Donald J. Trump For President, Inc. v. Boockvar
Exhibit(s) — Document #172, Attachment #2
District Court, M.D. Pennsylvania
Description
MOTION for Leave to File to File Second Amended Complaint by Donald J. Trump For President, Inc., David John Henry, Lawrence Roberts. (Attachments: # (1) Proposed Order, # (2) Exhibit(s), # (3) Exhibit(s))(Scaringi, Marc) (Attachment 1 replaced on 11/19/2020) (jr). (Attachment 2 replaced on 11/19/2020) (jr).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONALD J. TRUMP FOR ) CIVIL ACTION
PRESIDENT, INC.; LAWRENCE )
ROBERTS; and )
DAVID JOHN HENRY; )
)
Plaintiffs, )
) No. 20-CV-02078
v. )
)
KATHY BOOCKVAR, in her capacity )
as Secretary of the Commonwealth of )
Pennsylvania; ALLEGHENY )
COUNTY BOARD OF ELECTIONS; )
CENTRE COUNTY BOARD OF )
ELECTIONS; CHESTER COUNTY )
BOARD OF ELECTIONS; )
DELAWARE COUNTY BOARD OF )
ELECTIONS; MONTGOMERY )
COUNTY BOARD OF ELECTIONS; )
NORTHAMPTON COUNTY BOARD )
OF ELECTIONS; and )
PHILADELPHIA COUNTY BOARD )
OF ELECTIONS; )
Defendants.
SECOND AMENDED VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs, by their undersigned counsel, hereby complain of Defendants as
follows:
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INTRODUCTION
1. American citizens deserve fair and unbiased elections. Every legal –
not illegal – vote should be counted. And no government power, be it state or
federal, may deny any American citizens the right to observe the process by
which votes are cast, processed, and tabulated. We must protect our democracy
with complete transparency.
2. Nothing less than the integrity of the 2020 Presidential election is at
stake in this action. These Defendants are the very officials charged with
ensuring the integrity of the election in Pennsylvania and have so mismanaged
the election process that the public cannot have any faith that their most sacred
and basic rights under the United States Constitution are being protected.
3. The evidence is plain that Defendants have blatantly violated the
protections and procedures, including those enacted by the Pennsylvania
General Assembly, vitally necessary to ensure that the votes of the citizens of
Pennsylvania are not illegally diluted by invalid ballots and that the election is
free and fair.
4. While the bedrock of American elections has been transparency,
almost every critical aspect of Pennsylvania’s November 3, 2020 General
Election was effectively shrouded in secrecy. Democratic-majority controlled
Defendant county board of elections provided political parties and candidates,
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including the Trump Campaign, no meaningful access or actual opportunity to
review and assess mail-in ballots during the pre-canvassing meetings in order to
favor Joseph Biden over President Donald J. Trump.
5. Allegheny and Philadelphia Counties alone received and processed
682,479 mail-in and absentee ballots without review by the political parties and
candidates. These are unprecedented numbers in Pennsylvania’s elections
history. Rather than engaging in an open and transparent process to give
credibility to Pennsylvania’s brand-new voting system, the processes were
hidden during the receipt, review, opening, and tabulation of those 682,479
votes in direct contravention of the Election Code.
6. Allegheny and Pennsylvania counties conducted the canvassing and
tabulation in convention center rooms and placed observers far away from the
statutorily-required, witnessed verification procedures. In the case of
Philadelphia County, when an emergency order was issued requiring them to
provide meaningful access to representatives, Philadelphia failed to comply.
7. Incredibly the Pennsylvania Supreme Court1 ruled, in a five to two
November 17, 2020 Opinion that the Commonwealth’s current definition of
1
The Pennsylvania Supreme Court is elected through partisan elections and consists of five
Democrats and two Republicans. It has authored at least three decisions in 2020 which are
viewed as highly partisan, including this decision, in contradiction of briefing submitted by the
Pennsylvania State Senate and House of Representatives explaining the meaning of statutes
which they enacted, including laws enacted as recently as 2019. Under Bush v. Gore, this Court
may choose not to follow these decisions and interpret Pennsylvania law independently.
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“observer” under the state election code is hereby re-defined as “present in the
same building.” The majority concluded that the Commonwealth “did not act
contrary to law in fashioning its regulations governing the positioning of
candidate representatives during the precanvassing and canvassing process, as
the Election Code does not specify minimum distance parameters for the
location of such representatives.” In Re: Canvassing Operation Appeal of: City
of Philadelphia Board of Elections, PA Supreme Court, No. 30 EAP 2020
(November 17, 2020) at p. 19. The Pennsylvania Supreme Court now departs
from Pennsylvania’s long-standing practice and concept of observers in the
process in the middle of a Presidential election.
8. Democratic controlled counties violated the mandates of the Election
Code and the determinations of the Pennsylvania Supreme Court, advantaging
voters in Democratic-heavy counties as compared to those in Republican-heavy
counties. Democratic controlled counties engaged in pre-canvass activities prior
to November 3, 2020, by reviewing received mail-in ballots for deficiencies,
such as lacking the inner secrecy envelope or lacking a signature of the elector
on the outer declaration envelope. Those offending Counties then would notify
those voters in order to allow them to cure their ballot deficiencies by voting
provisionally on Election Day or cancelling their previously mailed ballot and
issuing a replacement. In other words, those counties provided their mail-in
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voters with the opportunity to cure mail-in and absentee ballot deficiencies,
while Republican controlled counties followed the law and did not provide a
notice and cure process.
9. Pennsylvania County Boards of Elections in Republican-leaning
counties, such as York County, provided watchers and representatives of
candidates and political parties, including without limitation watchers and
representatives from both the Trump Campaign and the Biden Campaign, with
appropriate access to view absentee and mail-in ballots being pre-canvassed and
canvassed by those Boards and without restricting representatives by any
county residency or Pennsylvania bar licensure requirements.
10. The commonality and statewide nature of these irregularities impacts
the elections.
11. “The right to vote is protected in more than the initial allocation of the
franchise. Equal protection applies as well to the manner of its exercise. Having
once granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person’s vote over that of another.”
Bush v. Gore, 531 U.S. 98, 104-05 (2000). All citizens, including
Pennsylvanians, have rights under the United States Constitution to the full,
free, and accurate elections built upon transparency and verifiability. Citizens
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are entitled – and deserve – to vote in a transparent system that is designed to
protect against vote dilution.
12. As evidenced by numerous sworn statements, Defendants egregious
misconduct has included ignoring legislative mandates concerning mail-in
ballots – which amounted to over 2.6 million of the approximately 6.75 million
votes in Pennsylvania – including the mandate that mail-in ballots be post-
marked on or before Election Day, and critically, preventing Trump Campaign
and other Republican poll watchers from observing the receipt, review,
opening, and tabulation of mail-in ballots. Those mail-in ballots are evaluated
on an entirely parallel track to those ballots cast in person.
13. On Election Day, when the Trump Campaign and other Republicans’
poll watchers were present and allowed to observe in various polling locations
throughout the Commonwealth, they observed and reported numerous instances
of election workers failing to follow the statutory mandates relating to two
critical requirements, among other issues: (1) a voter’s right to spoil their mail-
in ballot at their polling place on election day and to then vote in-person, and
(2) the ability for voters to vote provisionally on election day when a mail-in
ballot has already been received for them, but when they did not cast those
mail-in ballots.
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14. Additionally, Plaintiffs have learned that certain County Election
Boards were mailing unsolicited mail-in ballots to voters even though they had
not applied for a mail-in ballot for the General Election, thus resulting in voters
who received two ballots. The offending counties also failed to undertake any
effort to ensure destruction of the duplicate ballots.
15. The right to vote includes not just the right to cast a ballot, but also the
right to have it fairly counted if it is legally cast. The right to vote is infringed if
a vote is cancelled or diluted by a fraudulent or illegal vote, including without
limitation when a single person votes multiple times. The Supreme Court of the
United States has made this clear in case after case. See, e.g., Gray v. Sanders,
372 U.S. 368, 380 (1963) (every vote must be “protected from the diluting
effect of illegal ballots.”); Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 196 (2008) (plurality op. of Stevens, J.) (“There is no question about the
legitimacy or importance of the State’s interest in counting only the votes of
eligible voters.”); accord Reynolds v. Sims, 377 U.S. 533, 554-55 & n.29
(1964). The disparate treatment of Pennsylvania voters, in subjecting one class
of voters to greater burdens or scrutiny than another, violates Equal Protection
guarantees because “the right of suffrage can be denied by a debasement or
dilution of the weight of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise of the franchise.” Reynolds, 377 U.S. at 555.
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16. In a rush to count mail ballots and ensure Democrat Joe Biden is
elected, Pennsylvania created an illegal two-tiered voting system for the 2020
General Election, devaluing in-person votes. Voters who appeared at the polls
were required to sign voter registrations, have those signatures checked against
voter rolls, vote in a polling place monitored by statutorily authorized poll
observers, and have their votes counted in a transparent and verifiable open and
observed manner. By contrast, due to the arbitrary, unauthorized, and
standardless actions of the Secretary of the Commonwealth of Pennsylvania,
Kathy Boockvar, nearly 2.65 million votes were cast through a “mail in”
process that lacked all of the hallmarks of transparency and verifiability that
were present for in-person voters. In fact, Secretary Boockvar affirmatively
excised nearly every element of transparency and verifiability. Among other
things, the Secretary refused to require adequate verification of the voter’s
identity. Rather than require votes to be received on the day of election, the
Secretary permitted ballots received up to three days after the election to be
counted without any evidence of timely mailing, such as a postmark. Finally,
contrary to the in-person voting, which is open and transparent to the parties
and the candidates, Defendants permitted review and counting mail-in ballots
with no monitoring by the Trump witnesses. With the recent Opinion, the
Pennsylvania Supreme Court joins these other elected and appointed officials in
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re-interpreting the plain language of a statute that they distort the plain meaning
of the verb: “to observe. Multiple branches of the Pennsylvania Government
have now usurped the Pennsylvania legislature’s Constitutional role as
promulgator of the rules for Presidential Electors. In Re: Canvassing Operation
Appeal of: City of Philadelphia Board of Elections, PA Supreme Court, No. 30
EAP 2020 (November 17, 2020).
17. Through the arbitrary and illegal actions of the Secretary,
Pennsylvania created a two-track system of voting resulting in voters being
treated differently depending on how they chose to exercise their franchise. The
first, marked by voters appearing personally at the polls complied with
transparency and verifiability requirements of Pennsylvania Election Code. The
second, marked by a mass of paper ballots received through the mail, was
cloaked in darkness and complied with none of those transparency and
verifiability requirements. This two-track election system not only violates
Plaintiffs’ rights guaranteed by the United States Constitution, but also violates
the structure of the Constitution that elections in the States must be carried out
as directed solely by their respective legislatures and not by any other entity.
18. Accordingly, Plaintiffs seek an emergency order prohibiting
Defendants from certifying the results of the Presidential General Election. In
the alternative, Plaintiffs seek an emergency order prohibiting Defendants from
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certifying any results from the Presidential General Election that included
tabulation of absentee and mail-in ballots that do not comply with the Election
Code, including, without limitation, tabulation of absentee and mail-in ballots
Trump Campaign’s watchers were prevented from observing or based on the
tabulation of invalidly cast absentee and mail-in ballots that (i) lack a secrecy
envelope, or contain on such envelope any text, mark, or symbol that reveals
the elector’s identity, political affiliation, or candidate preference; (ii) do not
include on the outside envelope a completed declaration dated and signed by
the elector or; (iii) are delivered in-person by third parties for non-disabled
voters.
Ultimately, Plaintiffs seeks a permanent injunction requiring the County
Election Boards to invalidate ballots cast by voters in violation of the
Pennsylvania election code, including voters who were improperly given an
opportunity to cure and voters whose mail ballots did not comply with
Pennsylvania’s stringent requirements for signatures, dates, and secrecy ballots
– ballots which the Trump Campaign and other Republican observers could not
observe because they were excluded from observation. The Trump Campaign
believes that statistical analysis will evidence that over 70,000 mail and other
mail ballots which favor Biden were improperly counted – sufficient to turn the
election – a remedy expressly applied in Marks v. Stinson, Civ. A. No. 93-6157,
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1994 U.S. Dist. LEXIS 5273, at *78 (E.D. Pa. Apr. 26, 1994) which was later
affirmed without opinion by the Third Circuit Court of Appeals.
JURISDICTION AND VENUE
19. Under 28 U.S.C. §§ 1331 & 1343, this Court has subject matter
jurisdiction because this action arises under the Constitution and laws of the
United States and involves a federal election for President of the United States.
“A significant departure from the legislative scheme for appointing Presidential
electors presents a federal constitutional question.” Bush, 531 U.S. at 113
(Rehnquist, C.J., concurring); Smiley v. Holm, 285 U.S. 355, 365 (1932). Also,
this Court has supplemental jurisdiction over any state law claims under 28
U.S.C. § 1367.
20. Venue is proper because a substantial part of the events giving rise to
the claims occurred in this District, and certain of the Defendants reside in this
District and all of the Defendants are residents of the Commonwealth of
Pennsylvania in which this District is located. 28 U.S.C. § 1391(b) & (c).
PARTIES
21. Plaintiff Donald J. Trump for President, Inc. (hereinafter, the “Trump
Campaign”), is the principal committee for the reelection campaign of Donald
J. Trump, the 45th President of the United States of America (hereinafter,
“President Trump”). President Trump is the Republican nominee for the office
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of the President of the United States of America in the November 3, 2020
General Election. The Trump Campaign brings this action for itself and on
behalf of its candidate, President Trump. As a political committee for a federal
candidate, the Trump Campaign has Article III standing to bring this action.
See, e.g., Orloski v. Davis, 564 F. Supp. 526, 530-31 (M.D. Pa. 1983). See also
Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587-588 (5th Cir. 2006)
(“[A]fter the primary election, a candidate steps into the shoes of his party, and
their interests are identical.”); In re General Election- 1985, 531 A.2d 836, 838
(Pa. Commw. Ct. 1987) (A candidate for office in the election at issue suffers a
direct and substantial harm sufficient for standing to contest the manner in
which an election will be conducted). As a direct and proximate result of the
actions of the Defendants and each of them, the Trump Campaign has been
injured in a way that concretely impacted its rights under the Fourteenth
Amendment Due Process Clause; the Fourteenth Amendment Equal Protection
Clause; the Elections Clause of Article I, § 4; and the Electors Clause of Article
II, § 1 of the Constitution of the United States as more fully set forth herein.
22. Plaintiff David John Henry (hereinafter, “Mr. Henry”) is an adult
individual who is a qualified registered elector residing in West Hempfield
Township, Lancaster County, Pennsylvania. Mr. Henry constitutes a “qualified
elector” as that term is defined in Election Code Section 102(t), 25 P.S. §
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2602(t), and has brought this matter not only as a private citizen and “qualified
elector” but also, and more importantly, as an injured party. As a qualified
elector, registered voter and injured party, Mr. Henry has Article III standing to
bring this action. See Orloski, 564 F. Supp. at 530; Pierce, 324 F. Supp. 2d at
692-93. As a direct and proximate result of the actions of the Defendants and
each of them, the Mr. Henry has been injured in a way that concretely impacted
his rights under the Fourteenth Amendment Due Process Clause; the Fourteenth
Amendment Equal Protection Clause of the Constitution of the United States as
more fully set forth herein.
23. Plaintiff Lawrence Roberts (hereinafter, “Mr. Roberts”) is an adult
individual who is a qualified registered elector residing in Uniontown, Fayette
County, Pennsylvania. Mr. Roberts constitutes a “qualified elector” as that term
is defined in Election Code Section 102(t), 25 P.S. § 2602(t) and has brought
this matter not only as a private citizen and “qualified elector” but also, and
more importantly, as an injured party. As a qualified elector, registered voter
and injured party, Mr. Roberts has Article III standing to bring this action. See
Orloski, 564 F. Supp. at 530; Pierce, 324 F. Supp. 2d at 692-93. As a direct and
proximate result of the actions of the Defendants and each of them, the Mr.
Roberts has been injured in a way that concretely impacted his rights under the
Fourteenth Amendment Due Process Clause; the Fourteenth Amendment Equal
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Protection Clause of the Constitution of the United States as more fully set forth
herein.
24. Defendant Secretary Boockvar (hereinafter, “Secretary Boockvar”) is
the Secretary of the Commonwealth. In this role, Secretary Boockvar leads the
Pennsylvania Department of State. As Secretary, she is Pennsylvania’s Chief
Elections Officer and a member of the Governor’s Executive Board. The
Pennsylvania Constitution vests no powers or duties in Secretary Boockvar.
