Supplemental Memorandum in Support of TRO — PA Voters Alliance v. Centre County (M.D. Pa.)

Record facts

U.S. District Court for the Middle District of Pennsylvania · No. 4:20-cv-01761-MWB · Doc. 39 · 2020-10-12 · 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, and Kathy Boockvar, 
in her official capacity as Secretary of the 
Commonwealth of Pennsylvania, 
 
 
 
 
Defendant. 
 
 
Civil Action No.: 
4:20−CV−01761−MWB 
Hon. Matthew W. Brann 
 
 
 
 
 
Supplemental Memorandum in Support 
of Plaintiffs’ Motion for a Temporary 
Restraining Order 
 
 
 
 
TABLE OF CONTENTS 
 
TABLE OF AUTHORITIES .......................................................................................................... iii 
I. 
The facts show that CTCL private federal election grants to 
Pennsylvania counties and cities are inconsistent with federal 
law. ............................................................................................................................................ 1 
II. 
The Plaintiffs have Article III standing. .............................................................................. 3 
III. 
The legal requirement of probability of success on the merits 
for a temporary restraining order to issue are met on Count I 
preemption. ............................................................................................................................ 11 
IV. 
Alternatively, the Equal Protection Clause requires that the 
private federal election grants be proportionally distributed to 
the Pennsylvania counties by the Secretary of the 
Commonwealth. .................................................................................................................... 21 
Kathy Boockvar, in her capacity as Secretary of the 
Commonwealth of Pennsylvania, Centre County, Delaware 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 1 of 38

ii 
County and the City of Philadelphia for violation of the 
Election Clause of the United States Constitution and the 
Equal Protection Clause of the Fourteenth Amendment, 42 
U.S.C. §1983. ................................................................................................................... 21 
V. 
The Pennsylvania Voters Alliance will suffer irreparable injury 
absent the injunction. ........................................................................................................... 28 
VI. 
The harm to other interested parties is little or none if the relief 
is granted. ............................................................................................................................... 31 
VII. 
The public interest is aided by the preliminary injunction. ............................................. 32 
 
 
 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 2 of 38

iii 
TABLE OF AUTHORITIES 
Cases 
Arizona State Legislature v. Arizona Independent Redistricting Com’n,  576 U.S. 787 
(2015) .............................................................................................................................................. 12 
Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013) ................................................... 11 
Baker v. Carr, 369 U.S. 186 (1962) ..................................................................................................... 5 
Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 
(1994) .............................................................................................................................................. 18 
Bullock v. Carter, 405 U.S. 134 (1972) ............................................................................................... 20 
Bush v. Gore, 531 U.S. 98 (2000) ....................................................................................................... 21 
Caperton v. A.T. Massey Coal Co., Inc., 2259–63, 556 U.S. 868 (2009) .......................................... 18 
Christian Legal Soc'y v. Walker, 453 F.3d 853 (7th Cir. 2006) ......................................................... 31 
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249 (3d Cir. 2009) ................................................... 4 
Cook v. Gralike, 531 U.S. 510 (2001) ................................................................................................ 13 
Dunn v. Blumenstein, 405 U.S. 330 (1972) ......................................................................................... 21 
Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................. 30 
Ferguson v. City of Charleston, 532 U.S. 67 (U.S. 2001) ..................................................................... 19 
Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205 (3d Cir. 2014) ......................................... 1 
Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) ..................................................................... 11, 14, 15 
Gill v. Whitford, 138 S. Ct. 1916 (2018) ..................................................................................... 4, 6, 9 
Gonzalez v. Arizona, 677 F.3d 383 (C.A.9 (Ariz.) 2012) ................................................................ 15 
Gray v. Sanders, 372 U.S. 368 (1963) ................................................................................................ 21 
Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ................................................................... 22 
Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 
L.Ed.2d 383 (1977) ......................................................................................................................... 4 
Issa v. School District of Lancaster, 847 F.3d 121 (3d Cir. 2017) ......................................................... 1 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 3 of 38

iv 
Konyk v. Pennsylvania State Police of Commonwealth of Pennsylvania, 183 A.3d 981, 
646 Pa. 154 (Pa., 2018) ................................................................................................................. 10 
League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 
2014) ................................................................................................................................................ 31 
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................. 8 
Moore v. Circosta, 2020 WL 5880129 ................................................................................................ 21 
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ................................................................. 30 
Party of Minnesota v. White, 536 U.S. 765 (2002) ................................................................................ 7 
Pennsylvania Democratic Party, et al., v. Boockvar, et al., 2020 WL 5554644 (2020) ............ 22, 27, 28 
Phelps–Roper v. Nixon, 545 F.3d 685 (8th Cir.2008) ....................................................................... 32 
Phillips v. Selig, 959 A.2d 420 (Pa.Super.2008) ................................................................................ 10 
Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) .......................................................................... 30 
Prison Soc'y v. Cortes, 508 F.3d 156 (3d Cir. 2007) ............................................................................. 4 
Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................................... 5, 21, 29 
Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147 (1992) ............................................................ 10 
Shields v. Zuccarini, 254 F.3d 476 (3d Cir.2001) .................................................................... 1, 31, 32 
Small v. Juniata College, 452 Pa.Super. 410, 682 A.2d 350 (1996) .................................................. 10 
Smiley v. Holm, 285 U.S. 355 (1932) ................................................................................................. 12 
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ..................................................................................... 4 
Stewart v. Blackwell, 444 F.3d 843 (2006) ......................................................................................... 21 
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) ................................................................ 9 
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .............................................................. 9, 13 
U.S. v. Berks County, Pennsylvania, 277 F.Supp.2d 570 (E.D.Pa. 2003) ......................................... 29 
U.S. v. Manning, 215 F. Supp. 272 (W.D. La. 1963) ...................................................................... 11 
Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th Cir. 1995) ....................................................... 12 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 4 of 38

v 
Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)....................................................................... 14 
Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986) ............................................................................. 30 
Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784 (Del. Ch. 2015) ............................. 8, 13, 17, 29 
Statutes 
“Federal Campaign Finance” 52 U.S.C. §§ 30101 – 30146 ......................................................... 15 
“Voting Assistance and Election Administration.” 52 U.S.C. §§ 20101 – 21145 ..................... 15 
“Voting Rights.”  52 U.S.C.  §§ 10101 – 10702 ............................................................................ 15 
25 P.S. §§3150.11-3150.17 ................................................................................................................ 22 
25 P.S. §2645 ............................................................................................................................... 23, 24 
25 P.S. §3150 ......................................................................................................................... 23, 24, 28 
25 P.S. 3146 ........................................................................................................................................ 22 
42 U.S.C. § 1983 ................................................................................................................................ 21 
52 U.S.C. § 20901 ................................................................................................................. 11, 15, 16 
52 U.S.C. § 21141 .............................................................................................................................. 15 
Other Authorities 
Public Law No. 116-136 (Mar. 27, 2020) ....................................................................................... 16 
Public Law No: 116-94 (Dec. 20, 2019) ......................................................................................... 16 
Restatement (Second) of Contracts § 302 (1979).......................................................................... 10 
Steven J. André, Government Election Advocacy: Implications of Recent 
Supreme Court Analysis, 64 Admin. L. Rev. 835, 851 (2012) ................................................. 19 
The Constitutionality of Municipal Advocacy in Statewide Referendum 
Campaigns, 93 Harv. L. Rev. 535, 554 (1980) ........................................................................... 19 
Constitutional Provisions 
U.S. Constitution, Art. I .................................................................................................. 9, 11, 13, 28 
 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 5 of 38

