in the united states district court for the western ... · 7/24/2020 · davis, isabella...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD J. TRUMP FOR PRESIDENT, INC.; et al.,

Plaintiffs,

v.

KATHY BOOCKVAR; et al.,

Defendants.

Civil Action No. 2:20-CV-966

Judge J. Nicholas Ranjan

[PROPOSED] INTERVENORS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(1) AND 12(B)(6)

Michael Crossey, Dwayne Thomas, Irvin Weinreich, Brenda Weinreich, and

the Pennsylvania Alliance for Retired Americans (collectively, “Proposed

Intervenors”) here, by and through their attorneys of record, move to dismiss

Plaintiffs’ Verified Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). This

Motion is based upon the Memorandum of Points & Authorities below, all pleadings,

paper, and exhibits on file in this matter, and any oral argument the Court sees fit to

allow.

Case 2:20-cv-00966-NR Document 200-1 Filed 07/24/20 of 24

Dated: July 24, 2020 Marc Erik Elias* Uzoma N. Nkwonta* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 [email protected] [email protected] Elise Edlin* Torryn Taylor Rodgers* PERKINS COIE LLP 505 Howard Street, Suite 1000 San Francisco, CA 94105-3204 Telephone: 415.344.7000 Facsimile: 415.344.7050 [email protected] [email protected] *Pro hac vice motions to be filed.

By: /s/ Justin T. Romano Justin T. Romano PA ID No. 307879 [email protected] Marco S. Attisano PA ID No. 316736 [email protected] 429 Fourth Avenue, Suite 1705 Pittsburgh, PA 15219 Phone: (412) 336-8622 Fax: (412) 336-8629 Adam C. Bonin, PA Bar No. 80929 (WD PA admission pending) The Law Office of Adam C. Bonin 121 S. Broad St., Suite 400 Philadelphia, PA 19107 Phone: (267) 242-5014 Facsimile: (215) 827-5300 Email: [email protected] Attorneys for Proposed Intervenors




Plaintiffs,

v.


Defendants.



[PROPOSED INTERVENORS’] MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(1)

AND 12(B)(6)


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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................... 1

II. FACTUAL BACKGROUND .............................................................................. 2

III. LEGAL STANDARD.......................................................................................... 4

IV. ARGUMENT ....................................................................................................... 6

A. Sovereign immunity bars Plaintiffs claims under counts I-III and V-VII. ... 6

B. Plaintiffs’ theory of vote dilution is implausible, overly speculative, and insufficient to state a claim for relief. ............................................................ 9

C. Plaintiffs fail to establish Article III standing. ............................................11

1. Plaintiffs fail to allege an injury-in-fact sufficient to confer standing. .11

2. Plaintiffs lack standing under the Elections or Electors Clause of U.S. Constitution. ..........................................................................................13

V. CONCLUSION ..................................................................................................14


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Acosta v. Democratic City Comm., 288 F. Supp. 3d 597 (E.D. Pa. 2018) .................................................................... 7

Agre v. Wolf, 284 F. Supp. 3d 591 (E.D. Pa.) ........................................................................... 12

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ........................................................................................ 13

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 5

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ................................................................................ 5

Balsam v. Sec’y of N.J., 607 F. App’x 177 (3d Cir. 2015) .......................................................................... 7

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................. 5

Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270 (7th Cir. 1986) .............................................................................. 9

Corman v. Torres, 287 F. Supp. 3d 558 (M.D. Pa.), appeal dismissed sub nom, 751 F. App’x 157 (3d Cir. 2018) ................................................................................... 13

Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ........................................................................................ 6, 11

Goode v. Gioria, 590 Fed. App’x. 120 (3d Cir. 2014) ................................................................... 11

Haakenson v. Parkhouse, 312 F. Supp. 929 (E.D. Pa. 1970) ......................................................................... 9

Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261 (3d Cir. 2016) ................................................................................. 5

Hayes v. Reed, No. CIV.A. 96-4941, 1997 WL 379179 (E.D. Pa. July 2, 1997) ......................... 7


