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

Plaintiffs in this case are President Trump’s

reelection campaign, the Republican National Committee,

and several other Republican congressional candidates and

electors. They filed this suit, alleging federal and state

constitutional violations stemming from Pennsylvania’s

recent implementation of a mail-in voting plan.

In their complaint, Plaintiffs point to the 2020

primary election, where “no excuse” mail-in voting was

first implemented in Pennsylvania, and describe an

election plagued by chaos. They say the primary was a

“hazardous, hurried, and illegal implementation of

unmonitored mail-in voting which provides fraudsters an

easy opportunity to engage in ballot harvesting,

-1-

manipulate or destroy ballots, manufacture duplicitous

votes, and sow chaos.” [ECF 234, ¶ 1]. They fear the same

will occur in the November general election, where much

more, of course, is at stake.

According to Plaintiffs, Pennsylvania’s mail-in

voting plan is not just bad, but unconstitutional. They say

it is a product of overreach by the Pennsylvania Secretary

of the Commonwealth, Kathy Boockvar, that will lead to

“vote dilution” (i.e., if unlawful votes are counted, then that

“dilutes” lawful votes). They also allege that because of the

patchwork, inconsistent implementation of the Secretary’s

guidance across Pennsylvania’s 67 counties, equal-

protection principles are violated. Due to the imminent

election, and at Plaintiffs’ request, the Court ordered

expedited discovery and scheduled an evidentiary hearing

in mid-September, where Plaintiffs would be required to

present evidence of these constitutional violations.

Defendants are Secretary Boockvar and all 67

county boards of elections in Pennsylvania. Several

organizations have also intervened claiming a stake in the

election.1 Many of these Defendants and Intervenors have

moved to dismiss, arguing that the Court lacks the legal

authority to decide this case. They argue that Plaintiffs

lack standing; that their claims are moot, unripe, or legally

flawed; and that venue is improper in this District. Short

of dismissal, Defendants argue that the Court should

“abstain” from deciding the merits and temporarily stay

the case, so that the state courts can resolve many of these

same issues that are pending before them.

After carefully considering the arguments raised by

the parties, the Court finds that the appropriate course is

abstention, at least for the time being. In other words, the

Court will apply the brakes to this lawsuit, and allow the

Pennsylvania state courts to weigh in and interpret the

1 Those organizations include the Pennsylvania State

Democratic Party, the League of Women Voters, the

NAACP Pennsylvania State Conference, Common Cause

Pennsylvania, Citizens for Pennsylvania’s Future, the

Sierra Club, and the Pennsylvania Alliance for Retired

Americans.

state statutes that undergird Plaintiffs’ federal-

constitutional claims.

Under the abstention doctrine set forth in R.R.

Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941), federal

courts decline to decide federal-constitutional claims if (1)

doing so requires interpretation of “unsettled questions of

state law,”; (2) permitting resolution of the unsettled state-

law questions by state courts would “obviate the need for,

or substantially narrow the scope of adjudication of the

constitutional claims”; and (3) an “erroneous construction

of state law would be disruptive of important states

policies[.]” Chez Sez III Corp. v Township of Union, 945

F.2d 628, 631 (3d Cir. 1991).

Here, most of Plaintiffs’ federal claims turn on

interpretations of the Pennsylvania election code, as

amended by Act 77, and allegations that Secretary

Boockvar’s guidance violates it. Because Act 77 was only

recently enacted, in October 2019, no Pennsylvania state

court has interpreted the provisions on which Plaintiffs

rely. What’s more, for nearly all these claims, the correct

interpretation of the statutory text is unclear. And while

Plaintiffs do assert one facial constitutional challenge and

allege a few violations of statutory provisions that are

probably not ambiguous, these claims are intertwined with

those that are less clear. Thus, the state court’s resolution

of the uncertain questions could narrow even these claims,

or at least cause Plaintiffs to present them in a different

posture. Under these exceptional circumstances, the

mandatory elements of Pullman abstention are satisfied.

Discretionary considerations also weigh heavily in

favor of abstention. With a national election less than

three months away, several parallel proceedings pending

in state court, and all this unfolding amid an

unprecedented pandemic that has paralyzed much of the

world, this Court cannot afford to issue a decision that

could be rendered advisory, unnecessary, or erroneous if

the Pennsylvania courts adopt a different interpretation of

ambiguous state law. Additionally, state-court resolution

of these uncertain statutory issues would not merely

remove ambiguity from, or narrow the scope of, Plaintiffs’

federal claims—it may afford Plaintiffs any relief they are

entitled to. Indeed, if Plaintiffs are right, a state court

could simply decide whether Defendants’ conduct violates

the election code and, if it does, enjoin it on that basis.