1 
 
The Plaintiffs file this supplemental memorandum in support of Plaintiffs’ motion 
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) .   
I. 
The facts show that CTCL private federal election grants to Pennsylvania 
counties and cities are inconsistent with federal law.  
The Center for Tech and Civic Life (CTCL) is in the process of distributing 
$250,000,000 to cities and counties to privately fund federal elections.  Kaardal Sec. Decl. 
Ex. K (Stillwater Technical Solutions Timeline October 9, 2020).  CTCL started and 
continued its nationwide funding of counties and cities in April of 2020.  Id. 
CTCL’s first grant was a $100,000 grant to Racine, Wisconsin, approved on June 2, 
2020, for “election planning and administration” and redistribution to the cities of Green 
Bay, Kenosha, Madison and Milwaukee.  Id. at 2-3. The CTCL grant was conditioned upon 
development by the cities of a joint grant application for  June 15, 2020 Wisconsin Safe 
Voting Plan.  Id. at 3.   On June 15, the Wisconsin Safe Voting Plan was submitted by the 
five Wisconsin cities as the initial application for CTCL’s private federal election grants.  Id.  
In July, the Wisconsin cities agreed to receive millions of dollars of CTCL’s private federal 
election grants.  Id. at 3-4.  
Pennsylvania was the next target for CTCL’s private federal election grants.  On 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 6 of 38

2 
August 19, 2020, a CTCL grant of $2,172,858 was ratified by the Delaware County Council.  
Id. at 4.  The private CTCL funds were required be used for specific purposes within 
Delaware County: 
 Install walk-in satellite voting centers with mobile “pop up” voting centers 
 Provide poll worker hazard pay 
 Place and monitor 50 drop boxes for vote-by-mail ballots 
 Purchase equipment 
 Hire staff to process mail in ballot applications and ballots 
Id.  On August 21, 2020, the CTCL agreement for a $10,016,074 private federal election 
grant was sent to the City of Philadelphia.  Id. at 4-5.  Later, in September, Centre County 
agreed to a CTCL private federal election grant of $863,828.  The CTCL agreements have 
reporting and clawback provisions which represent an ongoing liability for the local 
governments skewing state legislative budgeting, and resulting in inaccurate federal and state 
audits required for HAVA programs.  Id. at 5. 
As to CTCL’s private federal election grants in Pennsylvania, the current situation 
with CTCL funding is: 
1. Injection of private funding into county and municipal elections circumvents 
Pennsylvania and Federal appropriation processes, violates protocols in HAVA 
state implementation plans, and results in inaccurate reporting under HAVA 
254(a)(5); 
2. HAVA (Help America Vote Act) , CARES Act (Coronavirus Aid, Relief, and 
Economic Security Act), and state appropriations for local elections in 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 7 of 38

3 
Pennsylvania remain sufficient for the 2020 election cycle, rendering CTCL funding 
unnecessary because an estimated $13,553,179 of Pennsylvania’s CARES funds are 
left to disburse; and, 
3. When evaluated in context of the 2016 presidential election, CTCL grant funding 
patterns demonstrate partisanship in grant funding awards. 
Kaardal Sec. Decl., Exhibit L (Stillwater Technical Solutions report Oct. 9, 2020) at 5-8 and 
Attachment A.   
 
On October 2, 2020, the Louisiana Attorney General sued CTCL to enjoin CTCL’s 
private federal election grants to local governments in Louisiana.  Kaardal Sec. Decl., Exhibit 
M.  CTCL is making the same private federal election grants in Pennsylvania as it is in 
Louisiana.  Id.  Pennsylvania’s state government has done nothing to stop CTCL’s private 
federal election grants to Pennsylvania’s political subdivisions. 
 
The Defendant counties and city in Pennsylvania continue to accept and use CTCL’s 
private federal election grants for the upcoming November 3 election. 
II. 
The Plaintiffs have Article III standing. 
 
The Plaintiffs, 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 have standing.1  It axiomatic that as a party invoking federal jurisdiction, the 
plaintiff must allege facts demonstrating that each of the following elements have been 
satisfied in order to have standing to pursue the case: (1) the plaintiff “suffered an injury in 
                                                 
1 Unless otherwise noted, “Pennsylvania Voters Alliance” includes all Plaintiffs. 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 8 of 38

4 
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is 
likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 
1547 (2016). (same). “To establish injury in fact, a plaintiff must show that he or she suffered 
‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or 
imminent, not conjectural or hypothetical.’ ” Id. (quotation omitted). That is, the injury 
“must actually exist” and “must affect the plaintiff in a personal and individual way.” Id. at 
1548 (quotation omitted).  The individual plaintiffs, as explained below, meet these 
requirements for standing. 
 
Pennsylvania Voters Alliance is an unincorporated association and may have standing 
to bring suit through the standing of its members. Common Cause of Pa. v. Pennsylvania, 558 
F.3d 249, 261 (3d Cir. 2009) (quoting Prison Soc'y v. Cortes, 508 F.3d 156, 162–63 (3d Cir. 
2007)). By associational standing, “an association may assert claims on behalf of its 
members, but only where the record shows that the organization's individual members themselves 
have standing to bring those claims.” Common Cause, 558 F.3d at 261. An entity may establish 
associational standing on behalf of its members where: (1) “its members would otherwise 
have standing to sue in their own right”; (2) “the interests it seeks to protect are germane to 
the organization's purpose”; and (3) “neither the claim asserted nor the relief requested 
requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple 
Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).  Pennsylvania 
Voters Alliance meets these requirements by the plaintiffs being members of the assocaiton.  
 
