-private partnerships
are constitutionally impermissible.
Pennsylvania receives federal moneys. The Secretary of the Commonwealth
apportions those moneys to local governments to conduct federal elections.15 But, Centre
County, Delaware County and Philadelphia chose to seek and accept private moneys from
CTCL. In receiving the CTCL’s grants of more than $14 million in grants, they created a
public-private relationship, privatizing in part, the conduct of federal elections.
Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784, 858 (Del. Ch. 2015) reveals the
dangers of a government scheme to target get-out-to-vote efforts on a favored demographic
group. The school district wanted its referendum to pass; so, it targeted parents of school
children and adult students for a get-out-to-vote campaign. In the Young decision, the court
identified the school district’s scheme to get-out-the-vote of the parents and adult students
as also violating election law. The court held that the school district’s improper influence
upon a demographic group interfered with the “full, fair, and free expression of the popular
will….” Id. The court stated that the government favoring a demographic group caused
equivalent injury to a voter as the government disfavoring a demographic group. Id.
Other cases show the need to announce the constitutional impermissibility of public-
private relationships. For example, in Board of Education of Kiryas Joel Village School District v.
14 Kaardal Decl. Ex. J.
15 See e.g. Kaardal Decl. Ex. H.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 16 of 26
13
Grumet, 512 U.S. 687 (1994), the U.S. Supreme Court drew such a line finding a public-
private partnership constitutionally impermissible. In Kiryas, the New York legislature sought
to create a homogenous school district for Satmar Hasidic Jews and did so by statute. This
“religious” motive was improper for the state and the statute forming the new district was
stuck down. Id. at 691. Similarly, in Ferguson v. City of Charleston, 532 U.S. 67, 81-86 (U.S.
2001), the U.S. Supreme Court held another public-private partnership unconstitutionally
impermissible. Here, the local prosecutor, concerned about crack babies, teamed up with
the local hospital to develop a program seeking to prevent expecting mothers from using
cocaine during the pregnancy. They developed a program where the hospital would test for
the presence of cocaine and provide a program to help with abstinence. If the patient
refused, the results were shared with the prosecutor’s office that in turn would encourage
participation at the threat of prosecution. The U.S. Supreme Court found the entanglement
of public and private interests sufficient to conclude the blood test by the hospital was a
Fourth Amendment violation by the state. Id. at 86.
Here, “permitting the government to depart from a neutral position would threaten
both the reliability of the election result as an expression of the popular will and the
appearance of integrity crucial to maintaining public confidence in the electoral process.”16
And in Pennsylvania there is a significant public interest in ensuring the fairness and integrity
16 Steven J. André, Government Election Advocacy: Implications of Recent Supreme Court
Analysis, 64 Admin. L. Rev. 835, 851 (2012), citing Note, The Constitutionality of Municipal
Advocacy in Statewide Referendum Campaigns, 93 Harv. L. Rev. 535, 554, 554 n.112 (1980)
(observing that “[t]he [United States Supreme] Court has explicitly recognized that the
validity of elections as bona fide expressions of the popular will depends as much upon
citizens' faith that the electoral process is free from government tampering as on the actual
fairness of that process”).
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 17 of 26
14
of state elections. In re Nomination Papers of Carlson, 60 Pa.Cmwlth. 170, 430 A.2d 1210, 1212
(1981) (Crumlish, J.) (Pennsylvania courts are “entrusted with the responsibility of protecting
the Commonwealth's compelling interest in preserving the integrity of
the election process.” ) The purpose of the federal and Pennsylvania state government
exclusively funding federal elections is to eliminate undue influence and the appearance of
undue influence by private parties. With the entanglement of public and private interests,
CTCL’s private funding of federal elections introduces undue influence and the appearance
of undue influence into federal elections.
D. The Counties’ and City’s acceptance of CTCL’s $14 million in
grants is preempted by federal law.