Conversely, a state-court finding that Secretary Boockvar’s

guidance was lawful could defeat, or at least play a critical

role in the Court’s analysis of, Plaintiffs’ constitutional

claims that are based on that guidance.

For these reasons, discussed in detail below, the

Court is persuaded that the important principles

underlying the Pullman abstention doctrine—federalism,

comity, constitutional avoidance, error prevention, and

judicial efficiency—all weigh strongly in favor of letting

state courts decide predicate disputes about the meaning

of Pennsylvania’s state election code.

The Court will thus grant Defendants’ motions to

the extent that they request Pullman abstention, and

otherwise stay all proceedings until the Pennsylvania

courts have weighed in on the unsettled state-law issues.

To be clear, the Court is not abdicating its responsibility to

decide the federal-constitutional issues that are potentially

presented by the case. Rather, the Court is waiting until

the state courts have interpreted the predicate statutory

provisions, which may avoid the need for the Court to hear

Plaintiffs’ constitutional claims, or at least change the

dimension of those claims. Once that has happened, if any

of Plaintiffs’ federal claims remain viable, Plaintiffs may

return to this Court to re-start proceedings for those claims

to be heard.

BACKGROUND

I. Factual background.2

Plaintiffs seek declaratory and injunctive relief from

certain policies allegedly adopted by the Commonwealth of

Pennsylvania and its county election boards. Plaintiffs

believe these policies are at odds with the Pennsylvania

2 The following facts are drawn from the allegations in

Plaintiffs’ operative complaint, which the Court must

accept as true when analyzing Defendants’ motions under

Fed. R. Civ. P. 12(b)(6). At this early stage, the Court has

not made any factual findings based on the review of any

evidence, and other parties have not had an opportunity to

challenge that evidence or present evidence of their own.

election code and violate their rights under the federal and

state constitutions. See [ECF 234].

A. Secretary Boockvar’s guidance.

On June 2, 2020, Pennsylvania held a primary

election—the first since the legislature’s adoption of “no

excuse” mail-in voting under Act 77. [Id. at ¶ 91]. In

anticipation of that election, Secretary Boockvar issued

three sets of “guidance” to the various county election

boards. This guidance purported to “define both what is

required by Act 77 and what is permissible under Act 77 or

some other portion of the Election Code.” [Id. at ¶ 117].

The relevant guidance provided as follows:

1. Guidance on verifying mail-in and

absentee ballots without an

objection.

First, according to Secretary Boockvar’s January 10,

2020, guidance, “[a] county board of elections cannot

decline [a] voter’s application for a mail-in or absentee

ballet [sic], unless there is a bona fide objection to the mail-

in or absentee ballot application.” [Id. at ¶ 118] (emphasis

in original).

During the recent primary election, several counties

relied on Secretary Boockvar’s guidance and approved all

applications for absentee or mail-in ballots without acting

to verify each applicant’s qualifications absent a “bona fide

objection.” [Id. at ¶ 121].

2. Guidance on “drop boxes” and other

ballot-collection locations.

Second, the Secretary’s guidance also stated that

“county election boards may provide for mail-in and

absentee application processing and balloting at more than

one [county elections office] located within county borders.”

[Id. at ¶ 122]. Further, the Secretary advised that “[w]hen

choosing a location for the [county elections office], counties

should consider, at a minimum, . . . choos[ing] locations

that serve heavily populated urban/suburban areas, as well

as rural areas,” including locations “near heavy traffic

areas such as commercial corridors, large residential areas,

major employers and public transportation routes.” [Id.].

During the recent primary election, about 20 county

election boards followed the Secretary’s guidance by

permitting absentee and mail-in ballots to be returned to

locations such as shopping centers, parking lots,

fairgrounds, parks, retirement homes, college campuses,

fire halls, municipal government buildings, and elected

officials’ offices. [Id. at ¶ 126]. In most cases, ballots were

collected at these locations by using “unmonitored and/or

unsecured drop-off boxes” or similar means. [Id. at ¶ 129].

Additionally, the Philadelphia County Board of

Elections partnered with a non-partisan group to

implement a mobile mail-in ballot drop-off initiative to

collect absentee and mail-in ballots from non-disabled

voters within Philadelphia County. [Id. at ¶ 127]. And the

Delaware County Board of Elections authorized third-

party delivery of absentee and mail-in ballots to any polling

location on Election Day through “unmonitored” drop-

boxes, where voters would “not be required to check in with

the [poll] workers.” [Id. at ¶ 128]. Delaware County also

allowed voters who returned and completed absentee or

mail-in ballots to cast provisional ballots in-person on

Election Day. [Id.].

