DONALD J. TRUMP FOR PRESIDENT, INC. v. BOOCKVAR

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

No. 2:20-cv-966

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

Plaintiffs

V.

KATHY BOOCKVAR, in her capacity as Secretary of the

Commonwealth of Pennsylvania, et al.,

Defendants

OPINION

J. Nicholas Ranjan, United States District Judge

On August 23, 2020, this Court abstained from

ruling on the merits of Plaintiffs’ claims and stayed this

case. Since then, the Pennsylvania Supreme Court has

accepted a similar case for review, and appears poised to

rule on unsettled state-law questions that are critical to

Plaintiffs’ claims here—specifically, the validity of mail-in

ballot “drop boxes” and the permissibility of counting mail-

in ballots that suffer from certain procedural defects.

But before the Pennsylvania Supreme Court decided

to tackle these issues, Plaintiffs filed a motion for “limited

preliminary injunctive relief,” primarily asking this Court

to order that all ballots delivered to drop boxes be

segregated, so that they won’t be commingled with other

-1-

ballots. Plaintiffs fear that without such an injunction,

they won’t be able to challenge the ballots delivered to drop

boxes in the event that the Pennsylvania Supreme Court

doesn’t act in time.

Some of Plaintiffs’ concerns are valid. For example,

if the Pennsylvania Supreme Court doesn’t timely decide

whether drop boxes are authorized by the election code,

votes could be cast through those locations and, if the

ballots are not otherwise traceable, it might then be too late

to un-ring the bell in the event that the Supreme Court

later finds that drop boxes are not allowed. That said,

while these concerns are valid, they’re also premature. The

Pennsylvania Supreme Court appears to be on track to

decide this, and other questions of importance to the voters

and candidates in this Commonwealth, in short order. And

that court still has sufficient time to reach these issues

before any ballots are cast, collected, or canvassed.

In sum, because the harm Plaintiffs fear has not yet

materialized in any actualized or imminent way, the Court

will deny Plaintiffs’ motion for injunctive relief, but will do

so without prejudice to Plaintiffs’ (or any other party’s)

right to seek injunctive relief if a more imminent and

irreparable harm materializes.

BACKGROUND

I. The Court’s August 23, 2020, opinion.

In its prior opinion, the Court found that most of

Plaintiffs’ federal-constitutional claims turn on unsettled

questions of state law under the recently enacted Act 77.

Thus, to allow the state courts to offer a potentially case-

dispositive construction of the unsettled state-law

questions, the Court abstained under the Pullman

doctrine. See, e.g., Planned Parenthood of Cent. N.J. v.

Farmer, 220 F.3d 127, 149 (3d Cir. 2000) (“[A]bstention

under Pullman is appropriate where an unconstrued state

statute is susceptible of a construction by the state

judiciary which might avoid in whole or in part the

necessity for federal constitutional adjudication, or at least

materially change the nature of the problem.” (cleaned

up)).

The Court acknowledged in its opinion that, while

most of Plaintiffs’ claims were subject to Pullman

abstention, a few were not. [ECF 409, pp. 34-37]. But in

exercising its inherent authority, the Court found it better

to stay the entire case rather than proceed on a small

subset of claims, only to have to do most of the proceedings

over again once the state courts interpreted the relevant

election code provisions. [Id.]. The Court did, however,

give the parties the option to move to lift the stay on

October 5, 2020, concerning this subset of claims if the

state courts had not yet resolved the state-law issues

arising from the unsettled election-code provisions. [ECF

410].

II. The Pennsylvania Supreme Court’s exercise of

extraordinary jurisdiction.

On September 1, 2020, the Pennsylvania Supreme

Court granted Secretary Boockvar’s “Application for the

Court to Exercise Extraordinary Jurisdiction over the

Commonwealth Court Case Docketed at 407 MD 2020.”

[ECF 418; ECF 418-3]. The Pennsylvania Supreme Court

ordered all supplemental briefing to be filed by today,

September 8, 2020. [ECF 418-3]. The issues before the

Pennsylvania Supreme Court include whether “Act 77 . . .

permit[s] county election boards to designate drop-off

locations other than their official office address for receipt

of mail-in ballots” and whether “mail-in ballots delivered to

the county election boards without the inner envelope (i.e.,

‘naked ballots’) [may] be counted.” [ECF 388-1, p. 5; ECF

418-3].

III. Plaintiffs’ motion to modify the stay and for

limited preliminary injunctive relief.

On August 28, 2020, Plaintiffs moved to modify this

Court’s abstention order, and to request “limited

preliminary injunctive relief.” [ECF 414, p. 1]. This is the

first time Plaintiffs have moved for a preliminary

injunction in this case, though they had reserved their

right to do so and their amended complaint seeks

injunctive relief. See [ECF 409, p. 33] (discussing

Plaintiffs’ request for preliminary-injunctive relief and

decision to forgo filing a motion for preliminary injunction).