Whether a local government action is preempted by federal law such as HAVA is to be
determined by application of conflict-preemption principles. The federal court held in
Washington Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash. 2006), that in
adjudicating HAVA preemption issues, the court will find preemption where it is impossible
for a private party to comply with both state and federal requirements, or where state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress. Similarly, the Pennsylvania Supreme Court held in Kuznik v. Westmoreland County
Bd. of Com’rs, 588 Pa. 95, 902 A.2d 476 (2006), in resolving an issue of preemption of a state
statute by HAVA, state law may be displaced under conflict preemption principles if the state
law in question presents a conflict with federal law in one of two situations: when it is
impossible to comply with both the state and the federal law, or when the state law stands as
an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress. See Colorado Common Cause v. Davidson, 2004 WL 2360485 (Colo. Dist. Ct. 2004).
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 18 of 26
15
1. U.S. Constitution’s Elections Clause and Supremacy Clause
preempt CTCL’s private federal election grants to local
governments.
The U.S. Constitution, Article I’s Elections Clause and Article VI’s Supremacy Clause
preempts CTCL’s private federal elections grant to local governments. The Elections Clause
states:
Time, place, and manner of holding. The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing [sic]
Senators.
U.S. Constitution, Art. I, sec. 4, cl. 1. The Clause grants to the States “broad power” to
prescribe the procedural mechanisms for holding congressional elections, e.g., Tashjian v.
Republican Party of Conn., 479 U.S. 208, 217 (1986) but does not authorize them to dictate
electoral outcomes, to favor or disfavor a class of candidates, or to evade important
constitutional restraints, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833-43 (1995)
The Supremacy Clause states:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Art. VI, sec. 2.
The Elections Clause and Supremacy Clause preempt CTCL’s private federal election
grants to local governments. CTCL’s private federal election grants are not legally authorized
by federal law nor state law. The Cities have acted ultra vires, without legal authority, in
accepting and using CTCL’s private federal election grants.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 19 of 26
16
2. Help America Vote Act (HAVA) preempts CTCL’s private
federal election grants to local governments.
The Help America Vote Act (HAVA), 52 USC § 209, preempts CTCL’s private
federal election grants for the following reasons. HAVA established the Election Assistance
Commission (EAC) to assist the states regarding HAVA compliance and to distribute
HAVA funds to the states.
The EAC is also charged with creating voting system guidelines and operating the
federal government's first voting system certification program. EAC is also responsible for
maintaining the National Voter Registration form, conducting research, and administering a
national clearinghouse on elections that includes shared practices, information for voters and
other resources to improve elections.
HAVA requires that the states implement the following new programs and
procedures:
Provisional Voting
Voting Information
Updated and Upgraded Voting Equipment
Statewide Voter Registration Databases
Voter Identification Procedures
Administrative Complaint Procedures
In the past, Pennsylvania’s HAVA plan, required by HAVA, was approved by the
EAC. HAVA’s purpose was to coordinate federal and state administration of federal
elections. HAVA does not legally authorize local governments to accept private federal
election grants. HAVA’s preemption prohibits local governments from accepting private
federal election grants.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 20 of 26
17
Under HAVA, the EAC is to be bi-partisan and work with all the states in a bi-
partisan way. The CTCL’s private federal election grants circumvent the EAC and the
states and thus conflict with HAVA. Under HAVA, the EAC and the states work toward
election plans and budgets.
CTCL’s private federal election grants to local governments lead to deviations from
the federally-approved and state-approved election administration plans and budgets—thus,
conflicting with HAVA. The federal and state money distributed to county and city clerks
that administer elections are distributed pursuant to a legally-authorized method that is
approved by the states under the guidance of EAC, so the counties and cities receive a state-
approved share for election purposes. But, local governments accepting CTCL’s private
federal election grants, violate HAVA by injecting private money into federal elections which
is not approved by the EAC or the states.
3. The National Voters Registration Act (NVRA) preempts
CTCL’s
private
federal
election
grants
to
local
governments.