The amount and type of notice that was given

concerning the existence, use, and location of drop boxes or

other mobile voting sites varied among the 20 counties that

implemented such measures. [Id. at ¶ 130]. Many of the

sites and notices did not comply with the site and notice

requirements that apply to “polling places” under the

election code, although the parties dispute whether, as a

matter of law, those requirements apply to drop boxes or

other mail-in ballot collection sites. [Id.].

3. Guidance regarding in-person

voting by voters who requested a

mail-in or absentee ballot.

Third, on January 30, 2020, the Pennsylvania

Department of State, with the “knowledge, approval[,]

and/or consent of Secretary Boockvar,” published guidance

advising that “[a]s soon as a voter requests a civilian

absentee ballot or mail-in ballot, they are only entitled to

vote by provisional ballot if they show up at their polling

place, and the voter is not shown on the district register as

having voted an absentee or mail-in ballot.” [Id. at ¶¶ 138,

140]. The guidance also specified that provisional balloting

was “the only option for voters to cast their vote in the

event their absentee or mail-in ballot is not returned to the

county by 8:00 p.m. on election day.” [Id. at ¶ 140]

(emphasis in original). This was repeated by the

Department of State on March 5, 2020, when it issued

“Pennsylvania Provisional Voting Guidance” stating that

“[i]f a voter is issued an absentee or mail-in ballot for the

upcoming election, they cannot vote a regular ballot.” [Id.

at ¶¶ 143, 145].

During the recent primary election, some (but not

all) of the counties followed this guidance by “den[ying]

electors who had applied for but not voted their absentee

or mail-in ballots the right to vote a regular ballot in person

at the polling location[].” [Id. at ¶ 149]. This led to alleged

instances of “double voting” in Philadelphia. [Id. at ¶¶ 150-

151].

4. Guidance regarding mail-in and

absentee ballots that violate

procedural requirements.

Fourth, Secretary Boockvar approved a May 28,

2020, email advising counties that although the election

code “requires county boards of elections to set aside

absentee or mail-in ballots enclosed in the official ballot

envelopes that contain ‘any text, mark or symbol which

reveals the identity of the elector,’ there is no statutory

requirement, nor is there any statutory authority, for

setting aside an absentee or mail-in ballot solely because

the voter forgot to properly insert it into the official election

ballot envelope.” [Id. at ¶¶ 154-155]. The Secretary’s email

further suggested that “[t]o preserve the secrecy of such

ballots, the board of elections in its discretion may develop

a process by which the members of the pre-canvass or

canvass boards insert these ballots into empty official

election ballot envelopes or privacy sleeves until such time

as they are ready to be tabulated.” [Id. at ¶ 155].

Many counties followed this May 28, 2020, directive

and counted absentee and mail-in ballots that were not

placed in a secrecy envelope or violated other procedural

requirements set forth in the election code. [Id. at ¶¶ 157-

158]. Other counties disagreed with the Secretary’s view

and disqualified mailed ballots that skirted these rules.

[Id.]. The result was uneven treatment of such ballots

throughout Pennsylvania. [Id. at ¶ 161].

B. Election-code provisions pertaining to

poll watchers.

A few of Plaintiffs’ claims pertain to provisions of the

election code restricting the qualifications and activities of

poll watchers. [Id. at ¶¶ 165-189, 223-236]. According to

Plaintiffs, poll watchers “serve the important purpose of

assuring voters, candidates, political parties, and political

bodies . . . that [elections are] conducted in compliance with

the law, and [are] done in a correct manner which protects

the integrity and validity of the vote and ensures that all

elections are free, open, fair, and honest.” [Id. at ¶ 188].

Pennsylvania’s election code does not permit poll

watchers to serve in an election district outside the county

where the watcher resides as a registered elector. [Id. at ¶

168]. Pennsylvania also does not permit poll watchers to

monitor “pre-canvass meetings,” although a

“representative” for each candidate and political party is

permitted to attend. [Id. at ¶¶ 97, 182, 186]. Poll watchers

are permitted to observe “polling places” from the time the

first polling-place official appears in the morning until the

time the polls are closed and the election returns are

counted and posted at the polling-place entrance. [Id. at ¶

54]. But until the polls close, only one poll watcher

representing each political party and its candidates can be

present in the polling place outside of an enclosed area.