In their motion, Plaintiffs request that the Court

grant four types of preliminary-injunctive relief: (1) order

Defendants to “segregate and maintain intact all cast

absentee and mail-in ballots that” are returned in drop

boxes; lack an inner secrecy envelope or contain marks,

text, or symbols thereon; or are a non-disabled voter’s

ballot that was delivered by a third party; (2) enjoin

Defendants “from pre-canvassing or canvassing” the

same;1 (3) order Defendants to “retain and make available

for periodic review all digital images and video” (to the

extent they exist) that are captured by a camera “used to

monitor drop-boxes or other sites and locations . . . used for

the return and collection of cast absentee and mail-in

ballots;” and (4) modify the stay so that it is lifted on

September 14, 2020, rather than October 5, 2020. [ECF

414, pp. 1-2; ECF 414-1].

In seeking a preliminary injunction, Plaintiffs

emphasize that Pennsylvania’s Secretary of the

Commonwealth, Kathy Boockvar, recently issued new

guidance particularly for the November 3, 2020, general

election. See, e.g., [ECF 414, ¶¶ 14-16, 33]. Specifically,

Secretary Boockvar issued two new sets of guidance on

August 19, 2020—four days before the Court’s abstention

opinion, but after all briefing on the then-pending motions

had been completed.

One set of guidance relates to the collection of

absentee and mail-in ballots, including the use and

implementation of ballot return sites like drop boxes. [ECF

415-19]. Specifically, the guidance states that “[c]ounty

boards of elections may establish multiple ballot return

locations where voters may return their own voted ballot,”

which may include establishing a “secure ballot return

receptacle.” [Id. at § 1.1]. The guidance also instructs that

any “secure ballot return receptable”—i.e., drop boxes—

should comply with certain design requirements, and the

1 Related to this, Plaintiffs also request that the Court

order Defendants to resolve the ballot challenges pursuant

to 25 P.S. §§ 3146.8(f) and (g)(5), and that Defendants

produce “a list of all electors, by precinct, whose ballots

have been segregated and are being challenged under this

[Proposed] Order.” [ECF 414-1, ¶¶ 2-3].

county boards of elections must ensure the drop boxes

comply with enumerated security features, including anti-

tampering features, locks, video monitoring, and removal

when the site is closed or the drop box cannot be monitored.

[Id. at §§ 2.2-2.5].

Additionally, this guidance directs the counties to

implement certain, specific procedures for collecting ballots

from drop boxes and transporting them to the county

election office. [Id. at §§ 3.1-3.3]. That is, in relevant part,

that all ballots retrieved from drop boxes (or other ballot

collection sites) should be placed into a “secure ballot

transfer container,” and “[t]he designated election officials

should note on Ballot Return Site Collection Forms the site

and unique identification number of the ballot return site

and the date and time of retrieval.” [Id. at § 3.1]. The

guidance further specifies that this collection form should

be “maintained in a manner prescribed by the board of

elections to ensure that the form is traceable to its

respective secure ballot container.” [Id. at § 3.2].

The second set of new guidance relates to the

counting of “naked” ballots, and instructs that “naked”

ballots should be counted notwithstanding the lack of a

“secrecy” envelope. [ECF 415-20]. It also instructs

counties to develop a consistent process for counting such

“naked” ballots. [Id. at p. 2]. In providing this guidance,

the Secretary notes that “[t]he failure to include the inner

[‘secrecy’] envelope . . . does not undermine the integrity of

the voting process” and thus, “no voter should be

disenfranchised for failing to place their ballot in the

official election ballot envelope.” [Id.].

Plaintiffs argue that Defendants’ inconsistent use of

drop boxes and counting of “naked” ballots are

unconstitutional, and that Secretary Boockvar’s new

guidance does not remedy the constitutional defects. E.g.,

[ECF 414, ¶¶ 19-20, 41]. Further, Plaintiffs point out that

the Secretary’s new guidance is inconsistent with

Defendants’ prior positions, in that the guidance now says

all “naked” ballots should be counted regardless of the

elector’s reason for not placing the ballot in the secrecy

envelope. E.g., [id. at ¶ 16]. Plaintiffs say that this

guidance violates the election code and is likely to be

implemented in a non-uniform and potentially

unconstitutional manner (i.e., by some counties but not

others). E.g., [id. at ¶¶ 18, 20].

Plaintiffs argue that, without an injunction, this

unlawful guidance will irreparably harm them. That’s

because, according to Plaintiffs, nothing in the Secretary’s

new guidance instructs counties to segregate ballots that

were received at drop boxes or that are “naked.” [Id. at ¶

23]. Thus, Plaintiffs suggest that unless this Court orders

Defendants to not commingle the challenged ballots with

other “proper” ballots, Plaintiffs will not be able to obtain

the relief they seek even if they win their legal challenges.

E.g., [id. at ¶¶ 33, 43-44]. They argue that, once the ballots

are commingled, it will be impossible to “un-commingle”

them. As such, preventing this commingling will,

according to Plaintiffs, protect the public interest. E.g., [id.

at ¶¶ 45-46].

