Defendants' Response in Opposition to Motion for TRO — PA Voters Alliance v. Centre County

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U.S. District Court for the Middle District of Pennsylvania · No. 4:20-cv-01761-MWB · Doc. 37 · 2020-10-12 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE 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, and : 
No. 4:20-CV-01761 
DASHA PRUETT,  
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
: 
 
 
 
 
Plaintiffs,  
 
:  
(Judge Brann) 
 
 
 
v. 
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
 
 
:  
 
CENTRE COUNTY, DELAWARE COUNTY, : 
and THE CITY OF PHILADELPHIA, 
 
: 
 
 
 
 
 
 
 
 
: 
 
 
 
 
Defendants. 
 
: 
 
 
 
 
 
 
 
 
 
 
:   
 
DEFENDANT COUNTIES’ RESPONSE IN OPPOSITION TO  
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER  
 
BABST, CALLAND, CLEMENTS 
AND ZOMNIR, P.C. 
Molly Meacham (Pa. Id. No. 318272) 
Two Gateway Center, 9th Floor 
603 Stanwix Street 
Pittsburgh, PA 15222 
Tel.: (412) 394-5400 
mmeacham@babstcalland.com 
 
Elizabeth A. Dupuis (Pa. Id. No. 80149) 
330 Innovation Boulevard, Suite 302 
State College, PA 16803 
Tel.: (814) 867-8055 
bdupuis@babstcalland.com  
Counsel for Defendant Centre County 
DILWORTH PAXSON LLP 
Jerry R. DeSiderato (Pa. Id. No. 201097) 
Timothy J. Ford (Pa. Id. No. 325290) 
Claire Blewitt Ghormoz (Pa. Id. No. 320816) 
1500 Market Street, Suite 3500E 
Philadelphia, PA 19102 
jdesiderato@dilworthlaw.com 
tford@dilworthlaw.com 
cghormoz@dilworthlaw.com 
Tel.: (215) 575-7000 
Counsel for Defendant City of Philadelphia 
 
BALLARD SPAHR LLP 
Edward D. Rogers (Pa. Id. No. 69337) 
Terence M. Grugan (Pa. Id. No. 307211) 
Case 4:20-cv-01761-MWB   Document 37   Filed 10/12/20   Page 1 of 49

 
 
 
 
 
Elizabeth V. Wingfield (Pa. Id. No. 324277) 
1735 Market Street, 51st Floor 
Philadelphia, PA 19103 
Tel.: (215) 665-8500 
RogersE@ballardspahr.com 
GruganT@ballardspahr.com 
WingfieldE@ballardspahr.com 
Counsel for Defendant Delaware County 
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TABLE OF CONTENTS 
INTRODUCTION ..................................................................................................... 1 
COUNTER-STATEMENT OF THE FACTS AND COUNTER-HISTORY OF 
THE CASE ................................................................................................................. 3 
I. 
The COVID-19 pandemic has created new challenges for 
Pennsylvania counties, which have responsibility for election 
administration, including funding. .................................................................. 3 
II. 
CTCL awards grants to eighteen Pennsylvania counties to ensure 
“every eligible voter can participate in a safe and timely way and have 
their vote counted.” .......................................................................................... 5 
III. 
CTCL awards Defendant Counties grants to address specific, pressing 
election administration needs. ......................................................................... 7 
IV. 
Plaintiffs seek a temporary restraining order to prevent Defendant 
Counties from accepting and using CTCL grants on the eve of the 
election. ............................................................................................................ 9 
ARGUMENT ............................................................................................................. 9 
I. 
Plaintiffs are not likely to succeed on the merits. .......................................... 11 
A. 
Plaintiffs lack standing to seek relief on their claim. .......................... 11 
1. 
Plaintiffs’ purported injury is a “generalized grievance” 
that does not constitute Article III injury-in-fact. ..................... 13 
2. 
Plaintiffs’ purported injury is speculative and attenuated. ....... 15 
3. 
Plaintiffs’ purported injury is not redressable by the relief 
they seek. ................................................................................... 17 
B. 
Plaintiffs have identified no viable private cause of action. ............... 18 
1. 
The Supremacy Clause does not provide a cause of 
action. ........................................................................................ 18 
2. 
HAVA does not provide a private cause of action. .................. 19 
C. 
Plaintiffs are unlikely to succeed on the merits of their claim. ........... 22 
1. 
The Elections Clause and the Supremacy Clause do not 
preempt the CTCL grants at issue in this case. ......................... 23 
2. 
HAVA does not preempt the CTCL grants at issue in this 
case. ........................................................................................... 26 
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3. 
The NVRA does not preempt the CTCL grants at issue in 
this case. .................................................................................... 33 
4. 
There is no general constitutional prohibition on public-
private partnerships in local election funding. .......................... 34 
II. 
Plaintiffs cannot show a likelihood of irreparable harm or that the 
balance of the equities or the public interest favor a temporary 
restraining order. ............................................................................................ 36 
A. 
Plaintiffs’ alleged harm is too speculative to be irreparable. .............. 36 
B. 
The balance of equities weighs against granting emergency 
relief to Plaintiffs who showed no diligence in seeking to 
protect their asserted interests. ............................................................ 38 
C. 
The public interest does not benefit from an order restraining 
funds for election administration on the eve of an election. ............... 39 
CONCLUSION AND RELIEF REQUESTED .......................................................40 
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iii 
TABLE OF CITATIONS 
Cases 
Alexander v. Sandoval, 
 532 U.S. 276 (2001) ..................................................................................... 19, 21 
Allen v. Wright, 
 468 U.S. 737 (1984) ..................................................................................... 14, 17 
Am. Civil Rights Union v. Phila. City Comm’rs, 
 872 F.3d 175 (3d Cir. 2017) ......................................................................... 20, 28 
Am. Civil Rights Union v. Phila. City Comm’rs, 
 Civ. A. No. 16-1507, 2016 WL 4721118 (E.D. Pa. Sept. 9, 2016)........ 28, 31, 32 
Arizona v. Inter Tribal Council of Ariz., Inc., 
 570 U.S. 1 (2013) ................................................................................................24 
Armstrong v. Exceptional Child Ctr., Inc., 
 575 U.S. 320 (2015) ..................................................................................... 18, 23 
Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 
 512 U.S. 687 (1994) ............................................................................................35 
Bellitto v. Snipes, 
 935 F.3d 1192 (11th Cir. 2019) .................................................................... 20, 21 
Berg v. Obama, 
 574 F. Supp. 2d 509 (E.D. Pa. 2009) ............................................................ 13, 14 
Bieros v. Nicola, 
 857 F. Supp. 445 (E.D. Pa. 1994) ........................................................................10 
Blunt v. Lower Merion Sch. Dist., 
 767 F.3d 247 (3d Cir. 2014) ................................................................................14 
Brunner v. Ohio Republican Party, 
555 U.S. 5 (2008) .................................................................................................19 
Chamber of Commerce for Greater Phila. v. City of Phila., 
 Civ. A. No. 17-1548, 2017 WL 11544778 (E.D. Pa. May 30, 2017) .................14 
Clapper v. Amnesty Int’l USA, 
 568 U.S. 398, 414 n.5 (2013) ................................................................. 12, 15, 16 
Colo. Common Cause v. Davidson, 
 No. 04CV7709, 2004 WL 2360485 (Colo. Dist. Ct. Oct. 18, 2004) ..................32 
Case 4:20-cv-01761-MWB   Document 37   Filed 10/12/20   Page 5 of 49

 
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Cook v. Gralike, 
 531 U.S. 510 (2001) ............................................................................................24 
Corman v. Torres, 
 287 F. Supp. 3d 558 (M.D. Pa. 2018) .................................................................14 
Crowley v. Nevada ex rel. Nev. Sec’y of State, 
 678 F.3d 730 (9th Cir. 2012) ...............................................................................31 
Democratic Nat’l Comm. v. Republican Nat’l Comm., 
 673 F.3d 192 (3d Cir. 2012) ......................................................................... 27, 30 
Farina v. Nokia Inc., 
 625 F.3d 97 (3d Cir. 2010) ..................................................................... 23, 24, 33 
Ferguson v. City of Charleston, 
 532 U.S. 67 (2001) ..............................................................................................35 
Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 
 680 F. Supp. 159 (D.N.J. 1988) ...........................................................................10 
Fla. State Conference of N.A.A.C.P. v. Browning, 
522 F.3d 1153 (11th Cir. 2008) ................................................... 27, 29, 30, 31, 32 
Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 
 847 F.2d 100 (3d Cir. 1988) ................................................................................10 
Gill v. Whitford, 
 138 S. Ct. 1916 (2018) ........................................................................................13 
Gonzalez v. Arizona, 
 677 F.3d 383 (9th Cir. 2012) ...............................................................................27 
Havens Realty Corp. v. Coleman, 
 455 U.S. 363 (1982) ............................................................................................14 
In re Nomination Papers of Carlson, 
 430 A.2d 1210 (Pa. Commw. Ct. 1981) ..............................................................35 
Kobell v. Suburban Lines, 
 731 F.2d 1076 (3d Cir. 1984) ..............................................................................38 
Lance v. Coffman, 
 459 U.S. 437 (2007) ............................................................................................13 
Lujan v. Defs. of Wildlife, 
 504 U.S. 555 (1992) ..................................................................................... 12, 15 
New Dana Perfumes Corp. v. Disney Store, Inc., 
 131 F. Supp. 2d 616 (M.D. Pa. 2001) .................................................................38 
Case 4:20-cv-01761-MWB   Document 37   Filed 10/12/20   Page 6 of 49