National Voters Registration Act (NVRA), 52 U.S.C. §§ 20501–20511, preempts
CTCL’s private federal election grants for the following reasons. Congress enacted the
National Voter Registration Act of 1993 (also known as the "Motor Voter Act"), to create
“national procedures for voter registration for elections for Federal office.” 52 U.S.C.
§ 20503. The Act gave responsibility to the Federal Election Commission (FEC) to provide
States with guidance on the Act, to develop a national mail voter registration form, and to
compile reports on the effectiveness of the Act. A 2002 amendment in HAVA transferred
the FEC's responsibilities under the Act to the EAC.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 21 of 26
18
NVRA’s preemption prohibits local governments from accepting private federal
election grants for voter registration. Under 52 U.S.C. § 21085, “the specific choices on the
methods of complying with the requirements of this subchapter shall be left to the discretion
of the State.” “Subchapter,” refers to the minimum requirements17 regarding voting systems
standards,18 voting information requirements and computerized statewide voter registration
list requirements and requirements for voters who register by mail.19 “State” does not mean
“county”, “city” or “municipality.”20 Therefore, as it pertains to federal elections, Centre
County, Delaware County and Philadelphia cannot act contrary to laws of either the federal
or state governments. Each law preempts the actions of local governments in accepting the
CTCL’s private federal election grant.
II.
The moving party will suffer irreparable injury absent the injunction.
The PVA, absent the injunction, will suffer irreparable injury. Denial of the right to
participate in an election is by its nature an irreparable injury. U.S. v. Berks County,
Pennsylvania, 277 F.Supp.2d 570, 578 (E.D.Pa. 2003) (citiation omitted). And, the “right to
vote freely for the candidate of one's choice is of the essence of a democratic society, and
any restrictions on that right strike at the heart of representative government.” Reynolds v.
Sims, 377 U.S. 533, 555 (1964). The government’s election policy favoring demographic
groups is an equivalent injury to disfavoring demographic groups. “Parity of reasoning
17 52 U.S.C. § 21084.
18 52 U.S.C. § 21082.
19 52 U.S.C. § 21083.
20 52 U.S.C. § 21141: “In this chapter, the term ‘State’ includes the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin
Islands.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 22 of 26
19
suggests that a government can violate the Elections Clause if it skews the outcome of an
election by encouraging and facilitating voting by favored demographic groups.” Young v.
Red Clay Consol. Sch. Dist., 122 A.3d 784, 858 (Del Ch. 2015).
The plaintiffs do not want progressive candidates to win in the November 3
elections; the plaintiffs are injured by CTCL’s private federal election grants because they are
targeted to counties and cities with progressive voter patterns—resulting in more progressive
votes and a greater chance that progressive candidates will win. See, id. The injury to the
plaintiffs is real and concrete.
Where, as here, the plaintiffs have demonstrated a likelihood of success on the merits
as to a constitutional claim, such an injury has been held to constitute irreparable
harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (where plaintiff had proven a probability of
success on the merits, the threatened loss of First Amendment freedoms “unquestionably
constitutes irreparable injury”); Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978)
(“The existence of a continuing constitutional violation constitutes proof of an irreparable
harm.”). Moreover, courts have specifically held that infringement on the fundamental right
to vote constitutes irreparable injury. See Obama for Am. v. Husted, 697 F.3d 423, 435 (6th Cir.
2012) (“restriction on the fundamental right to vote constitutes irreparable injury.”); Williams
v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (holding that plaintiffs “would certainly suffer
irreparable harm if their right to vote were impinged upon”).
Once the November election occurs, the damage to plaintiffs’ favored non-
progressive candidates will be complete. Without injunctive relief, the CTCL moneys will
cause a non-conformity of uniform elections in the Cities sought by Congress under HAVA
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 23 of 26
20
and all other election laws, including those of the state of Pennsylvania. This illegal public-
private partnership causes the PVA irreparable injury.