TABLE OF AUTHORITIES CASES PAGE(S)

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In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017) ................................................................................. 5

Lance v. Coffman, 549 U.S. 437 (2007) ............................................................................................ 13

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................. 6, 11, 12

Massey v. Coon, No. 87-3768, 1989 WL 884 (9th Cir. Jan. 3, 1989).............................................. 7

McCurdy v. Wedgewood Capital Mgmt. Co., Inc., No. CIV. A. 97-4304, 1999 WL 391494 (E.D. Pa. May 28, 1999) ..................... 5

Minnesota Voters Alliance v. Ritchie, 720 F.3d 1029 (8th Cir. 2013) .................................................................... 2, 9, 11

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884 (3d Cir. 1977) ................................................................................. 5

Pa. Democratic Party v. Boockvar, No. 407 MD 2020 (Pa. Commw. Ct. July 10, 2020) ............................................ 1

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310 (3d Cir. 2002) ................................................................................. 7

Paher v. Cegavske, No. 3:20cv00243-MMD-WGC, 2020 WL 2089813 (D. Nev. Apr. 30, 2020) ............................................................................................................. 12

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ............................................................................................ 1, 6

Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) ................................................................................. 4

Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ................................................................................. 5

Radeschi v. Commw. of Pa., 846 F. Supp. 416 (W.D. Pa. 1993) ........................................................................ 4


TABLE OF AUTHORITIES CASES PAGE(S)

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Republican Party of Pa. v. Cortés, 218 F. Supp. 3d 396 (E.D. Pa. 2016) .......................................................... 2, 9, 10

Reynolds v. Sims, 377 U.S. 533 (1964) .............................................................................................. 9

Six v. Newsom, No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543 (C.D. Cal. May 22, 2020) ............................................................................................................... 7

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................................................................................... 6, 11

Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915 (M.D. Ala. July 28, 2017) ..................................................................................................................... 8

STATUTES

25 P.S. § 2606 ............................................................................................................ 4

25 P.S. § 2726 (a),(c) ................................................................................................. 4

25 P.S. § 2687 ........................................................................................................ 3, 4

OTHER AUTHORITIES

Rule 12(b)(1) .............................................................................................................. 4

Rule 12(b)(6) .............................................................................................................. 5

Rules 12(B)(1) and 12(B)(6) ...................................................................................... 1

U.S. Const. Art. I, § 4, cl. 1 ...................................................................................... 13

U.S. Const. Art. II, § 1, cl. 2 .................................................................................... 13


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I. INTRODUCTION

Plaintiffs’ lawsuit improperly asks a federal court to interpret and clarify

Pennsylvania’s Election Code, to enforce the Commonwealth’s statutes and even its

Constitution, and to enjoin state officials from violating state law. The Court lacks

jurisdiction to do so under well-settled and binding precedent. See Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984). Indeed, the very nature of

Plaintiffs’ claims, as outlined by their own Complaint, only underscores why this

case should be heard by a state court, and specifically in the ongoing action before

the Commonwealth Court which involves the same state law issues. See Pa.

Democratic Party v. Boockvar, No. 407 MD 2020 (Pa. Commw. Ct. July 10, 2020).0F

1

But even if this Court were the appropriate forum (which it is not), Plaintiffs’

claims advance theories of vote dilution that rest on layers of speculation, which fall

well short of establishing the injury-in-fact necessary for standing, or the factual

allegations (and plausibility) required to state a claim for relief. Plaintiffs simply fail

to present any plausible, non-speculative basis to conclude, for instance, that the use

1 Proposed Intervenors join in the Motion to Dismiss pursuant to Rules 12(B)(1) and 12(B)(6), Dkt. 85-2, July 13, 2020, filed by Proposed Intervenors Pennsylvania State Democratic Party, Congressman Dwight Evans, State Senators Sharif Street and Vincent Hughes, State Representatives Danillo Burgos, Morgan Cephas, Austin Davis, Isabella Fitzgerald, Edward Gainey, Jordan Harris, Mary Isaacson, Malcolm Kenyatta, Patty Kim, Stephen Kinsey, Peter Schweyer, and candidates for office Nina Ahmad, Anton Andrew, Janet Diaz, Manuel M. Guzman, Jr., Rick Krajewski, and State Senators Art Haywood and Anthony Williams.