Perzel v. Cortes, 870 A.2d 759, 764 (Pa. 2005). Instead, her general powers and
duties concerning elections are set forth in Election Code Section 201, 25 P.S. §
2621. Under the Election Code, Secretary Boockvar acts primarily in a
ministerial capacity and has no power or authority to intrude upon the province
of the Pennsylvania General Assembly. Perzel, 870 A.2d at 764; Hamilton v.
Johnson, 141 A. 846, 847 (Pa. 1928). Secretary Boockvar is sued in her official
capacity.
25. Defendants Allegheny, Centre, Chester, Delaware, Philadelphia,
Montgomery, and Northampton County Board of Elections (collectively
hereinafter, the “County Election Boards”) are the county boards of elections in
and for the aforementioned counties of the Commonwealth of Pennsylvania as
provided by Election Code Section 301, 25 P.S. § 2641. The County Election
Boards “have jurisdiction over the conduct of primaries and elections in such
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count[ies], in accordance with the provision of [the Election Code.]” Id. at §
2641(a). The County Election Boards’ general powers and duties are set forth in
Election Code Section 302, 25 P.S. § 2642. The County Election Boards are
executive agencies that carry out legislative mandates, and their duties
concerning the conduct of elections are purely ministerial with no exercise of
discretion. Shroyer v. Thomas, 81 A.2d 435, 437 (Pa. 1951); Perles v. Hoffman,
213 A.2d 781, 786 (Pa. 1965) (Cohen, J., concurring). See also Deer Creek
Drainage Basin Authority v. County Bd. of Elections, 381 A.2d 103, 109 (Pa.
1977) (Pomeroy, J., dissenting) (“A board of elections, it has been well said,
“does not sit as a quasi-judicial body adjudicating contending forces as it
wishes, but rather as an executive agency to carry out legislative mandates. Its
duties are ministerial only.”); In re Municipal Reapportionment of Township of
Haverford, 873 A.2d 821, 833, n.18 (Pa. Commw. Ct. 2005) (“The duties of a
board of elections under the Election Code are ministerial and allow for no
exercise of discretion.”), appeal denied 897 A.2d 462 (Pa. 2006).
FACTUAL ALLEGATIONS
I. Federal Constitutional Protections for Free and Fair Public
Elections.
26. Free, fair, and transparent public elections are crucial to democracy –
a government of the people, by the people, and for the people.
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27. In statewide elections involving federal candidates, “a State’s
regulatory authority springs directly from the United States Constitution.”
Project Vote v. Kelly, 805 F. Supp. 2d 152, 174 (W.D. Pa. 2011) (citing Cook v.
Gralike, 531 U.S. 510, 522-23 (2001); U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 805 (1995)).
28. The Elections Clause of the United States Constitution states that
“[t]he Times, Places, and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof.”
U.S. Const. Art. I, § 4, cl. 1 (emphasis added). Likewise, the Electors Clause of
the United States Constitution states that “[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors” for
President. U.S. Const. Art. II, § 1, cl. 2 (emphasis added).
29. The Legislature is “the representative body which ma[kes] the laws of
the people.” Smiley 285 U.S. 365. Regulations of congressional and presidential
elections, thus, “must be in accordance with the method which the state has
prescribed for legislative enactments.” Id. at 367; see also Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 135 S. Ct.
2652, 2668 (U.S. 2015).
30. In Pennsylvania, the “legislature” is the General Assembly. Pa. Const.
Art. II, § 1. See also Winston v. Moore, 91 A. 520, 522 (Pa. 1914) (“The power
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to regulate elections is legislative, and has always been exercised by the
lawmaking branch of the government.”); Patterson v. Barlow, 60 Pa. 54, 75
(1869) (“It is admitted that the Constitution cannot execute itself, and that the
power to regulate elections is a legislative one, which has always been
exercised by the General Assembly since the foundation of the government.”).
31. Because the United States Constitution reserves for state legislatures
alone the power to set the time, place, and manner of holding elections for
Congress and the President, state executive officers, including but not limited to
Secretary Boockvar, have no authority to unilaterally exercise that power, much
less flout existing legislation.
32. Nor can the authority to ignore existing legislation be delegated to an
executive officer. While the Elections Clause “was not adopted to diminish a
State’s authority to determine its own lawmaking processes,” Ariz. State
Legislature, 135 S. Ct. at 2677, it does hold states accountable to their chosen
processes when it comes to regulating federal elections. Id. at 2668. A
significant departure from the legislative scheme for appointing Presidential
electors presents a federal constitutional question.” Bush, 531 U.S. at 113
(Rehnquist, J., concurring); Smiley, 285 U.S. at 365.
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II. Actual Observation by Watchers and Representatives Ensures Free
and Fair Public Elections.
33. Elections in Pennsylvania are governed and regulated by the
Pennsylvania Election Code. “Although the [Commonwealth] is ultimately
responsible for the conduct and organization of elections, the statutory scheme
[promulgated by the Election Code] delegates aspects of that responsibility to
the political parties. This delegation is a legislative recognition of ‘the critical
role played by political parties in the process of selecting and electing
candidates for state and national office.’” Tiryak v. Jordan, 472 F. Supp. 822,
823-24 (E.D. Pa. 1979) (quoting Marchioro v. Chaney, 442 U.S. 191, 195
(1979)). “Pennsylvania’s election laws apply equally to federal and state
elections.” Project Vote, 805 F. Supp. 2d at 174 (citing Kuznik v. Westmoreland
County Board of Elections, 902 A.2d 476, 490- 93 (Pa. 2006)).
34. The United States Supreme Court has noted: “[S]unlight,” as has so
often been observed, “is the most powerful of all disinfectants.” N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 305 (1964).
35. The Pennsylvania General Assembly understood that sentiment long
ago and intertwined the concept of watching with the act of voting, enshrining
transparency, sunlight and accountability into the process in which
Pennsylvanians choose elected officials. After all, reasonable people cannot
dispute that “openness of the voting process helps prevent election fraud, voter
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intimidation, and various other kinds of electoral evils.” PG Publishing Co. v.
Aichele, 705 F.3d 91, 111 (3d Cir. 2013).
36. As long as Pennsylvania has had an Election Code, it has had
watchers. In 1937, the Pennsylvania General Assembly included the concept of
“watchers” in the then-newly enacted Pennsylvania Election Code, a statutory
scheme addressing the administration of elections in the Commonwealth. See
25 P.S. §§ 2600, et. seq.
37. As it exists today, Election Code Section 417, codified at 25 P.S. §
2687, creates the position of watcher and entrusts to each candidate for
nomination or election at any election, and each political party and each
political body which has nominated candidates for such elections, the power to
appoint watchers to serve in each election district in the Commonwealth. See 25
P.S. § 2687(a).
38. Under the Election Code, “poll watcher[s] perform[] a dual function
on Election Day. On the one hand, because [watchers] are designated by
[candidates, political parties, and/or political bodies], [their] job is to guard the
interests of [their] candidates [or political parties or bodies]. On the other hand,
because the exercise of [their] authority promotes a free and fair election, poll
watcher[s] serve to guard the integrity of the vote. Protecting the purity of the
electoral process is a state responsibility and [watchers’] statutory role in
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providing that protection involves [them] in a public activity, regardless of
[their] private political motives.” Tiryak, 472 F. Supp. at 824.
39. Under Election Code Section 417(b), poll watchers may observe the
election process from the time the first polling place official appears in the
morning to open the polling place until the time the polls are closed and the
election returns are counted and posted at the polling place entrance. 25 P.S. §
2687(b). However, until the polls close, only one pole watcher representing
each political party and its candidates at a general, municipal, or special
election can be present in the polling place outside the enclosed space from the
time that the election officers meet to open the polls and until the counting of
the votes is complete. Id. See also Election Code Section 1220, 25 P.S. §
3060(a) & (d). Once the polls close and while the ballots are being counted,
then all the watchers for candidates and political parties or bodies are permitted
to be in the polling place outside the enclosed space. 25 P.S. § 2687(b).
40. In addition to the activities authorized by Election Code Section
417(b), poll watchers are among those who are authorized under Election Code
Section 1210(d), 25 P.S. § 3050(d), to challenge any person who presents
himself or herself to vote at a polling place on Election Day concerning the
voter’s identity, continued residence in the election district, or registration
status. See 25 P.S. § 3050(d) (“any person, although personally registered as an
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elector, may be challenged by any qualified elector, election officer, overseer,
or watcher at any primary or election as to his identity, as to his continued
residence in the election district or as to any alleged violation of the provisions
of section 1210 of this act, …”) (emphasis added).
41. Also, poll watchers are authorized under Election Code Section
1308(b), 25 P.S. § 3146.8(b), to be present when the envelopes containing
absentee and mail-in ballots are opened, counted, and recorded. 25 P.S. §
3146.8(b).
42. Moreover, watchers’ functions go beyond the activities authorized
under Election Code Sections 417(b) and 1210(d) on Election Day.
43. For example, under Election Code Section 310, 25 P.S. § 2650, poll
watchers appointed by parties, political bodies, or bodies of citizens may appear
“at any public session or sessions of the county board of elections,” and “at any
computation and canvassing of returns of any primary or election and recount
of ballots or recanvass of voting machines,” in which case such poll watchers
may exercise the same rights as watchers at polling places and may raise
objections to any ballots or machines for subsequent resolution by the county
board of elections and appeal to the courts. 25 P.S. § 2650(a) & (c).
44. In addition to poll watchers, the Election Code permits
“representatives” of candidates and political parties to be involved in the pre-
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canvassing and canvassing of absentee and mail-in ballots. See 25 P.S. §
3146.8(g)(1.1) & (2).
45. The Election Code also authorizes “representatives” of candidates and
political parties to be present when provisional ballots are examined to
determine if the individuals voting such ballots are entitled to vote at the
election districts in the election. See 25 P.S. § 3050(a.4)(4).
46. Election Code Section 417(b) provides that to be a poll watcher, a
person must be “a qualified registered elector of the county in which the
election district for which the watcher [is] appointed is located.” 25 P.S. §
2687(b).
47. Without poll watchers and representatives, the integrity of the vote in
elections is threatened and the constitutional right to free and fair public
elections under the United States Constitution is denied.
48. Poll watchers and representatives serve as an important check to
ensure transparency and guard against inconsistencies and other wrongdoing by
election officials.
49. The need for poll watchers and representatives is demonstrated by the
case of United States v. DeMuro, Criminal No. 20-112 (E.D. Pa. unsealed May
21, 2020). In that case, a former Judge of Elections in South Philadelphia pled
guilty to adding fraudulent votes to the voting machines during Election Day –
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also known as “ringing up” votes – and then falsely certifying that the voting
machine results were accurate for specific federal, state, and local Democratic
candidates in the 2014, 2015, and 2016 primary elections. The scheme involved
a political consultant who purportedly solicited monetary payments from the
candidates as “consulting fees,” and then used portions of those funds to pay
election board officials, including DeMuro, in return for ringing up votes.
DeMuro was able to commit the fraud because there were no poll watchers at
his precinct. See United States v. DeMuro, Criminal No. 20-112, Information
(Doc. #1) (E.D. Pa Mar. 03, 2020); M. Cavacini, “U.S. Attorney William M.
McSwain Announces Charges and Guilty Plea of Former Philadelphia Judge of
Elections Who Committed Election Fraud,” U.S. Attys. Office – Pa., Eastern
(May 21, 2020) (available at https://www.justice.gov/usao-edpa/pr/us-attorney-
william-m-mcswain-announcescharges- and-guilty-plea-former-philadelphia.
50. The importance of poll watchers and representatives serving as an
important check in elections is recognized internationally. The International
Institute for Democracy and Electoral Assistance issued a publication in 2002
called the International Electoral Standards: Guidelines for Review the Legal
Framework of Elections. The purpose of the International IDEA standards is to
be “used as benchmarks to assess whether or not an election is free and fair.”
International Electoral Standards at v; see also id. at 6 (“These international
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standards are relevant to each component, and necessary for the legal
framework to be able to ensure democratic elections. This publication is
intended to identify electoral standards which contribute to uniformity,
reliability, consistency, accuracy and overall professionalism in elections.”).
The sources for the Standards include numerous international Declarations,
Charters, and Conventions, including many to which the U.S. is a signatory. See
Id. at 7.
51. In contrast to the 2002 International Electoral Standards, Id, the
Pennsylvania Supreme court has struck out in a unique direction among
democracies and declared that meaningful observers are not part of verification
and votes may be counted without any review by political campaigns and
parties. In Re: Canvassing Operation Appeal of: City of Philadelphia Board of
Elections, PA Supreme Court, No. 30 EAP 2020 (November 17, 2020).
52. As it relates to ballot counting and tabulation, the Standards set out as
a general principle:
A fair, honest and transparent vote count is a cornerstone of
democratic elections. This requires that votes be counted,
tabulated and consolidated in the presence of the representatives
of parties and candidates and election observers, and that the
entire process by which a winner is determined is fully and
completely open to public scrutiny.
Standards, at 77.
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53. “Regardless of whether ballots are counted at the polling station or at
a central counting location or at both places, the representatives of parties and
candidates and election observers should be permitted to remain present on this
occasion.” Id. at 78.
54. “The legal framework for elections should clearly specify that the
representatives of parties and candidates and election observers be given, as far
as practicable, certified copies of tabulation and tally sheets.” Id. at 78. “As a
necessary safeguard of the integrity and transparency of the election, the legal
framework must contain a provision for representatives nominated by parties
and candidates contesting the election to observe all voting processes.” Id. at
83.
55. “[T]he representatives of parties and candidates should have the right
to immediately query decisions made by polling officials or the implementation
of voting procedures . . . .” Id. at 84. Per the Standards, representatives of
parties and candidates should be permitted “[t]o observe all activity – with the
exception of the marking of ballots by voters – within the polling station, from
the check counting of ballots and sealing of ballot boxes prior to the
commencement of voting to the final packaging of material after close of
voting; [t]o challenge the right of any person to vote; [and t]o query any
decisions made by polling officials with the polling station[,] committee
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president and election management officials.” Id. at 85. “The legal framework
must also be clear and precise concerning what a domestic observer may not do,
for instance, interfere with voting, take a direct part in the voting or counting
processes, or attempt to determine how a voter will vote or has voted. It should
strike a balance between the rights of observers and the orderly administration
of the election processes. But in no case should it hinder legitimate observation,
‘muzzle’ observers, or prevent them from reporting or releasing information
that has been obtained through their observations.” Id. at 90.
III. The Perils of an Unmonitored Mail-In Voting System.
56. Failing to uphold and ensure the adherence to even basic transparency
measures or safeguards against the casting of illegal or unreliable ballots creates
an obvious opportunity for ineligible voters to cast ballots, results in fraud, and
undermines the public’s confidence in the integrity of elections — all of which
violate the fundamental right to vote, the guarantee of equal protection, and the
right to participate in free, fair, and transparent elections as guaranteed by the
United States Constitution.
57. If a state fails to follow even basic integrity and transparency
measures — especially its own — it violates the right to free, fair, and
transparent public elections because its elections are no longer meaningfully
public and the State has functionally denied its voters a fair election.
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58. “[P]ublic confidence in the integrity of the electoral process has
independent significance, because it encourages citizen participation in the
democratic process.” Crawford, 553 U.S. at 195-96 (plurality op. of Stevens,
J.). As the Commission on Federal Election Reform – a bipartisan commission
chaired by former President Jimmy Carter and former Secretary of State James
A. Baker III, and cited extensively by the United States Supreme Court –
observed, “the ‘electoral system cannot inspire public confidence if no
safeguards exist to deter or detect fraud or to confirm the identity of voters.’”
Building Confidence in U.S. Election, Report of the Commission on Federal
Election Reform, p. 46 (Sept. 2005) (available at https://bit.ly/3dXH7rU, and
referred to and incorporated herein by reference) (hereinafter, the “Carter-Baker
Report”).
59. According to the Carter-Baker Report, mail-in voting is “the largest
source of potential voter fraud.” Carter-Baker Report, p. 46.
60. Many well-regarded commissions and groups of diverse political
affiliation agree that “when election fraud occurs, it usually arises from
absentee ballots.” Michael T. Morley, Election Emergency Redlines, p. 2 (Mar.
31, 2020) (available at https://ssrn.com/abstract=3564829 or
http://dx.doi.org/10.2139/ssrn.3564829, and referred to and incorporated herein
by reference) (hereinafter, “Morley, Redlines”). Such fraud is easier to commit
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and harder to detect. As one federal court put it, “absentee voting is to voting in
person as a take-home exam is to a proctored one.” Griffin v. Roupas, 385 F.3d
1128, 1131 (7th Cir. 2004). See also id. at 1130-31 (voting fraud is a “serious
problem” and is “facilitated by absentee voting.”).