Defendants and Intervenors have a different take.

They argue that Plaintiffs’ motion, despite its label, is

really a motion for reconsideration of this Court’s

abstention order. And they contend that Plaintiffs cannot

meet the heavy burden of justifying such reconsideration.

Defendants and Intervenors also argue that the Court

cannot award Plaintiffs a preliminary injunction as

Plaintiffs’ claims are not justiciable because Plaintiffs lack

standing, their claims aren’t ripe, and their claims are

barred by the Eleventh Amendment of the U.S.

Constitution. Defendants and Intervenors further argue

that the Pennsylvania Supreme Court’s exercise of

extraordinary jurisdiction renders any preliminary

injunction unnecessary and improper because the Supreme

Court will quickly decide certain state-law questions,

mooting Plaintiffs’ alleged need for injunctive relief.

Additionally, Defendants and Intervenors argue

that granting a preliminary injunction would be

inconsistent with this Court’s abstention order because to

award a preliminary injunction, the Court would need to

assess the merits of Plaintiffs’ claims, something the Court

declined to do in its abstention opinion. And finally, they

argue that Plaintiffs do not meet their burden to show a

preliminary injunction is warranted.

Briefing is complete. No party has requested an

evidentiary hearing, and the Court, based on the nature of

the motion, finds that one is not required. See Bradley v.

Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175-76 (3d Cir.

1990) (“The applicable Federal Rule does not make a

hearing a prerequisite for ruling on a preliminary

injunction.”). Thus, the motion is ready for disposition.

LEGAL STANDARD

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he

is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.”

Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Because a

preliminary injunction is an “extraordinary remedy,” the

plaintiff must make “a clear showing that the plaintiff is

entitled to such relief.” Id. at 22, 24; see also Holland v.

Rosen, 895 F.3d 272, 285 (3d Cir. 2018) (“A preliminary

injunction is an extraordinary remedy which should be

granted only in limited circumstances. We do not issue that

relief unless the movant, by a clear showing, carries the

burden of persuasion.” (cleaned up) (citations omitted)).

The first two factors that a plaintiff must show—”(1)

a reasonable likelihood of success on the merits . . . [and]

(2) irreparable harm”—are “prerequisites” to obtain a

preliminary injunction. Holland, 895 F.3d at 286. Each of

these two factors is also a prerequisite to the other. See,

e.g., id. (opining that because the plaintiff did not

sufficiently “demonstrate that [he] can win on the merits .

. . we do not delve deeply into the second factor” (cleaned

up)); In re Arthur Treacher’s Franchisee Litig., 689 F.2d

1137, 1143 (3d Cir. 1982) (“[A] failure by the moving party

to satisfy these prerequisites: that is, a failure to show a

likelihood of success or a failure to demonstrate irreparable

injury, must necessarily result in the denial of a

preliminary injunction.”).

Thus, if a plaintiff fails to show that it is likely to

suffer irreparable harm, the Court may deny the

preliminary injunction, and need not address the

remaining factors. See Reilly v. City of Harrisburg, 858

F.3d 173, 176 (3d Cir. 2017) (“[W]e have repeated that a

district court—in its sound discretion—should balance

those four factors so long as the party seeking the

injunction meets the threshold on the first two.”); see, e.g.,

In re Arthur Treacher’s Franchisee Litig., 689 F.2d at 1143;

Doe v. U. of Sciences, No. 19-358, 2020 WL 5211028, at *4,

n.7 (E.D. Pa. Sept. 1, 2020) (“Because the Court finds

[Plaintiff] failed to establish irreparable harm, it need not

address the parties’ arguments with respect to the

possibility of harm to others from granting the injunction,

or the public interest in granting injunctive relief.”).

DISCUSSION & ANALYSIS

I. The Court will consider Plaintiffs’ motion.

As an initial matter, the parties dispute whether the

Court can entertain Plaintiffs’ motion at all, given that it

was filed after this Court stayed the case based on Pullman

abstention. The Third Circuit has said that district judges

have the authority to consider (and even that they must

consider) a preliminary-injunction motion at the same time

they are deciding whether to abstain based on Pullman.

See, e.g., Chez Sez III Corp. v. Township of Union, 945 F.

2d 628, 634 n.4 (3d Cir. 1991); New Jersey-Phila. Presbytery

of the Bible Presbyterian Church v. N.J. State Board of

Higher Education, 654 F.2d 868, 886 (3d Cir. 1981).2 But

2 The two cases that stand for this proposition create a

puzzling tension. On one hand, district courts are

instructed by Pullman not to delve into the merits of any

unsettled state-law issues to avoid offering “a forecast

rather than a determination” that would cause “needless

friction with state policies.” Railroad Comm’n of Texas v.

Pullman Co., 312 U.S. 496, 500 (1941); see also id. (“The

reign of law is hardly promoted if an unnecessary ruling of

a federal court is thus supplanted by a controlling decision

of a state court. The resources of equity are equal to an

adjustment that will avoid the waste of a tentative decision

as well as the friction of a premature constitutional

adjudication.”).

