New Lawsuit By Trump Campaign In Pennsylvania Challenges Handling of Mail-In Ballots in Seven Counties — Seeks to Prevent Certification of Outcome

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As covered by my RedState colleague Jeff Charles here, on Monday the Trump Campaign sued Pennsylvania Secretary of the Commonwealth Katherine Boockvar and the Boards of Elections in the seven Pennsylvania Counties who have the highest number of mail-in ballots cast for Biden — Allegheny, Chester, Deleware, Montgomery, Philadelphia, Northampton, and Centre — in the United States District Court for the Middle District of Pennsylvania.  I’m guessing it was filed in the Harrisburg Courthouse since that is the State Capital, and where the Secretary of the Commonwealth’s office is located.  But that is also the location where the chances of drawing a “friendly” federal district court judge were the greatest, as explained further below.

The “Verified” complaint is over 100 pages long. The fact that it is “verified” is significant because that means the answer cannot make “general” denials of the allegations of the complaint.  The allegations must be responded to specifically with an admission or denial or each factual allegation, and the answer must be signed under penalty of perjury by the defendant — the Secretary of the Commonwealth.

The causes of action alleged are 1) Denial of Due Process on Right to Vote, and Invalid Enactment of Regulations affecting Observation and Monitoring of Election; 2) Denial of Equal Protection Invalid Enactment of Regulations Affecting Observation and Monitoring of the Election; 3) Violation of the Electors & Elections Clauses; 4) Denial of Equal Protection Disparate Treatment of Absentee/Mail-In Voters Among Different Counties; 5) Violation of the Electors & Elections Clauses; 6) Denial of Due Process Disparate Treatment of Absentee/Mail-In Voters Among Different Counties; AND 7)Violation of the Electors & Elections Clauses.

Skipping to the end, here is the relief the Trump Campaign is seeking from the federal district court:

WHEREFORE, in addition to any other affirmative relief that the Court may deem necessary and proper, Plaintiffs ask this Court to enter judgment in their favor and provide the following alternative relief:

i. An order, declaration, and/or injunction that prohibits the Defendant County Boards of Elections and Defendant Secretary Boockvar from certifying the results of the 2020 General Election in Pennsylvania on a Commonwealth-wide basis;

ii. As an alternative to the first request for relief, an order, declaration, and/or injunction that prohibits Defendants from certifying the results of the General Elections which include the tabulation of absentee and mail-in ballots for which Plaintiffs’ watchers were prevented from observing during the pre-canvass and canvass in the County Election Boards;

iii. In addition to the alternative requests for relief, an order, declaration, and/or injunction that prohibits Defendants from certifying the results of the General Elections which include the tabulation of absentee and mail-in ballots which Defendants improperly permitted to be cured;

iv. A temporary restraining order and preliminary injunction granting the above relief during the pendency of this action;

v. Plaintiffs’ reasonable costs and expenses of this action, including attorneys’ fees; and cost; and

vi. All other further relief to which Plaintiffs might be entitled.

The goal of the suit is not to alter the vote count in Pennsylvania — the Supreme Court may do that in the case now pending before it involving the changes to Pennsylvania election law ordered by the State Supreme Court. The goal in this suit is to prevent the Secretary of the Commonwealth from certifying the outcome of the contest on November 3 beyond the date by which electors must be named, in which case the task of naming electors will fall to the Pennsylvania Legislature.

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Among the allegations made in the complaint — a comprehensive listing is not possible within the parameters of this story — are the following:

78. Importantly, the Pennsylvania Supreme Court recently reaffirmed that “ballots that voters have filled out incompletely or incorrectly” shall be set aside and declared void, and election boards are not permitted to afford these voters a “notice and opportunity to cure” procedure to remedy such defects. Boockvar, 2020 Pa. LEXIS 4872 at *55. The Boockvar Court further concluded “that a mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be disqualified.” Id. at *73 (emphasis added).

The complaint goes into great detail as to how Act 77, the amendments to Pennsylvania election law in response to COVID-19 with the widespread use of mail-in ballots, substantially changed the process for handling mail-in ballots between the time they are received and election day, as well as how the ballots are treated starting at 7:00 am on election day, which is the earliest possible moment Act 77 says they may be opened and “pre-canvassed.”  The procedures passed by the Legislature in Act 77 were designed to ensure that improper votes were not cast, and any improper votes that managed to be cast would not be counted.

Under Act 77, all mail-in ballots are to be “safely ke[pt] . . . in sealed or locked containers” at the county boards of elections until they are canvassed by the county elections boards.”  Act 77 specifies that “no earlier than seven o’clock A.M. on election day,” the county boards of elections shall meet to conduct a pre-canvass of all absentee and mail-in ballots received to that point.  During the pre-canvass, the election officials shall inspect and open the envelopes of all absentee and mail-in ballots, remove such ballots from such envelopes, and count, compute and tally the votes reflected on such ballots. However, as part of the pre-canvass, the county election boards are prohibited from recording or publishing the votes reflected on the ballots that are pre-canvassed.