Recently, the U.S. Supreme Court reiterated its long held view that a person’s right to 
vote is “individual and personal in nature” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 9 of 38

5 
quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964).  Thus, “voters who allege facts showing 
disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage. 
Id. quoting Baker v. Carr, 369 U.S. 186, 206 (1962).  The individual Plaintiffs have alleged a 
particularized harm in the city and counties they vote in.  Philadelphia, Centre County, and 
Delaware County have accepted private grant moneys from the Center for Tech and Civic 
Live for the specific purpose to maintain, promote, or favor a historic specific demographic 
group that can influence the outcome of federal elections within the boundaries of those 
counties and city.  By doing so, the Defendants are affecting the Plaintiffs’ constitutional 
right to vote in that, their votes will be wasted in an election where the government is using 
private moneys to ensure candidates of a certain party will win in landslides or opposing 
candidates destined to lose by closer margins.  For instance, in 2016 in Philadelphia, H. 
Clinton defeated Trump with 84.3% of the votes—584,025 to 108,748.  In Delaware 
County, H. Clinton defeated Trump 177,402 to 110,667 or 61.58% of the vote and in Centre 
County H. Clinton defeated Trump 37,088 to 35,274 or 50.93% of the vote.  In short, the 
injury, using private moneys to influence a federal election outcome whether directly or 
indirectly is boundary specific—whether a city or county.  C.f. Baker, 369 U.S., at 206; Gill, 
138 S. Ct. at 1930. 
 
Each Plaintiff resides in a specific city or county.  For example, she votes for a single 
federal representative for Congress that includes the city or county and for a presidential 
ticket.  The disadvantage is to the voter as an individual within that boundary wherein she 
resides.  Hence, the remedy, halting the acceptance or grant of private moneys, is limited to 
that which produced the injury in the first instance.  The Plaintiffs are not asserting a claim 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 10 of 38

6 
of injury or general grievance outside her city or county.  The injury is specific as is the 
remedy.  Gill, 138 S. Ct. at 1930. 
 
The U.S. Supreme Court in the Gill decision expressed an openness to standing based 
on other “possible theories of harm.”  Id. at 1931.  There is no speculation involved here.   
Private moneys are involved in federal elections.  As the Pennsylvania Deputy Secretary for 
Elections and Commissions expressed, the nonpartisan aspect of elections regarding the 
Department’s duties and concerns of conflicts of interest stands at the forefront: 
Because elections are partisan in nature and the Department [of State] has the 
responsibility to remain nonpartisan in executing its duties in overseeing the 
election process in the Commonwealth, any type of donation will need to be 
properly vetted in order to ensure…elections are not compromised by an 
actual conflict to interest. 
 
Kaardal Decl. Ex. N.  That concern of a conflict of interest comes into clarity as 
described in the Delaware County request for CTCL funding when is described how 
the Democrats took control of the County “for the first time in 150 years” revealing a 
partisan favoritism toward Democrats or at least the appearance of impropriety: 
Until 2020, the Delaware County Republican Party held a majority of the seats 
on County Council and appointed the majority of the Board of Elections.  The 
Delaware County Republican party was one of the last great suburban political 
patronage machines.  It made both the primary and general election days 
county holidays and required county employees to serve as poll workers…in 
the 2019 general election, Democrats swept the council races and took control 
of the County for the first time in approximately 150 years. 
 
Kaardal Decl. Ex. O.  The acceptance of private moneys is to further a specific cause within 
a specific boundary to the detriment of the voter residing in either the city or county. 
 
In addition, for standing purposes, absent an injunction, the private moneys to 
finance federal elections, as a violation of the Elections Clause invalidates the federal 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 11 of 38

7 
elections, causing injury to Pennsylvania Voters Alliance because it won’t have 
representation in Congress and in the Electoral College.  The Pennsylvania Voters Alliance is 
not suggesting in this motion that this Court invalidate the federal elections.   
As a preliminary matter, the favorable decision sought in this motion is to stop the 
private financing of the federal election, not to invalidate the Presidential and Congressional 
election process in Pennsylvania.  The Louisiana Attorney General on October 2, 2020, 
initiated similar litigation in Louisiana state court to stop private funding of federal elections 
there—presumably to stop the invalidation of Presidential and Congressional elections there.  
Kaardal Decl., Ex. C. 
Nevertheless, when either a city or county violates the Elections Clause by accepting 
private moneys, it ultimately delegitimizes the election, thereby invalidating the election 
outcomes under the Elections Clause.  Thus, Philadelphia, Delaware and Centre Counties 
will deprive each individual Plaintiff of their congressional representation and Electoral 
College representation, as other unaffected states will have representation in Congress and in 
the Electoral College.    
 
The U.S. Supreme Court in 2002 split on the meaning of “election” under a state 
constitution.  Republican Party of Minnesota v. White, 536 U.S. 765, 805 (2002) (dissenting 
opinion) (Ginsburg, J.) (“I do not agree with this unilocular, ‘an election is an election,’ 
approach.”).  Here, similarly, the federal courts are called to interpret what an “election” is, 
but this time under the federal Elections Clause, when a local subdivision of a government 
accepts millions of dollars for federal election purposes.   
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 12 of 38

8 
The described injury here, the Pennsylvania Voters Alliance’s lack of representation 
in Congress and in the Electoral College, is fairly traceable to the defendant city’s and 
counties’ conduct in accepting the private federal election grants.  It is not speculative and 
can be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992) (listing elements for standing).  Another way the Pennsylvania Voters Alliance’s 
injury is distinguishable from the general public is because other states whose counties and 
cities do not accept CTCL private federal election grants will still have representation in 
Congress and in the Electoral College. 
Likewise, voter standing regarding federal elections exists when the government 
favors demographic groups the same way it does when the government disfavors 
demographic groups.  The court in Young v. Red Clay Consol. Sch. Dist., 122 A.3d 784, 858 
(Del. Ch. 2015) summarized this way, “[p]arity of reasoning suggests that a government can 
violate the [Delaware] Elections Clause if it skews the outcome of an election by 
encouraging and facilitating voting by favored demographic groups.” In a similar way, 
CTCL’s private federal election grants cause the government to violate neutrality which 
injures the Pennsylvania Voters Alliance even by the appearance of the impropriety of a core 
public responsibility.  The Defendants accepting CTCL’s private federal election grants have 
a detrimental effect on the credibility and integrity of election outcomes because private 
moneys are being injected into the election process.  In other words, the Pennsylvania 
Voters Alliance’s injury is caused by the grant’s attempt to promote or exceed the historical 
voting of progressive demographic groups within the Pennsylvania counties and cities using 
CTCL’s private federal election grants.   
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 13 of 38

9 
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 U.S. Supreme Court has not closed the door to other theories of harm to voters 
as previously mentioned.  C.f. Gill, 138 S.Ct. at 1931.  The state has a vital interest in the 
integrity of elections.  And, the individual voter has an interest in the fundamental right to 
vote which is really an individualized concern regarding the exercise of the franchise.   
Here, the Pennsylvania Voters Alliance has standing because the private federal 
election grants tortiously interfere with their Election Clause rights to fair, equal, and 
uniform elections.  C.f. Gill, 138 S.Ct. at 1931.  As the supreme law of the land, the 
Constitution forms the basis of an important social contract between the citizenry and their 
government.  Here, the government promises to execute its trust faithfully, leaving to the 
people the right to rebel in case the government breaks the terms of the contract, or, in 
other words, violates the constitution.  While the Constitution establishes an open-ended 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 14 of 38

10 
association and transforms its parties in relation to that association, elements of obligations 
between the parties exist.  This is the social contract of the Election Clause with the people 
as third-party beneficiaries.  
 