On the other hand, to decide a preliminary-

injunction motion, the district court must do that very

thing—determine reasonable probability of success on the

merits, essentially deciding, or at least predicting, the

there is no authority specifically mandating or authorizing

a district court to consider a preliminary-injunction motion

filed after it stays the entire case under Pullman. See

Fuente v. Cortes, 207 F. Supp. 3d 441, 453 (M.D. Pa. 2016)

(“[T]hough courts in the past have entertained parties’

requests for emergency relief contemporaneously with a

decision to abstain on the merits of the case, this scenario

is distinguishable from such instances[.]” (cleaned up)).

It strikes the Court as inconsistent with the core

principles of Pullman for a plaintiff to be able to seemingly

circumvent a Pullman-based stay by, at any later point in

time, coming back to federal court, claiming an emergency

has arisen, and asking the federal court to basically

reconsider and take immediate jurisdiction over the case.

“Indeed, abstention could not serve its proper function if

the parties could, by their own decisions, force us to

confront an otherwise avoidable constitutional question.”

Nicholson v. Scoppetta, 344 F.3d 154, 168 (2d Cir. 2003).

In that scenario, the Court would be inviting, not avoiding,

the “needless friction” that abstention is designed to

state-law issues in the process. This seems at odds with

Pullman’s concern for avoiding advisory opinions that

might later be voided by a state-court decision under state

law. See id.; see also Pennzoil Co. v. Texaco, Inc., 481 U.S.

1, 11 (1987) (“When federal courts interpret state statutes

in a way that raises federal constitutional questions, a

constitutional determination is predicated on a reading of

the statute that is not binding on state courts and may

be discredited at any time—thus essentially rendering the

federal-court decision advisory and the litigation

underlying it meaningless.” (cleaned up)).

In New Jersey-Philadelphia, the Third Circuit

seemed to recognize this tension, but found that it was of

little consequence under the specific circumstances of that

case. 654 F.2d at 885-86. That’s because, in the Third

Circuit’s view, “the district court [did] not construe[] the

state statute or regulations at all,” and regardless, a

preliminary injunction is just that—preliminary—and the

state courts could always decide the state-law questions

and issue narrowing constructions before entry of a final

permanent injunction. Id.

prevent. See Moore v. Tangipahoa Parish School Bd., 507

F. App’x 389, 396 (5th Cir. 2013) (“This [preliminary-

injunction motion] presents the very conflict that Pullman

abstention seeks to avoid—i.e., needless friction between a

federal pronouncement and state policies—as it involves a

federal court enjoining a state’s legislatively-determined

funding decisions prior to allowing the state to consider

whether such decisions comport with its own

constitution.”).3

That said, this Court is bound by Third Circuit

precedent, and the Third Circuit appears to have ordered

district courts to consider and decide preliminary-

injunction motions even while abstaining under Pullman.

The Court could draw a distinction between this case on

the one hand (preliminary-injunction motion filed after the

Pullman stay), and New Jersey-Philadelphia and Chez Sez

on the other (preliminary-injunction motion filed

contemporaneously with the complaint and before Pullman

stay). But that distinction doesn’t seem to necessarily flow

from the reasoning of the Third Circuit’s decisions. Thus,

3 In other Circuits, courts have specifically abstained from

deciding motions for a preliminary injunction based on

Pullman. See, e.g., Caldera v. City of Boulder, 341 F. Supp.

3d 1241, 1243 (D. Colo. 2018) (abstaining from deciding

“preliminary injunction (# 4) against enforcement of [an]

Ordinance”), aff’d Caldara v. City of Boulder, 955 F.3d

1175 (10th Cir. 2020); Moore, 507 F. App’x at 396 (holding

that district court erred in granting preliminary injunction

“in light of the Pullman abstention doctrine.”); Jayaraj v.

Scappini, 66 F.3d 36, 38 (2d Cir. 1995) (holding that the

district court “erred in granting the preliminary

injunction” because “abstention under [Pullman] is

warranted.”); Chun v. State of N.Y., 807 F. Supp. 288, 289

(S.D.N.Y. 1992) (abstaining from deciding “preliminary

injunction to enjoin the State of New York from prosecuting

[plaintiff] for violating New York’s anti-gambling laws.”).

based on this binding precedent, the Court finds that it is

obligated to consider Plaintiffs’ motion.

However, as will be discussed, the Court also finds

that Plaintiffs’ motion must, at this stage, be denied due to

the absence of any irreparable harm. Because that issue is

dispositive, this Court need not delve into a merits-based

determination that could cause tension with the principles

of Pullman.4

II. Plaintiffs cannot establish irreparable harm.

At least at the current stage of proceedings and on

the record presently before this Court, Plaintiffs have not

established that they are entitled to the “extraordinary

remedy” of a preliminary injunction. Greater Phila.