61. Courts have repeatedly found that mail-in ballots are particularly
susceptible to fraud. As Justice Stevens has noted, “flagrant examples of [voter]
fraud ... have been documented throughout this Nation’s history by respected
historians and journalists,” and “the risk of voter fraud” is “real” and “could
affect the outcome of a close election.” Crawford, 553 U.S. at 195-96 (plurality
op. of Stevens, J.) (collecting examples). Similarly, Justice Souter observed that
mail-in voting is “less reliable” than in-person voting. Crawford, 553 U.S. at
212, n.4 (Souter, J., dissenting) (“‘[E]lection officials routinely reject absentee
ballots on suspicion of forgery.’”); id. at 225 (“[A]bsentee-ballot fraud . . . is a
documented problem in Indiana.”). See also Veasey v. Abbott, 830 F.3d 216,
239, 256 (5th Cir. 2016) (en banc) (“[M]ail-in ballot fraud is a significant
threat” — so much so that “the potential and reality of fraud is much greater in
the mail-in ballot context than with in-person voting.”). See also id. at 263
(“[M]ail-in voting . . . is far more vulnerable to fraud.”); id. (recognizing “the
far more prevalent issue of fraudulent absentee ballots”).
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62. Pennsylvania is not immune to mail-in ballot fraud. For example, in
1999, former Representative Austin J. Murphy was indicted by a Fayette
County grand jury and then convicted of absentee ballot fraud for forging
absentee ballots for residents of a nursing home and adding his wife as a write-
in candidate for township election judge. See B. Heltzel, “Six of seven charges
against Austin Murphy dismissed,” Pittsburgh Post-Gazette (June 22, 1999)
(available at http://old.post-gazette.com/regionstate/19990622murphy6.asp, and
referred to and incorporated herein by reference). Similarly, in 2014, Richard
Allen Toney, the former police chief of Harmar Township in Allegheny County
pleaded guilty to illegally soliciting absentee ballots to benefit his wife and her
running mate in the 2009 Democratic primary for town council. See T. Ove,
“Ex-Harmar police chief pleads guilty to ballot tampering,” Pittsburgh Post-
Gazette (Sept. 26, 2014) (available at https://www.post-
gazette.com/local/north/2014/09/26/Ex-Harmarpolice- chief-pleads-guilty-to-
ballot-tampering-Toney/stories/201409260172, and referred to and incorporated
herein by reference). Further, in 2015, Eugene Gallagher pled guilty to
unlawfully persuading residents and non-residents of Taylor in Lackawanna
County to register for absentee ballots and cast them for him during his
councilman candidacy in the November 2013 election. See J. Kohut, “Gallagher
resigns from Taylor council, pleads guilty to three charges,” The Times-Tribune
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(Apr. 3, 2015) (available at https://www.thetimes-
tribune.com/news/gallagherresigns- from-taylor-council-pleads-guilty-to-three-
charges/article_e3d45edb-fe99- 525c-b3f9-a0fc2d86c92f.html, and referred to
and incorporated herein by reference). See also Commonwealth v. Bailey, 775
A.2d 881, 886 (Pa. Commw. Ct. 2001) (upholding defendant’s conviction for
absentee ballot violations, holding that a county district attorney has jurisdiction
to prosecute such claims even in the absence of an investigation and referral by
the Bucks County elections board); In re Center Township Democratic Party
Supervisor Primary Election, 4 Pa . D. & C.4th 555, 557-563 (Pa. Ct. Com. Pl.
Beaver 1989) (court ordered a run-off election after evidence proved that fifteen
absentee ballots were applied for and cast by non- existent individuals whose
applications and ballots were handled by a political ally of the purported
winner).
63. As part of the November 3, 2020 General Election, at least two
Counties had suspected instances of mail-in ballot fraud. Fayette County
experienced two different issues with their mail-in ballots leading up to Election
Day. First, an issue caused by Pennsylvania’s SURE software system as to the
marking of online applications submitted prior to the June primary election with
the “permanent mail-in” status caused some voters to receive duplicate ballots
for the general election. See https://www.wpxi.com/news/top-stories/election-
-30-
officialsworking- correct-mail-in-ballot-problems-fayette
county/NH5DSEM7EVE7LGZLMAN4CS52YE/. Prior to November 3, 2020,
Fayette County uncovered an incident involving two voters who received mail-
in ballots that were already filled out and two ballots that were found at the
election bureau already opened with the secrecy envelope and the ballot missing
out of those envelopes. Ballots already filled out arrived at homes 40 miles
apart. See https://www.wtae.com/article/fayette-co-prosecutors-investigating-
reports-ofvoters- receiving-mail-in-ballots-already-filled-out/34527256. In late
September 2020, officials in Luzerne County discovered that a temporary
seasonal elections worker had discarded into a trash bin nine (9) military ballots
received in unmarked envelopes, seven (7) of which were all cast for President
Trump. See https://www.wgal.com/article/federal-authorities-investigate-
discarded-ballots-inluzerne- county-pennsylvania/34162209#.
64. This risk of abuse by absentee or mail-in voting is magnified by the
fact that “many states’ voter registration databases are outdated or inaccurate.”
Morley, Redlines, p. 2. A 2012 study from the Pew Center on the States –
which the U.S. Supreme Court cited in a recent case - found that
“[a]pproximately 24 million – one of every eight – voter registrations in the
United States are no longer valid or are significantly inaccurate”; “[m]ore than
1.8 million deceased individuals are listed as voters”; and “[a]pproximately
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2.75 million people have registrations in more than one state.” See Pew Center
on the States, Election Initiatives Issue Brief, “Inaccurate, Costly, and
Inefficient: Evidence That America’s Voter Registration System Needs an
Upgrade,” (Feb. 2012) (available at
https://www.issuelab.org/resources/13005/13005.pdf, and referred to and
incorporated herein by reference) (cited in Husted v. A. Philip Randolph Inst.,
138 S. Ct. 1833, 1838 (U.S. 2018)).
65. Crucially as it pertains to Pennsylvania’s registered voters, as recently
as December 2019, the Auditor General of Pennsylvania, Eugene DePasquale,
determined through an audit of Pennsylvania’s Statewide Uniform Registry of
Electors (“SURE”), administered by the Department of State, that there are
more than 50,000 cases of potentially inaccurate voter records. The
Performance Audit Report noted that the audit “found too many instances of
potentially bad data and sloppy recordkeeping.” See
https://www.paauditor.gov/press-releases/auditorgeneral- depasquale-issues-
audit-of-voter-registration-system-calls-for-changes-atpennsylvania-
department-of-state; https://www.paauditor.gov/Media/Default/
Reports/Department%20of%20State_SURE%20Audit%20Report%2012-19-
19.pdf. The Department of State was provided 50 recommendations to
strengthen their policies and management controls, one of which was to work
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with counties to resolve records management issues such a duplicative voter
records. See id. Mr. DePasquale criticized the Pennsylvania Department of
State for its “lack of cooperation and a failure to provide the necessary
information” during the audit, including the “denial of access to critical
documents and excessive redaction of documentation.” Id. As a result, the
Auditor General was “unable to establish with any degrees of reasonable
assurance that the SURE system is secure and that Pennsylvania voter
registration records are complete, accurate and in compliance with applicable
laws, regulations, and related guidelines.” Id.
66. Because of its inherent risk, absentee and mail-in voting is an election
process that requires adequate procedural safeguards to deter fraud and ensure
transparency.
67. One procedural safeguard that any absentee or mail-in ballot voting
system must have is the ability of candidates, political parties, and the public at
large to engage in meaningful, effective, and actual observation of the
inspection, opening, counting, and recording of absentee and mail-in ballots in
order to ensure that the election officers are uniformly applying the same rules
and procedures to all absentee and mail-in voters and that only legitimately cast
votes are counted and recorded.
68. IV. Pennsylvania Enacts All-Voter Mail-in Voting.
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69. The Pennsylvania General Assembly may enact laws governing the
conduct of elections. Winston, 91 A. at 522. However, no legislative enactment
may contravene the United States Constitution. U.S. CONST. art. VI; Shankey
v. Staisey, 257 A. 2d 897, 898 (Pa.), cert. denied 396 U.S. 1038 (1970).
70. “Prior to the year 1957, the Pennsylvania Constitution permitted
absentee voting only by individuals engaged in actual military service (Art. 8, §
6 of the Pennsylvania Constitution (1874)), and by bedridden or hospitalized
veterans (Art. 8, § 18 added to the Pennsylvania Constitution (1949)).”
Absentee Ballots Case, 224 A.2d 197, 199 (Pa. 1966).
71. In 1957, the Pennsylvania Constitution was further amended to permit
absentee voting for those “qualified electors who may, on the occurrence of any
election, be absent from the municipality of their residence, because their
duties, occupation or business require them to be elsewhere or who, on the
occurrence of any election, are unable to attend at their proper polling places
because of illness or physical disability or who will not attend a polling place
because of the observance of a religious holiday or who cannot vote because of
election day duties, in the case of a county employee[.]” Pa. Const. art. VII, §
14.
72. In 1960, the Election Code was amended to implement the 1957
amendment to the Pennsylvania Constitution. Absentee Ballots Case, 224 A.2d
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at 200. See also The Act of January 8, 1960, entitled “An Act amending the Act
of June 3, 1937,” P.L. 2135, 25 P.S. §§ 3149.1-3149.9 (Supp. 1960).
73. “Absentee voting has consistently been regarded by the Pennsylvania
courts as an extraordinary procedure in which the safeguards of the ordinary
election process are absent.” Canvass of Absentee Ballots of April 28, 1964,
Primary Election, 34 Pa. D. & C.2d 419, 420 (Pa. Ct. Com. Pl. Phila. 1964).
74. Specifically, “in the casting of an absentee ballot, the ordinary
safeguards of a confrontation of the voter by the election officials and watchers
for the respective parties and candidates at the polling place are absent.”
Canvass of Absentee Ballots of April 28, 1964, Primary Election, 34 Pa. D. &
C.2d at 420.
75. Because “it is fraught with evils and frequently results in void votes,”
Pennsylvania’s laws regarding absentee voting are “strictly construed and the
rights created thereunder not extended beyond the plain and obvious intention
of the act.” Canvass of Absentee Ballots of April 28, 1964, Primary Election, 34
Pa. D. & C.2d at 420-21 (citing Decision of County Board of Elections, 29
D.&C.2d 499, 506-7 (Pa. Ct. Com. Pl. 1962)). See also Marks v. Stinson, Civ.
A. No. 93-6157, 1994 U.S. Dist. LEXIS 5273, at *78 (E.D. Pa. Apr. 26, 1994)
on remand, Marks v. Stinson, 19 F.3d 873 (1994).
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76. Moreover, consistent with Pennsylvania’s Statutory Construction Act,
the Election Code’s use of the word “shall” to identify the manner and other
“technicalities” that an elector must follow to cast an absentee ballot are
“substantive provisions” that are necessary to “safeguard against fraud” and
preserve the “secrecy and the sanctity of the ballot and must therefore be
observed,” and ballots cast “in contravention of [such] mandatory provision[s]
are void.” In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843
A.2d 1223, 1231-34 (Pa. 2004).
77. On October 31, 2019, the Pennsylvania General Assembly enacted
Act 77. See Act 2019-77 (S.B. 421), § 8, approved October 31, 2019, eff.
October 31, 2019.
78. Act 77 fundamentally changed the administration of elections in the
Commonwealth of Pennsylvania in that, for the first time in its history,
qualified Pennsylvania electors now have the choice to vote by mail, rather than
in person on Election Day, without providing a reason or excuse. See, e.g., 25
P.S. §§ 3150.11- 3150.17; see also Pa. Dem. Party v. Boockvar, Case No. 133
MM 2020, 2020 Pa. LEXIS 4872, at * 1 (Pa. Sept. 27, 2020). Previously, the
law offered electors who could not vote in person on the designated Election
Day the ability to apply for and receive an absentee ballot, verifying they
qualified based on a limited number of excuses outlined in the statute.
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Pennsylvania held its first election under Act 77’s no excuse mail-in ballot
scheme during the Primary Election held on June 2, 2020. The November 3,
2020 election was the first General Election in Pennsylvania under the state’s
new mail-in voting scheme.
79. Mail-in ballots are not automatically sent to electors in Pennsylvania.
The Election Code requires that a person applying for both an absentee and a
mail-in ballot complete a form with various information and sign the
application. See 25 P.S. § 3146.2(a)–(e); (the absentee ballot application “shall
be signed by the applicant”); 25 P.S. § 3150.12(a)–(d); 25 P.S. § 3146.2(d)
(except as not relevant here, “the application [for a mail-in ballot] shall be
signed by the applicant.”). The only exception to the signature requirement is
for military, overseas and disabled voters. Id.
80. Other than the signature requirement, there is no other proof of
identification required to be submitted with the ballot applications. See
generally 25 P.S. § 3146.2; 25 P.S. § 3150.12. When those ballots are being
reviewed for approval, the board of elections is required to both (i) compare the
information provided on the application with the information contained on the
voter’s permanent card and (ii) verify the proof of identification. See 25 P.S. §
3146.2b(c); 25 P.S. § 3150.12b(a). The board of elections’ signature
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verification on the application is the only means available to it to verify the
identity of the voter.
81. For both absentee and mail-in voting, Act 77 retains the requirement
that “the [non-disabled] elector shall send [his or her absentee or mail-in ballot]
by mail, postage prepaid, except where franked, or delivered it in person to
[the] county board of elections,” in order for the ballot to be properly cast under
Act 77. 25 P.S. §§ 3146.6(a)& 3150.16(a). Accordingly, as it did prior to the
enactment of Act 77, the Election Code bars ballot harvesting of absentee and
mail-in ballots cast by nondisabled voters. See Crossey v. Boockvar, Case No.
108 MM 2020, 2020 Pa. LEXIS 4868, at *4 (Pa., Sept. 17, 2020) (“It has long
been the law of this Commonwealth, per 25 P.S. § 3146.6(a), that third-person
delivery of absentee ballots is not permitted. Act 77 adds a substantially
identical provision for mail-in ballots, which we likewise conclude forbids
third-party delivery of mail-in votes.”) (citations omitted); Absentee Ballots of
Nov. 4, 2003 Gen. Election, 843 A.2d at 1234 (“[W]e hold that Section
3146.6(a)’s ‘in person’ delivery requirement is mandatory, and that the absentee
ballots of non-disabled persons who had their ballots delivered in contravention
of this mandatory provision are void.”); Marks, 1994 U.S. Dist. LEXIS 5273 at
*83.
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82. Also, for both absentee and mail-in voting, Act 77 retains the
requirement that an elector must comply with the following additional
mandatory requirements for such ballot to be properly cast:
[T]he [non-disabled] 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 then 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.
25 P.S. §§ 3146.6(a)& 3150.16(a).
83. Moreover, as it did prior to the enactment of Act 77, the Election
Code bars counting absentee or mail-in ballot that either lacks an “Official
Election Ballot,” or contains on that envelope “any text, mark or symbol which
reveals the identity of the elector, the elector’s political affiliation or the
elector’s candidate preference,” or fails to contain a completed declaration
signed and dated by the elector. Election Code Sections 1306.6(a) and
1308(g)(i)-(iv), 25 P.S. §§ 3146.6(a) & 3146.8(g)(4)(i)-(iv).
84. These provisions in the Election Code, as amended by Act 77, which
identify exactly what an elector “shall” do to properly vote absentee or mail-in
ballot to ensure the secrecy of such ballots and to prevent fraud. See Absentee
Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d at 1232. See also id. at 1234
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(the Election Code’s provisions of how to cast an absentee ballot are
“substantive matters—how to cast a reliable vote—and not [] a mere procedural
matter” that can be disregarded by a county board of elections); Appeal of
Yerger, 333 A.2d 902, 907 (Pa. 1975) (the validity of a ballot must first be
ascertained before any factual inquiry into the intention of the voter); Appeal of
James, 105 A.2d 64, 66 (Pa. 1954) (“[V]iolations of substantive provisions of
the [Election] Code cannot be overlooked on the pretext of pursuing a liberal
construction.”).
85. 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).