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of ballot drop boxes will result in fraudulent mail ballots—which voters have

submitted for decades by mail, including by depositing absentee ballots in USPS

mail collection boxes—or that poll watcher residency requirements will increase

fraudulent votes that somehow would have been prevented by the out-of-county poll

watchers. See Republican Party of Pa. v. Cortés, 218 F. Supp. 3d 396, 407 (E.D. Pa.

2016) (rejecting identical equal protection challenge to limitation on poll watchers

based on vote-dilution theory). In sum, “[t]he U.S. Constitution is not an election

fraud statute,” Minnesota Voters Alliance v. Ritchie, 720 F.3d 1029, 1031 (8th Cir.

2013), nor is it a vehicle to enforce state election laws. Plaintiffs’ lawsuit should be

dismissed.

II. FACTUAL BACKGROUND

Plaintiffs filed their Complaint on June 29, 2020 against the Secretary of the

Commonwealth and all 67 County Boards of Elections (collectively “Defendants”).

See Dkt. 1. Plaintiffs assert seven counts, each challenging Defendants’

implementation and interpretation of state law, including the recently enacted Act

77 of 2019, P.L. 552. Each count alleges that Defendants’ actions will result in

“dilution of validly cast ballots” and Plaintiffs claim, without any factual support,

that the alleged state law violations will allow “illegal absent and mail-in voting,

ballot harvesting, and other fraud to occur and/or go undetected.” Compl. ¶¶ 154,

164, 172, 177, 180, 186, 197-198, 202. Plaintiffs’ Counts are summarized below:


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Count I: Plaintiffs assert violations of the First and Fourteenth Amendments

and the Elections and Electors Clauses of the U.S. Constitution based on acts taken

by Defendants allegedly in “contradiction of Pennsylvania’s statutory law.” Compl.

¶ 155. Plaintiffs claim Defendants allowed County Election Boards to collect

absentee ballots “at locations other than their offices,” including “mobile sites” and

“drop boxes,” and that some County Boards count absentee ballots that lack the

“Official Election Ballot” secrecy envelope, in violation of Pennsylvania state law.

See, e.g., Compl. ¶¶ 152-155.

Count II: Plaintiffs bring Count II based on the same alleged state law

violations and actions of Defendants as described in Count I, but assert this claim

under the Equal Protection Clause of the U.S. Constitution. Compl. ¶¶ 158-167.

Count III: Plaintiffs bring Count III based on the same facts alleged in

Counts I and II, but this Count seeks relief only under the Pennsylvania Constitution.

Compl. ¶¶ 168-174.

Count IV: In Count IV, Plaintiffs assert that the Pennsylvania Election

Code’s poll workers’ residency and polling place monitoring requirements, 25 P.S.

§ 2687, violates the First and Fourteenth Amendments of the U.S. Constitution.

Compl. ¶¶ 175-184.


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Count V: In Count V, Plaintiffs assert that the Pennsylvania Election Code’s

poll workers’ residency and polling place monitoring requirements, 25 P.S. § 2687,

violates the Pennsylvania Constitution. Compl. ¶¶ 185-184.

Count VI: Plaintiffs allege in Count VI that Defendants violated the

Pennsylvania Election Code’s notice requirements for establishing new polling

places by providing drop box and mobile drop box locations for absentee and mail-

in ballots, 25 P.S. §§ 2606, 2726 (a),(c), which, according to Plaintiffs, allegedly

violates the First and Fourteenth Amendments to the U.S. Constitution. Compl. ¶¶

189-200.