Chamber of Commerce v. City of Phila., 949 F.3d 116, 133

(3d Cir. 2020). That is chiefly because Plaintiffs have not

4 In discussing this issue, Plaintiffs rely heavily

on Pierce v. Allegheny County Bd. of Elections, 324 F. Supp.

2d 684 (W.D. Pa. 2013) (Conti, J.). See [ECF 414, ¶¶ 33, 37-

47]. In Pierce, the court abstained under Pullman, but

granted a limited injunction, ordering the segregation of

937 ballots. 324 F. Supp. 2d at 707-09. A review

of Pierce demonstrates the difficult position in which the

Third Circuit’s decisions placed the district court, and how

those decisions limited the court’s merits review. There, the

district court recognized that “the likelihood of plaintiffs’

success, while a close question, appear[ed] to turn on an

issue, which [was] more appropriate for the Pennsylvania

courts to determine[.]” Id. at 705. But, in light of its

abstention decision, the district court found

it ”inappropriate, based upon the doctrines of comity and

federalism, to speculate as to how the Pennsylvania courts

would interpret” the relevant state-law issue. Id. The

district court eventually reached its merits decision on the

injunction by qualifying it and finding that it turned on

“how the state court interpret[ed] the provision of the

election code at issue,” without engaging in such an

interpretation. Id.

shown that they will suffer “irreparable harm” if the Court

denies the injunction.5

A party seeking preliminary injunctive relief must

“demonstrate that irreparable injury is likely in the

absence of an injunction.” Winter, 555 U.S. at 22 (emphasis

in original). An injury is “irreparable” only if it “cannot be

redressed by a legal or an equitable remedy following a

trial.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91

(3d Cir. 1992) (citation omitted). Further, “[t]he

preliminary injunction must be the only way of protecting

the plaintiff from harm.” Id. (emphasis in original). As

well, preliminary relief that is “mandatory,” rather than

prohibitive, and “will alter the status quo” must “meet a

higher standard of showing irreparable harm in the

absence of an injunction.” Bennington Foods LLC v. St.

Croix Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir.

2008); see also Christie-Spencer Corp. v. Hausman Realty

Co., 118 F. Supp. 2d 408, 418 (S.D.N.Y. 2000) (“Such relief

is granted sparingly, because mandatory injunctions are

more burdensome than prohibitory injunctions, and

disturb the status quo prior to final adjudication.”). In such

circumstances, Plaintiffs’ right to relief must be

5 Defendants and Intervenors raise a number of other

procedural and substantive challenges to Plaintiffs’

motion. Because Plaintiffs’ failure to establish irreparable

harm is dispositive to the present motion, the Court need

not address these other arguments. See, e.g., Exec. Home

Care Franchising LLC v. Marshall Health Corp., 642 F.

App’x 181, 183 (3d Cir. 2016) (“We conclude that the

District Court properly disposed of Executive Care’s motion

for a preliminary injunction on the basis of the ‘irreparable

harm’ requirement.’”); B.P.C. v. Temple Univ., No. 13-7595,

2014 WL 4632462, at *5 (E.D. Pa. Sept. 16, 2014) (“Because

of the failure to establish irreparable harm, the other

factors (likelihood of success, balance of harms and public

interest) need not be addressed.” (citing AT&T v. Winback

& Conserve Program, 42 F.3d 1421, 1427 n.8 (3d Cir.

1994))).

“indisputably clear.” Hope v. Warden York County Prison,

— F.3d —, 2020 WL 5001785, at *3 (3d Cir. Aug. 25, 2020).

Plaintiffs argue that they will suffer irreparable

harm without an injunction because Defendants may

commingle all absentee and mail-in ballots after they are

cast and collected. Once that happens, Plaintiffs say, there

will be “no way to discern which, or how many, of those

ballots were cast in the manner being challenged by

Plaintiffs.” [ECF 414, p. 17, ¶ 43]. To avoid this harm, they

ask that the Court order Defendants to (1) segregate,

account for, and “deem challenged” all ballots within the

categories Plaintiffs wish to contest (e.g., all absentee and

mail-in ballots returned to “drop boxes”); and (2) retain,

and allow Plaintiffs to “periodically review,” video

surveillance footage used to monitor “drop boxes” or other

absentee and mail-in ballot return sites. [ECF 414-1, ¶¶ 1-

3].

After careful consideration, the Court does not

believe either category of preliminary relief is warranted at

this time.

A. Plaintiffs’ request for ballot segregation.

First, Plaintiffs ask the Court to preliminarily enjoin

Defendants from “commingling and counting (either

during a pre-canvass or canvass) cast absentee and mail-in

ballots” that are either: (1) “returned or collected through

drop boxes”; (2) “lack an inner secrecy envelope or contain

marks, texts, or symbols thereon”; or (3) “have been

delivered in-person by someone other than the non-

disabled voters.” [ECF 414-1, p. 2]. Plaintiffs further ask

that this Court “deem” all such ballots to be “challenged”

under the election code and direct Defendants to

“segregat[e] and set aside [the challenged ballots] in a

secure location at the offices of each of the Defendant

County Elections Boards.” [Id.]