[Id.]. Once the polls close, and while ballots are being

counted, all poll watchers are permitted to be in the polling

place outside the enclosed space. [Id.]. Consequently, as it

pertains to mail-in ballots, poll watchers are unable to

monitor the drop off or mail in of ballots before Election

Day. [Id. at ¶¶ 226-227].

In many Pennsylvania counties, there is a

significant gap between the number of voters registered as

Democrats and the number registered as Republicans. [Id.

at ¶ 177]. Because of county boards’ intended use of

numerous drop-box locations, Plaintiffs allege that it will

be difficult for candidates and political parties to find poll

watchers to monitor all locations where ballots will be cast

in the November 2020 general election. [Id. at ¶¶ 179-182].

II. Procedural background.

Shortly after filing their original complaint,

Plaintiffs moved for expedited discovery and an expedited

declaratory-judgment hearing. [ECF 6]. Defendants

opposed the motion. The Court partially granted the

motion, scheduled a speedy hearing, and ordered certain

limited discovery before that hearing. [ECF 123, 124].

After Plaintiffs filed the original complaint, many

non-parties sought to intervene in the action. The Court

granted all intervention motions. [ECF 309].

Defendants and Intervenors moved to dismiss the

original complaint. In response, Plaintiffs filed an

amended complaint. [ECF 234]. The amended complaint

maintained the gist of the original complaint but added two

new counts and made a variety of other drafting changes.

See [ECF 242 (redline comparison of original and amended

complaints)]. At bottom, Plaintiffs continue to seek

declaratory and injunctive relief compelling Secretary

Boockvar and the various county boards of elections to

comply with provisions of Pennsylvania’s election code.

According to Defendants and Intervenors, the

amended complaint has not cured the deficiencies they

identified in their original motions. They further argue

that the new claims in the amended complaint are

similarly deficient. As a result, Defendants and

Intervenors have filed renewed motions to dismiss the

amended complaint.

While all of this was happening, on July 10, 2020,

another group of plaintiffs sued these same Defendants in

the Commonwealth Court of Pennsylvania, seeking

construction of certain election-code provisions, including

several of the critical ones that are at issue here. See [ECF

291-1]. The state-court petitioners also applied to expedite

a judicial interpretation of the relevant provisions of Act

77. [ECF 291, p. 7].

Certain Plaintiffs here have moved to intervene in

that action. [ECF 264-2]. Their motions remain pending

as of the date of this opinion, although the Commonwealth

Court has allowed them to file amici curiae briefs while the

applications are pending.

Additionally, on August 16, 2020, Secretary

Boockvar applied to the Pennsylvania Supreme Court,

asking that court to assume immediate jurisdiction over

the pending Commonwealth Court case. [ECF 388-1].

Secretary Boockvar filed this application under 42 Pa.

Cons. Stat. § 726, often called the “King’s Bench power,”

asking the Pennsylvania Supreme Court to invoke its

“extraordinary jurisdiction” and resolve issues of

“immediate public importance.” [ECF 388, p. 1]. That

application remains pending.

LEGAL STANDARD

When it comes to motions requesting abstention

under one or more of the various abstention doctrines

recognized by the Supreme Court, courts have disagreed on

what standard to apply—Rule 12(b)(1), Rule 12(b)(6), or

neither. Compare Wells Fargo Bank, N.A. v. Carnell, No.

16-130, 2017 WL 1498087, at *3 (W.D. Pa. April 25, 2017)

(Gibson, J.) (applying the 12(b)(6) standard), with Strom v.

Corbett, No. 14-1518, 2015 WL 4507637, at *4 (W.D. Pa.

July 24, 2015) (Cercone, J.) (suggesting the 12(b)(1)

standard is more appropriate), with Christian Action

Network v. Maine, 679 F. Supp. 2d 140, 143. n.2 (D. Me.

2010) (“Because abstention is involved, I do not consider

myself limited to the facts that the plaintiff pleaded to

determine whether comity and federalism counsel against

my exercise of jurisdiction, and I do not rely upon the

pleading or burden requirements of either Rule 12(b)(1) or

Rule 12(b)(6).”).

Here, because the Court is deciding the issues

presently before it under the Pullman abstention doctrine,

the Rule 12(b)(6) standard is more appropriate. Or, it is

perhaps more accurate to say that the Rule 12(b)(1)

standard is not a good fit.

Rule 12(b)(1) allows the Court to dismiss a case if the

plaintiffs lack standing or the Court lacks subject-matter

jurisdiction over a dispute. In deciding whether the

Pullman abstention doctrine applies, however, the Court

essentially takes jurisdiction over the dispute. This is

because the Court, in abstaining under Pullman, is

postponing its exercise of proper jurisdiction rather than

concluding it lacks jurisdiction. See, e.g., Harrison v.