86. However, in contrast to prior provisions of the Election Code, all
absentee and mail-in ballots are no longer sent to polling places on Election
Day and are no longer inspected by the local election boards or subject to
challenge by watchers at the polling places. Instead, Act 77 mandates that all
properly cast absentee and mail-in ballots are to be “safely ke[pt] . . . in sealed
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or locked containers” at the county boards of elections until they are canvassed
by the county elections boards. Election Code Section 1308(a), 25 P.S. §
3146.8(a).
87. Additionally, Act 77 requires that “no earlier than seven o’clock
(0700) 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
meeting. Election Code Section 1308(g)(1.1), 25 P.S. § 3146.8(g)(1.1). 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. Election
Code 102(q.1), 25 P.S. § 2602(q.1).
88. Further, contrary to prior provisions of the Election Code, 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. See Election Code
Section 1308(g)(2), 25 P.S. § 3146.8(g)(2). However, unlike a pre-canvass, the
election officials during a canvass are permitted to record and publish the votes
reflected on the ballots. See Election Code 102(a.1), 25 P.S. § 2602(a.1).
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89. Act 77 prohibits an elector from casting both an absentee or mail-in
ballot and in-person ballot, whether as a regular or provisional ballot.
Specifically, Act 77 provides: Any elector who receives and votes a mail-in
ballot under section 1301-D shall not be eligible to vote at a polling place on
election day. The district register at each polling place shall clearly identify
electors who have received and voted mail-in ballots as ineligible to vote at the
polling place, and district election officers shall not permit electors who voted a
mail-in ballot to vote at the polling place. 25 P.S. § 3150.16(b)(1). See also
Election Code 1306(b)(1), 25 P.S. § 3146.6(b)(1).
90. Further, Act 77 provides that an elector who requests a mail-in or
absentee ballot and who is not shown on the district register as having voted
may vote only by provisional ballot at the polling place on Election Day, unless
the elector remits the unvoted mail-in or absentee ballot and the envelope
containing the declaration of the elector to the judge of elections to be spoiled
and the elector signs a statement under penalties of perjury that he or she has
not voted the absentee or mail-in ballot. 25 P.S. §§ 3150.16(b)(2) & (3);
3146.6(b)(2) & (3).
91. These restrictions and requirements under Act 77 were put in place to
reduce the possibility that illegally cast and/or fraudulent ballots would be
counted.
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92. On November 3, 2020, Pennsylvania conducted the General Election
for national and statewide candidates, the first general election that followed
enactment of Act 77 and its no-excuse, mail-in voting alternative.
93. However, Philadelphians “began in-person mail-in voting at the
[S]atellite [O]ffices on September 29, 2020, sometime between 11:30 a.m. and
12:45 p.m.’” Donald. J. Trump for President, Inc. v. Phila. Cnty. Bd. of
Elections, 983 CD 2020, at 7 n. 3 (Pa. Commw. Ct. Oct. 23, 2020)
(McCullough, J.) (dissenting).
94. “In fact, the presidential election is and has been happening since
September 29, 2020. And, all across America, news reports in Philadelphia and
elsewhere have clearly conveyed that multi-millions of electors have already
voted.” Id. at p. 14-15.
95. Of the over 6.70 million votes cast for the Presidential election on
November 3, 2020 in Pennsylvania, over 2.5 million votes were cast by mail-in
or absentee ballot.
96. Despite the unprecedented number of votes cast by absentee and mail-
in ballots, Defendants failed to take adequate measures to ensure that the
provisions of the Election Code enacted to protect the validity of absentee or
mail-in ballots, including without limitation Act 77, were followed. This is
crucial because the casting of votes in violation of the Election Code’s
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mandatory provisions renders them void. Absentee Ballots of Nov. 4, 2003 Gen.
Election, 843 A.2d at 1234.
V. The Department of State’s “Guidance” Memos Published Ahead of
the General Election.
A. August 19, 2020 Guidance On Inner Secrecy Envelopes.
97. On the same day its guidance on the use of unmanned drop boxes and
other ballot-collection sites was disseminated, the Pennsylvania Department of
State, with the knowledge, approval, and/or consent of Secretary Boockvar,
published and disseminated to all the County Election Boards another guidance
titled “Pennsylvania Guidance for Missing Official Ballot Envelopes (‘Naked
Ballots’).” A true and correct copy of the August 19, 2020 Naked Ballots
guidance was available at the Pennsylvania Department of State’s web site at
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/PAD
OS _NakedBallot_Guidance_1.0.pdf.
98. In her Naked Ballot Guidance, Secretary Boockvar espoused “the …
position that naked ballots should be counted pursuant to the Pennsylvania
Election Code, furthering the Right to Vote under the Pennsylvania and United
States Constitutions[,]” that “[t]he failure to include the inner envelope
(‘Secrecy Envelope’) does not undermine the integrity of the voting process[,]”
and that “no voter should be disenfranchised for failing to place their ballot in
the official election ballot envelope before returning it to the county board of
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election.” Id. Upon information and belief, Secretary Bookvar – appointed by
Democratic Governor Tom Wolfe – issued this “guidance” in order to
encourage the counting of mail ballots which she knew would favor Biden.
99. On September 17, 2020, the Pennsylvania Supreme Court rejected the
Secretary’s position and ruled that “the secrecy provision language in Election
Code Section 3150.16(a) is mandatory and the mail-in elector’s failure to
comply with such requisite by enclosing the ballot in the secrecy envelope
renders the ballot invalid.” Pennsylvania Democratic Party, 2020 Pa. LEXIS
4872 at *72.
100. Following the Pennsylvania Supreme Court’s September 17, 2020
decision, Secretary Boockvar has removed the August 19, 2020 Naked Ballot
guidance from the Pennsylvania Department of State’s website. However, she
has not issued any guidance advising all 67 County Election Boards that they
must not count non-compliant absentee or mail-in ballots, including, without
limitation, those that lack an inner secrecy envelope, contain on that envelope
any text, mark, or symbol which reveals the elector’s identity, political
affiliation, or candidate preference, do not include on the outside envelope a
completed declaration that is dated and signed by the elector, and/or are
delivered in-person by third-parties for non-disabled voters.
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B. Guidance On Approving Absentee and Mail-In Ballot Applications
and Canvassing Absentee and Mail-In Ballots.
101. On September 11, 2020, the Pennsylvania Department of State, with
the knowledge, approval, and/or consent of Secretary Boockvar, published and
disseminated to all the County Election Boards a guidance titled “GUIDANCE
CONCERNING EXAMINATION OF ABSENTEE AND MAIL-IN BALLOT
RETURN ENVELOPES.” A true and correct copy of the September 11, 2020
Guidance is available at the Pennsylvania Department of State’s web site at
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Exa
min ation%20of%20Absentee%20and%20Mail-
In%20Ballot%20Return%20Envelopes.pdf.
102. Under the “Background” section of the September 11, 2020 Guidance,
Secretary Boockvar states that “[b]efore sending [an absentee or mail-in] ballot
to the applicant, the county board of elections confirms the qualifications of the
applicant by verifying the proof of identification and comparing the information
provided on the application with the information contained in the voter
record[,]” that “[i]f the county is satisfied that the applicant is qualified, the
application must be approved[,]” and that “[t]his approval shall be final and
binding, except that challenges may be made only on the grounds that the
applicant was not a qualified voter . . . .”
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103. Yet, the Election Code mandates that for non-disabled and non-
military voters, all applications for an absentee or mail-in ballot “shall be signed
by the applicant.” 25 P.S. §§ 3146.2(d)& 3150.12(c). There is no signature
requirement.
104. Moreover, because of the importance of the applicant’s signature and
the use of the word “shall,” Pennsylvania courts have consistently upheld
challenges to absentee ballots that have been cast by voters who did not sign
their absentee ballot applications. See, e.g., Opening of Ballot Box of the First
Precinct of Bentleyville, 598 A.2d 1341, 1343 (Pa. Commw. Ct. 1991).
105. Except for first-time voters, the only basis under the Election Code for
the identification of any voter, whether voting in-person or by absentee or mail
ballot, is by confirmation of the presence of the voter’s signature.
106. Before one can cast a regular ballot at a polling place on Election Day,
that voter is subject to the following signature comparison and challenge
process:
(1) All electors, including any elector that shows proof of
identification pursuant to subsection (a), shall subsequently sign a
voter’s certificate in blue, black or blue-black ink with a fountain
pen or ball point pen, and, unless he is a State or Federal employee
[sic] who has registered under any registration act without declaring
his residence by street and number, he shall insert his address
therein, and hand the same to the election officer in charge of the
district register.
(2) Such election officer shall thereupon announce the
elector’s name so that it may be heard by all members of the election
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board and by all watchers present in the polling place and shall
compare the elector’s signature on his voter’s certificate with his
signature in the district register. If, upon such comparison, the
signature upon the voter’s certificate appears to be genuine, the
elector who has signed the certificate shall, if otherwise qualified,
be permitted to vote: Provided, That if the signature on the voter’s
certificate, as compared with the signature as recorded in the district
register, shall not be deemed authentic by any of the election
officers, such elector shall not be denied the right to vote for that
reason, but shall be considered challenged as to identity and required
to make the affidavit and produce the evidence as provided in
subsection (d) of this section.
25 P.S. § 3050(a.3)(1) – (2)(2020) (emphasis added).
107. Similarly, under Election Code Section 1308(g)(3)-(7),
“[w]hen the county board meets to pre-canvass or canvass
absentee ballots and mail-in ballots . . ., the board shall
examine the declaration on the envelope of each ballot not
set aside under subsection (d) and shall compare the
information thereon with that contained in the ‘Registered
Absentee and Mail-in Voters File,’ the absentee voters’ list
and/or the ‘Military Veterans and Emergency Civilians
Absentee Voters File,’ whichever is applicable. If the
county board has verified the proof of identification as
required under this act and is satisfied that the declaration
is sufficient and the information contained in the
‘Registered Absentee and Mail-in Voters File,’ the
absentee voters’ list and/or the ‘Military Veterans and
Emergency Civilians Absentee Voters File’ verifies his
right to vote, the county board shall provide a list of the
names of electors whose absentee ballots or mail-in ballots
are to be precanvassed [sic]or canvassed.” 25 P.S. §
3146.8(g)(3). Further, only those ballots “that have been
verified under paragraph (3) shall be counted . . . .”
25 P.S. § 3146.8(g)(4).
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108. If a ballot is not counted because of a lack of a signature, it is
considered “challenged” and subject to the notice and hearing provisions under
Section 1308(g)(5)-(7). 25 P.S. § 3146.8(g)(5)-(7).
109. The Pennsylvania Election Code authorizes the County Election
Boards to set aside and challenge returned absentee or mail-in ballots that do
not contain the signatures of voters and for which the County Election Boards
did not verify the signature of the electors before the mail-in ballot was
separated from the outer envelope.
110. Democratic controlled County Elections Board’s failure and refusal to
set aside and challenge returned absentee or mail-in ballots that do not contain
the signatures of voters in the November 3, 2020 General Election has resulted
in the arbitrary, disparate, and unequal treatment between those who vote in-
person at the polling place versus those who vote by absentee or mail-in ballot –
all designed to favor Biden over Trump.
111. In addition, the disparate treatment between mail-in and in person
voters as to the verification of the voter’s identity through signature verification
has created an environment in Pennsylvania that encourages ballot fraud or
tampering and prevents the Commonwealth and the County Election Boards
from ensuring that the results of the November 3, 2020 General Election are
free, fair, and transparent.
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112. As a result of the manner in which the County Election Boards were
directed to conduct the election including the canvassing of mail-in ballots, the
validity of Pennsylvanians’ votes who favor Trump have been
unconstitutionally diluted through Defendants’ arbitrary, disparate, and/or
uneven approval of all absentee and mail-in ballots without performing the
requisite verification of the voter’s signature, resulting in the treatment of by-
mail and in-person voters across the state in an unequal fashion in violation of
state and federal constitutional standards in over to favor Biden.
113. The Department of State issued an additional deficient guidance
related to the issue of signature verification on September 28, 2020 related to
the issue of signature verification titled “GUIDANCE CONCERNING
CIVILIAN ABSENTEE AND MAIL-IN BALLOT PROCEDURES.” (App.
Ex. 25.) This most recent guidance provides additional information about the
acceptance and scrutiny of mail-in and absentee ballots for the General Election
and not only fails to remedy but also doubles down on the illegal September 11
guidance forbidding signature verification as a reason to set aside both mail-in
ballots and ballot applications. In the September 28 guidance memo, the
Secretary proclaims that “[t]he Election Code does not permit county election
officials to reject applications or voted ballots based solely on signature
analysis.” (Id., at p. 9.) She then goes even further and pronounces that “[n]o
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challenges may be made to mail-in and absentee ballots at any time based on
signature analysis.” (Id.)
114. Secretary Boockvar continued to issue guidance to the counties in
direct contradiction of the Election Code up until the eve of the election. On
November 1, 2020, Secretary Boockvar, with no authority to do so, extended
the Election Code’s mandatory deadline for voters to resolve proof of
identification issues with their mail-in and absentee ballots.
VI. Defendants’ Inconsistent and Uneven Administration of the 2020
General Election Violated the Election Code and Infringed Plaintiffs’
Constitutional Rights to Free, Fair and Transparent Public Elections.
115. As of the filing of this complaint, 6,743,874 million votes were cast
for President in Pennsylvania, with approximately 2,635,090 ballots returned
and cast by absentee or mail-in ballots (approximately 3.1 million absentee and
mail-in ballots were approved and sent to electors for the General Election).
References contained herein to the November 3, 2020 election results in
Pennsylvania are derived from https://www.electionreturns.pa.gov/.
116. In the named County Elections Boards, the following are the number
of canvassed and tabulated absentee and mail-in ballots:
a. Allegheny: 335,573
b. Centre: 32,514
c. Chester: 148,465
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d. Delaware: 127,751
e. Montgomery: 238,122
f. Northampton: 71,893
g. Philadelphia: 345,197
117. Despite the fact that well over a third of the votes were cast by mail,
Secretary Boockvar and the Pennsylvania Department of State did not
undertake any meaningful effort to prevent casting illegal or unreliable absentee
or mail-in ballots and/or to ensure the application of uniform standards across
the County Election Boards to prevent the casting of such illegal or unreliable
ballots. Rather, Secretary Boockvar has exercised every opportunity to do quite
the opposite, thereby sacrificing the right to vote by those who legally cast their
ballots (whether in-person or through properly cast absentee or mail-ballots)
through the unlawful dilution or debasement of the weight of their vote in order
to favor Biden over Trump.
A. The Prevalence of Unsolicited Mail-In Votes
118. Throughout the Commonwealth, including in the named County
Election Boards, numerous voters reported receiving mail-in ballots, even
though they did not apply for them.
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119. Worse, numerous voters reported having received multiple mail-in
ballots, in some documented cases as many as four or five ballots, even though
they had not themselves submitted applications for mail-in ballots.
120. Moreover, at the polling locations on Election Day, voters were
informed that they must vote provisionally because they had applied for mail-in
votes, even though those voters report that they neither applied for nor received
mail-in ballots. Poll watchers throughout the state who were permitted to
observe reported similar incidents.
121. Voters reported being denied the right to vote in person because they
had been told they had already voted by mail-in or absentee ballots, even
though they appeared at their polling place with their un-voted mail-in or
absentee ballots in hand. In many cases, those voters were required to vote
provisionally in-person at the polls.
122. The Trump Campaign also have reports of voters who were visited at
home in the weeks before the election by individuals soliciting their
participation in mail-in voting. Those voters report that even though they never
applied for mail-in ballots, they did receive mail in ballots, and when they
attempted to vote in person were told that they had voted by mail. In at least
two documented cases, even though poll workers told the voters that they were
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recorded as having already voted by mail, they were allowed to vote in person
by live ballot on the voting machines.
123. Other voters reported having received unsolicited and un-applied for
mail-in ballots, but when they went to their in-person polling place, the poll
books reflected that no mail-in ballot had been sent.
124. A voter (witness), who was required to vote provisionally because the
voter was identified as having requested a mail-in ballot even though the voter
had not done so, contacted the Allegheny County elections office to complain
about having to submit a provisional ballot. The voter was told that a larger
number of Republican voters experienced the same issue.
B. The Misadministration of the Election by the County Election Boards
and Poll Workers.
125. In Montgomery County, a poll watcher observed a Judge of Elections
pull aside voters who were not listed in the poll books as registered to vote. The
poll watcher reports hearing the Judge of Elections tell those voters that they
needed to return later and report their name as another name that was in the poll
book.