In practice, this means that all the challenged

ballots would be excluded from counting in the ordinary

course and subjected to a hearing procedure used for

adjudicating challenges to absentee ballots or ballot

applications under 25 P.S. § 3146.8(f) and (g)(5).

Presumably, Plaintiffs intend to ask that these ballots be

disqualified, after the votes are cast, if they prevail on their

claims challenging the use of drop boxes (either in state

court or in this Court).

For several reasons, Plaintiffs have not shown that

they will suffer irreparable harm if the Court declines to

order this relief.

1. Plaintiffs can obtain relief by

operation of the Pennsylvania

Supreme Court’s decision.

Initially, Plaintiffs have not shown that the harm

they fear is “likely,” or that an injunction is the “only” way

to prevent it, because the Pennsylvania Supreme Court is

poised to resolve Plaintiffs’ claims on state-law grounds in

short order, before such harm occurs. See Winter, 555 U.S.

at 22; Campbell Soup Co., 977 F.2d at 91.

Per that court’s recent order exercising

extraordinary jurisdiction over the parallel state-court

litigation, the question of whether the election code permits

counties to use “drop boxes” is now teed up for decision, as

is the question of whether ballots submitted without an

“inner secrecy envelope” (or with “marks” on that envelope)

may be counted. [ECF 388-1, p. 5; ECF 418-3]. Those

issues will be fully briefed by today, September 8, 2020, and

presumably decided promptly after that. [ECF 418-3].

While Plaintiffs argue that there is no guarantee the

Pennsylvania Supreme Court will quickly and conclusively

decide these issues [ECF 437, pp. 2-3], this Court trusts

that it will, considering the importance and urgency of the

parties’ disputes. Once the Pennsylvania Supreme Court

has weighed in, its decision will likely moot Plaintiffs’

federal claims here by either (1) invalidating the use of

drop boxes and counting of “naked ballots” on state-law

grounds; or (2) determining that the Secretary’s guidance

on those points is lawful.6 That’s why this Court abstained

under Pullman in the first place.

6 As it pertains to these claims, Plaintiffs do not assert a

facial constitutional challenge to the election code or to the

constitutionality of drop-boxes and mail-in voting

generally. Instead, as this Court explained in its prior

As for the timing of the commingling Plaintiffs seek

to preempt, the earliest possible harm referenced by

Plaintiffs’ motion is that one county (Delaware County)

plans to install drop boxes to collect mailed ballots on

October 1, 2020. [ECF 414, p. 12, ¶ 22]. Assuming that is

true,7 it would mean that ballots could be cast, collected,

and then possibly mixed-in with others at some point after

that—nearly a month or more from now.

Even then, however, Plaintiffs have not shown that

Defendants intend to commingle ballots cast in drop boxes

in an untraceable way. In fact, the Secretary’s new

guidance instructs that ballots collected from drop boxes

(and other ballot collection sites) shall be placed in a

“secure ballot transfer container,” and that county officials

shall then “note on Ballot Return Site Collection Forms the

site and unique identification number of the ballot return

site and the date and time of retrieval.” [ECF 415-19, §

3.1]. What’s more, the guidance specifies that these

collection forms should be maintained by the counties “to

ensure that the form is traceable to its respective secure

ballot container.” [Id. at § 3.2]. This suggests that cast

ballots will be traceable back to the site where they were

deposited. Plaintiffs have not shown that any Defendant

plans to disregard this guidance, let alone do so at a time

that would result in commingling of ballots before the

Pennsylvania Supreme Court weighs in.

opinion, Plaintiffs’ federal claims depend on the Secretary

having issued unlawful guidance that will be implemented

inconsistently across the counties. [ECF 409, pp. 2, 26,

n.6]. Thus, if the Secretary’s guidance is declared either

lawful or unlawful by the Pennsylvania Supreme Court,

and the correct interpretation of the election code is then

implemented uniformly across the counties, nothing

remains of Plaintiffs’ related federal claims in this case.

7 The Secretary’s new guidance suggests that all ballot

return sites should be accessible “not less than 30 days

before the day of the election, and on the day of the

election.” [ECF 415-19, § 2.1]. This suggests that Plaintiffs

are correct to believe that at least some drop boxes will be

made accessible starting October 1, 2020.

For these reasons, Plaintiffs have not carried their

burden to show that votes will “likely” be cast in drop

boxes—let alone collected and irreversibly commingled

with other ballots—before the Pennsylvania Supreme

Court decides the correct interpretation of the election

code. To the contrary, all signs suggest that the Supreme

Court understands the urgency and will issue a decision

before ballot collection is substantially underway,

hopefully in the next several weeks. So long as that

happens, Plaintiffs will not suffer irreparable harm. See

ARRM v. Piper, 319 F. Supp. 3d 1156, 1163 (D. Minn. 2018)

(“When an adequate remedy exists under state law,

injunctive relief is not appropriate.”) (citations omitted); cf.