 
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Parker v. Dacres, 
 130 U.S. 43 (1889) ..............................................................................................38 
Pub. Interest Legal Found. v. Boockvar, 
 370 F. Supp. 3d 449 (M.D. Pa. 2019) .................................................................21 
Purcell v. Gonzales, 
 549 U.S. 1 (2006) ................................................................................................39 
Raines v. Byrd, 
 521 U.S. 811 (1997) ............................................................................................14 
Reilly v. City of Harrisburg, 
 858 F.3d 173 (3d Cir. 2017) ................................................................................10 
Republican Nat’l Comm. v. Democratic Nat’l Comm., 
 140 S. Ct. 1205 (2020) ........................................................................................39 
Republican Party of Pa. v. Cortés, 
 218 F. Supp. 3d 396 (E.D. Pa. 2016) ...................................................................36 
SAM Party v. Kosinski, 
 No. 20 Civ. 323, 2020 WL 5359640 (S.D.N.Y. Sept. 1, 2020) ..........................37 
Sandusky Cty. Democratic Party v. Blackwell, 
 387 F.3d 565 (6th Cir. 2004) ...............................................................................20 
Sanofi-Aventis U.S. LLC v. Novo Nordisk, Inc., 
 No. 06-1369, 2006 WL 8457950 (D.N.J. June 23, 2006) ...................................11 
Siegel v. LePore, 
 234 F.3d 1163 (11th Cir. 2000) ...........................................................................36 
Susan B. Anthony List v. Driehaus, 
 573 U.S. 14 (2014). ...................................................................................... 12, 15 
T.W. by and through Waltman v. S. Columbia Area Sch. Dist., 
 No. 4:20-CV-01688, 2020 WL 5751219 (M.D. Pa. Sept. 25, 2020) ..................10 
U.S. Term Limits, Inc. v. Thornton, 
 514 U.S. 779 (1995) ............................................................................................25 
URL Pharma, Inc. v. Reckitt Benckiser Inc., 
 No. 15-0505, 2016 WL 1592695 (E.D. Pa. Apr. 20, 2016) ................................10 
Warth v. Seldin, 
 422 U.S. 490 (1975) ............................................................................................14 
Wash. Ass’n of Churches v. Reed, 
 492 F. Supp. 2d 1264 (W.D. Wash. 2006) ..........................................................32 
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Young v. Red Clay Sch. Dist., 
 122 A.3d 784 (Del. Ch. 2015) ...................................................................... 34, 35 
 
Constitutional Provisions 
U.S. Const. art. I, § 4 ................................................................................................18 
U.S. Const. art. VI, cl. 2 ...........................................................................................18 
 
Statutes, Rules & Regulations 
25 Pa. Stat. § 2641 ..................................................................................................... 3 
25 Pa. Stat. § 2642 .................................................................................................3, 9 
25 Pa. Stat. § 2645 ........................................................................................ 3, 25, 34 
25 Pa. Stat. §§ 3150.11 et seq. ................................................................................... 4 
52 U.S.C. § 20501(b)(2) ..........................................................................................33 
52 U.S.C. § 20503 ....................................................................................................33 
52 U.S.C. § 20510(b)(2) ..........................................................................................21 
52 U.S.C. § 21085 ....................................................................................................33 
52 U.S.C. § 21111 ....................................................................................................21 
52 U.S.C. § 21112 ............................................................................................. 20, 21 
52 U.S.C. § 21142(a) ...............................................................................................26 
52 U.S.C. §§ 20501 et seq. ................................................................................ 18, 33 
52 U.S.C. §§ 20901 et seq. .......................................................................................18 
52 U.S.C. § 21003 ....................................................................................................29 
52 U.S.C. § 21004 ....................................................................................................29 
Help America Vote Act of 2002, P.L. 107-252, Oct. 29, 2002, 116 Stat. 1666 ......31 
Act of Oct. 31, 2019, P.L. 552, No. 77 ...................................................................... 4 
 
 
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INTRODUCTION 
 
Elections are local and, in Pennsylvania, local governments are responsible 
for ensuring the safe and efficient administration of elections. Their role is crucial 
to the functioning of our democracy and is of particularly heightened significance 
now. The global COVID-19 pandemic poses unprecedented challenges for the 
conduct of elections, the ability of individuals to safely vote, and the manner in 
which they do so. To meet these challenges and satisfy their responsibilities to 
their constituents, local governments need to reinforce, improve and expand their 
elections administration capabilities. This includes recruiting and training poll 
workers, obtaining personal protective equipment, and acquiring new technology 
to expedite processing of mail ballots. These and other measures are critically 
important parts of local governments’ efforts to ensure people can vote and they 
are costly.  
When Centre County, Delaware County, and the City of Philadelphia 
(collectively, “Defendant Counties”) learned of an opportunity to obtain funding 
that would help them improve their ability to safely and effectively administer the 
upcoming general election, they acted on it. Defendant Counties, along with fifteen 
other Pennsylvania counties and the Pennsylvania Department of State, applied for 
and accepted election administration grants from the non-partisan, non-profit 
Center for Technology and Civic Life (“CTCL”). Recognizing that local 
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governments desperately needed resources to safely and securely administer 
elections during a pandemic, CTCL made grant funds available to localities 
nationwide—without regard to their residents’ political leaning or any other 
partisan consideration—to ensure that all of their residents will be able to vote 
safely, securely, and efficiently, no matter their political orientation. 
 
Yet this lawsuit does not mention the majority of the counties in 
Pennsylvania that received CTCL grants. Rather, a collection of Plaintiffs 
“oppose[d] to the election of progressive candidates” has, targeted three of the 
eighteen county-recipients of CTCL grants because those counties allegedly lean 
“progressive.” In so doing, Plaintiffs attempt to politicize nonpartisan 
improvements to local election administration by turning the responsible efforts of 
local governments against them. But Plaintiffs’ unsupported insinuation that CTCL 
grants are politically motivated is as meritless as the legal theories supporting their 
request for preliminary injunctive relief. Plaintiffs lack Article III standing, lack a 
cognizable cause of action, and fail to identify a single federal statute or 
constitutional provision that supports their argument that Defendant Counties’ 
receipt of CTCL grants was invalid. In a virtually identical claim, another federal 
court recently denied a TRO, holding that Plaintiffs “have not demonstrated a 
strong likelihood of success on the merits” because “no such explicit prohibition 
exists.” Ford Decl., Ex. H at 2. Furthermore, Plaintiffs failed to identify any risk of 
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irreparable harm. As the federal court distinguished, “Plaintiffs allege that they will 
be harmed on November 3, 2020, but they do not allege that there is any ongoing 
use of the grants that causes them immediate, irreparable harm.” Id. Finally, the 
remaining equitable factors militate against the preliminary relief they seek. Their 
motion should be denied. 
COUNTER-STATEMENT OF THE FACTS AND  
COUNTER-HISTORY OF THE CASE 
 
I. 
The COVID-19 pandemic has created new challenges for Pennsylvania 
counties, which have responsibility for election administration, 
including funding. 
Under the Pennsylvania Election Code, county boards of elections “have 
jurisdiction over the conduct of primaries and elections in such county.” 25 Pa. 
Stat. § 2641(a); see also id. § 2642 (powers and duties). The Election Code places 
the burden of funding primaries and elections on counties—not on federal or state 
sources. Id. § 2645. This arrangement is not unusual. As a recent Congressional 
Research Service report explained, 
States typically have primary responsibility for making decisions 
about the rules of elections (policymaking). Localities typically have 
primary responsibility for conducting elections in accordance with 
those rules (implementation). Localities, with varying contributions 
from states, typically also have primary responsibility for paying for 
the activities and resources required to conduct elections (funding). 
Ford Decl., Ex. A (emphasis added). In other words, Pennsylvania’s counties bear 
the costs to conduct elections, and only a portion of those costs are paid for by 
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federal and state funding.  
 