126. Across numerous counties, poll watchers observed poll workers
mishandling spoiled mail-in or absentee ballots brought to the polling place by
voters who intended to vote in-person. Rather than disposing of the spoiled
ballots securely, the spoiled ballots were instead placed in unsecured boxes or
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in stacks of paper despite the protests of voters or poll watchers. For instance in
Centre County, a poll worker observed mail-in ballots being improperly
spoiled. The workers placed the mail-in ballots returned to the polling place by
in-person voters in a bag without writing “void” on them or otherwise
destroying them.
127. In at least one case, a voter brought the voter’s own secrecy envelope
to the polling place after realizing that the voter had failed to include it when
returning the mail-in ballot. The voter was not permitted to submit a provisional
ballot in accordance with the statute.
128. In Allegheny County, poll workers were observing voters vote
provisionally in such a way that the poll worker could determine which
candidates the elector voted on their provisional ballot.
129. In Centre County, a poll worker reported that persons appearing at the
polls and admitting that they were New Jersey voters, rather than Pennsylvania
voters, were nonetheless provided provisional ballots on which to votes.
130. In Chester County, an observer witnessed a flawed resolution process
for over-voted and under-voted ballots. The observer witnessed one election
worker responsible for resolving over-voted and under-voted ballots by
subjectively determining who the elector intended to choose on the empty
votes. The observer reports that in numerous instances the election worker
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altered the over-voted ballot by changing votes that had been marked for
Donald J. Trump to another candidate.
131. In Delaware County, an observer at the county office observed issues
related to mail-in voted ballots being scanned through machines four or five
times before finally being counted. When a voting machine warehouse
supervisor arrived to address whether the machine was malfunctioning, the
supervisor instead reported that the bar codes on the ballots must be
“defective.”
132. In Delaware County, poll watchers observed in at least seven (7)
different polling locations numerous instances of voters who were told they had
registered to vote by mail, but were given regular ballots, rather than
provisional ballots, and were not made to sign in the registration book.
133. Mail carriers have noted significant anomalies related to the delivery
of mail-in ballots. A mail carrier for the USPS in Erie County has noted that
during the course of the General Election mail-in ballot delivery period there
were multiple instances in which dozens of mail-in ballots were addressed to
single addresses, each ballot being in a different name. Based on the carrier’s
experience delivering mail to those addresses, the carrier is aware that the
people whose names were on the ballots are not names of people who live at
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those addresses. In addition, ballots were mailed to vacant homes, vacation
homes, empty lots, and to addresses that do not exist.
134. It has been reported by Project Veritas, in a release on November 5,
2020, that carriers were told to collect, separate and deliver all mail-in ballots
directly to the supervisor. In addition, Plaintiffs have information that the
purpose of that process was for the supervisor to hand stamp the mail-in ballots.
C. Uneven Treatment of Absentee and Mail-Ballots Failed to Include a
Secrecy Envelope or Otherwise Comply with the Mandates of the
Election Code.
135. The statutory provisions in the Election Code and Act 77 involving
absentee and mail-in ballots do not repose in either Secretary Boockvar or the
County Election Boards the free-ranging power to attempt to ascertain voter
intent or rule out fraud when a vote has been cast in violation of its explicit
mandates. While voter intention may be paramount in the realm of the
fundamental right to vote, ascertaining that intent necessarily assumes a
properly cast ballot. Otherwise, a properly cast ballot will be diluted by one that
has been improperly cast.
136. By enacting the inner secrecy envelope proscription and the other
mandates for casting a “reliable vote” via an absentee or mail-in ballot, the
General Assembly weighed the factors bearing on that question. It did not vest,
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and has never vested, any discretion or rule-making authority in Secretary
Boockvar and/or the County Election Boards to reweigh those factors in
determining whether to count a particular absentee or mail-in ballot.
Pennsylvania Democratic Party, 2020 Pa. LEXIS 4872 at *73.
137. Pennsylvania prominently included secrecy envelope instructions in
its mail-in ballot and absentee ballot mailings, and in the months and weeks
leading up to the election, repeated those instructions on its website and on its
social media postings. See, e.g., https://www.votespa.com/Voting-in-
PA/Pages/Mail-and- Absentee-Ballot.aspx
138. Local officials also conducted media campaigns to encourage voters
to remember not to send their ballots in “naked,” i.e. without the secrecy
envelope. The “naked ballot” ad campaign even included local celebrities and
election officials appearing on social media to remind the public about the inner
envelope.
139. Certain of the Democratic controlled County Election Boards
proceeded to pre-canvass mail-in ballot envelopes prior to Election Day in order
to favor Biden over Trump. For those ballots that lacked an inner secrecy
envelope, the voters were notified prior to Election Day in order to “cure” the
invalidity by voting provisionally on Election Day at their polling location.
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140. As reflected in a document titled “Cancelled Ballot Notification
Information,” Philadelphia County sent a “notification” to voters whose “ballot
was cancelled” because, among other reasons, the ballot “was returned without
a signature on the declaration envelope” or “was determined to lack a secrecy
envelope.” Philadelphia County allowed those voters to cure this defect by
casting a “provisional ballot on Election Day” or requesting “a replacement
ballot at a satellite election office.” Philadelphia City Comm’rs, Cancelled
Ballot Notification Information, bit.ly/3la08LR (last visited Nov. 7, 2020).
141. To figure out which voters should be notified, Philadelphia County
had to inspect the mail-in ballots before election day—in plain violation of state
law. See 25 P.S. §3146.8. This required substantial manipulation: Officials in
Philadelphia County were determining whether ballots were missing an inner
secrecy envelope, for example, which cannot be determined without
manipulating the outer envelope—feeling the envelope, holding the envelope
up to the light, weighing the envelope, by evaluating the weight of the envelope
through the sorting and/or scanning equipment, etc. This kind of tampering
squarely undermines the legislature’s “mandate” that mail-in voting cannot
compromise “fraud prevention” or “ballot secrecy.” Pa. Democratic Party,
2020 Pa. LEXIS 4872, at *26.
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142. Secretary Boockvar encouraged this unlawful behavior to favor Biden
over Trump. In an November 2, 2020 email sent at approximately 8:30 p.m. on
the eve of the November 3, 2020 General Election, her office suggested that
counties “should provide information to party and candidate representatives
during the pre-canvass that identifies the voters whose ballots have been
rejected” so that those voters “may be issued a provisional ballot.”
143. While Democratic controlled counties like the Defendant County
Boards of Elections permitted voters to cast either replacement absentee and
mail-in ballots before Election Day or provisional ballots on Election Day in
order to cure their defective mail-in ballots, many more Republican controlled
counties did not. Lancaster, York, Westmoreland and Berks Counties, for
example, did not contact voters who submitted defective ballots or give them an
opportunity to cure. They simply followed the law and treated these ballots as
invalid and refused to count them.
144. Because the counties that followed state law and did not provide a
cure process are heavily Republican (and counties that violated state law and
did provide a cure process are heavily Democratic), Defendants’ conduct
harmed the Trump Campaign, as intended. It awarded Biden unlawful votes.
D. Uneven Treatment of Watchers and Representatives at the County
Election Boards’ Canvassing of Ballots.
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145. In every instance where an absentee or mail-in ballot is opened and
canvassed by a county election board, poll watchers and canvass representatives
are legally required to be present. See Election Code Section 1308(b), 25 P.S. §
3146.8(b) (“Watchers shall be permitted to be present when the envelopes
containing official absentee ballots and mail-in ballots are opened and when
such ballots are counted and recorded.”); see also 25 P.S. § 3146.8(g)(1.1) and
(g)(2). (Emphasis added.)
146. Poll watchers and canvass representatives serve the important purpose
of assuring voters, candidates, political parties, and political bodies, who may
question the fairness of the election process, that the same is conducted in
compliance with the law, and is done in a correct manner that protects the
integrity and validity of the vote and ensures that all elections are free, open,
fair, and honest.
147. Defendants refused to allow watchers and representatives to be
present when the required declarations on envelopes containing official
absentee and mail-in ballots were reviewed for sufficiency, when the ballot
envelopes were opened, and when such ballots were counted and recorded.
Instead, watchers were denied access by security personnel and a metal
barricade from the area where the review, opening, and counting were taking
place. Some of the Trump campaign watchers were threatened with arrest if
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they approached the counting process area. Consequently, it was physically
impossible to view the envelopes or ballots.
148. In Centre County, the central pre-canvassing location was a large
ballroom. The set-up was such that the poll watchers did not have meaningful
access to observe the canvassing and tabulation process of mail-in and absentee
ballots, and in fact, the poll watchers and observers who were present could not
actually observe the ballots to be abl to confirm or object to the validity of the
ballots.
149. In Philadelphia County, poll watchers and canvass representatives
were denied access altogether.
150. In Delaware County, observers were denied access to a back room
counting area. After a court-ordered injunction, the poll watchers and canvass
representatives were allowed in the back room counting area on November 5,
2020, but for only five minutes every two hours. During the limited observation
time in the counting area, observers witnessed tens of thousands of paper ballots
but they could only review a handful.
151. Other Republican controlled Pennsylvania Counties, such as York,
provided watchers with appropriate access to view the ballots as required by
Commonwealth law. However, Defendants in Democratic-controlled counties
intentionally denied the Trump Campaign access to unobstructed observation to
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ensure validity of the ballots, denying Plaintiffs and Pennsylvania residents the
equal protection of the law.
152. In Philadelphia County, the Board of Elections would not permit any
Trump Campaign watcher to be within 6 feet of “all aspects” of the pre-
canvassing process in direct contravention of Commonwealth Court Judge
Christine Fizzano Cannon’s November 5, 2020 Order “requiring that all
candidates, watchers, or candidate representatives be permitted to be present for
the canvassing process pursuant to 25 P.S. § 2650 and/or 25 P.S. § 3146.8 and
be permitted to observe all aspects of the canvassing process within 6 feet.” See
In Re: Canvassing Observation, 11/05/2020 Order, 1094 C.D. 2020 (Pa.
Commw. Ct. 2020).
153. The Order required the Philadelphia Board of Elections to comply and
allow the watcher to be within 6 feet by 10:30 a.m., but at 10:35 a.m. the
watchers were denied entry. Instead, the Board sent all the workers on a break
(previously workers received breaks on a rolling basis), while the
Commissioners met offsite. Two hours later the workers returned, and the
watchers were allowed to be within 6 feet, but within 6 feet of the first row of
counters only. Within a short period of time, the workers began working at
other rows that were well-beyond 6-feet, rendering it impossible for watchers to
observe the rows that were more than 25-feet beyond the area where watchers
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were allowed. Moreover, during the entire period, the workers repeatedly
removed ballots, sometimes over 100 feet away, to do something with them,
which the Trump Campaign’s watchers were unable to observe.
154. Other Republican controlled Counties in the Commonwealth afford
watchers the right to be present – that is, to be able to meaningfully view and
even read – when official absentee and mail-in ballots are reviewed, being
opened, counted, or recorded as required by 25 P.S. § 3146.8(b).
155. It is estimated that 680,770 ballots were processed by the Allegheny
and Philadelphia County Boards of Elections when no observation was allowed.
156. Defendants have violated the Equal Protection Clause because as a
result of their conduct to obscure access to the vote-counting process, watchers
in Allegheny, Philadelphia and other Defendant Counties did not have the same
right as watchers in Republican controlled Pennsylvania Counties, such as
York, to be present when envelopes containing official absentee and mail-in
ballots were reviewed, opened, counted, and recorded. Also, this violation of
law and United States Constitution means voters are at an unequal risk of
having their legal votes diluted by ballots that otherwise should have been
disqualified. There is no legitimate state interest justifying this disparity; rather,
it was done to favor Biden over Trump.
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E. Mail-in Ballots Received After 8 p.m. On Election Day
157. A shocking number of mail-in ballots have inexplicably appeared in
counties after the November 4 ballot reports. For instance, in Delaware County,
the county’s Wednesday, November 4 report indicated that Delaware County
reported it has received about 113,000 mail-in ballots and counted
approximately 93,000 voted ballots. On the next day, November 5, the
Secretary of the Commonwealth’s 4:30 report reflected that Delaware County
had received about 114,000 ballots. Several hours later, the Delaware County
solicitor reported to an observer that the County had received about 126,000
mail-in ballots and counted about 122,000. As of Sunday, November 8, 2020,
the Department of State’s website reflects that Delaware County had counted
about 127,000 mail-in ballots. Plaintiffs have received no explanation for where
the additional 14,000 voted ballots came from, when they arrived, or why they
are included in the current count.
158. In Delaware County, an observer in the county office where mail-in
ballots were counted was told by the Delaware County Solicitor that ballots
received on November 4, 2020, were not separated from ballots received on
Election Day, and the County refused to answer any additional questions. The
refusal to segregate ballots violates the order of Supreme Court Justice Alito of
November 6th, 2020 that all ballots…be segregated and kept ‘in a secure, safe
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and sealed container separate from other voted ballots,’ “ See Justice Alito’s
Order, Republican Party of Pennslyvania v Kathy Boockvar, Secretary of
Pennsylvania, et al. 20A66 U.S. (Nov. 6, 2020).
159. Also in Delaware County, an observer in the county office where
mail-in ballots were counted witnessed delivery on November 5, 2020, of v-
cards or USB drives in a plastic bag with no seal and no accompanying paper
ballots. The vcards or USB drives were taken to the back counting room, with
no observer access. There was no opportunity to observe what happened to the
v-cards or USB drives in the back counting room.
VII. Need for Emergency Judicial Intervention.
160. The Equal Protection Clause mandates that the Commonwealth
provide and use in every County the same statewide uniform standards and
regulations when conducting statewide or multi-county elections involving
federal candidates, including without limitation the standards and regulations
providing for casting and counting votes. Pierce, 324 F. Supp. 2d at 698-99. In
other words, the Equal Protection Clause requires every county in the
Commonwealth to enforce and apply the same standards and procedures for an
election. It does not allow a select few counties to decline to enforce or employ
those standards or to develop their own contradicting standards that benefit their
voters, and their political candidates, to the detriment of voters in counties that
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predominately support another candidate. Id. In this case, Defendants’ conduct
was designed to favor Biden over Trump.
161. For statewide elections involving federal candidates, Defendants’
allowance, by deliberate act or omission, of collecting and counting in-person,
provisional, and absentee and mail-in ballots in a manner and at locations that
are contrary to the Election Code’s mandatory provisions (as set forth above)
constitutes legislative action by the Executive Branch in violation of the
Elections and Electors Clauses of the United States Constitution.
162. Finally, Defendants’ lack of statewide standards and use of a
patchwork of ad-hoc rules that vary from county to county in a statewide
election involving federal and state-wide candidates violates the Equal
Protection clause of the Fourteenth Amendment, particularly when it was
designed to favor Biden over Trump. Pierce, 324 F. Supp. 2d at 698-99.
163. Because standards for conducting statewide elections involving
federal and state candidates, including without limitation casting and counting
votes, are to be uniform, Plaintiffs have a vested interest in ensuring that the
electoral process is properly administered in every election district. However,
the administration of the November 3, 2020 General Election across the
counties of the Commonwealth, in particular in the named County Election
Boards, was far from uniform and violated the Election Code and the United
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States Constitution, particularly because it was designed to favor Biden over
Trump.
164. In light of Defendants’ clear violations of United States Constitution
through their illegal implementation of Pennsylvania’s Election Code, as set
forth above, Plaintiffs seek an order, declaration and/or injunction directing the
Defendants to verify and confirm that all mail-in ballots tabulated in the 2020
election results in the Commonwealth of Pennsylvania were validly cast in
compliance with state law and disallow those ballots which did not comply.
165. The current voting regime as employed by Defendants has resulted in
the denial of free and fair elections and other fundamental rights during the
2020 Pennsylvania General Election.
COUNT I
Fourteenth Amendment
U.S. Const. Art. I § 4, cl. 1; Art. II, § 1, cl. 2; Amend. XIV, 42 U.S.C. §
1983
Right to Vote Due Process is Denied When the State Violates the
Legislative Procedure Enacted to Prevent Disenfranchisement
166. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
167. Democrats who controlled the Defendant County Election Boards
engaged in a deliberate scheme of intentional and purposeful discrimination to
favor presidential candidate Joseph Biden over Donald J. Trump by excluding
Republican and Trump Campaign observers from the canvassing of the mail
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ballots in order to conceal their decision not to enforce requirements that the
declarations on the outside envelopes are properly filled out, signed, and dated
and had secrecy envelopes as required by 15 PA.S 3146.6(a) and 3150.16(a) in
order to count absentee and mail ballots which should have been disqualified.
