Court filing
Defendants' Response to Supplemental Memo — PVA v. Centre County
Summary
Centre, Delaware and Philadelphia Counties asked Judge Matthew W. Brann on October 14, 2020 to deny the Pennsylvania Voters Alliance's motion for a temporary restraining order against their use of Center for Tech and Civil Life (CTCL) election grants, No. 4:20-cv-01761-MWB (M.D. Pa.). The response reports that a Wisconsin federal court had that day denied a preliminary injunction in a nearly identical case, holding that none of the federal laws cited prohibit municipalities from accepting private funds to run an election during the pandemic. Against the new claims over drop boxes and counting mail-in ballots received within three days of Election Day, the counties cite the Pennsylvania Supreme Court, which read the Election Code to allow both, and Judge Ranjan's opinion upholding drop boxes. They add that the CARES Act contains no language prohibiting additional private funding.
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“Defendants' Response to Supplemental Memo — PVA v. Centre County.”
Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/pva-v-centre-county/2020-10-14-defendants-supp-response/
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PENNSYLVANIA VOTERS :
ALLIANCE, et. al., :
:Civil Action No. 4:20-cv-01761-MWB
Plaintiffs, :(Judge Matthew W. Brann)
:
v. :
:
CENTRE COUNTY, et. al., :
:
Defendants. :
DEFENDANT COUNTIES’ RESPONSE TO PLAINTIFFS’
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THEIR MOTION
FOR A TEMPORARY RESTRAINING ORDER
Defendants Centre, Delaware, and Philadelphia Counties (“Defendant
Counties”) submit this Response (1) to inform the Court of a decision issued today
denying a preliminary injunction in a nearly identical case filed in another federal
court and argued yesterday by one of the counsel for Plaintiffs in the instant case.
Wisconsin Voters Alliance, et. al. v. City of Racine, Case No. 20-C-1487 (E.D.
Wis. Oct. 14, 2020) (attached hereto as Exhibit A); and (2) to address new claims
made in Plaintiffs’ Supplemental Memorandum in Support of Their Motion for a
Temporary Restraining Order (Dkt. No. 39).
Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 2 of 9
I. Today’s Decision in the Eastern District of Wisconsin
This afternoon, following an oral argument yesterday, a Wisconsin
federal court denied preliminary injunctive relief—in a case that is substantively
identical to the instant case—on the ground that the plaintiffs were not likely to
succeed on the merits. Wisconsin Voters Alliance, Case No. 20-C-1487. Just as
Defendant Counties have argued here, the Court held that “none of the federal laws
Plaintiffs cite prohibit municipalities from accepting funds from private sources to
assist them in safely conducting a national election in the midst of the public health
emergency created by the COVID-19 pandemic” Id. at p. 2. Also as Defendant
Counties have established here with respect to Pennsylvania counties, the Court
emphasized that in Wisconsin, the Center for Tech and Civil Life (CTCL) has
awarded numerous grants to assist municipalities with the administration of mail-in
voting during the upcoming election to enhance voter safety—not just the few
counties that the plaintiffs named as defendants and that allegedly have
“progressive”-leaning electorates. Id. at pp. 2-3; (Res. in Opp. (Dkt. No. 37) at p. 6
(eleven of the eighteen Pennsylvania counties to which CTCL awarded grants
voted for Donald Trump over Hillary Clinton in the 2016 presidential election)).
This represents the second defeat in federal court of the coordinated,
multi-state campaign to block counties from using the nonpartisan CTCL grants to
assist in election administration. See Election Integrity Fund et al. v. City of
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 3 of 9
Lansing and City of Flint, No. 1:20-cv-950 (W.D. Mich. Oct. 2, 2020) (attached as
Exhibit H to Ford Decl. (Dkt. No. 37-9)) (denying a Motion for Temporary
Restraining Order in an identical lawsuit in Michigan on the ground that “Plaintiffs
have not demonstrated a strong likelihood of success on the merits [because]. . .
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.”)
II. Plaintiffs’ New Claims
In their Supplemental Memorandum and accompanying Amended
Complaint, Plaintiffs assert a new claim and join a new defendant – Secretary of
State Kathy Boockvar. They allege that Secretary Boockvar unlawfully permitted
Defendant Counties to utilize CTCL grants for purposes prohibited by
Pennsylvania’s Election Code and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. (Supp. Mem. at 21-28.)
Specifically, Plaintiffs challenge the use of drop boxes to collect mail-in and
absentee ballots and the practice of counting such mail-in ballots if they are
received within three days of Election Day. (See id. at 24-28.)
What Plaintiffs do not disclose in their submissions, however, is that
these specific practices have already been held to be consistent with the Election
Code and the United States Constitution in lawsuits brought against Defendant
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Counties and Secretary Boockvar. Donald J. Trump for President, Inc. v.