NAACP, 360 U.S. 167, 177 (1959) (“[Pullman abstention]

does not, of course, involve the abdication of federal

jurisdiction, but only the postponement of its exercise.”);

Georgevich v. Strauss, 772 F.2d 1078, 1094 (3d Cir. 1985);

Wright & Miller, Federal Practice and Procedure § 4243

(“The Supreme Court has frequently justified Pullman-

type abstention by saying that it ‘does not, of course,

involve the abdication of federal jurisdiction, but only the

postponement of its exercise.’ In line with this principle a

federal court, when it has determined to abstain, should

not dismiss the action but should stay it and retain

jurisdiction pending the proceedings in the state courts.”

(footnotes omitted)). This differentiates Pullman

abstention from other forms of abstention. See Jones v.

Coleman, 848 F.3d 744, 749 (6th Cir. 2017).

As such, the Court concludes that Rule 12(b)(1) is

not applicable here. If the Court lacked subject-matter

jurisdiction, it could not abstain under Pullman, for the

Court could not, after the state-court proceedings

concluded, renew its exercise of jurisdiction that it lacked

to begin with. Accordingly, the standard of review

applicable to deciding whether there is a lack of jurisdiction

(i.e., the Rule 12(b)(1) standard) does not seem appropriate

where Pullman forms the basis for abstention.

For these reasons, to the extent a choice must be

made at all, the Court finds that the 12(b)(6) standard,

rather than the 12(b)(1) standard, is appropriate, and thus

analyzes the Pullman issue under that standard.

The Court therefore accepts “all well-pleaded

allegations in the complaint as true,” “viewing them in the

light most favorable to the plaintiff.” Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).

The plaintiff must allege “sufficient factual matter

to show that the claim is facially plausible” and permit a

“reasonable inference that the defendant is liable for the

misconduct alleged.” Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (cleaned up). Allegations that are

“conclusory or bare-bones,” such as “threadbare recitals of

the elements of a cause of action,” will not suffice. Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))

(cleaned up). However, “detailed pleading is not generally

required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786

(3d Cir. 2016). Rather, the complaint need only contain a

“short and plain statement” showing “more than a sheer

possibility that a defendant has acted unlawfully.” Id.

(cleaned up).

When evaluating a defendant’s motion under Rule

12(b)(6), the Court may review the allegations contained in

the complaint, exhibits attached to the complaint, any

documents that are integral to or explicitly relied on by the

complaint, and matters of public record. Pension Ben.

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,

1196 (3d Cir. 1993); Popa v. Harriet Carter Gifts, Inc., 426

F. Supp. 3d 108, 113 (W.D. Pa. 2019) (Stickman, J.)

(citations omitted). Thus, the Court may consider relevant

state-court proceedings that are pending. See, e.g., Wells

Fargo Bank, 2017 WL 1498087, at *3 (citation omitted).

DISCUSSION & ANALYSIS3

The Pullman abstention doctrine “directs that

federal courts should abstain from rendering a decision

3 As noted above, Defendants and Intervenors have moved

for dismissal on a number of other bases, including a

variety of other threshold justiciability grounds (standing,

ripeness, mootness, venue, sovereign immunity, Colorado

River abstention, Burford abstention, Wilton/Brillhart

abstention, and indefiniteness). Because the Court is

abstaining based on Pullman, it need not address these

other issues. Kelly v. Maxum Specialty Ins. Grp., 868 F.3d

274, 280 n. 3 (3d Cir. 2017). Additionally, Defendants

moved to dismiss, challenging the legal merits of some of

Plaintiffs’ claims. The Court specifically declines to

address those arguments, as that would be inconsistent

with Pullman. See Conover v. Montemuro, 477 F.2d 1073,

1079 (3d Cir. 1972) (“Pullman abstention involves no

decision on the merits of the claim[.]”) (cleaned up);

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17–18 (1987) (“We

of course express no opinion on the merits of those

challenges.”).

when difficult and unsettled questions of state law must be

resolved before a substantial federal constitutional

question can be decided.” Grode v. Mut. Fire, Marine &

Inland Ins. Co., 8 F.3d 953, 956 (3d Cir. 1993) (cleaned up).