168. Defendant County Election Boards carried out this scheme knowing
that the absentee and mail ballots which should have been disqualified would
overwhelmingly favor Biden because of the registrations of the persons who
voted by mail, as well as because of their knowledge and participation in the
Democrat/Biden election strategy, which favored mail voting, compared to the
Republican/Trump strategy, which favored voting in person at the polls. As a
result, Defendant County Election Boards deliberately favored Biden with
votes that should not have been counted, effectively stuffing the ballot box in
his favor with illegal votes in violation of Reynolds, Bush v. Gore, Snowden v.
Hughes, 321 U.S. 1 (1943), and Marks v. Stinson. Upon information and
belief, a substantial portion of the approximately 1.5 million absentee and mail
votes in Defendant Counties should not have been counted, and the vast
majority favored Biden, thus resulting in returns indicating Biden won
Pennsylvania.
169. The right of qualified citizens to vote in a state election involving
federal candidates is recognized as a fundamental right under the Fourteenth
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Amendment of the United States Constitution. Harper v. Virginia State Board
of Elections, 383 U.S. 663, 665 (1966). See also Reynolds, 377 U.S. at 554 (The
Fourteenth Amendment protects the “the right of all qualified citizens to vote,
in state as well as in federal elections.”). Indeed, ever since Slaughter-House
Cases, 83 U.S. 36 (1873), the United States Supreme Court has held that the
Privileges or Immunities Clause of the Fourteenth Amendment protects certain
rights of federal citizenship from state interference, including the right of
citizens to directly elect members of Congress. See Twining v. New Jersey, 211
U.S. 78, 97 (1908) (citing Ex parte Yarbrough, 110 U.S. 651, 663-64 (1884)).
See also Oregon v. Mitchell, 400 U.S. 112, 148-49 (1970) (Douglas, J.,
concurring) (collecting cases).
170. The fundamental right to vote protected by the Fourteenth
Amendment is cherished in our nation because it “is preservative of other basic
civil and political rights.” Reynolds, 377 U.S. at 562.
171. Voters have a “right to cast a ballot in an election free from the taint
of intimidation and fraud,” Burson v. Freeman, 504 U.S. 191, 211 (1992), and
“[c]onfidence in the integrity of our electoral processes is essential to the
functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4
(2006) (per curiam).
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172. “Obviously included within the right to [vote], secured by the
Constitution, is the right of qualified voters within a state to cast their ballots
and have them counted” if they are validly cast. United States v. Classic, 313
U.S. 299, 315 (1941). “[T]he right to have the vote counted” means counted “at
full value without dilution or discount.” Reynolds, 377 U.S. at 555, n.29
(quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, J., dissenting)).
173. “Every voter in a federal . . . election, whether he votes for a candidate
with little chance of winning or for one with little chance of losing, has a right
under the Constitution to have his vote fairly counted, without its being
distorted by fraudulently cast votes.” Anderson v. United States, 417 U.S. 211,
227 (1974); see also Baker v. Carr, 369 U.S. 186, 208 (1962).
174. Invalid or fraudulent votes “debase[]” and “dilute” the weight of each
validly cast vote. See Anderson, 417 U.S. at 227.
175. The right to an honest [count] is a right possessed by each voting
elector, and to the extent that the importance of his vote is nullified, wholly or
in part, he has been injured in the free exercise of a right or privilege secured to
him by the laws and Constitution of the United States.” Anderson, 417 U.S. at
226 (quoting Prichard v. United States, 181 F.2d 326, 331 (6th Cir.), aff'd due
to absence of quorum, 339 U.S. 974 (1950)).
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176. Practices that promote casting illegal or unreliable ballots, or that fail
to contain basic minimum guarantees against such conduct, can violate the
Fourteenth Amendment by leading to the dilution of validly cast ballots. See
Reynolds, 377 U.S. at 555 (“[T]he right of suffrage can be denied by a
debasement or dilution of the weight of a citizen’s vote just as effectively as by
wholly prohibiting the free exercise of the franchise.”).
177. The Fourteenth Amendment Due Process Clause protects the right to
vote from conduct by state officials that seriously undermines the fundamental
fairness of the electoral process. Marks v. Stinson, 19 F.3d 873, 889 (3d Cir.
1994); Griffin v. Burns, 570 F.2d 1065, 1077-78 (1st Cir. 1978).
178. Separate from the Equal Protection Clause, the Fourteenth
Amendment’s due process clause protects the fundamental right to vote against
“the disenfranchisement of a state electorate.” Duncan v. Poythress, 657 F.2d
691, 702 (5th Cir. 1981).
179. “When an election process ‘reaches the point of patent and
fundamental unfairness,’ there is a due process violation.” Florida State
Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183-84 (11th Cir.
2008) (quoting Roe v. Alabama, 43 F.3d 574, 580 (11th Cir.1995) (citing Curry
v. Baker, 802 F.2d 1302, 1315 (11th Cir.1986))). See also Griffin, 570 F.2d at
1077 (“If the election process itself reaches the point of patent and fundamental
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unfairness, a violation of the due process clause may be indicated and relief
under § 1983 therefore in order.”); Marks v. Stinson, 19 F.3d 873, 889 (3d Cir.
1994) (enjoining winning state senate candidate from exercising official
authority where absentee ballots were obtained and cast illegally).
180. Justification for such a ruling is the Supreme Court’s recognition that
the right to vote and to free and fair elections is one that is preservative of other
basic civil and political rights. See Black, 209 F.Supp.2d at 900 (quoting
Reynolds, 377 U.S. at 561-62 (“since the right to exercise the franchise in a free
and unimpaired manner is preservative of other basic civil and political rights,
any alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized.”)); see also Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886) (“the political franchise of voting … is regarded as a fundamental
political right, because [sic] preservative of all rights.”).
181. “[T]he right to vote, the right to have one’s vote counted, and the right
to have ones vote given equal weight are basic and fundamental constitutional
rights incorporated in the due process clause of the Fourteenth Amendment to
the Constitution of the United States.” Black, 209 F. Supp. 2d at 900 (a state
law that allows local election officials to impose different voting schemes upon
some portions of the electorate and not others violates due process).
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182. “Just as the equal protection clause of the Fourteenth Amendment
prohibits state officials from improperly diluting the right to vote, the due
process clause of the Fourteenth amendment forbids state officials from
unlawfully eliminating that fundamental right.” Duncan, 657 F.2d at 704.
183. “Having once granted the right to vote on equal terms, [Defendants]
may not, by later arbitrary and disparate treatment, value one person's vote over
that of another.” Bush, 531 U.S. at 104-05.
184. In statewide and federal elections conducted in the Commonwealth of
Pennsylvania, including without limitation the November 3, 2020 General
Election, all candidates, political parties, and voters, including without
limitation Plaintiffs, have a vested interest in being present and having
meaningful access to observe and monitor the electoral process to ensure that it
is properly administered in every election district and otherwise free, fair, and
transparent.
185. Moreover, through its provisions involving watchers and
representatives, the Pennsylvania Election Code ensures that all candidates and
political parties, including without limitation Plaintiff, the Trump Campaign,
shall be “present” and have meaningful access to observe and monitor the
electoral process to ensure that it is properly administered in every election
district and otherwise free, fair, and transparent.
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186. Defendants have a duty to guard against deprivation of the right to
vote through the dilution of validly cast ballots by ballot fraud or election
tampering.
187. Rather than heeding these mandates and duties, Defendants arbitrarily
and capriciously denied the Trump Campaign meaningful access to observe and
monitor the electoral process by: (a) mandating that representatives at the
precanvass and canvass of all absentee and mail-ballots be either Pennsylvania
barred attorneys or qualified registered electors of the county in which they
sought to observe and monitor; and (b) not allowing watchers and
representatives to visibly see and review all envelopes containing official
absentee and mail-in ballots either at the time or before they were opened
and/or when such ballots were counted and recorded.
188. Instead, Defendants refused to credential all of the Trump Campaign’s
submitted watchers and representatives and/or kept Trump Campaign’s
watchers and representatives by security and metal barricades from the areas
where the inspection, opening, and counting of absentee and mail-in ballots
were taking place. Consequently, Defendants created a system whereby it was
physically impossible for the candidates and political parties to view the ballots
and verify that illegally cast ballots were not opened and counted.
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189. Defendants intentionally and/or arbitrarily and capriciously denied the
Trump campaign access to and/or obstructed actual observation and monitoring
of the absentee and mail-in ballots being pre-canvassed and canvassed by
Defendants. The individual Plaintiffs were treated differently than voters in
Defendant Counties, where upon information and belief, voters were permitted
to cure. Because the individual Plaintiffs believe the “right to cure” is illegal
under Pennsylvania law, the appropriate remedy is to exclude the votes of those
persons who were illegally allowed to cure.
190. Defendants have acted and will continue to act under color of state
law to violate the right to vote and due process as secured by the Fourteenth
Amendment to the United States Constitution.
191. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
COUNT II
Fourteenth Amendment
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
U.S. Const. Art. I § 4, cl. 1; Art. II, § 1, cl. 2; Amend. XIV, 42 U.S.C. §
1983
Right to Vote Equal Protection is Denied When the State Violates the
Legislative Procedure Enacted to Protect the Integrity of the Voting
Process, including Counting Ballots Designed to Favor Biden Over
Trump
192. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
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193. The Democrats who controlled the Defendant County Election Boards
engaged in a deliberate scheme of intentional and purposeful discrimination to
favor Biden over Trump by excluding Republican and Trump Campaign
observers from canvassing mail-in ballots in order to conceal their decision not
to enforce requirements that the declarations on the outside envelopes are
properly filled out, signed, and dated and had secrecy envelopes as required by
15 PA.S 3146.6(a) and 3150.16(a) in order to count absentee and mail ballots
which should have been disqualified.
194. Defendant County Election Boards carried out this scheme knowing
that the absentee and mail ballots which should have been disqualified would
overwhelmingly favor Biden because of the registrations of the persons who
voted by mail, as well as their knowledge and participation in the
Democrat/Biden election strategy, which favored mail voting, compared to the
Republican/Trump strategy, which favored voting in person at the polls. As a
result, Defendant County Election Boards deliberately favored Biden with
votes that should not have been counted, effectively stuffing the ballot box in
his favor with illegal votes in violation of Reynolds, Bush v. Gore, Snowden v.
Hughes, 321 U.S. 1 (1943), and Marks v. Stinson. Upon information and
belief, a substantial portion of the approximately 1.5 million absentee and mail
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votes in Defendant Counties should not have been counted. The vast majority
favored Biden, thus resulting in returns indicating Biden won Pennsylvania.
195. Where Democrat-controlled counties barred the Campaign’s poll
watchers from performing their statutorily authorized duties to the Campaign,
Republican controlled counties, like York, Lancaster and Adams counties
allowed all poll watchers- Republican and Democrat alike to observe the voting
process without obstruction.
196. In York County, for example, an attorney for the York County
Republican Party who served as Legal Counsel to the Party and as a duly
credentialed poll watcher, and supervised non-attorney poll watchers in York
County on Election Day, November 3, 2020 personally observed all aspects of
the voting process including in-person voting, the opening of mail-in ballots,
and the opening of provisional ballots. This attorney stated that he observed no
deficiencies or impediments to the open and transparent observation of the
election process, while at the same time Pennsylvania poll waters in the City of
Philadelphia experienced the exact opposite while trying to exercise the
privilege of poll watching.
197. Likewise, in York County, Jared M. Mellott, a licensed attorney and
dually credentialed poll watcher personally observed the process of mail-in
ballots being opened and scanned by the York County Office of Elections on
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election day. Since election day, he has supervised other poll watchers and
observed the opening and review of provisional ballots in York County. In all
these times, Mr. Mellott neither saw nor was aware of any deficiencies or
impediments to the open and transparent observation of the processing of
ballots.
198. The statutorily valid and constitutionally approved process in York
County , when compared to democrat -run counties where such required
procedures, safe guards, and other constitutionally required validation did not
occur creates a very clear case of a 14th Amendment violation of the Equal
Protection clause. Bush, 531 U.S. at 104-05.
199. It is patently clear that citizens of Pennsylvania were treated
differently depending on their county of residency in violation of the Equal
Protection Clause of the Constitution of the United States. Poll watchers
experienced disparate treatment in the discharge of the duties county to county
as did voters who cast a “naked ballot.”
200. Equal enforcement of election laws is necessary to preserve our most
basic and fundamental rights.
201. Equal protection is stringently enforced where laws affect the exercise
of fundamental rights, including the right to vote.
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202. In statewide and federal elections conducted in the Commonwealth of
Pennsylvania, including without limitation the November 3, 2020 General
Election, all candidates, political parties, and voters, including without
limitation Plaintiffs, have a vested interest in being present and having
meaningful access to observe and monitor the electoral process in each County
to ensure that it is properly administered in every election district and otherwise
free, fair, and transparent.
203. Moreover, through its provisions involving watchers and
representatives, the Pennsylvania Election Code ensures all candidates and
political parties in each county, including the Trump Campaign, have
meaningful access to observe and monitor the electoral process to ensure it is
properly administered in every election district and otherwise free, fair, and
transparent. See, e.g., 25 P.S. §§ 3146.8(b) & (g)(1.1)-(2).
204. Defendants have a duty to treat voting citizens in each County in the
same manner as the citizens in other counties in Pennsylvania.
205. Rather than heeding these mandates and duties, Defendants denied the
Trump Campaign equal rights to meaningful access to observe and monitor the
electoral process enjoyed by citizens in other Pennsylvania counties by: (a)
mandating that representatives at the pre-canvass and canvass of all absentee
and mail-ballots be either Pennsylvania barred attorneys or qualified registered
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electors of the county in which they sought to observe and monitor; and (b) not
allowing watchers and representatives to visibly see and review all envelopes
containing official absentee and mail-in ballots either at or before they were
opened and/or when such ballots were counted and recorded. Instead,
Defendants refused to credential the Trump Campaign’s submitted watchers
and representatives and/or kept Trump Campaign’s watchers and
representatives by security and metal barricades from the areas where
meaningful inspection, opening, and counting of absentee and mail-in ballots
were taking place. Consequently, Defendants created a system, contrary to state
law, whereby it was physically impossible for the candidates and political
parties to view the ballots and verify that illegally cast ballots were not opened
and counted in order to favor Biden over Trump.
206. Philadelphia County Boards of Elections in Republican controlled
counties, such as York County, provided watchers and representatives of
candidates and political parties, including without limitation watchers and
representatives of both the Trump Campaign and the Biden Campaign, with
appropriate access to view absentee and mail-in ballots being pre-canvassed and
canvassed by those Boards and without restricting representatives by any
county residency or Pennsylvania bar licensure requirements.
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207. Pennsylvania County Board of Electors in Democratic controlled
counties, such as Philadelphia County, prevented Trump campaign watchers
from observing the vote processing and counting.
208. Defendants intentionally and/or arbitrarily and capriciously denied
Plaintiffs access to and/or obstructed actual observation and monitoring of the
absentee and mail-in ballots being pre-canvassed and canvassed by Defendants,
depriving them of the equal protection of those state laws enjoyed by citizens in
other Counties.
209. Defendants have acted and will continue to act under color of state
law to violate Plaintiffs’ right to be present and have actual observation and
access to the electoral process as secured by the Equal Protection Clause of the
United States Constitution.
210. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
COUNT III
U.S. Const. Art. I, §4, cl. 1 & Art. II, § 1, cl. 2
Violation of the Electors & Elections Clauses
Denial of Observers
211. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
212. The Electors Clause states that “[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors” for
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President. U.S. Const. art. II, § 1, cl. 2 (emphasis added). Likewise, the
Elections Clause of the U.S. Constitution states that “[t]he Times, Places, and
Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1
(emphasis added).
213. The Legislature is “the representative body which ma[kes] the laws of
the people.” Smiley, 285 U.S. at 365.
214. Regulations of congressional and presidential elections, thus, “must be
in accordance with the method which the state has prescribed for legislative
enactments.” Id. at 367; see also Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2668 (2015).
215. In Pennsylvania, “[t]he legislative power of this Commonwealth shall
be vested in a General Assembly, which shall consist of a Senate and a House
of Representative.” Pa. Const. Art. II, § 1. See also Winston, 91 A. at 522;
Patterson, 60 Pa. at 75.
216. Defendants, as a member of the Governor’s Executive Board and
county boards of elections, are not part of the General Assembly and cannot
exercise legislative power. Rather, Defendants’ power is limited to “tak[ing]
care that the laws be faithfully executed.” Pa. Const. Art. IV, § 2.
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217. Because the United States Constitution reserves for the General
Assembly the power to set the time, place, and manner of holding elections for
the President and Congress, county boards of elections and state executive
officers have no authority to unilaterally exercise that power, much less to hold
them in ways that conflict with existing legislation.