The necessary elements of the cause of action are (1) the existence of a contractual 
relationship between the complainant and a third party; (2) an intent on the part of the 
defendant to harm the plaintiff by interfering with that contractual relationship; (3) the 
absence of privilege or justification on the part of the defendant; and (4) the occasioning of 
actual damage as a result of defendant's conduct. Phillips v. Selig, 959 A.2d 420, 429 
(Pa.Super.2008), appeal denied, 600 Pa. 764, 967 A.2d 960 (2009); Small v. Juniata College, 452 
Pa.Super. 410, 682 A.2d 350, 354 (1996), appeal denied, 689 A.2d 235 (1997).  Under 
Pennsylvania law, a person assumes third-party beneficiary status where both parties to the 
contract express an intention to benefit the third party and that intention appears in the 
contract. See Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147, 149 (1992) (citing, inter alia, 
Restatement (Second) of Contracts § 302 (1979)); Konyk v. Pennsylvania State Police of 
Commonwealth of Pennsylvania, 183 A.3d 981, 987–88, 646 Pa. 154, 165 (Pa., 2018) 
The Pennsylvania Voters Alliance is a third party beneficiary of how the Philadelphia, 
Delaware and Centre Counties conduct federal elections because, by those elections, the 
Alliance will be represented in Congress and in the Electoral College. Philadelphia, Delaware 
and Centre Counties and CTCL knew of the Pennsylvania Voters Alliance’s third party 
beneficiary rights, arising from legal and contractual relationships between the federal 
government and the state, to fair, equal and uniform elections.  Pennsylvania Voters Alliance 
claims that private federal election grants are not allowed under federal law. If so, CTCL’s 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 15 of 38

11 
private federal election grants to the Philadelphia, Delaware County and Centre County 
tortiously interfere with the Alliance’s third party beneficiary rights to fair, equal, and 
uniform elections—and interfere with the Alliance’s representation in Congress and in the 
Electoral College. 
III. 
The legal requirement of probability of success on the merits for a temporary 
restraining order to issue are met on Count I preemption. 
Federal law preempts private federal election grants to counties and cities.  There is 
no legal authority under the Elections Clause nor 52 U.S.C. § 20901 for local governments to 
accept and use private federal election grants.  Counties and cities, as political subdivisions of 
States, have no power to have federal election policies under the Elections Clause.  U.S. 
Const., art. I, § 4, cl. 1.   The Election Clause’s phrase “manner of holding elections” for 
Senators and Representatives “refers to the entire electoral process, from the first step of 
registering to the last step of promulgating honest returns.”  U.S. v. Manning, 215 F. Supp. 
272, 284 (W.D. La. 1963).  The Supreme Court has stated that the Elections Clause has two 
functions: “Upon the States it imposes the duty (‘shall be prescribed’) to prescribe the time, 
place, and manner of electing Representatives and Senators; upon Congress it confers the 
power to alter those regulations or supplant them altogether.”  Arizona v. Inter Tribal Council of 
Arizona, Inc., 570 U.S. 1, 8-9 (2013).  The Supreme Court has held that the Elections Clause 
invests the state with power over Congressional elections subject to Congressional control.  
Inter Tribal Council of Arizona, Inc., 570 U.S. at 9.  So, the States have “no power qua 
sovereigns” regarding federal elections; whatever powers the States have regarding federal 
elections is because Congress allows it.  Fish v. Kobach, 840 F.3d 710, 731–32 (10th Cir. 2016).  
Nor does the Constitution impose on the United States the costs incurred by Congress’s 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 16 of 38

12 
alterations of federal elections, traditionally borne by the States.  Voting Rights Coalition v. 
Wilson, 60 F.3d 1411, 1416 (9th Cir. 1995). 
To be sure, Governors and independent redistricting committees, established under 
state law, have been found constitutionally permissible under the Elections Clause.  Smiley v. 
Holm, 285 U.S. 355 (1932).  Arizona State Legislature v. Arizona Independent Redistricting Com’n,  
576 U.S. 787 (2015).  But, in contrast, counties and cities which are political subdivisions of 
the state have never been held to be sovereigns for federal election policies.  Therefore, with 
the acceptance of private moneys for a core public governmental function, such as 
processing federal elections, it is beyond the authority of any city or county as to its 
appearance of impropriety to use those private moneys in the conduct of those elections that 
may influence a particular demographic group.  
Under the Elections Clause, the States and their political subdivisions (counties and 
cities) cannot dictate federal election outcomes; instead, fair and uniform federal elections 
are required. From the time of the Elections Clause, the States were to prescribe the “time, 
place and manner” of U.S. House of Representatives elections subject to Congressional 
enactments.  After 1913, the year the Seventeenth Amendment was enacted, states elected 
their U.S. Senators instead of the state legislatures appointing U.S. Senators.  After 1913, the 
States were required to prescribe the “time, place and manner” of elections of U.S. Senators 
as they had been doing for Representatives of the U.S. House—again subject to 
Congressional enactments. 
Under the Elections Clause, the States and their political subdivisions (counties and 
cities) cannot favor or disfavor candidates.  The Supreme Court in U.S. Term Limits, Inc. v. 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 17 of 38

13 
Thornton, 514 U.S. 779, (1995) held unconstitutional an Arkansas law that prohibited the 
candidacy of an otherwise eligible Congressional candidate if he or she had already served 
three terms in the House of Representatives or two terms in the Senate. The Supreme Court 
held that the ballot restriction was an indirect attempt to impose term limits on 
congressional incumbents that violated the Qualifications Clauses in Article I of the 
Constitution rather than a permissible exercise of the State's power to regulate the “Times, 
Places and Manner of holding Elections for Senators and Representatives” within the 
meaning of Article I, § 4, cl. 1.  Similarly, the Supreme Court held unconstitutional an 
initiative amending the Missouri Constitution to require that any failure of United States 
Senators or Representatives, or nonincumbent candidates for those offices, to support term 
limit provisions be noted on federal election ballots.  Cook v. Gralike, 531 U.S. 510, 511 
(2001).  
The States and their political subdivisions (counties and cities) under the Elections 
Clause also cannot favor a demographic group.  A government favoring a demographic 
group, similar to the government disfavoring a demographic group, skews election 
outcomes.  “Parity of reasoning suggests that a government can violate the [Delaware] 
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).    
Red Clay Consol. Sch. Dist. 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-
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 18 of 38