The COVID-19 pandemic abruptly imposed significant new challenges to 
counties in shouldering election administration responsibilities. These counties 
were already working to implement mail-in ballot procedures for the first time in a 
general election. Act of Oct. 31, 2019, P.L. 552, No. 77, § 8 (codified at 25 Pa. 
Stat. §§ 3150.11 et seq.). With new procedures for mail-in ballots and the 
utilization of these ballots soaring as a result of voters’ COVID-19 concerns, new 
procedures and infrastructure were needed to ensure voting could be both safe and 
efficient during a pandemic. Pennsylvania’s primary election made clear that in the 
upcoming general election counties “will essentially have to run two elections, at 
the same time, on an unprecedented scale.” Kaardal Decl., Ex. C at 5. The 
significant election-related imperatives facing counties include the need to process 
many more mail-in ballot applications and send out those ballots on time and with 
precision; hire and train additional employees; relocate polling places away from 
senior communities and other locations unsuitable for in-person voting amid the 
pandemic; educate voters about voting changes and combat misinformation; offer 
safe voting options to groups who are skeptical of mail-in voting; and accelerate 
the vote count.1 Ford Decl., Exs. B, C; Kaardal Decl., Ex. C at 5. These challenges 
                                                 
1  
In addition, Defendant Counties have already committed significant portions 
of their CTCL grants. Indeed, Philadelphia and Delaware County have already 
 
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came amidst an economic downturn already straining county budgets. 
II. 
CTCL awards grants to eighteen Pennsylvania counties to ensure 
“every eligible voter can participate in a safe and timely way and have 
their vote counted.” 
 
Localities around the country faced similar challenges. Recognizing this, the 
Center for Tech and Civic Life (“CTCL”), a nonpartisan nonprofit organization 
that has worked closely with local election administrators since its founding in 
2012, launched a grant program for local election jurisdictions. Kaardal Decl., Ex. 
A at 2; Ford Decl., Exs. D, E. As reflected in Plaintiffs’ own exhibits, CTCL 
recognized that “[e]lection officials have made it clear that one of their most 
pressing needs is funding.” Kaardal Decl., Ex. A at 3. CTCL grants help local 
election administrators “ensure” that they “have the staffing, training, and 
equipment necessary so this November every eligible voter can participate in a safe 
and timely way and have their vote counted.” Kaardal Decl., Ex. A at 1. CTCL 
grants are available for four general categories: 
 Ensure safe, efficient election day administration 
 Expand voter education and outreach efforts 
 Launch poll worker recruitment, training and safety efforts 
 Support early in-person voting and vote by mail 
                                                                                                                                                             
spent significant portions of their CTCL grants. Defendant Counties may provide 
the Court with further details in declarations in advance of the October 16, 2020 
hearing.  
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Kaardal Decl., Ex. A at 4–5. Localities decide to spend funds within those broad 
parameters. See Kaardal Decl., Ex. A at 4–5, 7–8. Grants are guaranteed to any 
local election office that applies and are calculated using nonpartisan criteria. Ford 
Decl., Ex. F at 1. More than 1,100 local election administrators from around the 
country have applied for CTCL grants.  
 
In Pennsylvania, as of October 5, 2020, CTCL has awarded grants to 
eighteen counties and the Pennsylvania Department of State. Ford Decl., Ex. F at 
17–18. Eleven of these counties eighteen counties voted for Donald Trump over 
Hillary Clinton in the 2016 presidential election, and five did so by more than a 
two-to-one margin:2 
Counties Receiving CTCL Grants by 2016 Presidential Vote by Percentage 
County 
Donald Trump 
Hillary Clinton 
Centre 
46.32% 
48.71% 
Chester 
43.20% 
52.71% 
Dauphin 
46.51% 
49.44% 
Delaware 
37.18% 
59.60% 
Erie  
48.57% 
46.99% 
Juniata  
79.14% 
17.42% 
Lancaster  
57.20% 
37.78% 
Luzerne  
58.29% 
38.86% 
Mercer  
60.30% 
35.81% 
Mifflin  
75.77% 
20.84% 
Monroe  
47.86% 
48.63% 
Montgomery  
37.44% 
58.91% 
Northumberland  
69.43% 
26.73% 
                                                 
2  
Plaintiffs rely on the 2016 presidential election results to show “rates of 
progressive voters.” See Compl. ¶¶ 70–73. 
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Philadelphia  
15.37% 
82.53% 
Pike  
61.51% 
35.46% 
Somerset  
76.54% 
20.62% 
Wayne  
67.63% 
29.18% 
York  
62.40% 
33.27% 
Ford Decl., Ex. G.  
III. 
CTCL awards Defendant Counties grants to address specific, pressing 
election administration needs. 
 
Yet Plaintiffs have sued only three of the eighteen counties: Centre, 
Delaware, and Philadelphia. CTCL awarded Delaware County its grant on August 
18, 2020. Ford Decl., Ex. B. Delaware County’s detailed plan for spending the 
funds explains how it will address pressing needs in several categories: “Absentee, 
Vote by Mail,” “Early Voting Sites & Expanded Hours Early-Voting,” “Equity & 
Voter Outreach, Particularly to Communities of Color,” “Poll Worker Recruitment, 
Training & Safety,” and “Election Day in November 2020,” with plans to provide 
poll workers personal protective equipment (“PPE”) and nearly double the number 
of polling locations that were open in the primary election. Id. The largest expense, 
$607,847, is for a Blue Crest Sorter that will dramatically reduce the processing 
time for inbound mail. Id. The next largest covered expenses are $367,709 for pop-
up voting centers and $308,800 for poll worker training and recruitment. Id. 
 
CTCL awarded Philadelphia its grant on August 21, 2020. Kaardal Decl., 
Ex. C. Philadelphia’s detailed plan explains how it will use grant funds to address 
pressing needs in four general categories: “Mail in and absentee equipment,” 
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“Satellite Election Offices and Ballot Drop-off Options,” “Secure Dropboxes,” and 
“In-person Voting at Polling Places on Election Day.” Id. More than half the 
grant—$5.5 million—is for technology necessary to create an automated system to 
“efficiently and accurately manage” mail-in ballots so that Philadelphia can report 
results faster and eliminate the extensive manual counting that occurred during the 
June primary. Id. at 6–8. Other covered expenses include $250,000 for poll worker 
PPE and $136,548 each to set up 15 satellite offices throughout the city where 
voters can request and drop off mail-in ballots in person. Id. at 8–9.  
 
CTCL awarded Centre County its grant on September 21, 2020. Ford Decl., 
Ex. C. Centre County’s detailed plan explains that the funds will address pressing 
needs in four categories: “Absentee and Mail-In Ballot Assembly and Processing 
Equipment,” “Early Voting Site and Ballot Drop-off Options,” “Secure Ballot 
Drop Boxes and related needs,” and “In-Person Voting at Polling Places on 
Election Day.” Id. Centre County’s largest expenses are $391,372.50 for absentee 
and mail-in ballot assembly and processing equipment, including processing 
equipment and personnel; and $344,850.00 for in-person voting on Election Day. 
Id. 
 
Plainly, Defendant Counties are using the funds to benefit all county 
residents as opposed to just “progressive” voters. See generally Ford Decl., Exs. B, 
C; Kaardal Decl. Ex. C. In addition, nothing in the grants limits counties’ state-law 
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authority to control their own election procedures under 25 Pa. Stat. § 2642. As 
Philadelphia’s award letter makes clear, CTCL does not purport “to limit in any 
way the independent decision-making rights, ability, and obligations of the 
Philadelphia County Board of Elections.” Kaardal Decl., Ex. C at 2–3.  
IV. 
Plaintiffs seek a temporary restraining order to prevent Defendant 
Counties from accepting and using CTCL grants on the eve of the 
election. 
Plaintiffs filed their Complaint on September 25, 2020. Plaintiffs are 14 
individual “eligible Pennsylvania voter[s]” in Defendant Counties and elsewhere 
who each “oppose[] the election of progressive candidates” in state and federal 
elections, Compl. ¶¶ 5–18, as well as an advocacy organization, Compl. ¶ 4. 
Plaintiffs assert that they “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 voters and a greater chance that progressive 
candidates will win.” Compl. ¶ 35.  
On September 28, 2020, Plaintiffs filed a Motion for Temporary Restraining 
Order (“TRO”). Following a telephone conference and this Court’s October 7, 
2020 scheduling order, Defendant Counties timely file this Response in Opposition 
to the Motion. 
ARGUMENT 
 
“Injunctive relief is an ‘extraordinary remedy, which should be granted only 
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in limited circumstances.’” T.W. by and through Waltman v. S. Columbia Area 
Sch. Dist., No. 4:20-CV-01688, 2020 WL 5751219, at *3 (M.D. Pa. Sept. 25, 
2020) (quoting Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 
112 (3d Cir. 1988)). “The standards for a [TRO] are the same as those for a 
preliminary injunction.” Id. at *3 n.30 (internal quotation marks omitted) (quoting 
Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994)). “A movant for 
preliminary equitable relief must meet the threshold for the first two ‘most critical’ 
factors: it must demonstrate that it can win on the merits . . . and that it is more 
likely than not to suffer irreparable harm in the absence of preliminary relief.” 
Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). “If these gateway 
factors are met, a court then considers the remaining two factors,” balance of 
equities and public interest, “and determines in its sound discretion if all four 
factors, taken together, balance in favor of granting the requested preliminary 
relief.” Id.  
An order requiring a defendant to take affirmative action is considered a 
mandatory injunction. URL Pharma, Inc. v. Reckitt Benckiser Inc., No. 15-0505, 
2016 WL 1592695, at *3 (E.D. Pa. Apr. 20, 2016). Because of their highly 
compulsory nature, mandatory injunctions are “looked upon disfavorably [by 
courts] and are generally only granted in compelling circumstances.” Florham 
Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 166 (D.N.J. 1988). 
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11 
Accordingly, “the burden of showing an entitlement to relief is greater” when a 
movant seeks a mandatory, rather than a prohibitory, injunction. Sanofi-Aventis 
U.S. LLC v. Novo Nordisk, Inc., No. 06-1369, 2006 WL 8457950, at *7 (D.N.J. 
June 23, 2006). Plaintiffs seek a mandatory injunction because they seek to change 
the status quo by asking Defendant Counties to un-accept the grants they have 
already accepted. As explained below, Plaintiffs cannot clear the high bar required 
for a TRO, let alone a mandatory injunction.  
I. 
Plaintiffs are not likely to succeed on the merits. 
 