218. Through its provisions involving watchers and representatives, the
Pennsylvania Election Code ensures that all candidates and political parties,
including without limitation Plaintiff, the Trump Campaign, shall be “present”
and have meaningful access to observe and monitor the electoral process to
ensure that it is properly administered in every election district and otherwise
free, fair, and transparent. See, e.g., 25 P.S. §§ 3146.8(b) & (g)(1.1)-(2).
219. Defendants are not the legislature, and their unilateral decisions to
implement, and/or override rules and procedures that deny Plaintiffs the ability
to be “present” and have meaningful access to observe and monitor the electoral
process violates the Electors and Elections Clauses of the United States
Constitution.
220. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
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COUNT IV
Fourteenth Amendment
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Denial of Equal Protection
Disparate Treatment of Absentee/Mail-In Voters Among Different
Counties Designed to Favor Biden Over Trump
221. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
222. Democrats who controlled the Defendant County Election Boards
engaged in a deliberate scheme of intentional and purposeful discrimination to
favor presidential candidate Biden over by excluding Republican and Trump
Campaign observers from the canvassing of the mail ballots in order to conceal
their decision not to enforce requirements that the declarations on the outside
envelopes are properly filled out, signed, and dated and had secrecy envelopes
as required by 15 PA.S 3146.6(a) and 3150.16(a) in order to count absentee and
mail ballots which should have been disqualified.
223. The Defendant County Election Boards carried out this scheme
knowing that the absentee and mail ballots which should have been disqualified
would overwhelmingly favor Biden because of the registrations of the persons
who voted by mail, as well as their knowledge and participation in the
Democrat/Biden election strategy, which favored mail voting, compared to the
Republican/Trump strategy, which favored voting in person at the polls. As a
result, the Defendant County Election Boards deliberately favored Biden with
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votes that should not have been counted, effectively stuffing the ballot box in
his favor with illegal votes in violation of Reynolds, Bush v. Gore, Snowden v.
Hughes, 321 U.S. 1 (1943), and Marks v. Stinson. Upon information and belief,
a substantial portion of the approximately 1.5 million absentee and mail-in
votes in Defendant Counties should not have been counted. The vast majority
favored Biden, thus resulting in returns indicating Biden won Pennsylvania.
224. George Andrew Gallenthin has been resident of Pennsylvania for 28
years. On November 3, 2020, Mr. Gallenthin was designated as a “credentialed”
observer of vote counting and verification. On November 4, 2020, Mr.
Gallenthin arrived at the Philadelphia Convention Center to observe city
employees count absentee and mail-in ballots. However, he was barred by city
officials from entering the area where the vote counting was taking place. Mr.
Gallenthin waited in the lobby area at the Convention Center from 10:00 am to
4:00 pm but was never allowed to observe the vote counting and verification
area. Mr. Gallenthin also served as an official observer for the 2020 Trump
campaign in Bucks County Pennsylvania from 10:00 pm November 3 through
7:00 am November 4. He was able to observe, without issue, the ballot
processing in Bucks County, as were Biden campaign watchers.
225. Where Democrat-controlled counties barred the Trump Campaign’s
poll watchers from performing their statutorily authorized duties to the
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Campaign, Republican controlled counties, like York, Lancaster and Adams
counties allowed all poll watchers- Republican and Democrat alike to observe
the voting process without obstruction.
226. In York County, for example, an attorney for the York County
Republican Party who served as Legal Counsel to the Party and as a duly
credentialed poll watcher who supervised non-attorney poll watchers in York
County on Election Day, November 3, 2020 personally observed, all aspects of
the voting process including in-person voting, the opening of mail-in ballots,
and the opening of provisional ballots. This attorney has indicated that he
observed no deficiencies or impediments to the open and transparent
observation of the election process, while at the same time Pennsylvania poll
waters in the City of Philadelphia experienced the exact opposite while trying to
exercise the privilege of poll watching.
227. Likewise, in York County, Jared M. Mellott, a licensed attorney and
dually credentialed poll watcher personally observed the process of mail-in
ballots being opened and scanned by the York County Office of Elections on
election day. Since election day, he supervised other poll watchers and observed
the opening and review of provisional ballots in York County. In all these
times, Mr. Mellott neither saw nor was aware of any deficiencies or
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impediments to the open and transparent observation by persons qualified to
watch the processing of ballots.
228. The statutorily valid and constitutionally approved process in York
County, when compared to Democrat-run counties where such required
procedures, safe guards, and other constitutionally required validation did not
occur, creates a clear case of a 14th Amendment violation of the Equal
Protection clause. Bush, 531 U.S. at 104-05.
229. It is patently clear that citizens of Pennsylvania were treated
differently county to county in violation of the Equal Protection Clause of the
Constitution of the United States. Poll watchers experienced disparate treatment
in the discharge of the duties county to county as did voters who cast a “naked
ballot.”
230. The Fourteenth Amendment of the United States Constitution protects
the “the right of all qualified citizens to vote … in federal elections.” Reynolds,
77 U.S. at 554. Consequently, state election laws may not “deny to any person
within” the state’s “jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, §1, cl. 4.
231. The Equal Protection Clause requires States to “‘avoid arbitrary and
disparate treatment of the members of its electorate.’” Charfauros v. Bd. of
Elections, 249 F.3d 941, 951 (9th Cir. 2001) (quoting Bush, 531 U.S. at 105).
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That is, each citizen “has a constitutionally protected right to participate in
elections on an equal basis with other citizens in the jurisdiction.” Dunn v.
Bloomstein, 405 U.S. 330, 336 (1972). A qualified voter “is no more nor no less
so because he lives in the city or on the farm. This is the clear and strong
command of our Constitution’s Equal Protection Clause.” Reynolds, 377 U.S. at
568; see also Gray v. Sanders, 372 U.S. 368, 380 (1963) (“The idea that every
voter is equal to every other voter in his State, when he casts his ballot in favor
of one of several competing candidates, underlies many of [the Supreme
Court’s] decisions.”). “[H]aving once granted the right to vote on equal terms,
the State may not, by later arbitrary and disparate treatment, value one person’s
vote over that of another.” Bush, 531 U.S. at 104-05.
232. “The right to vote extends to all phases of the voting process, from
being permitted to place one’s vote in the ballot box to having that vote actually
counted. Thus, the right to vote applies equally to the ‘initial allocation of the
franchise’ as well as ‘the manner of its exercise.’ Once the right to vote is
granted, a state may not draw distinctions between voters that are inconsistent
with the guarantees of the Fourteenth Amendment’s equal protection clause.”
Pierce, 324 F. Supp. 2d at 695.
233. “[T]reating voters differently” thus “violate[s] the Equal Protection
Clause” when the disparate treatment is the result of arbitrary, ad hoc processes.
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Charfauros, 249 F.3d at 954. Indeed, a “minimum requirement for non-
arbitrary treatment of voters [is] necessary to secure the fundamental right [to
vote].” Bush, 531 U.S. at 105.
234. The use of “standardless” procedures can violate the Equal Protection
Clause. Bush, 531 U.S. at 103. “The problem inheres in the absence of specific
standards to ensure … equal application” of even otherwise unobjectionable
principles. Id. at 106. Any voting system that involves discretion by decision
makers about how or where voters will vote must be “confined by specific rules
designed to ensure uniform treatment.” Id. See also Thomas v. Independence
Twp., 463 F.3d 285, 297 (3d Cir. 2006) (Equal Protection Clause prohibits the
“selective enforcement” of a law based on an unjustifiable standard); United
States v. Batchelder, 442 U.S. 114, 125 n.9, 99 S. Ct. 2198, 60 L. Ed. 2d 755
(1979).
235. Allowing a patchwork of different rules from county to county, and as
between similarly situated absentee and mail-in voters, in a statewide election
involving federal and state candidates implicates equal protection concerns.
Pierce, 324 F. Supp. 2d at 698-99. See also Gray, 372 U.S. at 379-81 (a county
unit system which weights the rural vote more heavily than the urban vote and
weights some small rural counties heavier than other larger rural counties
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violates the Equal Protection Clause and its one-person, one-vote
jurisprudence).
236. Equal enforcement of election laws is necessary to preserve our most
basic and fundamental rights. Moreover, the requirement of equal treatment is
particularly stringently enforced as to laws that affect the exercise of
fundamental rights, see Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015),
including the right to vote.
237. Because of Defendants’ conduct, voters in some counties have been
and being treated differently than voters in other counties—and for no good
reason. A voter in any of the counties covered by Defendant County Elections
Boards, who received notice of a defective mail-in ballot and an opportunity to
cure it by correcting the ballot or casting a new one before Election Day or by
casting a provisional ballot at the polling place on Election Day, has had or may
have his vote counted. But voters like Plaintiff Henry, who received no such
opportunity, will not, as their votes were rejected as having been improperly
cast and thus void. The appropriate remedy is to exclude the votes of those
who received an unauthorized opportunity to cure.
238. That “different standards have been employed in different counties
across the Commonwealth of Pennsylvania to determine whether an absentee
ballot should be counted” is the “kind of disparate treatment” that violates “the
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equal protection clause because uniform standards will not be used statewide to
discern the legality of a vote in a statewide election.” Pierce, 324 F. Supp. 2d at
699.
239. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
COUNT V
U.S. Const. Art. I, §4, & Art. II, § 1
Violation of the Electors & Elections Clauses
Unauthorized Notice and Cure
240. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
241. The Electors Clause states that “[e]ach State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors” for
President. Art. II, § 1, cl. 2 (emphasis added). Likewise, the Elections Clause of
the U.S. Constitution states that “[t]he Times, Places, and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by
the Legislature thereof.” Art. I, § 4, cl. 1 (emphasis added).
242. The Legislature is “the representative body which ma[kes] the laws of
the people.” Smiley, 285 U.S. at 1932.
243. Regulations of congressional and presidential elections, thus, “must be
in accordance with the method which the state has prescribed for legislative
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enactments.” Id. at 367; see also Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2668 (2015).
244. An unverified ballot is an unverified vote. Unverified votes make for
unverified election results. Unverified election results undermine faith in
democracy itself.
245. In Pennsylvania, “[t]he legislative power of this Commonwealth shall
be vested in a General Assembly, which shall consist of a Senate and a House
of Representative.” Pa. Const. Art. II, § 1. See also Winston, 91 A. at 522;
Patterson, 60 Pa. at 75.
246. Defendants, as a member of the Governor’s Executive Board and
county boards of elections, are not part of the General Assembly and cannot
exercise legislative power. Rather, Defendants’ power is limited to “tak[ing]
care that the laws be faithfully executed.” Pa. Const. Art. IV, § 2.
247. Because the United States Constitution reserves for the General
Assembly the power to set the time, place, and manner of holding elections for
the President and Congress, county boards of elections and state executive
officers have no authority to unilaterally exercise that power, much less to hold
them in ways that conflict with existing legislation.
248. According to the Pennsylvania Supreme Court, “although the Election
Code provides the procedures for casting and counting a vote by mail, it does
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not provide for the ‘notice and opportunity to cure’ procedure[.]” Pa.
Democratic Party, 2020 Pa. LEXIS 4872, at *56. Moreover, “[t]o the extent
that a voter is at risk for having his or her ballot rejected due to minor errors
made in contravention of those requirements, … the decision to provide a
‘notice and opportunity to cure’ procedure to alleviate that risk is one best
suited for the Legislature[,] . . . particularly in light of the open policy questions
attendant to that decision, including what the precise contours of the procedure
would be, how the concomitant burdens would be addressed, and how the
procedure would impact the confidentiality and counting of ballots, all of which
are best left to the legislative branch of Pennsylvania's government.” Id.
249. Defendants are not the legislature, and their unilateral decision to
create a cure procedure violates the Electors and Elections Clauses of the
United States Constitution.
250. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
COUNT VI
Fourteenth Amendment Equal Protection Clause
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Denial of Due Process
Disparate Treatment of Absentee/Mail-In Voters Among Different
Counties Designed to Favor Biden Over Trump
251. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
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252. Democrats who controlled the Defendant County Election Boards
engaged in a deliberate scheme of intentional and purposeful discrimination to
favor presidential candidate Biden over Trump by excluding Republican and
Trump Campaign observers from the canvassing of the mail ballots in order to
conceal their decision not to enforce requirements that declarations on the
outside envelopes are properly filled out, signed, and dated and had secrecy
envelopes as required by 15 PA.S 3146.6(a) and 3150.16(a) in order to count
absentee and mail ballots which should have been disqualified.
253. The Defendant County Election Boards carried out this scheme
knowing that the absentee and mail ballots that should have been disqualified
would overwhelmingly favor Biden because of the registrations of persons who
voted by mail, as well as their knowledge and participation in the
Democrat/Biden election strategy, which favored mail-in voting, compared to
the Republican/Trump strategy, which favored voting in person at the polls. As
a result, Defendant County Election Boards deliberately favored Biden with
votes which should not have been counted, effectively stuffing the ballot box in
his favor with illegal votes in violation of Reynolds, Bush v. Gore, Snowden v.
Hughes, 321 U.S. 1 (1943), and Marks v. Stinson. Upon information and
belief, a substantial portion of the approximately 1.5 million absentee and mail
votes in the Defendant Counties should not have been counted, and the vast
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majority favored Biden, thus resulting in returns indicating Biden won
Pennsylvania.
254. George Andrew Gallenthin has been a resident of Pennsylvania for 28
years. On November 3, 2020, Mr. Gallenthin was designated as a “credentialed”
observer of vote counting and verification. On November 4, 2020, Mr.
Gallenthin arrived at the Philadelphia Convention Center to observe city
employees count absentee and mail-in ballots. However, he was barred by city
officials from entering the area where the vote counting was taking place. Mr.
Gallenthin waited in the lobby area at the Convention Center from 10:00 am to
4:00 pm but was never allowed to observe the vote counting and verification
area. Mr. Gallenthin also served as an official observer for the 2020 Trump
campaign in Bucks County Pennsylvania from 10:00 pm November 3 through
7:00 am November 4. He was able to observe, without issue, the ballot
processing in Bucks County.
255. Voting is a fundamental right protected by the Fourteenth Amendment
to the United States Constitution.
256. The Fourteenth Amendment protects the right to vote from conduct by
state officials which seriously undermines the fundamental fairness of the
electoral process. Marks v. Stinson, 19 F.3d 873, 889 (3d Cir. 1994); Griffin,
570 F.2d at 1077-78. “[H]aving once granted the right to vote on equal terms,
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the State may not, by later arbitrary and disparate treatment, value one person’s
vote over that of another.” Bush, 531 U.S. at 104-05.
257. The United States Constitution entrusts state legislatures to set the
time, place, and manner of congressional elections and to determine how the
state chooses electors for the presidency. See U.S. Const. Art. I, § 4, cl. 1& Art.
II, § 1, cl. 2.
258. In Pennsylvania, “[t]he legislative power of this Commonwealth shall
be vested in a General Assembly, which shall consist of a Senate and a House
of Representative.” Pa. Const. Art. II, § 1. See also Winston, 91 A. at 522;
Patterson, 60 Pa. at 75.
259. Defendants, as a member of the Governor’s Executive Board and
county executive agencies, are not part of the General Assembly and cannot
exercise legislative power. Rather, Defendants’ power is limited to “tak[ing]
care that the laws be faithfully executed.” Pa. Const. Art. IV, § 2.
260. Although the Pennsylvania General Assembly may enact laws
governing the conduct of elections, “no legislative enactment may contravene
the requirements of the Pennsylvania or United States Constitutions.” Shankey,
257 A. 2d at 898.
261. According to the Pennsylvania Supreme Court, “although the Election
Code provides the procedures for casting and counting a vote by mail, it does
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not provide for the ‘notice and opportunity to cure’ procedure[.]” Pa.
Democratic Party, 2020 Pa. LEXIS 4872, at *56. Moreover, “[t]o the extent
that a voter is at risk for having his or her ballot rejected due to minor errors
made in contravention of those requirements, … the decision to provide a
‘notice and opportunity to cure’ procedure to alleviate that risk is one best
suited for the Legislature[,] . . . particularly in light of the open policy questions
attendant to that decision, including what the precise contours of the procedure
would be, how the concomitant burdens would be addressed, and how the
procedure would impact the confidentiality and counting of ballots, all of which
are best left to the legislative branch of Pennsylvania's government.” Id.
262. Defendants are not the legislature, and their unilateral decision to
create and implement a cure procedure for some but not all absentee and mail-in
voters in this Commonwealth violates the Due Process Clause of the United
States Constitution.