14 
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.   
Under the Elections Clause, States and their political subdivisions are not to 
circumvent constitutional or other federal legal restrictions—which includes the Elections 
Clause and federal statutes on federal elections.  And, federal elections law, need not be 
specific to be preemptive over actions of local governments. 
Elections Clause preemption is not subject to the Plain Statement Rule.  The Plain 
Statement Rule requires that, when Congress intends to preempt state law, “it must make its 
intention to do so ‘unmistakably clear in the language of the statute.’ ” Gregory, 501 U.S. 452, 
460 (1991) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989)).  However, 
because Congress's regulation of federal elections displaces state regulations, and because the 
states have no power as sovereigns to regulate such elections, the plain statement rule, as a 
creature of the presumption against preemption, has no work to do in the Elections Clause 
setting; it is unnecessary to prevent inadvertent or ill-considered preemption from altering 
the traditional state-federal balance. Fish v. Kobach, 840 F.3d 710, 731–32 (10th Cir. 2016), 
citing Inter Tribal, 133 S.Ct. at 2257 & n.6. 
 
Importantly, recognizing the uniqueness of the Election Clause, the Ninth and Tenth 
Circuits apply a canon of statutory interpretation considering “the relevant congressional and 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 19 of 38

15 
state laws as part of a single statutory scheme but treating the congressional enactment as 
enacted later and thus superseding any conflicting state provision.”  Fish v. Kobach, 840 F.3d 
710, 726 (10th Cir. 2016), citing Gonzalez v. Arizona, 677 F.3d 383, 394 (C.A.9 (Ariz.), 2012). 
Further, Title 52 of the United States Code (52 U.S.C.), entitled "Voting and 
Elections", is a codification of the "general and permanent" voting and election laws of 
the United States federal government. Subtitle I covers “Voting Rights.”  52 U.S.C.  §§ 
10101 – 10702).  Subtitle II covers “Voting Assistance and Election Administration.” 52 
U.S.C. §§ 20101 – 21145. Subtitle III covers “Federal Campaign Finance” 52 U.S.C. §§ 
30101 – 30146.  52 U.S.C. § 21141 defines “State:”  
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. 
 
Counties and cities are not states.  Consistent with the Elections Clause, Title 52 imposes 
federal legal requirements on the States and their political subdivisions regarding federal 
elections.  
 
Under 52 U.S.C. § 20901, “Payments to States for activities to improve 
administration of elections,” the provision of federal law establishes an exclusive prerogative 
for the federal government to grant funds to states to improve administration of federal 
elections: 52 U.S.C. § 20901 requires the States to use federal moneys to implement federal 
policy regarding federal elections: 
(b)USE OF PAYMENT 
 
(1)IN GENERAL A State shall use the funds provided under a payment made 
under this section to carry out one or more of the following activities:  (A) 
Complying with the requirements under subchapter III.  (B) Improving the 
administration of elections for Federal office…  
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 20 of 38

16 
 
(c)USE OF FUNDS TO BE CONSISTENT WITH OTHER LAWS AND 
REQUIREMENTS In order to receive a payment under the program under this 
section, the State shall provide the Administrator with certifications that—(1) 
the State will use the funds provided under the payment in a manner that is 
consistent with each of the laws described in section 21145 of this title, as 
such laws relate to the provisions of this chapter; and (2) the proposed uses of 
the funds are not inconsistent with the requirements of subchapter III. 
 
Thus, federal election moneys are distributed to the States under the federal policy 
limitations of 52 U.S.C. § 20901. The States then determine how much of the money is 
distributed locally. 
On December 20, 2019, prior to the COVID-19 pandemic, the federal Consolidated 
Appropriations Act of 2020 was signed into law. Public Law No: 116-94 (Dec. 20, 2019). 
The Act included $425 million in new HAVA funds, made available to states to improve the 
administration of elections for Federal Office, including to enhance technology and make 
election security improvements.  On March 27, 2020, in response to the COVID-19 
pandemic, the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) 
was signed into law.  Public Law No. 116-136 (Mar. 27, 2020).  The Act included $400 
million in new Help America Vote Act (HAVA) emergency funds, made available to states 
to prevent, prepare for, and respond to the coronavirus for the 2020 federal election cycle.  
The States, consistent with 52 U.S.C. § 20901, distributed most of the federal moneys to the 
counties and cities for federal election purposes.  The counties and cities are bound by the 
federal policy limitations of 52 U.S.C. § 20901. 
 
There is no legal authority under the Elections Clause nor 52 U.S.C. § 20901 for 
counties and cities, which are political subdivisions of the States, to accept and use private 
federal election grants. The Elections Clause does not authorize the political subdivisions of 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 21 of 38

17 
the State to have federal election policies.  52 U.S.C. § 20901 authorizes federal payments to 
States for the purpose of improving election administration.  The states, in turn, distribute 
money to the counties and cities as their respective political subdivisions.  In short, 52 U.S.C. 
§ 20901 does not authorize private federal election grants to counties and cities. Private 
federal election grants to counties are legally unauthorized.  Private federal election grants to 
counties are legally unauthorized. 
Additionally, the City of Philadelphia, Delaware County and Centre County have 
entered into grant agreements accepting private moneys from CTCL. In receiving the 
CTCL’s private federal election grants, they create 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 was 
equivalent to the government disfavoring a demographic group: 
Historically, the law has focused on forms of “improper influence” that have 
interfered with the voting rights of disfavored demographic groups by 
dissuading or preventing them from voting through blatant means like fraud, 
violence, and intimidation. A government certainly violates the Elections 
Clause if it skews the outcome of an election in this manner. Parity of 
reasoning suggests that a government can violate the Elections Clause if it 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 22 of 38

18 
skews the outcome of an election by encouraging and facilitating voting by 
favored demographic groups. In both situations, the government has 
diminished the voting rights of one portion of the electorate and enhanced the 
voting rights of another portion of the electorate. In neither case is the 
election “free and equal.” 
 
Id.   
 