Plaintiffs cannot show a likelihood of success on the merits for three 
independently dispositive reasons: (1) Plaintiffs lack standing; (2) neither the 
Supremacy Clause nor the Help America Vote Act (“HAVA”) create a private 
right of action; and (3) Plaintiffs are unlikely to succeed on their argument that the 
Supremacy Clause, the Elections Clause, HAVA, or the National Voter 
Registration Act (“NVRA”) preempt Defendant Counties’ acceptance of CTCL’s 
grants. Each of these reasons on its own is sufficient to deny Plaintiffs’ request for 
a TRO. 
A. 
Plaintiffs lack standing to seek relief on their claim. 
 
“To establish Article III standing, a plaintiff must show (1) an ‘injury in 
fact,’ (2) a sufficient ‘causal connection between the injury and the conduct 
complaint of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a 
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favorable decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 
(2014). “[A]n injury sufficient to satisfy Article III must be ‘concrete and 
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. 
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Future injury is 
sufficient only “if the threatened injury is ‘certainly impending,’ or there is a 
‘substantial risk that the harm will occur.’” Id. (quoting Clapper v. Amnesty Int’l 
USA, 568 U.S. 398, 410, 414 n.5 (2013)). Further harm that is speculative or 
merely “possible” does not suffice. Clapper, 568 U.S. at 409. 
 
The plaintiffs here are: (1) 14 individual “eligible Pennsylvania voter[s]” 
who “oppose[] the election of progressive candidates,” Compl. ¶¶ 5–18, along with 
(2) the Pennsylvania Voters Alliance (“PVA”), an unincorporated association that 
allegedly aims to promote compliance with Pennsylvania election laws and 
processes, Compl. ¶ 4. All plaintiffs assert the same injury, alleging that CTCL 
grants are “skewed toward progressive voters injuring the plaintiffs because close 
elections will be lost by plaintiffs’ favored non-progressive candidates.” TRO at 
11; see also id. at 19 (“a greater chance that progressive candidates will win”); 
Compl. ¶ 35 (same).  
This alleged injury is insufficient to confer Article III standing because: (1) 
it is not concrete and particularized; (2) it is a future harm that is too speculative to 
constitute injury-in-fact; and (3) it is neither causally linked to the conduct they 
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13 
challenge nor redressable by the relief they seek from Defendant Counties.  
1. 
Plaintiffs’ purported injury is a “generalized grievance” 
that does not constitute Article III injury-in-fact. 
 
First, any harm to Plaintiffs’ alleged interest in seeing “non-progressive” 
ideals prevail at the ballot box is too abstract and generalized to satisfy the injury-
in-fact requirement. TRO at 11. Federal courts “refus[e] to serve as a forum for 
generalized grievances” that do not reflect a personal stake in the resolution of the 
issues sought to be adjudicated. Lance v. Coffman, 459 U.S. 437, 439 (2007) (per 
curiam). When “[t]he only injury plaintiffs allege is that the law . . . has not been 
followed,” that is “precisely the kind of undifferentiated, generalized grievance 
about the conduct of government that [federal courts] have refused to 
countenance.” Id. at 442. The same is true when a harm is “abstract and widely 
shared” by all citizens of a state or country. Berg v. Obama, 574 F. Supp. 2d 509, 
518 (E.D. Pa. 2009).  
 
Under this standard, Plaintiffs lack standing because they have asserted only 
an “abstract interest in the policies adopted” after an election, and that interest does 
not satisfy the injury-in-fact requirement. Gill v. Whitford, 138 S. Ct. 1916, 1931 
(2018). None of Plaintiffs has even attempted to show that they would suffer harm 
in a “personal and individual way.” Id. at 1929. The individual plaintiffs claim 
only an “abstract” interest in certain electoral outcomes, but that interest is “widely 
shared” with their fellow citizens throughout Pennsylvania and the country. Berg, 
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574 F. Supp. 2d at 518. And the PVA has not identified any concrete harm to the 
organization itself that is “more than simply a setback to the organization’s abstract 
societal interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).3 
Crediting these bases for standing would impermissibly “transform [this Court] 
into no more than a vehicle for the vindication of the value interests of concerned 
bystanders.” Allen v. Wright, 468 U.S. 737, 756 (1984).4 
                                                 
3  
The PVA must show that it has suffered some injury that gives it standing 
“in its own right” because it could only sue on behalf of its members if those 
members would have standing in their own right. Warth v. Seldin, 422 U.S. 490, 
511 (1975); see Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 279 (3d Cir. 
2014). The PVA has not carried that burden because it has not identified any of its 
members, much less explained why those members would have standing. See 
Compl. ¶ 4 (alleging only that the PVA “has many members” including 
unspecified “candidates seeking elective office”); see also Chamber of Commerce 
for Greater Phila. v. City of Phila., Civ. A. No. 17-1548, 2017 WL 11544778, at 
*4 (E.D. Pa. May 30, 2017) (“Thus, the Chamber has failed to demonstrate 
‘through specific facts . . . that one or more of [its] members [will] . . . be ‘directly’ 
affected” by the Ordinance, and I therefore cannot determine whether the 
Chamber’s members would have standing to bring this suit.”). Notably, none of the 
individual plaintiffs are alleged to be members of the PVA, but even if they were 
the association would lack standing for the same reasons they do. 
4  
The Complaint alleges that a number of the individual “eligible 
Pennsylvania voter” plaintiffs are either members of the state legislature or 
candidates for office. Compl. ¶¶ 5, 9–18. Neither the Complaint nor Plaintiffs’ 
TRO briefing asserts that these plaintiffs have any distinct individual interest 
grounded in these facts, much less attempts to carry Plaintiffs’ burden to establish 
that such an interest would satisfy the prerequisites of Article III standing. Any 
such argument would fail in any event. Individual legislators can assert “standing 
based on a loss of political power” only in limited circumstances that are clearly 
not present here. Raines v. Byrd, 521 U.S. 811, 821 (1997); see id. at 821–26; 
Corman v. Torres, 287 F. Supp. 3d 558, 568 (M.D. Pa. 2018). And even if the 
potential harm to any of these plaintiffs as legislators or candidates were 
 
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2. 
Plaintiffs’ purported injury is speculative and attenuated. 
Second, Plaintiffs have not established that Defendants’ acceptance of 
private funding is sufficiently likely to cause their asserted injury. Their theory is 
that “close elections will be lost” on November 3 by unspecified “non-progressive 
candidates” because Defendant Counties accepted these funds. TRO at 11. But that 
theory “relies on a highly attenuated chain of possibilities” and thus “does not 
satisfy the requirement that threatened injury must be certainly impending.” 
Clapper, 568 U.S. at 410; see also Susan B. Anthony List, 573 U.S. at 158 (quoting 
Lujan, 504 U.S. at 560) (asserted future harm must be “‘actual or imminent, not 
conjectural or hypothetical’”).  
In their futile attempt to connect CTCL grants to predicted future victories 
by progressive candidates that would not otherwise occur, Plaintiffs rely on a chain 
of speculative and unsupported inferences about the effect of the grants—while 
ignoring the fifteen other counties in Pennsylvania that were awarded grants, 
including several counties that voted for Donald Trump over Hillary Clinton by 
more than two-to-one. Among other things, Plaintiffs presuppose without evidence 
or explanation: 
 That Defendant Counties would not have found a way to undertake the 
                                                                                                                                                             
sufficiently personal to them, that harm would remain far too speculative and 
attenuated to constitute injury-in-fact. See infra Section I.A.2. It would also remain 
unredressable by the relief Plaintiffs seek. See infra Section I.A.3.  
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same measures to facilitate safe and efficient voting options for their 
residents absent CTCL funding; 
 
 That these safe and efficient voting measures will induce some residents to 
vote who otherwise would not have intended to do so, rather than simply 
providing those who intend to vote safer and more efficient means of doing 
so during the pandemic; 
 
 That the expanded electorate in these counties will include more voters for 
unidentified “progressive” candidates, even though Defendant Counties are 
using the funds for the benefit all county residents; 
 
 That voting patterns in the upcoming election will mirror voting patterns in 
the 2016 elections, despite different candidates running and different issues 
having prominence; 
 
 That whatever changes occur in the electorate in Defendant Counties will 
not be mirrored or counteracted by changes in the electorate in other 
counties; and 
 
 That any of these changes will have a significant enough impact to affect 
the outcome of any particular election. 
 