More precisely, abstention 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.” Planned Parenthood of Cent. N.J. v. Farmer,

220 F.3d 127, 149 (3d Cir. 2000) (cleaned up).

The purpose of abstaining is “twofold.” Id. First,

abstention avoids a “premature constitutional adjudication

which could ultimately be displaced by a state court

adjudication of state law.” Id. (quoting Pullman, 312 U.S.

at 500). Second, abstention prevents “needless friction

with state policies.” Id. These twin aims reflect the federal

judiciary’s “scrupulous regard for the rightful

independence of the state governments.” Pullman, 312

U.S. at 501 (cleaned up). They also promote “principles of

comity and federalism by avoiding needless federal

intervention into local affairs,” Pustell v. Lynn Pub. Sch.,

18 F.3d 50, 53 (1st Cir. 1994), and reflect federal courts’

longstanding reluctance to reach weighty constitutional

questions where a decision grounded in statute will do. See

Allstate Ins. Co. v. Serio, 261 F.3d 143, 149–50 (2d Cir.

2001) (“It is axiomatic that the federal courts should, where

possible, avoid reaching constitutional questions.”);

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105

(1944) (“If there is one doctrine more deeply rooted than

any other in the process of constitutional adjudication, it is

that we ought not to pass on questions of constitutionality

. . . unless such adjudication is unavoidable.”).

In these respects, the doctrine serves a critical

constitutional and prudential function.

Of course, in deciding whether to abstain, the Court

must exercise the utmost caution. Pullman creates only a

narrow exception to the Court’s otherwise “virtually

unflagging” obligation to decide the cases before it. New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

491 U.S. 350, 359 (1989) (cleaned up). The Supreme Court

has repeatedly emphasized that “abstention is not to be

ordered unless the state statute is of an uncertain nature,

and is obviously susceptible of a limiting construction.”

Zwickler v. Koota, 389 U.S. 241, 251 n.14 (1967).

To balance these considerations, “three ‘exceptional

circumstances’ must be present” before abstention is

appropriate. Farmer, 220 F.3d at 149. The Court must

find: “(1) that uncertain issues of state law underlie the

federal constitutional claims brought in the district court;

(2) that the state law issues are amenable to a state court

interpretation that would obviate the need for, or

substantially narrow, adjudication of the federal claim; and

(3) that important state policies would be disrupted

through a federal court’s erroneous construction of state

law.” Artway v. Attorney General of State of N.J., 81 F.3d

1235, 1270 (3d Cir. 1996) (citation omitted). If all three

circumstances are present, the district court is then

required to determine, in its discretion, “whether

abstention is appropriate by weighing such factors as the

availability of an adequate state remedy, the length of time

the litigation has been pending, and the impact of delay on

the litigants.” Id. (citation omitted).

Applying these legal principles to the allegations of

the amended complaint, the Court is convinced that it must

abstain from deciding this case under Pullman, at least

until the parallel litigation in the Pennsylvania

Commonwealth Court, and potentially the Pennsylvania

Supreme Court, has resolved.

As discussed below, Plaintiffs’ claims depend on

uncertain questions of state law, arising under a recently

enacted state statute, that challenge Defendants’

purported exercise of their core constitutional authority to

administer elections. How the state courts interpret the

unsettled state-law questions will dramatically alter the

nature and scope of the federal-constitutional claims before

the Court. Many of the federal claims may even be mooted

entirely. If the Court were to act now, it would risk issuing

a decision that is at odds with the state courts’

interpretation of the election code or is an advisory

opinion—the precise risks that Pullman abstention seeks

to mitigate. Given these circumstances, bedrock principles

of federalism and constitutional avoidance favor Pullman

abstention.

I. Pullman’s first prong: uncertainty of

underlying state-law issues.

“For Pullman to apply, the state or local law

underlying the federal constitutional issue must be

uncertain.” Chez Sez III Corp., 945 F.2d at 632. The

“initial inquiry” is whether the language of the state

statute or regulation is “clear and unmistakable.” Id.; see

also Hughes v. Lipscher, 906 F.2d 961, 965 (3d Cir. 1990)

(“The first of the three special factors centers on

uncertainty of the state law. In this case that inquiry

focuses on whether the bulletin’s language is clear and

unmistakable.”).

Here, nearly all of Plaintiffs’ federal-constitutional

claims hinge on violations of the Pennsylvania election

code—and, for the most part, on violations of statutory

language amended by the recently enacted Act 77. To rule

on nearly all of Plaintiffs’ federal (and coextensive state)

constitutional claims, the Court would need to first decide

(1) how to interpret the relevant election-code provisions;

and (2) whether Secretary Boockvar’s guidance violated

each provision as the Court has interpreted it. Only then

would the Court reach the further matter of whether the

Secretary’s guidance, or the counties’ inconsistent

implementation of it, violated the federal Constitution.