As a case of first impression, no other case is analogous to the current public-private 
partnership of the Counties in the context of federal elections. However, other cases show 
the need to announce the constitutional impermissibility of such public-private relationships 
regarding core governmental responsibilities. 
 The Supreme Court in Caperton v. A.T. Massey Coal Co., Inc., 2259–63, 556 U.S. 868, 
876–82 (2009), held that a state appellate judge erred by not recusing himself in a case where 
a party had donated $3,000,000 to the judge’s judicial campaign: 
We conclude that there is a serious risk of actual bias—based on objective and 
reasonable perceptions—when a person with a personal stake in a particular case had 
a significant and disproportionate influence in placing the judge on the case by raising 
funds or directing the judge's election campaign when the case was pending or 
imminent. The inquiry centers on the contribution's relative size in comparison to the 
total amount of money contributed to the campaign, the total amount spent in the 
election, and the apparent effect such contribution had on the outcome of the 
election. 
Applying this principle, we conclude that Blankenship's campaign efforts had a 
significant and disproportionate influence in placing Justice Benjamin on the case. 
Blankenship contributed some $3 million to unseat the incumbent and replace him 
with Benjamin. His contributions eclipsed the total amount spent by all other 
Benjamin supporters and exceeded by 300% the amount spent by Benjamin's 
campaign committee.  
 
Id. at 884.  These sort of public-private partnerships where private parties significantly 
finance judges’ campaigns are not allowed within the judiciary. 
 
Similarly, in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 
(1994), the Supreme Court drew such a line finding a public-private partnership 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 23 of 38

19 
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.  Additionally, in Ferguson v. City of Charleston, 532 U.S. 67, 81-86 (U.S. 
2001), the 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 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. 
 
As previously mentioned, the conduct of elections is a core public responsibility that 
must be publicly-funded. Governmental entities are expected to remain neutral. Scholars 
have warned of the hazard presented by partisan government conduct: “[P]ermitting 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.”2 See also Bullock v. Carter, 405 U.S. 
                                                 
2 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 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 24 of 38

20 
134, 145 (1972)  (recognizing states’ interests maintaining integrity in election processes). 
The CTCL agreements have reporting and clawback provisions which represent an 
ongoing liability for the local governments skewing state legislative budgeting, and resulting 
in inaccurate federal and state audits required for HAVA programs.  Kaardal Decl., Ex. L at 
5.  For example, Delaware County received a CTCL grant of $2,172,858.  Id. at 4.  If the 
private CTCL funds received by Delaware County are not used for specific purposes within 
the grant agreement, they need to be returned” 
 Install walk-in satellite voting centers with mobile “pop up” voting centers 
 Provide poll worker hazard pay 
 Place and monitor 50 drop boxes for vote-by-mail ballots 
 Purchase equipment 
 Hire staff to process mail in ballot applications and ballots 
Id.  The same goes for the CTCL agreement with the City of Philadelphia for a $10,016,074 
private federal election grant.  Id. at 4-5.  The same goes for Centre County which agreed to 
a CTCL private federal election grant of $863,828.   
 
This type of public-private entanglement violates the Elections Clause. The idea of 
the federal and state government exclusively funding federal elections under the Elections 
Clause is to eliminate undue influence and the appearance of undue influence by private 
parties. With the City of Philadelphia, Delaware County and Centre County entangling 
public and private interests in running federal elections, CTCL’s private funding of federal 
                                                 
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 39   Filed 10/12/20   Page 25 of 38

21 
elections introduces undue influence and the appearance of undue influence into federal 
elections. The Court should declare such public-private partnerships constitutionally 
impermissible because it de-legitimizes federal elections—which is exactly what the Elections 
Clause was intended to prevent. 
IV. 
Alternatively, the Equal Protection Clause requires that the private federal 
election grants be proportionally distributed to the Pennsylvania counties by 
the Secretary of the Commonwealth. 
Kathy Boockvar, in her capacity as Secretary of the Commonwealth of 
Pennsylvania, Centre County, Delaware County and the City of 
Philadelphia for violation of the Election Clause of the United States 
Constitution and the Equal Protection Clause of the Fourteenth 
Amendment, 42 U.S.C. §1983. 
 
 
"Voting is a fundamental right" Reynolds v. Sims, 377 U.S. 533, 561-562 (2006).  "The 
right to vote is more than the initial allocation of the franchise.  Equal protection applies as 
well to the manner of its exercise."  Moore v. Circosta, 2020 WL 5880129, __ F.Supp.3d ___, 
citing, Bush v. Gore, 531 U.S. 98, 104, (2000).  The Commonwealth of Pennsylvania must have 
"specific rules designed to ensure uniform treatment" of a voter's ballot. Bush, 531 U.S. at 
106; see, Dunn v. Blumenstein, 405 U.S. 330, 336, (1972).  A citizen of the Commonwealth of 
Pennsylvania "has a constitutionally protected right to participate in the election on an equal 
basis with other citizens" in the Commonwealth.  Gray v. Sanders, 372 U.S. 368, 380 (1963).    
 
"When the state legislature vests the right to vote for President in its people, the right 
to vote as the legislature has prescribed is fundamental; and one source of its fundamental 
nature lies in the equal weight accorded to each vote and the equal dignity owed to each 
voter." Stewart v. Blackwell, 444 F.3d 843, 859-860 (2006), quoting, Bush v. Gore, 531 U.S. 98, 
104-105 (2000).  States may not, "by later arbitrary and disparate treatment, value one 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 26 of 38

22 
person's vote over that of another." Id. at 859-860, quoting, Bush at 104-105, citing Harper v. 
Virginia Bd. of Elections, 383 U.S. 663, 665 (1966).        
 
Defendant, Kathy Boockvar, in her capacity as the Secretary of the Commonwealth 
of Pennsylvania, has the constitutional obligation and duty to assure that the Election Code 
of the Commonwealth, as established and amended by the General Assembly, is 
implemented equally throughout the Commonwealth of Pennsylvania.  In October 2019, the 
General Assembly of the Commonwealth of Pennsylvania approved Act 77 of 2019, 25 P.S. 
3146.1 et seq., which amended the Election Code of the Commonwealth of Pennsylvania. 
"Pennsylvania has enacted a comprehensive code of election laws pursuant to its authority to 
regulate its elections" and, "[a]ccordingly, it is presumed to be valid…" Pennsylvania Democratic 
Party, et al., v. Boockvar, et al., 2020 WL 5554644 at 29-30, __ A.3d __ (2020).   
 