Additionally, traditional legal remedies are inadequate, since infringement on a
citizens’ constitutional right to vote cannot be redressed by money damages. See Christian
Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006); League of Women Voters of N. Carolina v.
North Carolina, 769 F.3d 224, 247 (4th Cir. 2014).
III.
The harm to other interested parties is little or none if the relief is
granted.
The PVA, absent the injunction, will suffer harm. Shields, 254 F.3d at 482. While it is
known there will be anticipated increases in voting, namely absentee ballot voting, it does
not excuse the circumvention of federal and state laws.21 Hence, the need of the $14 million
of private federal election grants split between two Pennsylvania counties and Philadelphia is
questionable at best. The counties and cities have access to HAVA moneys and additional
Cares Act moneys, specifically for election related needs—as does every other county and
city in Pennsylvania responsible for conducting the 2020 federal elections.
On the other hand, the introduction of a public-private relationship in the federal
election context is a first-time foreign element not contemplated by either HAVA or by the
Secretary of the Commonwealth nor the Pennsylvania Legislature since the laws exclusively
control the conduct and moneys related to federal elections. There is no question of the
historical success and consistency of the counties and cities in their election process. What
also is notably are the voter outcomes—predominately progressive. Hence, the $14 million
21 E.g. Kaardal Decl. Ex. I.
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 24 of 26
21
in grants from the CTCL raises sufficient questions as to the propriety of the public-private
created relationship and government advocacy in favor of a demographic group. In short,
injunctive relief to stay expenditures of the grant will cause little or no harm to the conduct
of elections.
Moreover, a grant process is in place through the Secretary of the Commonwealth
should the Defendants need more money to conduct federal elections. By doing so, the local
governments will stay true to their core public responsibilities in conducting elections
consistent with federal and state laws. For these reasons, the balance of harms favors
granting the motion.
IV.
The public interest is aided by the preliminary injunction.
The public interest, absent the injunction, will be impeded. Shields, 254 F.3d at 482.
Centre County’s, Delaware County’s and Philadelphia’s acceptance of the CTCL’s grants
reveal a public-private relationship that privatizes federal elections to skew the outcome of
an election in an area of a favored demographic group. It skews the neutrality of an election
which is the core public responsibility of the Cities. Red Clay Consol. Sch. Dist., 122 A.3d at
857–58. Threats of private unconstitutional interference with the November 3 elections pose
the same type of public interest analysis as in First Amendment deprivations. See Phelps–
Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008) (concluding that if the movant “can
establish a sufficient likelihood of success on the merits of her First Amendment claim, she
will also have established irreparable harm as the result of the deprivation”). And, it is
always in the public interest to protect constitutional rights. Additionally, the PVA has no
Case 4:20-cv-01761-MWB Document 5 Filed 09/28/20 Page 25 of 26
22
alternative administrative remedy to obtain immediate injunctive relief against the counties
and Philadelphia.
Conclusion
The Court should grant the temporary restraining order.
Dated: September 24, 2020.
Electronically Signed by Jordan P. Shuber
Jordan P. Shuber, PA ID 317823
Ronald T. Elliott, PA ID 71567
Thomas W. King, III, PA ID 21580
(Admission Pending)
Thomas E. Breth, PA ID 66350 (Admission
Pending)
Special Counsel for the Amistad Project
of Thomas More Society
Dillon McCandless King Coulter & Graham,
LLP
128 West Cunningham Street
Butler, PA 16001
Telephone: (724) 283-2200
Facsimile: (724) 283-2298
E-mail addresses: jshuber@dmkcg.com
relliott@dmkcg.com
tking@dmkcg.com
tbreth@dmkcg.com
Erick G. Kaardal, MN 229647 (pro hac vice
motion forthcoming)
Special Counsel for the Amistad Project
of Thomas More Society
Mohrman, Kaardal and Erickson, P.A.
150 S. Fifth St., Ste. 3100
Minneapolis MN 55402
612-341-1074
e. 612-341-1076
*Admission
application
pending
or
forthcoming
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