Because these ballots were not to be opened earlier than 7:00 am on election day, there was no provision in Act 77 for a process to allow voters to “cure” errors made in casting the ballot.

Contrary to the prior Elections Code provisions, Act 77 mandates that the county boards of elections are to meet no earlier than the close of polls on Election Day and no later than the third day following the election to begin
canvassing absentee and mail-in ballots. However, unlike a pre-canvass, the election officials during a canvass are permitted to record and publish the votes reflected on the ballots.

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Out of more than 6.7 million votes cast for the Presidential election in Pennsylvania, over 2.5 million of those votes were cast by mail-in ballot. The complaint alleges that despite knowing that an unprecedented number of votes would be cast by mail-in ballots, Boockvar failed to take adequate measures to ensure that the provisions of Act 77 were complied with in order to prevent fraud from occurring in the casting or counting of ballots. The complaint charges that ballots cast in violation of the Election Code’s mandatory provisions render them void.

The complaint goes on to specify — based on numerous specific instances of documented conduct — the myriad ways that Boockvar either authorized, or took no steps to intercede and prevent the seven counties from violating numerous provisions of Act 77 and the Election Code in their handling, pre-canvassing, and canvassing of mail-in ballots.  The complaint charges that the accumulation of conduct in violation of the provisions of Pennsylvania election law — specific to the counties where large vote totals were reported for Joe Biden in numbers that are statistically improbable — made “certification” by Boockvar of the state-wide election result as “accurate” an impossibility.

Currently pending before the United States Supreme Court is challenge to the decision of the Pennsylvania Supreme Court to allow a three day period beyond the cut-off date set in the Election Code for the receipt of mail-in ballots by the County Boards.  The Trump Campaign has sought permission to “intervene” in that case and be deemed a “Petitioner” along with the Republican Party of Pennsylvania who has filed the Petition. That outcome of that case would only apply to mail-in ballots that were received and canvassed by the County Boards during the period November 4-6, 2020 – not ballots received on or before November 3.

This new case applies to all mail-in ballots received by the seven County Boards, as it alleges that their handling of mail-in ballots as a group, beginning BEFORE November 3, 2020, was not in strict accordance with Act 77, and as such there can’t be any confidence that the manner in which the “pre-canvassing” and “canvassing” of those ballots was done resulted in an accurate vote count.

I will return in another article later looking more closely at the nature of the conduct alleged to have taken place in the seven named counties, and the strength of the evidence that supports each such allegation.

As for the case being filed in the Middle District of Pennsylvania, there are currently eight federal district court judges serving in that District.  But the District has three locations — Harrisburg, Scranton, and Williamsport.  In Harrisburg, there are 3 regular district court judges and two “senior status” district court judges — meaning they are semi-retired and only hear cases as specifically assigned to them.

Of the three regular district court judges now presiding in Harrisburg, two were appointed by Pres. Bush 43, and one was appointed by Pres. Trump. Three are three district court judges appointed by Pres. Obama, but two are in Scranton and one is in Williamsport — so none will be assigned to this case.

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However, that doesn’t mean that all the potential judges who might be assigned to the case will be “welcoming” of the challenges raised.  The dominant wing of the Pennsylvania GOP during the Bush 43 Administration was led by a prominent Bush supporter — and Cabinet Secretary of Dept. of Homeland Security — former Pennsylvania Governor Tom Ridge. Ridge was a close friend of the late Sen. John McCain and rumored to be among the finalists for the Vice President slot in 2008. Ridge is among the most rabid “NeverTrumpers” in the GOP.

The Chief Judge of the District Court in Harrisburg is the Hon. John E. Jones.  Prior to being nominated, Judge Jones was a failed GOP candidate for a House seat in Pennsylvania in 1992, and later he was “Co-Chair” of the Transition Team for newly elected Gov. Tom Ridge in 1995.

The connection to Ridge may be overstated as they are from completely different areas of the state — Ridge is from Erie, in the extreme northwest corner, whereas Jones is from Pottsville in Central Pennsylvania closer to Philadelphia.

There is much more to write about Judge Jones, but I’ll wait until after it is determined whether he is assigned the case or not.

The second Bush appointed Judge is the Hon. Christopher Conner.  Judge Conner was in private practice for 20 years before being named to the district court bench by Pres. Bush in 2002.  Noteworthy is the fact that Judge Conner ruled in 2011 that the “individual mandate” in Obamacare was unconstitutional, a decision later overturned by the Supreme Court when CJ Roberts decided to call it a “tax”.

The third district court judge is the Hon. Jennifer Wilson, nominated by Pres. Trump just one year ago.  There is very little information about her online, but to have received the position she would have needed the support of Pennsylvania Senator Pat Toomey.

Coming soon, a closer look at the allegations of misconduct by Boockvar and the County Boards as alleged in the complaint.

 

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