Plaintiffs don’t dispute this. Instead, they argue

that the underlying state-law issues are clear. The Court

disagrees. The amended complaint asserts nine separate

counts, but they can be sorted into three overarching

categories. The Court will address each category, and the

statutory provisions they implicate, in turn. As discussed

below, many of the state statutes at issue are either

ambiguous or otherwise subject to competing plausible

interpretations.

A. Claims alleging voter dilution due to

unlawful ballot collection and counting

procedures (Counts I, II, III, VI, VII).

The first category covers claims related to allegedly

unlawful procedures implemented by some Defendants for

the collection and counting of mail-in and absentee ballots.

These include claims related to: (1) Defendants’ uneven use

of “drop boxes” and other satellite ballot-collection sites; (2)

procedures for verifying the qualifications of voters

applying in person for mail-in or absentee ballots; and (3)

rules for counting non-compliant ballots (such as ballots

submitted without a secrecy envelope, without an elector

declaration, or that contain stray marks on the envelope).

In Count I, Plaintiffs allege violations of the

Elections Clause and the related Presidential Electors

Clause of the U.S. Constitution. [ECF 234, ¶¶ 193-205].

Plaintiffs assert that, under these provisions, only the state

legislature may set the time, place, and manner of

congressional elections and determine how the state

chooses electors for the presidency. [Id. at ¶ 196].

In support of this claim, Plaintiffs allege that

Secretary Boockvar’s guidance on the use of mail-in ballot

drop boxes, whether county boards of elections must

independently verify in-person mail-in ballot applications,

and the counting of non-compliant ballots is an executive

overreach, in that the Secretary’s guidance allegedly

violates certain provisions of the election code enacted by

the Pennsylvania General Assembly. [Id. at ¶ 201].

Plaintiffs also claim that the Secretary’s unlawful guidance

has increased the risk of fraudulent or unlawful voting and

infringed on the right to vote, which, they say, amounts to

additional violations of the First and Fourteenth

Amendments to the U.S. Constitution. [Id. at ¶¶ 202-203].

In Count II, Plaintiffs allege a violation of the Equal

Protection Clause under the Fourteenth Amendment.

Plaintiffs assert that the implementation of the foregoing

(i.e., mail-in ballot drop boxes, the verification of mail-in

ballot applications, and the counting of non-compliant

ballots) has been different in different counties, thereby

treating voters across the state in an unequal fashion. [Id.

at ¶¶ 211-213].

In Count III, Plaintiffs assert a violation of the

Pennsylvania State Constitution. Plaintiffs allege that the

same actions and conduct that comprise Counts I and II

also violate similar provisions of the Pennsylvania

Constitution. [Id. at ¶ 220].

Finally, in Counts VI and VII, Plaintiffs allege that

Defendants have violated provisions of the federal and

state constitutions by disregarding the election code’s

notice requirements applicable to “polling places.” [Id. at

¶¶ 237-252]. Plaintiffs allege that the drop boxes are

“polling places,” and thus subject to certain criteria for site

selection and the requirement that county election boards

provide 20 days’ public notice. [Id. at ¶ 240]. Plaintiffs

assert that Defendants’ failure to provide this notice or

select appropriate “polling places” in the primary election,

if repeated in the general election, will create the risk of

voter fraud and vote dilution. [Id. at ¶¶ 243-246].

Before deciding whether any of this alleged conduct

amounts to a constitutional violation, the Court would

have to interpret each of the underlying provisions of the

state election code. In doing so, the Court would have to

answer at least the following unsettled questions of

Pennsylvania state law:

1. Whether delivery “to said county

board of elections” means delivery

to the board’s headquarters or to a

location designated by the board.

Plaintiffs allege that the election code prohibits the

counties from accepting in-person delivery of absentee and

mail-in ballots at locations other than the election board’s

central office or headquarters, such as satellite drop-boxes.

[Id. at ¶¶131-134]. But the statutory language is not so

clear.

The code says only that ballots must be delivered in

person “to said county board of election.” 25 P.S. §

3146.6(a). This language could mean that delivery must be

made to the physical office of the county board’s

headquarters, as Plaintiffs suggest. But it also could mean

what Secretary Boockvar has, at least implicitly,

interpreted it to mean—that ballots may be delivered in-

person to any location designated by the county board.

Separately, the election code also authorizes counties to

“provid[e] such branch offices for the [election] board in

cities other than the county seat, as may be necessary,” 25

P.S. § 2645(b), and that may provide arguable justification

for some or all of the satellite collection locations, as well.