Count VII: Plaintiffs bring Count VII based on the same facts alleged in

Count VI, but seek relief only under the Pennsylvania Constitution. Compl. ¶¶ 201-

04.

III. LEGAL STANDARD

“The Eleventh Amendment is a jurisdictional bar which deprives federal

courts of subject matter jurisdiction to entertain suits against the states.” Radeschi v.

Commw. of Pa., 846 F. Supp. 416, 418 (W.D. Pa. 1993) (citing Pennhurst State Sch.

& Hosp., 465 U.S. at 98–100 n. 8, (Eleventh Amendment “deprives federal courts

of any jurisdiction to entertain” suits against the states). A motion to dismiss under

Rule 12(b)(1) addresses the court’s “very power to hear the case” at issue based on

subject-matter jurisdiction. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.


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2006) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d

Cir. 1977)). There are two types of challenges, facial and factual. In re Horizon

Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632-33 (3d Cir. 2017);

Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016). In

a facial attack, the court must consider the allegations of the complaint as true, and

the Plaintiff bears the burden to prove that jurisdiction does in fact exist. Mortensen,

549 F.2d at 891.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a

court must “take all of the factual allegations in the complaint as true,” id. (citing

Twombly, 550 U.S. at 555), “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555; see also Phillips v.

Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche

Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). Rule 12(b)(6) permits

dismissal on the basis of either (1) the “lack of a cognizable legal theory,” or (2) “the

absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); McCurdy v. Wedgewood

Capital Mgmt. Co., Inc., No. CIV. A. 97-4304, 1999 WL 391494, at *3 FN6 (E.D.

Pa. May 28, 1999) (quoting Balistreri, 901 F.2d at 699).


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A plaintiff must also demonstrate Article III standing for each form of relief

sought. Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

185 (2000). “[T]he irreducible constitutional minimum of standing contains three

elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The plaintiff must

have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

IV. ARGUMENT

A. Sovereign immunity bars Plaintiffs’ claims under counts I-III and V-VII.

Unless Defendants unequivocally express their intent to submit to this Court’s

jurisdiction—which, to date, they have not—sovereign immunity bars Plaintiffs’

claims under Counts I-III and V-VII, because a federal court cannot order state

officials to conform to state law. See Pennhurst, 465 U.S. at 106.

Plaintiffs’ complaint is replete with references to what Pennsylvania law

requires, including the Pennsylvania Constitution, and urges this Court to adjudicate

whether Defendants have violated state law. But as the U.S. Supreme Court

explained decades ago in Pennhurst, “the principles of federalism that underlie the

Eleventh Amendment” prohibit a federal court from granting “relief against state

officials on the basis of state law, whether prospective or retroactive.” 465 U.S. at

106 (1984). The Pennhurst doctrine has since been applied countless times by


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federal courts reaffirming this well-settled rule. See Pa. Fed’n of Sportsmen’s Clubs,

Inc. v. Hess, 297 F.3d 310, 325 (3d Cir. 2002) (“Simply put, the Eleventh

Amendment prohibits a federal court from considering a claim that a state official

violated state law in carrying out his or her official responsibilities.”); Hayes v. Reed,

No. CIV.A. 96-4941, 1997 WL 379179, at *1 (E.D. Pa. July 2, 1997) (“Accordingly,

a federal court is without power to order state officials to conform their conduct to

the requirements of state law.”). Simply put: A federal court may not enjoin a state

official from violating purely state law. Id.

This is true even when the state law claims are cloaked in a federal cause of

action. See Balsam v. Sec’y of N.J., 607 F. App’x 177, 183–84 (3d Cir. 2015)

(holding Eleventh Amendment bars state law claims even when “premised on

violations of the federal Constitution”); Acosta v. Democratic City Comm., 288 F.

Supp. 3d 597, 626 (E.D. Pa. 2018) (“Even when voters attempt to ‘tie their state law

claims into their federal claims,’ the Eleventh Amendment bars the state law

claims.”); Massey v. Coon, No. 87-3768, 1989 WL 884, at *2 (9th Cir. Jan. 3, 1989)

(affirming dismissal of suit where “on its face the complaint states a claim under the

due process and equal protection clauses of the Constitution, [but] these

constitutional claims are entirely based on the failure of defendants to conform to

state law”); Six v. Newsom, No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543 (C.D.