Little v. Tube City Renaissance, No. 19-172, 2020 WL

436616, at *2 (W.D. Pa. Jan. 28, 2020) (Horan, J.) (“In

addition, Mr. Little has not demonstrated that he could not

have received adequate protections through the state

appellate process . . . Mr. Little abandoned an adequate

state law remedy to challenge the constitutionality of the

Conservatorship Act. Accordingly, injunctive relief is not

available[.]”).

As for Plaintiffs’ challenge to the Secretary’s

guidance on the counting of ballots submitted without an

inner secrecy envelope (or with “marks” on that envelope),

the harm Plaintiffs argue they will suffer without

injunctive relief is even more attenuated.

Under the election code, the outer envelopes of mail-

in and absentee ballots cannot be opened until after 7:00

a.m. on election day, November 3, 2020. See 25 P.S. §§

2602(q.1); 3146.8(g)(1.1). Until that happens, election

officials have no way of knowing if a ballot lacks an inner

secrecy envelope or contains “marks, texts, or symbols

thereon,” nor are they able to “commingle” such ballots

with others. The Secretary’s briefing confirms that this is

her understanding of the election code, [ECF 424, pp. 11-

12], and Plaintiffs make no contrary showing.

Assuming that there is a decision on whether such

ballots may be counted before election day, Plaintiffs have

not established that they are “likely” to suffer any harm.

So-called “naked ballots” can simply be counted, or not,

consistent with any decision by the Pennsylvania Supreme

Court (or this Court) that issues before election day.

To be clear, the Court’s analysis here is predicated

on the Pennsylvania Supreme Court deciding these issues

in a timely and expeditious manner, and the fact that

sufficient time remains before Plaintiffs’ commingling

concerns materialize. Plaintiffs’ concern that the

Pennsylvania Supreme Court may not timely act are well-

taken, and thus there could be a point in the run-up to the

election where Plaintiffs’ assertions of irreparable harm

become likely and imminent enough to warrant some type

of injunctive relief—provided, of course, that the other

elements required to obtain preliminary injunctive relief

are satisfied.

2. State law and the Secretary’s

guidance protect Plaintiffs from

harm due to third-party ballot

delivery.

For a different reason, Plaintiffs have also failed to

show that they will suffer irreparable harm if the Court

does not order Defendants to segregate all absentee and

mail-in ballots that are cast for non-disabled voters but

“delivered in-person by someone other than the non-

disabled voters” themselves. [ECF 414-1, ¶ 2].

This request stems from Plaintiffs’ claim that a few

counties accepted delivery of such ballots by third parties

(such as voters’ spouses) during the recent primary

election. But everyone now agrees that the election code

forbids third-party ballot delivery, and Secretary Boockvar

has issued updated guidance clarifying that counties

should only permit voters to return “their own voted

absentee and mail-in ballots.” [ECF 424-1, § 1.1] (emphasis

added).

Given this, it appears that state law will afford

Plaintiffs full protection from the “harm” of counties

accepting in-person delivery of mail-in or absentee ballots

by individuals other than the voter. Plaintiffs have not

presented evidence that any Pennsylvania county is

“likely” to disobey the unambiguous election code or the

Secretary’s clarifying guidance forbidding third-party

delivery. And without such evidence, the mere possibility

that individual county officials might disobey

unambiguous state election code requirements does not

rise to the level of federal constitutional concern.8 See

Shipley v. Chicago Bd. of Election Commissioners, 947 F.3d

1056, 1062 (7th Cir. 2020) (explaining that even “a

deliberate violation of state election laws by state election

officials does not transgress against the Constitution”)

(cleaned up); Lecky v. Virginia State Bd. of Elections, 285

F. Supp. 3d 908, 919 (E.D. Va. 2018) (“[E]ven assuming the

Fredericksburg officials’ failure to provide provisional

ballots amounted to a violation of state law, it would not

rise to the level of an equal protection violation.”).

In sum, absent any arguably unlawful guidance

from the Secretary or demonstrated intent by other

Defendants to disobey the election code, Plaintiffs cannot

satisfy the high bar for preliminary-injunctive relief.

B. Plaintiffs’ request for video surveillance

footage.

In addition to requesting the segregation of ballots

they intend to challenge, Plaintiffs ask that the Court order

Defendants to “make available for periodic review upon

request by Plaintiffs” any video surveillance footage “used

to monitor any drop-boxes and/or other sites or locations,

including a county election office, for the return and

collection of absentee and mail-ballots.” [ECF 414-1, ¶ 2].

