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mooted the initial motions to dismiss. The parties submitted briefing on the issues.36 D. Plaintiffs’ Claims Plaintiffs’ only remaining claim alleges a violation of equal protection. This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent. The general thrust of this claim is that it is unconstitutional for Pennsylvania to give states discretion to adopt a notice-and-cure policy. Invoking Bush v. Gore, Plaintiffs assert that such local control is unconstitutional because it creates an arbitrary system where some persons are allowed to cure procedurally defective mail-in ballots while others are not. Apparently recognizing that such a broad claim is foreclosed under the Third Circuit’s decision in Bognet, Plaintiffs try to merge it with a much simpler theory of harm based on the cancellation of Individual Plaintiffs’ ballots in order to satisfy standing.37 Because Individual Plaintiffs’ votes were invalidated as procedurally 36 37 Separately, Plaintiffs filed a motion seeking leave to file a second amended complaint. Doc. 172. Having filed the FAC as of right, Plaintiffs may file a second amended complaint only with the opposing party's written consent or the court's leave. During the oral argument on November 17, 2020, Defendants indicated that they would not consent to the filing of a third pleading and did not concur in the motion for leave to file this second amended complaint. Plaintiffs initially appeared to base their standing under the Equal Protection Clause on the theory that the notice-and-cure policy unlawfully allowed certain ballots to be counted, and that this inclusion of illegal ballots diluted Plaintiffs’ legal votes. Doc. 1. After Bognet expressly rejected this theory of standing, however, Plaintiffs have since reversed course and now argue that their standing is based on the cancellation of Individual Plaintiffs’ votes and the Trump Campaign’s “competitive standing.” 2020 WL 6686120, at *9-10; Doc. 124 at 2. - 11 -

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Trump for President, Inc. v. Boockvar

Judgment

Question Presented: Whether it violates the Equal Protection Clause of the Constitution for Pennsylvania to give counties the discretion to adopt "notice and cure" policies (to provide notice to voters whose mail-in ballots were procedurally defective and an opportunity to cure their ballots).

Alleged Acts: Following an earlier decision (Democratic Party of Pennsylvania v. Boockvar), which held that counties were not required to implement "notice and cure" policies, the Secretary of State sent an email encouraging counties to adopt these policies. Accordingly, some counties adopted such policies and others did not. The complaint alleges that by enabling counties to implement "notice and cure" policies, Pennsylvania has created a standard less system that unconstitutionally discriminated against individual voters and the Trump Campaign. The complaint also alleges a violation to the Equal Protection Clause stemming from the restricted access of election observers during the count. As a result, the complaint requests that the court invalidate almost 7 million ballots without putting forward any evidence of fraud.

Procedural history: Following an appeal on this Court's decision, the Appellate Court upheld.

Summary: The Court found that there was a lack of standing for both the individual plaintiffs (due to a failure to establish causation or redressability) and the Trump Campaign. Even if the plaintiffs were able to establish standing, the Court found that the plaintiffs did not establish an Equal Protection claim. First, the plaintiffs do not allege disparate treatment between Biden campaign observers and Trump campaign observers. Second, the fact that some counties chose to implement "notice and cure" policies and others did not does not constitute an equal protection claim. The plaintiffs are not alleging that the Secretary of State's guidance on "notice and cure" policies, nor that she instructed some counties to implement the polices and others not to do so. Third, the Court found that expanding the rights of others to vote does is not a burden on the right to vote, and that the complaint cannot stand as far as it alleges that "the state is not imposing a restriction on someone else’s right to vote.”

Conclusion: The Court granted the defendants' motion to dismiss the complaint.

Legal Issue(s)

Civil Procedure
Disputing Results

Applicable Law(s): Equal Protection Clause of the Constitution

Region: Americas

Country: United States of America

Language of Decision

English

Court: Trial Court

Election Type: Presidential

Date of decision: Nov 21, 2020

Geolocation

Latitude: 40.26368

Longitude: -76.890739

: Geolocation

Primary Documents

20-2078_202.pdf
English
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Election Judgments - IFES

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Trump for President, Inc. v. Boockvar

Primary Documents

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