Cal. May 22, 2020), at *8 (denying temporary restraining order in part because Fifth


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and Fourteenth Amendment claims were predicated on violations of state law);

Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915, at *8 (M.D.

Ala. July 28, 2017) (denying preliminary injunction where plaintiffs’ federal

constitutional claims rested on premise that state officials were violating state law).

Several of Plaintiffs’ claims fall into this category. Counts I, II, and VI allege

violations of the Election Code based on the collection of absentee and mail-in

ballots through “locations other than the offices of the boards of elections or through

‘drop-boxes,’” Compl. ¶¶ 153-155, 164-165, or the failure to comply with

Pennsylvania’s statutory notice requirements for establishing polling locations,

Compl. ¶¶ 192-194, 198.1F

2 Counts III and VII do not even attempt to raise questions

of federal law; rather, they allege that Defendants’ alleged failure to comply with the

Election Code also violates the Pennsylvania Constitution.

There is simply no basis for a federal court to grant relief to voters whose

allegations are effectively that state election officials are acting in contravention of

state law, as Plaintiffs do here. Thus, other than Count IV—challenging the

constitutionality (under the federal constitution) of residency requirements for poll

2 Plaintiffs’ claims fall into three main categories: (1) allegations that Defendants’ failure to comply with the Pennsylvania Election Code violates the U.S. Constitution (Counts I, II, and VI); (2) allegations that Defendants’ failure to comply with the Elections Code violates the Pennsylvania Constitution (Counts III and VII); and (3) allegations that Section 417 of the Election Code, which imposes residency requirements for poll watchers, violates the Pennsylvania Constitution (Count V) and the U.S. Constitution (Count IV).


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watchers—the Plaintiffs’ remaining causes of action seek to enjoin state officials

from violating state law and are beyond the scope of this Court’s jurisdiction.

B. Plaintiffs’ theory of vote dilution is implausible, overly speculative, and insufficient to state a claim for relief.

Although vote dilution is a viable basis for federal claims in certain contexts,

such as when laws are crafted that structurally devalue one community’s votes over

another’s, see, e.g., Reynolds v. Sims, 377 U.S. 533, 568 (1964), no plausible legal

theory supports Plaintiffs’ attempt to recast disputes over the location of ballot drop

boxes or limitations on poll watchers as forms of “vote dilution,” let alone an equal

protection violation. See Haakenson v. Parkhouse, 312 F. Supp. 929, 932 (E.D. Pa.

1970) (“That is to say, that any ‘dilution’ of voting power is suffered equally by all

qualified voters through the random voting of some unqualified absentee voters.”);

see also Republican Party of Pa., 218 F. Supp. 3d at 406–07 (rejecting claim of vote

dilution by alleged illegal voting on motion for preliminary injunction); Minn. Voters

All., 720 F.3d at 1033 (holding voters cannot prevail on vote dilution claims under §

1983 based on election officials’ failure to verify other voters).

Plaintiffs assert a generalized “right to have votes counted without dilution as

compared to the votes of others,” but they provide no plausible basis to conclude

that their votes have been, or will be, diluted in comparison to other Pennsylvanians.

Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270, 1271 (7th Cir. 1986) (emphasis

added). Nor do they allege any facts supporting their claim that the use of ballot drop


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boxes, limitations on poll watchers, or any other purported violations of state law

that Plaintiffs assert results in fraudulent votes. Indeed, Plaintiffs claims are

implausible on their face: the vast majority of absentee or mail-in ballots are

submitted by mail, either at the post office or a USPS drop box, and have been for

many years. The notion that submitting a ballot through a drop box can create a vote-

dilution injury is an unprecedented attack against the fundamental structure of

absentee voting.