For the first time, the Pennsylvania General Assembly provided qualified electors 
with the ability to vote via mail-in ballots without the requirement of first demonstrating 
their expected absence from the voting district on Election Day.  25 P.S. §§3150.11-3150.17.  
Section 3150.16(a) of the Election Code, as amended by Act 77, states in relevant part as 
follows: 
"(a) General Rule. – At any time after receiving an official mail-in-ballot, but on 
or before eight o’clock p.m. the day of the primary or election, the mail-in 
elector shall, in secret, proceed to mark the ballot only in black lead pencil, 
indelible pencil or blue, black or blue-black ink, in fountain pen or ball point 
pen, and the fold the ballot, enclose and securely seal the same in the envelope 
on which is printed, stamped or endorsed 'Official Election Ballot.'  This 
envelope shall then be placed in the second one, on which is printed the form 
of declaration of the elector, and the address of the elector’s county board of 
election and the local election district of the elector.  The elector shall then fill 
out, date and sign the declaration printed on such envelope.  Such envelope 
shall then be securely sealed, and the elector shall send same by mail, postage 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 27 of 38

23 
prepaid, except where franked, or deliver it in person to said county board of 
election."  25 P.S. §3150.16(a)   
 
 
Section 3150.16(c) of the Election Code, as amended by Act 77, states in relevant part 
as follows: 
"(c) Deadline. – Except as provided under 25 Pa.C.S. § 3511 (relating to receipt 
of voted ballot), a completed mail-in-ballot must be received in the office of the 
county board of elections no later than eight o’clock p.m. on the day of the 
primary or election."  25 P.S. §3150.16(c)   
  
 
Finally, Section 2645(b) of the Election Code, which was not amended by Act 77, 
states in relevant part as follows: 
"(b)  The county commissioners or other appropriating authorities of the county 
shall provide the county board with suitable and adequate offices at the county 
seat, property furnished for keeping its records, holding its public sessions and 
otherwise performing its public duties, and shall also provide, such branch 
offices for the board in cities other than the county seat, as may be necessary."  
25 P.S. §2645(b)   
 
 
Defendant Boockvar is permitting Defendants Centre County, Delaware County and 
City of Philadelphia to accept CTCL’s unregulated private financial support specifically 
earmarked for activities that violate the Election Code of the Commonwealth of 
Pennsylvania, the Election Clause of the United States Constitution and the Equal 
Protection Clause of the Fourteenth Amendment. For example, CTCL’s private federal 
election grants in Pennsylvania are being used in Philadelphia, Delaware County and/or 
Centre County for: 
 Private funding of installation of walk-in satellite voting centers with mobile 
“pop up” voting centers 
 Private funding of poll worker hazard pay 
 Private funding of placement and monitoroing 50 drop boxes for vote-by-mail 
ballots 
 Private funding purchase of equipment 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 28 of 38

24 
 Private funding to hire staff to process mail in ballot applications and ballots 
Despite the clear and unambiguous language of the Election Code, Defendant Boockvar has 
permitted Defendants Centre County, Delaware County and City of Philadelphia to utilize 
unstaffed "drop-boxes," "satellite locations" and/or mobile voting vehicles solely for the 
collection of "mail-in" ballots. 
 
The Election Code makes no mention of and provides no authorization for staffed or 
unstaffed "drop-boxes," "satellite locations" or mobile voting vehicles to be solely used for 
the collection of "mail-in" ballots.  Although the Election Code references branch offices, 
those offices must be "property furnished for keeping its records, holding its public sessions 
and otherwise performing its public duties".  25 P.S. §2645(b)  The "drop-boxes," "satellite 
locations" or mobile voting vehicles, permitted by Defendant Boockvar, and utilized by the 
other Defendants, are not "additional offices" as referenced in Section 2645(b) of the 
Election Code because they are not "property furnished for keeping its [Board of Elections'] 
records" or, "holding its [Board of Elections'] public sessions" or, "otherwise performing its 
[Board of Elections'] public duties." 25 P.S. §2645(b)    
 
In addition, the Election Code does not provide for multiple collection sites for 
"mail-in" ballots.  Section 3150.16(c) of the Election Code, as amended by Act 77, states in 
relevant part "a completed mail-in ballot must be received in the office of the county board of 
elections no later than eight o'clock P.M. on the day of the primary election."  25 P.S. 
§3150.16(c).  (emphasis added) Section 3150.16(a) of the Election Code, as amended by Act 77, 
states in relevant part "… This envelope shall then be placed in the second one, on which is 
printed the form of declaration of the elector, and the address of the elector’s county board of election 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 29 of 38

25 
and the local election district of the elector.  The elector shall then fill out, date and sign the 
declaration printed on such envelope.  Such envelope shall then be securely sealed, and the 
elector shall send same by mail, postage prepaid, except where franked, or deliver it in 
person to said county board of election."  25 P.S. §3150.16(a)   
 
If the General Assembly intended to permit the collection of mail-in ballots in 
multiple locations, the General Assembly would have amended Section 3150.16(a) and 
3150(c) to read "in any of the offices of the county board of elections" or, "to any of the 
addresses of the elector's county board of election" or, "in person to any of the offices of the 
county board of elections." The General Assembly declined to make of these obvious 
amendments to the Election Code and Defendants unilateral usurpation of the General 
Assembly's exclusive authority to regulate elections within the Commonwealth of 
Pennsylvania is violates the Election Clause and the Equal Protection Clause. 
 
Defendant Boockvar is permitting Defendants Centre County, Delaware County and 
City of Philadelphia to accept unregulated private financial support specifically earmarked to 
fund "drop-boxes," "satellite locations" and/or mobile voting vehicles within Centre County, 
Delaware County and the City of Philadelphia in violation of the Election Code as approved 
by the General Assembly of the Commonwealth of Pennsylvania.  
 
There is no provision within the Election Code of the Commonwealth of 
Pennsylvania that authorizes Defendant Boockvar to permit private financial support of 
elections within the Commonwealth.  Nor is there any provision that authorizes Defendant 
Boockvar to permit counties, cities or other municipalities, including Defendants Centre 
County, Delaware County and the City of Philadelphia, to accept private financial support of 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 30 of 38

26 
elections within their respective counties, cities and/or other municipalities.  Defendant 
Boockvar is permitting this unregulated private financial support without regard for the 
disparate impact created between counties, cities and other municipalities that have received 
unregulated private financial support and those that have not received such financial 
support. Counties, cities and other municipalities that have not received unregulated private 
financial support will have to rely solely on the regulated public financial support available to 
conduct elections within the Commonwealth which means that these counties, cities and 
other municipalities will have less financial resources available to conduct elections within 
their respective municipalities.    
 
Defendant Boockvar is permitting this unregulated private financial support without 
regard for the disparate impact created between voters who live in counties, cities and other 
municipalities that have received private financial support and those who live in counties, 
cities and other municipalities that have not received private financial support. Voters who 
live in counties, cities and other municipalities that have not received unregulated private 
financial support will have less election resource to assist them in casting their votes because 
their respective counties, cities and other municipalities must solely rely upon the regulated 
public financial support available to counties, cities and other municipalities to conduct 
elections within the Commonwealth.    
 
If Defendant Boockvar is going to permit counties, cities and other municipalities, 
including, Defendants Centre County, Delaware County and the City of Philadelphia, to 
accept unregulated private financial support to conduct their respective elections, Defendant 
Boockvar must either make proportional and equivalent public financial support available to 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 31 of 38

27 
those counties, cities and other municipalities that have not received private financial 
support; or, require all private financial support to be distributed in a proportional and 
equivalent manner to all counties, cities and other municipalities within the Commonwealth 
so that the utilization of private financial support to conduct elections does not result in 
disparate or unequal treatment.   
 