Plaintiffs must prove each inference to show Article III injury, yet they have not 
submitted evidence to establish that any of these inferences is likely. To the 
contrary, their theory relies on uncorroborated and non-intuitive inferences about 
the behavior of third parties (including election administrators and countless 
individual voters throughout Pennsylvania), as well as how that behavior would 
influence future election results. Plaintiffs thus fail to meet the standard that their 
“threatened injury must be certainly impending to constitute injury in fact.” 
Clapper, 568 U.S. at 410. 
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3. 
Plaintiffs’ purported injury is not redressable by the relief 
they seek.  
Still a third reason Plaintiffs lack standing is that their purported injury is not 
redressable by the relief they seek, an injunction against these three Defendant 
Counties to prevent them from continuing to spend CTCL grants. As an initial 
matter, Plaintiffs’ theory of harm that CTCL grants favor “progressive” 
jurisdictions is demonstrably false: CTCL makes grants available on a nonpartisan 
basis to any local jurisdiction that seeks them. See Ford Decl., Ex. F at 1, 17–18 
(diverse group of 18 Pennsylvania counties have sought grants, and more than 
1,100 nationwide). But even if Plaintiffs’ allegation were true, the imbalance they 
allege could arise only because other counties with less “progressive” electorates 
did not apply for grants (though they actually did), or because CTCL does not issue 
them to such counties (though it actually does). An injunction here would not 
affect those conditions. Therefore, any purported injury to Plaintiffs is attributable 
to “the independent action of” other “third part[ies] not before the court.” See 
Allen, 468 U.S. at 758. As a result, a TRO to prevent Defendant Counties, and only 
Defendant Counties, from using CTCL grant money cannot redress the imbalance 
asserted by Plaintiffs. That mismatch between the relief sought and the harm 
alleged is particularly clear in Pennsylvania, where CTCL has also awarded grants 
to Pennsylvania counties that voted for Donald Trump in 2016 by wide margins. 
For the foregoing reasons, Plaintiffs lack standing to pursue this Complaint 
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and the Court should deny a TRO on this ground alone. 
B. 
Plaintiffs have identified no viable private cause of action. 
A second dispositive basis to deny a TRO is the absence of a cause of action. 
Plaintiffs claim that Defendant Counties are preempted from accepting CTCL 
grants based on congressional silence through the interaction of two constitutional 
clauses and two statutes: the Elections Clause, U.S. Const. art. I, § 4; the 
Supremacy Clause, U.S. Const. art. VI, cl. 2; the Help America Vote Act, 52 
U.S.C. §§ 20901–21145 (“HAVA”); and the National Voter Registration Act, 52 
U.S.C. §§ 20501–11 (“NVRA”). Plaintiffs lack a cause of action and therefore are 
not likely to succeed on the merits of any of their claims.  
1. 
The Supremacy Clause does not provide a cause of action. 
Plaintiffs cannot make out a claim based on the Supremacy Clause alone 
because it “certainly does not create a cause of action.” Armstrong v. Exceptional 
Child Ctr., Inc., 575 U.S. 320, 325 (2015). It is black-letter law that the Supremacy 
Clause “is not the source of any federal rights” and “is silent regarding who may 
enforce federal laws in court, and in what circumstances they may do so.” Id. at 
324–25. Accordingly, the Supremacy Clause does not create the needed cause of 
action.5 
                                                 
5  
Although Plaintiffs also claim that CTCL’s grants are preempted by another 
constitutional provision, the Elections Clause, TRO at 15, Plaintiffs do not assert a 
 
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2. 
HAVA does not provide a private cause of action. 
Under controlling Supreme Court precedent, Plaintiffs cannot find their 
necessary cause of action in HAVA. TRO at 10–11. Brunner v. Ohio Republican 
Party is directly on point. 555 U.S. 5 (2008) (per curiam). There, the Supreme 
Court reversed a TRO granted to a private plaintiff because “regardless of whether 
HAVA [was] being properly implemented,” the plaintiffs were “not sufficiently 
likely to prevail on the question whether Congress has authorized [a federal court] 
to enforce [the relevant HAVA provision] in an action brought by a private 
litigant.” Id. at 6. 
Brunner follows from the well-established principle that federal courts 
generally do not imply private causes of action, particularly when the statute at 
issue contains an “express provision [for] one method of enforcing a substantive 
rule,” which “suggests that Congress intended to preclude others,” including 
private rights of action. Alexander v. Sandoval, 532 U.S. 276, 290 (2001). HAVA 
provides two such express remedial schemes: first, it authorizes the Attorney 
General to bring suits to enforce the statute, 52 U.S.C. § 21111; and second, it 
requires states that receive funds to establish administrative complaint procedures, 
52 U.S.C. § 21112.  
                                                                                                                                                             
cause of action under that Clause; they instead rely on their (incorrect) assertion 
that the Supremacy Clause provides them a cause of action, id. at 9–10. 
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Accordingly, the Third Circuit has held that “HAVA does not include a 
private right of action that allows aggrieved parties to sue nonconforming states.” 
Am. Civil Rights Union v. Phila. City Comm’rs, 872 F.3d 175, 181 (3d Cir. 2017); 
see also Bellitto v. Snipes, 935 F.3d 1192, 1202 (11th Cir. 2019) (“Congress 
established only two HAVA enforcement mechanisms: (1) a civil action brought 
by the Attorney General, and (2) a state-based administrative complaint procedure. 
52 U.S.C. §§ 21111, 21112.”); Sandusky Cty. Democratic Party v. Blackwell, 387 
F.3d 565, 572 (6th Cir. 2004) (“HAVA does not itself create a private right of 
action.”).  
Plaintiffs seek to avoid the preclusive force of these precedents by citing 
HAVA’s administrative remedy provision, which requires states to provide 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).” TRO at 10 (quoting 52 U.S.C. § 21112). Without citing any 
authority, Plaintiffs then claim that Pennsylvania state law fails to satisfy this 
obligation because it lacks a mechanism for “pre-election injunctive relief.” Id. But 
even if Pennsylvania’s state administrative procedures were inadequate under 
HAVA (and they are not), that would not somehow create a private right of action 
under HAVA for two reasons. First, Plaintiffs’ argument directly contradicts 
Sandoval: a provision expressly identifying state administrative procedures as the 
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21 
remedy for a statutory violation cannot create a separate private right of action by 
implication. See 532 U.S at 290 (where a statute makes “express provision [for] 
one method of enforcing a substantive rule . . . Congress intended to preclude 
others.”). And second, Plaintiffs’ argument ignores the availability of a second, 
independent means of enforcing HAVA—namely, a civil action brought by the 
Attorney General. See 52 U.S.C. § 21112. This second express remedy likewise 
precludes implication of a private cause of action. See Bellitto, 935 F.3d at 1202 
(citing 52 U.S.C. §§ 21111, 21112).  
In sum, Plaintiffs cannot overcome the binding precedents foreclosing the 
availability of a private cause of action under HAVA. 6 
                                                 
6  
Plaintiffs argue that the NVRA preempts CTCL’s grants, TRO at 17–18, 
though they do not actually claim to have a cause of action under the NVRA, id. at 
9–11. Even if they did assert a cause of action under the NVRA, they failed to 
satisfy its exhaustion requirement. Plaintiffs filed their Complaint on September 
25, 2020—thirty-nine days before the November 3, 2020 election—complaining of 
grants received by Defendant Counties well in advance of the filing of the 
Complaint. Taking Defendant Counties’ grant award dates (August 18, August 21, 
and September 21), Plaintiffs were required to file a notice with and allow 
Pennsylvania’s chief election official twenty days to correct the alleged violation 
before they could file an action in federal court. 52 U.S.C. § 20510(b)(2). The 
Complaint does not contain any allegations that Plaintiffs attempted to do so. This 
Court has held that the failure to serve notice is fatal to a claim under the NVRA 
and requires dismissal. Pub. Interest Legal Found. v. Boockvar, 370 F. Supp. 3d 
449, 457 (M.D. Pa. 2019). 
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C. 
Plaintiffs are unlikely to succeed on the merits of their claim. 
 
Even if Plaintiffs could somehow establish standing and a private cause of 
action, a TRO should still be denied because they cannot show a likelihood of 
success on the merits of any of their claims. Notably, Plaintiffs never identify any 
language prohibiting Defendant Counties from accepting private grants for election 
administration. In a virtually identical claim, another federal court recently denied 
a TRO, holding that Plaintiffs “have not demonstrated a strong likelihood of 
success on the merits” because “no such explicit prohibition exists.” Ford Decl., 
Ex. H at 2 (“But Plaintiffs never identify language in any of those laws that 
explicitly prohibits cities from accepting private grants to administer elections. On 
the Court’s review, no such explicit prohibition exists.”). 
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Plaintiffs contend that Defendant Counties cannot lawfully accept election-
administration grant funds from a private source because those grants are 
“preempted” under various constitutional provisions and federal laws. See TRO at 
12–18. Plaintiffs appear to proceed on a theory of “conflict preemption.” See id. 
But “conflict preemption” occurs only when “compliance with both laws is 
impossible” or when the “state law erects an obstacle to the accomplishment and 
execution of the full purposes and objectives of Congress.” Farina v. Nokia Inc., 
625 F.3d 97, 115 (3d Cir. 2010) (internal quotation marks omitted). As we explain 
below, neither circumstance exists here.  
1. 
The Elections Clause and the Supremacy Clause do not 
preempt the CTCL grants at issue in this case. 
 