Plaintiffs’ challenges to poll watcher residency requirements similarly rely on

several layers of unsupported speculation: namely, that individuals are voting

fraudulently in person, and that such fraud would be prevented by poll watchers—

and not just any poll watchers but specifically those who would otherwise be

excluded from serving as poll watchers under the residency requirement. See Cortés,

218 F. Supp. 3d at 407 (rejecting equal protection challenge to limitation on poll

watchers based on vote-dilution theory). The Eastern District of Pennsylvania has

already rejected this same argument in Republican Party of Pennsylvania, finding

that the plaintiffs’ nearly identical challenge to Pennsylvania’s poll watcher

residency requirements was overly speculative. Id. Plaintiffs here have alleged no

facts or plausible theories to suggest that any votes have been diluted, let alone due

to the exclusion of out-of-county poll watchers from polling places, or to the use of

ballot drop boxes. “[T]he Constitution is not an election fraud statute.” Minn. Voters


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All., 720 F.3d at 1031 (quoting Bodine, 788 F.2d at 1271). And the allegations in the

Complaint do not give rise to a plausible claim that Defendants’ actions dilute

anyone’s vote. Thus, Plaintiffs’ lawsuit should be dismissed.

C. Plaintiffs fail to establish Article III standing.

Plaintiffs must demonstrate Article III standing for each form of relief sought.

Friends of Earth, 528 U.S. at 185. “[T]he irreducible constitutional minimum of

standing contains three elements.” Lujan, 504 U.S. at 560. “The plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc., 136 S. Ct. at 1547.

1. Plaintiffs fail to allege an injury-in-fact sufficient to confer standing.

For the same reasons that Plaintiffs fail to assert a plausible theory of vote

dilution, their Complaint fails to establish the most basic requisite element of

standing: that they have suffered an actual injury in fact. As explained in Section

IV.B. above, Plaintiffs’ claims pile one layer of speculation on another in order to

reach the implausible conclusion that allowing voters to submit ballots through drop

boxes, as they have done for years when mailing ballots (i.e., through USPS), or

imposing limitations on who can serve as a poll watcher could result in vote dilution.

Goode v. Gioria, 590 Fed. App’x. 120, 122 (3d Cir. 2014) (“[S]peculations about

entirely hypothetical injuries do not meet the injury-in-fact requirement for


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standing.”). Plaintiffs also suggest that Defendants’ purported failure to enforce the

Commonwealth’s laws in the manner Plaintiffs see fit could lead to “potential for

ballot fraud or tampering” that, in turn, could lead to increased “dilution of validly

cast ballots” in general. Compl. ¶¶ 154-55; see also id. ¶¶ 164, 172, 198 and 202

(alleging same). But it is widely recognized that such an interest represents no more

than a generalized grievance insufficient for Article III purposes. See Agre v. Wolf,

284 F. Supp. 3d 591, 639 (E.D. Pa.) (quoting Lujan, 504 U.S. at 573) (“‘[A]

generally available grievance about government—claiming only harm to his and

every citizen’s interest in proper application of the Constitution and laws’—does not

confer standing.”); see also Paher v. Cegavske, No. 3:20cv00243-MMD-WGC,

2020 WL 2089813, at *5 (D. Nev. Apr. 30, 2020) (“Plaintiffs’ purported injury of

having their votes diluted due to ostensible election fraud may be conceivably raised

by any Nevada voter. Such claimed injury therefore does not satisfy the requirement

that Plaintiffs must state a concrete and particularized injury.”); Lujan, 504 U.S. at

573–76 (“[A]n injury amounting only to the alleged violation of a right to have the

Government act in accordance with law [is] not judicially cognizable” and “cannot

alone satisfy the requirements of Art. III without draining those requirements of

meaning.” (quoting Allen v. Wright, 468 U.S. 737, 754 (1984))).

Because Plaintiffs do not have standing to bring any of their claims, their

Complaint should be dismissed.


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2. Plaintiffs lack standing under the Elections or Electors Clause of U.S. Constitution.