Further, if Defendant Boockvar is going to permit counties, city and other 
municipalities to accept unregulated private financial support, Defendant Boockvar cannot 
restrict or discriminate against the source of the private financial support without violating 
the Equal Protection Clause. If Defendants Centre County, Delaware County and the City of 
Philadelphia are permitted to accept unregulated private financial support to conduct 
elections within their respective counties and city, other counties, cities and municipalities 
will secure or attempt to secure their own unregulated private financial support from any 
number of sources all of which will further create disparity in the elections within the 
Commonwealth in violation of the Equal Protection Clause of the Fourteenth Amendment 
and the Election Code of the Commonwealth.  
 
Although, the Pennsylvania Supreme Court declined to address the Equal Protection 
issues related to Defendant Boockvar's above-described conduct, the Court acknowledged 
"… the exact manner in which each county board of elections will accept these votes is entirely unknown at 
this point; thus, we have no metric by which to measure whether any one system offers more legal protection 
than another, making an equal protection analysis impossible at this point." Boockvar, 2020 WL 
5554644 at 9-10. (emphasis added).  Defendants' conduct, as set forth herein, provides this 
Court with the "metric by which to measure whether any one system offers more legal 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 32 of 38

28 
protection than another" which not only makes an Equal Protection analysis possible, but 
essential to safeguard Pennsylvanians' fundamental right to vote.  
 
In addition, despite the clear and unambiguous language of the Election Code, 
Defendant Boockvar is permitting Defendants Centre County, Delaware County and City of 
Philadelphia, to accept mail-in ballots beyond the statutory deadline established by the 
General Assembly and in in violation of the Election Code of the Commonwealth.  Section 
3150.16(c) of the Election Code, as amended by Act 77, states in relevant part as follows: 
"(c) Deadline. – Except as provided under 25 Pa.C.S. § 3511 (relating to receipt 
of voted ballot), a completed mail-in-ballot must be received in the office of the 
county board of elections no later than eight o’clock p.m. on the day of the 
primary or election."  25 P.S. §3150.16(c)   
 
 
The deadline of 8:00 p.m. on Election Day for the receipt of ballots, as established by 
the General Assemble, is not ambiguous; nor does it violate the Constitution of the United 
States. Pennsylvania Democratic Party, et al., v. Boockvar, et al., 2020 WL 5554644, __ A.3d __ 
(2020). 
 
Defendant Boockvar’s failure to enforce the deadline established by the General 
Assembly by permitting municipalities, including, Defendants Centre County, Delaware 
County and City of Philadelphia, to accept mail-in ballots beyond the statutory deadline 
established by the General Assembly in violation of the Election Clause of the Constitution.  
Art. I, Sec 4 U.S. Const. and Art. II, Sec. 1 U.S. Const.    
V. 
The Pennsylvania Voters Alliance will suffer irreparable injury absent the 
injunction. 
 
The Pennsylvania Voters Alliance, absent the injunction, will suffer irreparable injury.  
The  favorable decision sought in this motion is to stop the private financing of the federal 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 33 of 38

29 
election, not to invalidate the Presidential and Congressional election process in 
Pennsylvania.  The Louisiana Attorney General on October 2, 2020, initiated similar 
litigation in Louisiana state court to stop private funding of federal elections there—
presumably to stop the invalidation of Presidential and Congressional elections there.  
Kaardal Decl., Ex. M.  Nevertheless, when either a Pennsylvania city or county violates the 
Elections Clause by accepting private moneys, it ultimately delegitimizes the election, thereby 
invalidating the election outcomes under the Elections Clause.  Thus, Philadelphia, Delaware 
and Centre Counties will deprive each individual Plaintiff of their congressional 
representation and Electoral College representation, as other unaffected states will have 
representation in Congress and in the Electoral College.    
 
Of course, denial of the right to participate in a constitutionally-legitimate 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 where certain Pennsylvania counties and cities receive CTCL’s 
private federal election grants and other Pennsylvania counties and cities don’t skew the 
federal election into illegitimacy.  “Parity of reasoning suggests that a government can violate 
the [Delaware] 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).   
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 34 of 38

30 
 
Philadelphia’s, Delaware County’s and Centre County’s use of  the private federal 
election grants causes irreparable injury, absent the pre-election injunction because it de-
legitimizes the election.  After the election, the voters of Philadelphia, Delaware County and 
Centre County, if the Court agrees with the Plaintiffs, may be without representation in 
Congress and without representation in the Electoral College. 
Further, 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”).  The same would be true of 
infringement of the fundamental right to have representation in Congress or in the Electoral 
College. 
 
Once the November election occurs, the damage to Pennsylvania Voters Alliance will 
be complete.  Without injunctive relief, the CTCL moneys will cause a non-conformity of 
fair, equal and uniform elections in Pennsylvania—sought by Congress under HAVA and all 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 35 of 38

31 
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). 
VI. 
The harm to other interested parties is little or none if the relief is granted. 
 
The Pennsylvania Voters Alliance, 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.3  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. According to a Pennsylvania post-primary report, Pennsylvania has on hand an 
estimated $13,553,179 of CARES funds remaining for the November 3, 2020 election.  The 
federal grant money should be used by the Defendants prior to using private federal election 
grants.   
 
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 
                                                 
3 E.g. Kaardal Decl. Ex. I. 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 36 of 38

32 
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 
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. 
VII. 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 areas of favored demographic groups. The private financing of federal 
elections 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)  
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 37 of 38

33 
(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 alternative administrative remedy to obtain immediate 
injunctive relief against the City of Philadelphia, Delaware County and Centre County. 
 
Dated: October 12, 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* 
Thomas E. Breth, PA ID 66350* 
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 
 
 
Dated: October 12, 2020 
  /s/Erick G. Kaardal  
 
 
Erick G. Kaardal, MN 229647 
Special Counsel to Amistad Project 
of the Thomas More Society 
Gregory M. Erickson, 1050298  
William F. Mohrman, 168816  
Mohrman, Kaardal & Erickson, P.A. 
150 South Fifth Street, Suite 3100 
Minneapolis, Minnesota 55402 
Telephone: 612-341-1074 
Facsimile: 612-341-1076 
Email: kaardal@mklaw.com 
Attorneys for Plaintiffs 
 
Case 4:20-cv-01761-MWB   Document 39   Filed 10/12/20   Page 38 of 38

File and source

File

gov.uscourts.pamd.126465.39.0.pdf

Size

412,399 bytes

SHA-256

a495bf72d63c83b950dd09af84f7177d3ef46d0e1dd1754af69690920ddb76cd

Our copy

gov.uscourts.pamd.126465.39.0.pdf

Original

archive.org