Plaintiffs passingly assert that the Elections Clause and the Supremacy 
Clause preempt CTCL’s grants to Defendant Counties. TRO at 15. But neither the 
Elections Clause nor the Supremacy Clause has anything to do with this case.  
It is inconceivable that the Supremacy Clause applies of its own force here 
because, as noted above, the Supremacy Clause “is not the source of any federal 
rights” and “is silent regarding who may enforce federal laws in court, and in what 
circumstances they may do so.” Armstrong, 575 U.S. at 324–25.  
Nor does the Elections Clause have preemptive effect here. That Clause 
provides that “[t]he Times, Places and Manner of holding Elections for Senators 
and Representatives, shall be prescribed in each State by the Legislature thereof; 
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24 
but the Congress may at any time by Law make or alter such Regulations, except 
as to the places of chusing Senators.” Arizona v. Inter Tribal Council of Ariz., Inc., 
570 U.S. 1, 7–8 (2013) (quoting U.S. Const. art. I, § 4). Its focus is the balance of 
authority between states and Congress in regulating federal elections, see id. at 8, 
and it says nothing about how local governments fund federal elections. 
Indeed, CTCL’s grants have no bearing on the time, place, and manner of 
the November 3, 2020 election, and Plaintiffs do not allege otherwise. Nor could 
they. The time and place are fixed, and how Defendant Counties choose to pay for 
election administration systems is not a “manner” subject to the Elections Clause, 
and therefore could not possibly make compliance with the Elections Clause 
impossible or defeat the operation of the Clause. See Farina, 625 F.3d at 115; see 
also Cook v. Gralike, 531 U.S. 510, 523–24 (2001) (“manner” “encompasses” 
substantive “matters like ‘notices, registration, supervision of voting, protection of 
voters, prevention of fraud and corrupt practices, counting of votes, duties of 
inspectors and canvassers, and making and publication of election returns,’” not 
the funding thereof) (citation omitted).  
Notably, Plaintiffs cite no case holding that the Elections Clause preempts 
an election administrator’s source of funding. Instead, they appear to argue that 
federal elections must be exclusively funded by federal and state governments and 
that “private federal election grants are not legally authorized by federal law nor 
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25 
state law.” TRO at 15. But that is not how conflict preemption works. The question 
is not whether federal or state law affirmatively authorizes CTCL’s grants, but 
rather whether federal law expressly prohibits those grants (e.g., by creating 
conflict preemption). As explained above, they do not. And contrary to Plaintiffs’ 
assertions, Pennsylvania law places the burden of funding primaries and elections 
on counties—not on federal or state sources. 25 Pa. Stat. § 2645(a) (“The county 
commissioners or other appropriating authorities of the county shall appropriate 
annually, and from time to time, to the county board of elections of such county, 
the funds that shall be necessary for the maintenance and operation of the board 
and for the conduct of primaries and elections in such county . . . .”). In other 
words, Defendant Counties are expected to pay for the activities and resources 
required to conduct elections beyond whatever federal or state funding they may 
receive. Plaintiffs have not shown any likelihood of success on their argument that, 
in obtaining that funding partly through nonpartisan private grants, Defendant 
Counties have violated the federal Constitution.7 
                                                 
7  
Plaintiffs’ invocation of U.S. Term Limits, Inc. v. Thornton, TRO at 15, is 
wholly inapposite. U.S. Term Limits recognizes that states may not “dictate 
electoral outcomes, . . . favor or disfavor a class of candidates, or . . . evade 
important constitutional restraints.” 514 U.S. 779, 833–34 (1995). Plaintiffs do not 
even attempt to explain how private funds to supplement election administration 
activities—afforded to jurisdictions of all political and partisan stripes throughout 
Pennsylvania and used to support safer, more efficient voting by all voters within 
 
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26 
2. HAVA does not preempt the CTCL grants at issue in this 
case. 
Plaintiffs are also unlikely to succeed in establishing that acceptance of 
private grants is prohibited by HAVA under “conflict-preemption” principles. 
TRO at 14, 16–17. Nothing about Defendant Counties’ acceptance of CTCL’s 
grants renders HAVA compliance impossible, or stands as “an obstacle to the 
accomplishment and execution of the full purposes and objectives” of HAVA. See 
Farina, 625 F.3d at 115.  
First, nothing in HAVA makes it “impossible” for Defendant Counties to 
accept private grant money while complying with HAVA. Id. Not only do 
Plaintiffs fail to identify a single provision of HAVA that would give rise to such 
impossibility, but Plaintiffs also ignore that HAVA specifically contemplates that 
states will receive funding from other sources: HAVA includes a recordkeeping 
requirement to “fully disclose the amount and disposition . . . of funds, the total 
cost of the project or undertaking for which such funds are used, and the amount of 
that portion of the cost of the project or undertaking supplied by other sources.” 52 
U.S.C. § 21142(a) (emphasis added).  
Second, accepting private grant money promotes—not impedes—full 
accomplishment of HAVA’s purposes. HAVA is principally “concerned with 
                                                                                                                                                             
each jurisdiction—run afoul of any of those requirements or relate in any way to 
their Elections Clause claim. 
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27 
updating election technologies and other election-day issues at polling places.” 
Democratic Nat’l Comm. v. Republican Nat’l Comm., 673 F.3d 192, 211 (3d Cir. 
2012); Gonzalez v. Arizona, 677 F.3d 383, 402 (9th Cir. 2012) (same). Those 
purposes are furthered by Defendant Counties’ acceptance of CTCL’s grant 
funding, which “help[s] ensure [local governments] have the staffing, training, and 
equipment necessary so this November every eligible voter can participate in a safe 
and timely way and have their vote counted.” Kaardal Decl., Ex. A at 1.  
 
Given this harmony between Defendant Counties’ actions and HAVA’s text 
and purpose, it is unsurprising that Plaintiffs fail in each of their attempts to 
manufacture a conflict.  
For starters, Plaintiffs claim that HAVA “does not legally authorize local 
governments to accept private federal election grants.” TRO at 16. But even if true, 
the absence of express authorization in HAVA cannot support federal conflict 
preemption as a matter of law. Florida State Conference of N.A.A.C.P. v. Browning 
is on point: in that case, the Eleventh Circuit rejected a similar argument from 
“negative implication,” holding that Florida’s voter registration statute—which 
conditioned registration on a new “matching” verification requirement—was not 
preempted by HAVA section 303(a), which governs state voter registration 
databases. 522 F.3d 1153, 1168 (11th Cir. 2008). As Browning emphasized, just 
because HAVA may not have “prescribe[d] matching as a federal precondition for 
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28 
voter registration,” that does not mean that HAVA thereby impliedly “prohibit[s] 
states from implementing [matching].” Id.  
In other words—and as explained above—there is a difference between 
affirmative authorization and conflict preemption. The question here is not whether 
federal law expressly authorizes receipt of grants to fund election administration; it 
is whether the receipt of such grants affirmatively offends or defeats federal law. 
Because HAVA is simply silent on the matter at hand, “there is no conflict of 
laws,” and “the [counties’ actions] cannot be preempted.” Am. Civil Rights Union 
v. Phila. City Comm’rs, Civ. A. No. 16-1507, 2016 WL 4721118, at *10 (E.D. Pa. 
Sept. 9, 2016), aff’d, 872 F.3d 175 (3d Cir. 2017) (“ACRU”). In ACRU, the 
plaintiffs argued that the NVRA, “taken together” with HAVA, preempted 
Pennsylvania law to the extent state law did not require “remov[ing] incarcerated 
felons from voter registration rolls.” Id. at *3, *10. Rejecting this contention, “the 
Court . . . thoroughly reviewed each potentially applicable section of both the 
NVRA and HAVA, and . . . found no such requirement” to remove incarcerated 
persons, and therefore held “[t]here can be no conflict preemption.” Id. at *10. 
Similarly, here, because there is no requirement in HAVA that municipalities 
refrain from accepting private grants, there is no conflict between HAVA and 
Defendant Counties’ actions. Therefore, there “can be no preemption.” Id.   
 