For Counts I and II, Plaintiffs assert that Defendants permitting County

Election Boards to collect absentee and mail-in ballots at locations other than their

offices in violation of Pennsylvania Election Code contravenes the Elections and

Electors Clauses of the United States Constitution. U.S. Const. Art. I, § 4, cl. 1 &

Art. II, § 1, cl. 2. Plaintiffs—comprised of candidates, voters, and a political party—

lack standing to bring an Elections Clause claim. Qualified registered electors have

no particularized stake or injury when the alleged injury is that the law has not been

followed. Lance v. Coffman, 549 U.S. 437, 442 (2007) (holding that plaintiffs, who

were four state citizens, lacked standing to bring a federal Elections Clause claim

because the only alleged injury was that redistricting laws had not been followed,

which is an undifferentiated, generalized grievance about the conduct of government

common to all voters). State legislatures have successfully asserted standing under

the Elections Clause when the legislature itself has suffered a concrete,

particularized, and actual or imminent injury traceable to the challenged action. See

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015).

However, even a group of state senators in their official capacities—which describes

none of the Plaintiffs—lack standing when their votes are inadequate to bring a

lawsuit premised on an institutional injury to the state legislature. Corman v. Torres,


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287 F. Supp. 3d 558, 569 (M.D. Pa.), appeal dismissed sub nom, 751 F. App’x 157

(3d Cir. 2018).

Plaintiffs do not purport to bring their claims on behalf of the legislature, nor

do they identify any particularized stake in the enforcement of the Elections Clause.

At best, Plaintiffs assert an undifferentiated, generalized grievance common to all

voters and lack standing to bring the Elections and Electors Clause claims in Counts

I and II.

V. CONCLUSION

For the foregoing reasons, this Court should grant Proposed Intervenors’

Motion to Dismiss Plaintiffs’ Complaint with prejudice.


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Dated: July 24, 2020 Marc Erik Elias* Uzoma N. Nkwonta* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 [email protected] [email protected] Elise Edlin* Torryn Taylor Rodgers* PERKINS COIE LLP 505 Howard Street, Suite 1000 San Francisco, CA 94105-3204 Telephone: 415.344.7000 Facsimile: 415.344.7050 [email protected] [email protected] *Pro hac vice motions to be filed.

By: /s/ Justin T. Romano Justin T. Romano PA ID No. 307879 [email protected] Marco S. Attisano PA ID No. 316736 [email protected] 429 Fourth Avenue, Suite 1705 Pittsburgh, PA 15219 Phone: (412) 336-8622 Fax: (412) 336-8629 Adam C. Bonin, PA Bar No. 80929 (WD PA admission pending) The Law Office of Adam C. Bonin 121 S. Broad St., Suite 400 Philadelphia, PA 19107 Phone: (267) 242-5014 Facsimile: (215) 827-5300 Email: [email protected] Attorneys for Proposed Intervenors


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CERTIFICATE OF SERVICE

I, Justin T. Romano, hereby certify that on July 24th, 2020, I caused a true and

correct copy of the foregoing Proposed Intervenors’ Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Memorandum of Points and Authorities in

Support of Proposed Intervenors’ Motion to Dismiss, and Proposed Order to be

served on counsel of record for Plaintiffs and Defendants listed on the docket via the

Court’s ECF system.

/s/ Justin T. Romano Justin T. Romano


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Plaintiffs,

v.


Defendants.



[PROPOSED] ORDER

AND NOW, this __ day of July, 2020, upon consideration of the Motion to

Dismiss by Michael Crossey, Dwayne Thomas, Irvin Weinreich, Brenda Weinreich,

and the Pennsylvania Alliance for Retired Americans, the Court having considered

the Motion, the Memorandum of Law in support thereof, and any opposition thereto,

it is hereby ORDERED that the Motion is GRANTED.

_____________________________ U.S. District Court Judge


in the united states district court for the western ... · 7/24/2020 · davis, isabella...

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