Boockvar, No. 2:20-cv-966, 2020 U.S. Dist. LEXIS 188390 (W.D. Pa. Oct. 10,
2020) (attached hereto as Exhibit B); Pa. Democratic Party v. Boockvar, No. 133
MM 2020, 2020 Pa. LEXIS 4872 (Sep. 17, 2020) (attached hereto as Exhibit C).
Last month, the Pennsylvania Supreme Court interpreted the Election
Code to provide that ballots mailed by, but received up to three days after, Election
Day must be counted in the upcoming general election. Pa. Democratic Party v.
Boockvar, 2020 Pa. LEXIS 4872, at *24-26. The Court also held that the Election
Code permits counties to use drop boxes as well as mobile and satellite locations to
collect mail-in and absentee ballots. Id.
Less than a week ago and after extensive discovery, Judge Ranjan of
the Western District of Pennsylvania upheld the constitutionality of drop boxes
against an Equal Protection challenge in a 138-page summary judgment opinion.
Donald J. Trump for President, Inc. v. Boockvar, 2020 U.S. Dist. LEXIS 188390.
Plaintiffs in Donald J. Trump based their Equal Protection claims on a theory
closely resembling the theory advanced by Plaintiffs in their Supplemental
Memorandum here – that disparate practices among Pennsylvania counties
concerning the use of drop boxes violated the Equal Protection Clause by causing
differential treatment of voters.
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 5 of 9
Judge Ranjan granted summary judgment for the Defendant Counties
based on two grounds equally applicable in the instant action – standing and the
merits. On the question of standing, Judge Ranjan held, based on United States
Supreme Court precedent, that the plaintiffs’ theory of injury depended on a chain
of inferences concerning the behavior of third parties (voters) and raised at most
the “‘possibility of future injury’ based on a series of speculative events—which
falls short of the requirement to establish a concrete injury.” Id. at *106 (citing
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)).1 And on the merits,
Judge Ranjan squarely held that differences in county election practices regarding
drop boxes and other means to facilitate voting do not conflict with Equal
Protection guarantees. Id. at *157-159. Judge Ranjan specifically found that
Secretary Boockvar’s guidance, which allows for counties to adopt different
practices concerning the use of drop boxes, “provides lawful, comprehensive, and
reasonable standards.” Id. at *144.
1
Judge Ranjan’s opinion is consistent with other recent federal court decisions
rejecting similar attacks on state and local efforts to facilitate voting during the
pandemic. Like Judge Ranjan’s opinion, these courts held that speculation
regarding possible vote dilution or other forms of potential voter
disenfranchisement during the upcoming election is insufficiently concrete and too
generalized to confer standing. Carson v. Simon, No. 20-CV-2030 (NEB/TNL),
2020 U.S. Dist. LEXIS 188454, at *23 (D. Minn. Oct. 11, 2020) (attached hereto
as Exhibit D); Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 U.S.
Dist. LEXIS 92665, at *11-12 (D. Nev. May 27, 2020) (attached hereto as Exhibit
E).
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 6 of 9
Judge Ranjan’s rulings on standing and Equal Protection apply with
equal force in this action. Similar to the plaintiffs in Donald J. Trump, Plaintiffs
here seek to predicate standing and an Equal Protection claim on differences
among the counties in their receipt of funding for, among other uses, purchase of
drop boxes. But under the decisions of the Pennsylvania Supreme Court and Judge
Ranjan, respectively, neither the counting of ballots received after Election Day
nor the use of drop boxes and other mobile or satellite methods run afoul of the
Election Code or the Constitution.
Finally, Plaintiffs have now attempted to bolster their preemption
argument by referring to funding given to states by the Coronavirus Aid, Relief
and Economic Security Act (“CARES Act”) for election administration. (Supp.
Mem. at 16.) The CARES Act argument does not advance Plaintiffs’ preemption
claim by one inch. That statute contains no language stating or suggesting either
that additional private funding is prohibited or that states or localities must exhaust
CARES Act funds before accepting private grants.
III. Conclusion
For the foregoing reasons, as well as the reasons set forth in the
County Defendants’ Response in Opposition to Plaintiffs’ Motion for a Temporary
Restraining Order, Defendant Counties respectfully request this Court to deny
Plaintiffs’ Motion for a Temporary Restraining Order.
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 7 of 9
Dated: October 14, 2020 /s/ Edward D. Rogers
Edward D. Rogers (No. 69337)
Terence M. Grugan (No. 307221)
Elizabeth V. Wingfield (No. 324277)
BALLARD SPAHR LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
Phone: (215) 665-8500
Facsimile: (215) 864-8999
Attorneys for Defendant Delaware County
/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
/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
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 8 of 9
State College, PA 16803
Tel.: (814) 867-8055
bdupuis@babstcalland.com
Counsel for Defendant Centre County
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Case 4:20-cv-01761-MWB Document 47 Filed 10/14/20 Page 9 of 9
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Response to Plaintiffs’ Supplemental Memorandum was filed and served
on October 14, 2020 via the Court’s CM/ECF system.
Dated: October 14, 2020
/s/ Edward D. Rogers
Edward D. Rogers
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