Plaintiffs’ citation to HAVA’s creation of the Election Assistance 
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29 
Commission (“EAC”) also fails to support a finding of conflict preemption. 
Plaintiffs cite no authority for the proposition that private grants somehow 
“circumvent the EAC.” TRO at 17. The “state plan” requirements under HAVA 
pertain only to states’ use of supplementary payments provided under the statute 
and do not confer any sort of comprehensive binding authority upon the federal 
government, or the EAC, over state and local governments’ own spending plans 
and election administration budgets or funding streams. Because nothing in the 
HAVA provisions setting forth the conditions for receipt of funds or the required 
contents of the state plans submitted to EAC, see 52 U.S.C. §§ 21003, 21004, 
prohibits election administrators from deciding how to fund election systems, 
Plaintiffs’ preemption argument fails.8 Cf. Browning, 522 F.3d at 1172 (“[O]n 
issues relating . . . not specifically addressed by HAVA, Congress essentially 
                                                 
8  
To the extent Plaintiffs imply that acceptance of CTCL’s private grants 
somehow undermines the bipartisan mission of the EAC because the voters in 
these counties may lean progressive, TRO at 17 (“Under HAVA, the EAC is to be 
bi-partisan and work with all the states in a bipartisan way.”), that argument is 
baseless for two reasons. First, CTCL’s funds are available to all municipalities 
that meet the same nonpartisan requirements. See Kaardal Decl., Ex. A at 5 (“If 
your U.S. election office is responsible for administering election activities 
covered by the grant, you’re eligible to apply for grant funds.”). Plaintiffs have not 
offered any evidence to the contrary. Second, any election administrator’s 
acceptance and use of CTCL funds would not undermine, or in any way impact, 
the bipartisan make-up or mission of the EAC, regardless of whether Plaintiffs 
label that city “progressive” or not. The AC would continue to operate in the same 
bipartisan manner whether or not a particular municipality happens to accept 
CTCL funding.  
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30 
punted to the states.”).  
 
Nor does the use of grants to fund enhancements to local election systems 
conflict with HAVA, even if such improvements exceed the “minimum 
requirements” in HAVA, see Browning, 522 F.3d at 1172, or any “federally-
approved and state-approved election administration plans and budgets,” TRO at 
17. In other words, HAVA’s national standards for election technology and 
administration set a floor, not a ceiling. Defendant Counties’ actions do not 
conflict with HAVA when they fund improvements to local election administration 
above the bare minimum. 
 
Having failed to demonstrate a likelihood that CLTC’s grants render HAVA 
compliance impossible, Plaintiffs likewise fail to demonstrate that these grants 
would likely pose an obstacle to accomplishing any of HAVA’s purposes. As an 
initial matter, Plaintiffs theory, unsupported by any citation, that HAVA’s core 
purpose is federal-state coordination stands in marked contrast to the Third 
Circuit’s articulation of HAVA’s actual statutory purposes. Compare TRO at 16 
(“HAVA’s purpose was to coordinate federal and state administration of federal 
elections.”), with Democratic Nat’l Comm., 673 F.3d at 211 (explaining that 
HAVA was concerned with “updating election technologies and other election-day 
issues at polling places”). In any event, Plaintiffs do not explain how a 
municipality’s acceptance of a private grant is an obstacle—or even marginally 
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31 
relevant—to any federal-state coordination objective. To the contrary, as explained 
above, proactive steps by election administrators to enhance funding for election 
administration improvements do not interfere or conflict with implementation of 
any “minimum” federal standards under HAVA. See Crowley v. Nevada ex rel. 
Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (emphasis added) (HAVA 
“establishes minimum election administration standards for States and units of 
local government with responsibility for the administration of Federal elections.”) 
(quoting Help America Vote Act of 2002, P.L. 107-252, Oct. 29, 2002, 116 Stat. 
1666). Defendant Counties’ acceptance of CTCL’s grants in an effort to improve 
local election administration leaves federal-state relations untouched.  
 
HAVA simply does not preempt state election law unless such compliance 
with such state laws renders simultaneous compliance physically impossible, or the 
state law “impedes HAVA’s objectives.” Browning, 522 F.3d at 1171. And 
because there is no such “conflict of laws” here, the municipalities’ actions cannot 
be preempted. ACRU, 2016 WL 4721118, at *10. That principle also demonstrates 
why the handful of authorities Plaintiffs do cite are inapposite: Those cases found 
conflict preemption under HAVA only because the relevant laws “directly 
conflict[ed] with [HAVA].” Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 
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32 
1264, 1269 (W.D. Wash. 2006)9; see also Kuznik v. Westmoreland County Bd. of 
Comm’rs, 902 A.2d 476, 479–80 (Pa. 2006) (holding that state law requiring 
referendum before purchase of replacement of lever voting machines was 
preempted by HAVA’s express requirement “to replace lever machines with 
[electronic voting systems]”); Colo. Common Cause v. Davidson, No. 04CV7709, 
2004 WL 2360485, at *11–12 (Colo. Dist. Ct. Oct. 18, 2004) (finding conflict 
preemption likely where HAVA’s purpose to “insure that registered and eligible 
voters are allowed to vote provisionally, even though their names do not appear on 
polling place voting rolls” conflicted with a state law “categorically preclud[ing] 
provisional ballots from being counted if the voter had requested an absentee 
ballot”). These cases have no application here because the grants do not conflict 
with HAVA. 
 
Plaintiffs have not met their burden to establish that HAVA likely preempts 
acceptance of CTCL’s grants.  
                                                 
9  
Reed, which enjoined Washington State’s “matching statute” requiring the 
state to match a potential voter’s name to a database before allowing that person to 
register to vote, is in tension with Browning’s approval of Florida’s matching 
statute. But even under Reed, there can be no preemption here. Unlike the plaintiffs 
in Reed, Plaintiffs here do not point to any specific provision of HAVA that 
directly conflicts with Defendant Counties’ acceptance of CTCL grants. Compare 
Reed, 492 F. Supp. 2d at 1269 (holding Washington’s matching statute likely 
conflicts with three specific provisions of HAVA), with ACRU, 2016 WL 
4721118, at *10 (Because “the Court has thoroughly reviewed each potentially 
applicable section of . . . HAVA” and found no conflict, “Pennsylvania law cannot 
be preempted.”). 
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33 
3. The NVRA does not preempt the CTCL grants at issue in 
this case. 
Plaintiffs claim that the NVRA “preempts CTCL’s private federal election 
grants.” TRO at 17. But once again, they articulate no reason that Defendant 
Counties’ acceptance of CTCL’s grants would make compliance with the NVRA 
impossible or defeat the operation of the statute. See Farina, 625 F.3d at 115. The 
NVRA provision Plaintiffs cite, see TRO at 17 (quoting 52 U.S.C. § 20503), says 
nothing about funding local election administration. It merely explains that the 
NVRA creates “national procedures for voter registration for elections for Federal 
office.” Id. The rest of the NVRA does not address election funding either. See 52 
U.S.C. §§ 20501–11. And nothing about the facts alleged here conflict with any 
existing procedures for voter registration. If anything, given that the NVRA’s 
stated purposes include “mak[ing] it possible for Federal, State, and local 
governments” to “enhance the participation of eligible citizens as voters in 
elections for Federal office,” see 52 U.S.C. § 20501(b)(2), the NVRA’s purposes 
are furthered (not defeated) by local election grants. 
Plaintiffs then cite HAVA—not the NVRA—which leaves “the specific 
choices on the methods of complying with the requirements of this subchapter . . . 
to the discretion of the State.” TRO at 18 (quoting 52 U.S.C. § 21085). That 
provision plainly does not “preempt[] the actions of local governments in accepting 
the CTCL’s private federal election grant,” TRO at 18—because it does not 
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34 
concern local funding of election administration. And, as described above, 
Pennsylvania has exercised its discretion under HAVA to require counties, not 
federal or state government, to fund primary and elections, underscoring that 
CTCL’s grants here are no obstacle to Congress’s purposes. See 25 Pa. Stat. 
§ 2645(a). Plaintiffs’ argument that the NVRA preempts Defendant Counties’ 
acceptance of CTCL’s grants is therefore unlikely to succeed on the merits. 
4. There is no general constitutional prohibition on public-
private partnerships in local election funding. 
 
As a fallback, Plaintiffs manufacture a novel theory of constitutional law, 
asserting (without reference to any specific constitutional text) that public-private 
partnerships in local election administration are inherently repugnant to the 
Constitution. TRO at 12–14. This theory is baseless, and the cases Plaintiffs cite 
have nothing to do with local election funding.  
 
Young v. Red Clay School District, for example, does not support the idea 
that Defendant Counties’ receipt of private funds violates the Constitution; indeed, 
that case involves neither a public-private funding agreement nor a federal 
election. 122 A.3d 784 (Del. Ch. 2015). Instead, Young addressed a school 
district’s “selective get-out-the-vote efforts,” which “diminished the voting rights 
of one portion of the electorate and enhanced the voting rights of another portion 
of the electorate” by encouraging residents likely to favor the district’s voting 
preferences (parents with children) while simultaneously discouraging voting by 
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35 
those considered likely to oppose the district’s preferences (elderly and disabled 
residents). See id. at 837, 859. But Plaintiffs allege nothing of the sort here, much 
less do they provide any evidence of selective get-out-the-vote efforts. And CTCL 
grant eligibility is determined on an objective, nonpartisan basis. See Kaardal 
Decl., Ex. A at 5. Defendant Counties are accordingly just three of the eighteen 
counties in Pennsylvania that have received funding from CTCL at this point, and 
plenty of the recipient counties do not lean “progressive.” There is simply no 
evidence whatsoever that the grants offered by CTCL have been provided, 
accepted, used, or otherwise implemented in any partisan manner.  
 