263. Plaintiffs have no adequate remedy at law and will suffer serious and
irreparable harm unless the injunctive relief requested herein is granted.
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COUNT VII
Fourteenth Amendment
U.S. Const. Art. I § 4, cl. 1; Art. II, § 1, cl. 2; Amend. XIV, 42 U.S.C. §
1983
Due Process is Denied When the Voting Protections Are Denied
264. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
265. This cause of action concerns observation of the Philadelphia County
Board of Elections pre-canvassing and canvassing of mail-in and absentee
ballots at the Philadelphia Convention Center.
266. The Philadelphia County Board of Elections erected a waist-high
fence that blocked access to observe any closer than 15-18 feet.
267. The Philadelphia County Board of Elections’ setup had some tables in
the area over one hundred feet away from the edge of the waist-high fence.
268. The Pennsylvania Election Code prohibits the security envelope from
containing any “text, mark or symbol which reveals the identity of the elector,
the elector’s political affiliation or the elector’s candidate preference.” 25 P.S. §
3146.8(g)(4)(ii).
269. Plaintiff sent a designated representative, Attorney Jeremy Mercer, to
observe the pre-canvassing and canvassing process.
270. Attorney Mercer testified that while he could see the Philadelphia
County Board of Elections’ employees examining the back of the ballot-return
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envelopes, he could not read the actual declarations on the ballot envelopes and
could not see whether there were any “text, mark or symbol which reveals the
identity of the elector, the elector’s political affiliation or the elector’s candidate
preference” on the security envelopes.
271. Attorney Mercer testified that he could not see individual markings on
the secrecy envelopes or determine whether the signature on all the ballot
envelopes was properly completed.
272. The Pennsylvania Election Code provides for the watchers to be
“present” and “to remain in the room.” 25 P.S. § 2650; 25 P.S. § 3146.8(b) and
(g); 25 P.S. § 3146.8(g)(2).
273. These provisions of the Pennsylvania Election Code have as their
purpose “maintaining the integrity of the elective process in the
Commonwealth.”
274. Unverified election results undermine faith in the integrity of the
elections and indeed of democracy itself. Unverified votes make for unverified
election results. An unverified ballot is an unverified vote.
275. Pennsylvania Commonwealth Judge Christine Fizzano Cannon found
that, “based on Attorney Mercer’s testimony that, when he was physically
present in the room where the pre-canvassing and canvassing processes were
occurring, the distance from which he was observing those processes, as well as
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the physical barriers in the room, prevented him from observing the ballots
being processed, the ballot envelopes, the secrecy envelopes, and any markings
on the secrecy envelopes, depriving him of the ability to actually observe those
processes “in any meaningful way”. Single-Judge Order of the Honorable
Christine Fizzano Cannon of the Commonwealth Court at No. 1094 CD 2020
(November 5, 2020).
276. These provisions for watchers to be present should be broadly
interpreted consistent with their overall purpose of allowing public observation
of the vote and the counting thereof.
277. The plain meaning and purpose of the statutes at issue is to provide
the public the opportunity to observe and vet the canvassing and tabulation of
the vote.
278. To allow observation without the ability to see is akin to allow
listening without the ability to hear.
279. A violation of Due Process results when the methods legislatively
provided for observing and “maintaining the integrity of the elective process”
are abridged and truncated
280. Based on the Pennsylvania Supreme Court opinion that declared
observers merely present, Plaintiffs are additionally harmed by further
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depravation of their Due Process rights under the Constitution. Plaintiffs’
franchise was denied by direct, improper, and unconstitutional acts.
281. Based on the Pennsylvania Supreme Court opinion which held that
observation need not be meaningful, the holding thus permits votes to be
counted by counties who followed the meaningful observation argument and by
counties refusing watchers. Pennsylvania counties followed the law, logic, and
tradition of employing observers to not only be present but to ensure the
elements of the election code were being strictly followed. This disparate
treatment between Pennsylvania counties created a textbook example of Equal
protection violation, prohibited by the Unites States Supreme Court (Bush v.
Gore).
282. Pennsylvania’s executive and judicial branches, by creating a new
legal definition and standard for election observers and their role in ensuring
transparency and accountability, have departed from the overwhelmingly
majority opinion among democracies. All states but Pennsylvania recognize the
role of observers in this process, and Pennsylvania has created and Equal
Protection violation among other U.S. states. Plaintiffs have been harmed by the
dilution of their vote in their county, their Commonwealth, their nation.
283. With the Pennsylvania Supreme Court ruling (In re: Canvassing
Operation Appeal of: City of Philadelphia Board of Elections, PA Supreme
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Court, no. 30EAP 2020) (November 17, 2020), Plaintiffs have exhausted state
court remedies regarding observers, have no adequate remedy at law, and will
suffer serious and irreparable harm unless the injunctive relief requested herein
is granted.
COUNT XIII
Fourteenth Amendment Equal Protection Clause
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Equal Protection is Denied When the Voting Protections Are Denied
284. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
285. This cause of action concerns observation of the Philadelphia County
Board of Elections pre-canvassing and canvassing of mail-in and absentee
ballots at the Philadelphia Convention Center.
286. The Philadelphia County Board of Elections erected a waist-high
fence that blocked access to observe any closer than 15-18 feet.
287. The Philadelphia County Board of Elections’ setup had some tables in
the area over one hundred feet away from the edge of the waist-high fence.
288. The Pennsylvania Election Code prohibits the security envelope from
containing any “text, mark or symbol which reveals the identity of the elector,
the elector’s political affiliation or the elector’s candidate preference.” 25 P.S. §
3146.8(g)(4)(ii).
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289. Plaintiff sent a designated representative, Attorney Jeremy Mercer, to
observe the pre-canvassing and canvassing process.
290. Attorney Mercer testified that while he could see the Philadelphia
County Board of Elections’ employees examining the back of the ballot-return
envelopes, he could not read the actual declarations on the ballot envelopes and
could not see whether there were any “text, mark or symbol which reveals the
identity of the elector, the elector’s political affiliation or the elector’s candidate
preference” on the security envelopes.
291. Attorney Mercer testified that he could not see individual markings on
the secrecy envelopes or determine whether the signature on all the ballot
envelopes was properly completed.
292. The Pennsylvania Election Code provides for the watchers to be
“present” and “to remain in the room.” 25 P.S. § 2650; 25 P.S. § 3146.8(b) and
(g); 25 P.S. § 3146.8(g)(2).
293. These provisions of the Pennsylvania Election Code have as their
purpose “maintaining the integrity of the elective process in the
Commonwealth.”
294. Unverified election results undermine faith in the integrity of the
elections and indeed of democracy itself. Unverified votes make for unverified
election results. An unverified ballot is an unverified vote.
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295. Pennsylvania Commonwealth Judge Christine Fizzano Cannon found
that, “based on Attorney Mercer’s testimony that, while he was physically
present in the room where the pre-canvassing and canvassing processes were
occurring, the distance from which he was observing those processes, as well as
the physical barriers in the room, prevented him from observing the ballots
being processed, the ballot envelopes, the secrecy envelopes, and any markings
on the secrecy envelopes, depriving him of the ability to actually observe those
processes ‘in any meaningful way’.” Single-Judge Order of the Honorable
Christine Fizzano Cannon of the Commonwealth Court at No. 1094 CD 2020
(November 5, 2020).
296. These provisions for watchers to be present should be broadly
interpreted consistent with their overall purpose of allowing public observation
of the vote and the counting thereof.
297. The plain meaning and purpose of the statutes at issue is to provide
the public the opportunity to observe and vet the canvassing and tabulation of
the vote.
298. To allow observation without the ability to see is akin to allow
listening without the ability to hear.
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299. A violation of Due Process results when the methods legislatively
provided for observing and “maintaining the integrity of the elective process”
are abridged and truncated
300. Based on the Pennsylvania Supreme Court opinion that declared
observers merely be present, but not be provided meaningful review, Plaintiffs
are additionally harmed by further depravation of their Due Process rights under
the Constitution. Plaintiffs’ franchise was denied by direct, improper, and
unconstitutional acts.
301. Based on the Pennsylvania Supreme Court opinion that declared
observers merely present, which is a patently inconsistent opinion by the
Pennsylvania Supreme Court as many Pennsylvania counties followed the law,
logic, and tradition of employing observers to not only be present but to ensure
the elements of the election code were being strictly followed. This disparate
treatment between Pennsylvania counties created a textbook example of Equal
protection violation, prohibited by the Unites States Supreme Court (Bush v.
Gore).
302. Pennsylvania’s executive and judicial branches, by creating a new
legal definition and standard for election observers and their role in ensuring
transparency and accountability, have departed from the overwhelmingly
majority opinion among democracies. All states but Pennsylvania recognize the
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role of observers in this process, and Pennsylvania has created an Equal
Protection violation among other U.S. states. Plaintiffs have been harmed by the
dilution of their vote in their county, their Commonwealth, their nation.
303. With the Pennsylvania Supreme Court ruling (In re: Canvassing
Operation Appeal of: City of Philadelphia Board of Elections, PA Supreme
Court, no. 30EAP 2020) (November 17, 2020), Plaintiffs have exhausted state
court remedies regarding observers, have no adequate remedy at law, and will
suffer serious and irreparable harm unless the injunctive relief requested herein
is granted.
COUNT IX
U.S. Const. Art. I, §4, & Art. II, § 1
Violation of the Electors & Elections Clauses When the Voting Protections
Are Denied
304. Plaintiffs refer to and incorporate by reference each of the prior
paragraphs of this Complaint as though the same were repeated at length herein.
305. This cause of action concerns observation of the Philadelphia County
Board of Elections pre-canvassing and canvassing of mail-in and absentee
ballots at the Philadelphia Convention Center.
306. The Philadelphia County Board of Elections erected a waist-high
fence that blocked access to observe any closer than 15-18 feet.
307. The Philadelphia County Board of Elections’ setup had some tables in
the area over one hundred feet away from the edge of the waist-high fence.
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308. The Pennsylvania Election Code prohibits the security envelope from
containing any “text, mark or symbol which reveals the identity of the elector,
the elector’s political affiliation or the elector’s candidate preference.” 25 P.S. §
3146.8(g)(4)(ii).
309. Plaintiff sent a designated representative, Attorney Jeremy Mercer, to
observe the pre-canvassing and canvassing process.
310. Attorney Mercer testified that while he could see the Philadelphia
County Board of Elections’ employees examining the back of the ballot-return
envelopes, he could not read the actual declarations on the ballot envelopes and
could not see whether there were any “text, mark or symbol which reveals the
identity of the elector, the elector’s political affiliation or the elector’s candidate
preference” on the security envelopes.
311. Attorney Mercer testified that he could not see individual markings on
the secrecy envelopes or determine whether the signature on all the ballot
envelopes was properly completed.
312. The Pennsylvania Election Code provides for the watchers to be
“present” and “to remain in the room.” 25 P.S. § 2650; 25 P.S. § 3146.8(b) and
(g); 25 P.S. § 3146.8(g)(2).
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313. These provisions of the Pennsylvania Election Code have as their
purpose “maintaining the integrity of the elective process in the
Commonwealth.”
314. Unverified election results undermine faith in the integrity of the
elections and indeed of democracy itself. Unverified votes make for unverified
election results. An unverified ballot is an unverified vote.
315. Pennsylvania Commonwealth Judge Christine Fizzano Cannon found
that, “based on Attorney Mercer’s testimony that, while he was physically
present in the room where the pre-canvassing and canvassing processes were
occurring, the distance from which he was observing those processes, as well as
the physical barriers in the room, prevented him from observing the ballots
being processed, the ballot envelopes, the secrecy envelopes, and any markings
on the secrecy envelopes, depriving him of the ability to actually observe those
processes ‘in any meaningful way’.” Single-Judge Order of the Honorable
Christine Fizzano Cannon of the Commonwealth Court at No. 1094 CD 2020
(November 5, 2020).
316. These provisions for watchers to be present should be broadly
interpreted consistent with their overall purpose of allowing public observation
of the vote and the counting thereof.
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317. The plain meaning and purpose of the statutes at issue is to provide
the public the opportunity to observe and vet the canvassing and tabulation of
the vote.
318. To allow observation without the ability to see is akin to allow
listening without the ability to hear.
319. A violation of Due Process results when the methods legislatively
provided for observing and “maintaining the integrity of the elective process”
are abridged and truncated
320. Based on the Pennsylvania Supreme Court opinion that declared
observers be merely present but not given meaningful review, Plaintiffs are
additionally harmed by further depravation of their Due Process rights under the
Constitution. Plaintiffs’ franchise was denied by direct, improper, and
unconstitutional acts.
321. The Pennsylvania Supreme Court opinion that declared that the law
only requires that observers be present, is a patently inconsistent opinion by the
Pennsylvania Supreme Court, as many Pennsylvania counties followed the law,
logic, and tradition of employing observers to not only be present but to ensure
the elements of the election code were being strictly followed. this disparate
treatment between Pennsylvania counties created a textbook example of an
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Equal Protection violation, prohibited by the Unites States Supreme Court
(Bush v. Gore).
322. Pennsylvania’s executive and judicial branches, by creating a new
legal definition and standard for election observers and their role in ensuring
transparency and accountability, have departed from the overwhelmingly
majority opinion among democracies. The majority of U.S. states recognize the
role of observers in this process, and Pennsylvania has created and Equal
Protection violation among other U.S. states. Plaintiffs have been harmed by the
dilution of their vote in their county, their Commonwealth, their nation.
323. With the Pennsylvania Supreme Court ruling (In re: Canvassing
Operation Appeal of: City of Philadelphia Board of Elections, PA Supreme
Court, no. 30EAP 2020) (November 17, 2020), Plaintiffs have exhausted state
court remedies regarding observers, have no adequate remedy at law, and will
suffer serious and irreparable harm unless the injunctive relief requested herein
is granted.
PRAYER FOR RELIEF
324. 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:
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325. That, as a result of Defendants’ violations of the United States
Constitution and violations of other federal and state election laws, this Court
should enter an order, declaration, and/or injunction that prohibits Defendants
from certifying the results of the 2020 presidential general election in
Pennsylvania on a statewide basis;
326. Ultimately, that, as a result of Defendants' violations of the United
States Constitution and violations of other federal and state election laws,
this Court should enter an order, declaration, and/or injunction prohibiting
Defendants from certifying the results of the General Elections which
include the tabulation of unauthorized votes, including mail ballots which
did not meet the statutory requirements, mail ballots which were cured
without authorization, and any other vote cast in violation of law, and,
instead, compel Defendants to certify the results of the election based solely
on the legal votes.
327. Alternatively, that, as a result of Defendants' violations of the
United States Constitution and violations of other federal and state election
laws, this Court should enter an order, declaration, and/or injunction that the
results of the 2020 presidential general election are defective and providing
for the Pennsylvania General Assembly to choose Pennsylvania’s electors.
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328. A temporary restraining order and preliminary injunction granting the
above relief during the pendency of this action;
329. Plaintiffs’ reasonable costs and expenses of this action, including
attorneys’ fees; and cost; and
330. Any and other such further relief that this Court deems equitable and
just or to which Plaintiffs might be entitled.
Respectfully submitted,
/s/ Rudolph William Giuliani
Rudolph William Giuliani
NY Supreme Court ID No. 1080498
/s/Marc A. Scaringi
Marc A. Scaringi
marc@scaringilaw.com
PA Supreme Court ID No. 88346
Brian C. Caffrey
brian@scaringilaw.com
PA Supreme Court ID No. 42667
Scaringi Law
2000 Linglestown Road, Suite 106
Harrisburg, PA 17110
717-657-7770 (o)/ 717-657-7797 (f)
Date: November 19, 2020
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VERIFICATION
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that I have
reviewed the foregoing Complaint and that the factual allegations are true and
correct.
Date: November 18, 2020 /s/ James Fitzpatrick
James Fitzpatrick, PA EDO Director
Donald J. Trump for President, Inc.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONALD J. TRUMP FOR :
PRESIDENT, INC., et al, : CIVIL ACTION
:
Plaintiffs : No. 4:20-cv-02078
:
v. : Judge Brann
:
KATHY BOOCKVAR, et al, :
:
Defendants :
CERTIFICATE OF SERVICE
I, Deborah A. Black, Paralegal for Scaringi Law, do hereby certify that I
served a true and correct copy of Plaintiffs’ Second Verified Complaint for
Declaratory and Injunctive Relief, in the above-captioned action, upon all parties
via CM/ECF.
Date: November 19, 2020 /s/ Deborah A. Black____________
Deborah A. Black, Paralegal
For Marc A. Scaringi, Esquire and
Brian C. Caffrey, Esquire
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