Plaintiffs, however, have not shown that an

injunction is “the only way of protecting [them] from harm”

in this instance. Campbell Soup Co., 977 F.2d at 91

(emphasis in original). The Secretary’s latest guidance

already suggests that video surveillance footage related to

drop box and other ballot-collection sites “should be

8 If, despite the unambiguous statute and guidance from

the Secretary, instances of non-compliance arise in specific

counties, Plaintiffs would of course still be able to seek

emergency relief in state court, where claims for election-

law violations are typically adjudicated. See, e.g. Shipley,

947 F.3d at 1062 (“[T]hat is a state law claim for a violation

of state law, not a federal claim for a violation of

constitutional rights . . . Plaintiffs may have other avenues

available to raise their complaints, but federal court is not

one of them.”).

retained by the county election office through 60 days

following the deadline to certify the election.” [ECF 424-1,

§ 2.5]. And if this guidance on its own lacks teeth,

Defendants’ evidence preservation obligations in this (and

any other) litigation do not. To be clear, at least in this

case, Defendants are under an ongoing duty to preserve all

such evidence in their possession, custody, and control

until the conclusion of this litigation. See Romero v.

Allstate Ins. Co., 271 F.R.D. 96, 110 (E.D. Pa. 2010) (“It is

well-settled that a party which reasonably anticipates

litigation has an affirmative duty to preserve relevant

evidence.” (cleaned up)); see also Archer v. York City Sch.

Dist., 227 F. Supp. 3d 361, 380 (M.D. Pa. 2016).

The Court has seen no evidence that any Defendant

has spoliated, or plans to spoliate, relevant video footage in

the imminent future.9 Thus, Plaintiffs have not shown that

harm is “likely” or that injunctive relief is necessary to

force Defendants to “retain” such footage.10

9 Plaintiffs suggest that some Defendants did not retain

video surveillance footage taken during the primary

election. [ECF 414, p. 11 n.7]. But this litigation was not

pending or anticipated at that time (indeed, Plaintiffs’

claims here are based in large part on events that allegedly

occurred during the primary election), and so Defendants

did not then have any obligation to suspend retention

policies that might result in the loss of such evidence.

10 Even if limited injunctive relief directing Defendants to

“retain” existing surveillance footage were appropriate,

Plaintiffs’ further request that Defendants be compelled to

authorize “periodic review” of such footage by campaigns

does not appear warranted in light of the significant

burdens associated with mandating that Defendants

oversee ongoing, statewide video surveillance by private

parties in the lead up to the election. Additionally, any

need for review of such footage is likely to be eliminated or

diminished by the Pennsylvania Supreme Court’s

impending decision resolving the legality of drop boxes.

While video footage could, in theory, provide some “color”

evidence to support Plaintiffs’ allegations with respect to

the perils of using drop boxes, that really is ancillary to the

III. The Court will not move up the date on which

it will consider motions to lift the stay.

The Court previously ordered that either party could

lift the stay as to “the claims that are not based on

unsettled issues of state law” starting October 5, 2020, due

to “a prolonged delay by the state courts[.]” [ECF 410, p.

2]. Plaintiffs ask the Court to modify that order and allow

the stay to be “lifted on September 14, 2020, rather than

October 5, 2020, with respect to all settled state-law

claims.” [ECF 414, p. 2]. Plaintiffs argue that maintaining

the October 5 date will “result in substantial prejudice to

Plaintiffs and their claims.” [Id. at ¶ 34]. The Court

disagrees.

The most urgent apparent basis for Plaintiffs’

request is that September 14, 2020, is the date when

county election boards may begin mailing ballots to voters.

[Id. at p. 12, ¶ 21]. But Plaintiffs do not explain, and the

Court cannot discern, the connection between September

14 and the claims that the Court said it would consider

deciding after October 5—those not based on unsettled or

ambiguous issues of state law. Those claims include: (1)

Plaintiffs’ third-party ballot-delivery claims that are set

forth in parts of Counts I, II, and III; (2) Plaintiffs’ facial

challenge to Pennsylvania’s poll-watching residency

restriction set forth in Counts IV and V; and (3) Plaintiffs’

claims related to improper provisional voting as set forth

in Counts VIII and IX. [ECF 410, p. 2].

The connection between these claims and either the

mailing of ballots to voters or the installation of drop boxes

is tenuous, at best.11

legal question of whether drop boxes are authorized by the

election code.

11 The one exception is, perhaps, the third-party ballot

delivery claim. But as discussed above, that no longer

seems to be a “live” issue after the Secretary’s latest

guidance. The rest of these claims relate to issues that just

need to be decided soon enough to allow proper

implementation by election day—e.g., whether out-of-

county residents may serve as poll-watchers and what the

As the Court outlined above, the state-law issues at

the heart of Plaintiffs’ central claims are on track to be

resolved in an expeditious manner in state court, and this

Court can resolve any constitutional issues that have not

been mooted or that have otherwise been refined shortly

thereafter. It remains likely that the Pennsylvania

Supreme Court will act this month, before the current

October 5, 2020, deadline arrives. Thus, the Court sees no

reason to modify its prior order at this time.

CONCLUSION

For the reasons discussed, the Court will deny

Plaintiffs’ motion to modify the Court’s stay order and for

limited preliminary-injunctive relief. A corresponding

order consistent with this Opinion will follow.

DATED this 8th day of September, 2020.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

correct procedure is for handling voters who show up to

vote in-person on election day after requesting an absentee

or mail-in ballot beforehand.