The three remaining cases that Plaintiffs cite in support of their public-
private partnership theory are even further afield—and like Young, none addresses 
either a public-private partnership or election funding. Kiryas Joel concerned a 
violation of the Establishment Clause, and Ferguson concerns a violation of the 
Fourth Amendment—neither bears any relevance whatsoever to this case. Bd. of 
Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 690 (1994); 
Ferguson v. City of Charleston, 532 U.S. 67 (2001).  
 
Last, Plaintiffs cite a Pennsylvania Commonwealth Court decision in which 
a candidate misrepresented himself to voters on his nomination papers and was 
removed from the ballot under state law. See In re Nomination Papers of Carlson, 
430 A.2d 1210, 1212 (Pa. Commw. Ct. 1981). Carlson, too, is wholly inapposite to 
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36 
this case, where there are neither allegations nor evidence of any fraudulent 
conduct by a candidate for office or anyone else. 
 
In sum, even if Plaintiffs had both Article III standing and a cause of action 
to pursue their claims (which they do not), no precedent or constitutional provision 
supports Plaintiffs’ theory that private grants are statutorily or constitutionally 
impermissible. 
II. 
Plaintiffs cannot show a likelihood of irreparable harm or that the 
balance of the equities or the public interest favor a temporary 
restraining order. 
A. 
Plaintiffs’ alleged harm is too speculative to be irreparable. 
Plaintiffs cannot show irreparable harm for the same reasons that they do not 
have standing. Considering the allegations in the Complaint and the evidence (or 
lack thereof) before the Court, the only alleged harm asserted by Plaintiffs—that 
CTCL grants will lead to more progressive votes and more progressive candidates 
elected—is too speculative to constitute irreparable harm. Siegel v. LePore, 234 
F.3d 1163, 1177 (11th Cir. 2000) (refusing to grant a preliminary injunction 
because alleged harm that manual recounts would result in the victory of plaintiffs’ 
opposing candidate was “wholly speculative”); Republican Party of Pa. v. Cortés, 
218 F. Supp. 3d 396, 410 (E.D. Pa. 2016) (“Plaintiffs also assert that denying an 
injunction ‘could have a determinative effect on the election.’ This highly 
speculative concern is insufficient to warrant the extraordinary remedy of a 
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37 
preliminary injunction.”) (citations omitted); SAM Party v. Kosinski, No. 20 Civ. 
323, 2020 WL 5359640, at *9 (S.D.N.Y. Sept. 1, 2020) (“The WFP plaintiffs’ 
primary theory for irreparable harm seems to be concern that they will fail to 
secure enough votes in the November election to maintain party status. Such an 
injury is too speculative to warrant a preliminary injunction and is not ‘irreparable’ 
without relief granted at this time. It is far from certain that the WFP will fail to 
achieve the required number of votes. But, even if the WFP did fail to meet that 
threshold, the WFP could pursue relief at that time.”). As the U.S. District Court 
for the Western District of Michigan recently distinguished, “Plaintiffs allege that 
they will be harmed on November 3, 2020 if their chosen candidates do not 
prevail, but they do not allege that there is any ongoing use of the grants that 
causes them immediate, irreparable harm.” Ford Decl., Ex. H at 2. Plaintiffs’ 
alleged harm is simply too speculative.  
Plaintiffs’ claim that denial of their right to vote or participate in the election 
is an irreparable injury, TRO at 18–19, is baseless. They have not argued or shown 
that their personal right to vote will be infringed. The truth is that the additional 
resources for safe and efficient voting provided by CTCL grants will improve all 
residents’ ability to safely participate in the election—including that of Plaintiffs 
who live in Defendant Counties. The irreparable harm requirement thus weighs 
strongly in favor of Defendant Counties and against a temporary restraining order. 
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38 
B. 
The balance of equities weighs against granting emergency relief 
to Plaintiffs who showed no diligence in seeking to protect their 
asserted interests. 
Plaintiffs’ delay in filing this suit undercuts any claim that the balance of the 
equities weighs in their favor. As discussed above, CTCL awarded grants to 
Delaware County on August 18, 2020, Ex. B, and to Philadelphia on August 21, 
2020, Compl. Ex. C. Plaintiffs did not file their Complaint until September 25, 
2020—over a month later. It was entirely foreseeable that the grants would be 
relied upon, spent, committed, and otherwise operationalized in this period of time, 
yet Plaintiffs did not take any steps to state their claims or protect their asserted 
interests.  
This delay defeats their entitlement to equitable relief. See Parker v. Dacres, 
130 U.S. 43, 50 (1889) (noting “the principle upon which courts of equity 
uniformly proceed, independently of any statute of limitations, of refusing relief to 
those who unreasonably delay to invoke their aid”). It also weakens any inference 
that Plaintiffs are suffering any actual, irreparable harm. See, e.g., Kobell v. 
Suburban Lines, 731 F.2d 1076, 1091 n.27 (3d Cir. 1984) (“[T]he district court 
may legitimately think it suspicious that the party who asks to preserve the status 
quo through interim injunctive relief has allowed the status quo to change through 
unexplained delay.”); New Dana Perfumes Corp. v. Disney Store, Inc., 131 F. 
Supp. 2d 616, 618 (M.D. Pa. 2001) (plaintiff’s delay in seeking injunctive relief 
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39 
precluded a finding of immediate irreparable harm).  
C. 
The public interest does not benefit from an order restraining 
funds for election administration on the eve of an election. 
The public interest also favors Defendant Counties, who are using the grant 
monies they have received to facilitate safe, secure, and efficient voting for all 
residents during the COVID-19 pandemic. This is a public and constitutional 
interest of the highest order. In contrast, Plaintiffs assert an interest in stripping 
funds from election administration systems based on an entirely conjectural fear 
that more “progressive” voters, in particular, will cast ballots if county-wide 
election systems are improved through use of funds provided by CTCL. Making it 
harder for Pennsylvanians to vote safely and securely is not in the public interest, 
even where a handful of residents theorize (without evidence) that doing so is in 
their partisan interest.  
In all events, the public interest unquestionably does not weigh in favor of a 
temporary restraining order so close to the November 3, 2020 election. Plaintiffs 
ask this Court to restrain funds available for election administration while mail-in 
and absentee voting is already underway. As the Supreme Court recently 
reiterated, “lower federal courts should ordinarily not alter the election rules on the 
eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. 
Ct. 1205, 1207 (2020); see also Purcell v. Gonzales, 549 U.S. 1, 4–5 (2006) 
(“Court orders affecting elections, especially conflicting orders, can themselves 
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40 
result in voter confusion and consequent incentive to remain way from the polls. 
As an election draws closer, that risk will increase.”). An order restricting the use 
of funds so close to an election could cause disruption to election administration 
efforts and injure the residents of Defendant Counties.  
To the extent Plaintiffs argue that addressing constitutional violations is 
always in the public interest, Plaintiffs have simply not proven a constitutional 
violation for the reasons in this brief. Their Motion for Temporary Restraining 
Order should therefore be denied. 
CONCLUSION AND RELIEF REQUESTED 
For the foregoing reasons, Defendants Centre County, Delaware County, 
and the City of Philadelphia respectfully request this Court deny Plaintiffs’ Motion 
for a Temporary Restraining Order. 
Respectfully submitted, 
 /s/ Jerry R. DeSiderato  
 
 
Jerry R. DeSiderato (Pa. Id. No. 201097) 
Timothy J. Ford (Pa. Id. No. 325290) 
Claire Blewitt Ghormoz (Pa. Id. No. 320816) 
DILWORTH PAXSON LLP 
1500 Market Street, Suite 3500E 
Philadelphia, PA 19102 
jdesiderato@dilworthlaw.com 
tford@dilworthlaw.com 
cghormoz@dilworthlaw.com 
Tel.: (215) 575-7000 
Fax: (215) 575-7200 
Counsel for Defendant City of Philadelphia 
 
Case 4:20-cv-01761-MWB   Document 37   Filed 10/12/20   Page 48 of 49

 
41 
 /s/ Molly Meacham 
 
 
 
Molly Meacham (Pa. Id. No. 318272) 
BABST, CALLAND, CLEMENTS AND 
ZOMNIR, P.C. 
Two Gateway Center, 9th Floor 
603 Stanwix Street 
Pittsburgh, PA 15222 
Tel.: (412) 394-5400 
mmeacham@babstcalland.com 
 
Elizabeth A. Dupuis (Pa. Id. No. 80149) 
BABST, CALLAND, CLEMENTS AND 
ZOMNIR, P.C. 
330 Innovation Boulevard, Suite 302 
State College, PA 16803 
Tel.: (814) 867-8055 
bdupuis@babstcalland.com  
Counsel for Defendant Centre County 
 
 /s/ Edward D. Rogers 
 
 
 
Edward D. Rogers (Pa. Id. No. 69337) 
Terence M. Grugan (Pa. Id. No. 307211) 
Elizabeth V. Wingfield (Pa. Id. No. 324277) 
BALLARD SPAHR LLP 
1735 Market Street, 51st Floor 
Philadelphia, PA 19103 
Tel.: (215) 665-8500 
Fax: (215) 864-8999 
RogersE@ballardspahr.com 
GruganT@ballardspahr.com 
WingfieldE@ballardspahr.com 
Counsel for Defendant Delaware County 
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