Plaintiffs argue that because the code provides that

the “address of the elector’s county board of election must

be printed on the outer envelope” of the ballot, it is clear

that “the only place where the absentee or mail-in ballot

can be mailed or delivered is to the address of the elector’s

county board of election.” [ECF 320, p. 57 (cleaned up)].

But the language Plaintiffs cite does not necessarily lead to

that conclusion. It could just be that the physical address

of the county board of election must be included in case the

elector wants to mail in the ballot, rather than deliver it in

person. Without the physical address, mail service would

not be possible. Including that address, on its face, does

not preclude an elector dropping off the ballot in person at

another designated location, if he or she so chooses. Such

an alternative reading at least arguably gives effect to the

address language while preserving the crux of Secretary

Boockvar’s interpretation.

Unfortunately, since Act 77 is new, no state court

has interpreted this language. Cf. Chez Sez III Corp., 945

F.2d at 632 (affirming abstention under Pullman where

ambiguous “sections of the Union Township Zoning

Ordinance” had “never been interpreted by the New Jersey

courts”). And under Pennsylvania law, Secretary

Boockvar’s interpretation is arguably afforded some

deference (though Plaintiffs dispute that). See Banfield v.

Cortes, 110 A.3d 155, 174 (Pa. 2015) (“As the question of

whether an electronic system has adequate security

measures against tampering necessarily results in a

subjective determination, the Legislature delegated this

discretionary decision to the Secretary, who is the

Pennsylvania’s chief election official. We have previously

held that a reviewing court will ordinarily defer to an

agency’s interpretation of a regulation or a statute it is

charged to enforce.”) (cleaned up).

Given all this, whether delivery of mail-in or

absentee ballots to collection locations, such as satellite

offices or drop boxes, constitutes delivery to the “county

board of elections” is unclear and unsettled under the

election code. Cf. Chez Sez III Corp., 945 F.2d at 632 (“[I]t

is unclear whether the term [‘motion picture theater’]

encompasses only large, auditorium-style uses, as the

Board found, or whether it could instead be read more

broadly to also include private video viewing booths of the

type involved here.”).

2. Whether ballots submitted without

a “secrecy envelope” may be

counted.

A novel question of state law is also presented by

Plaintiffs’ allegation that Defendants have violated the

election code by authorizing the counting of so-called

“naked ballots”—ballots submitted by voters without being

placed in the required “secrecy envelope.” [ECF 234,

¶¶153-161]. While Plaintiffs rely on 25 P.S. § 3146.6(a) and

§ 3146.8(g)(4)(i)-(iv) for this argument, those provisions

only describe the procedures for placing ballots in secrecy

envelopes and setting aside ballots when the envelopes

contain any “mark or symbol which reveals the identity of

the elector, the elector’s political affiliation or the elector’s

candidate preference[.]”

The issue raised by Plaintiffs’ claims—whether to

count mail-in or absentee ballots not placed in secrecy

envelopes—is not addressed by these provisions. This

contrasts with other provisions of the election code

applicable to provisional ballots, which specifically direct

that such ballots will not be counted without a secrecy

envelope. See 25 P.S. § 3050(a.4)(5)(ii)(C) (“A provisional

ballot shall not be counted” if “a provisional ballot envelope

does not contain a secrecy envelope[.]”). This difference

could suggest a contrary interpretation, since it seems “the

legislature knew how to specify unambiguously” that

ballots should not be counted without secrecy envelopes

and yet “did not do so with regard to” mail-in ballots.

Monoson v. United States, 516 F.3d 163, 167 (3d Cir. 2008).

In opposing abstention, Plaintiffs argue that the

statutory language is clear that the requirement of the

secrecy envelope is mandatory, and therefore a ballot that

is not placed inside one is void and should not be counted.

[ECF 320, pp. 56-58]. To support this argument, Plaintiffs

rely heavily on In re Canvass of Absentee Ballots of Nov. 4,

2003 Gen. Election, 843 A.2d 1223 (Pa. 2004). In Absentee

Ballots, the court held 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.” Id. at 1234. That case, however, is potentially

distinguishable for at least two reasons. First, the issue in

Absentee Ballots was whether third parties could deliver

the ballots of non-disabled voters, not whether naked

ballots could be clothed and subsequently counted. Id. at

1225, 1232. Second, when the court decided Absentee

Ballots, Sections 3050 (the provisional ballot provision

cited above) and 3150.16(a) (authorizing voting by mail-in

electors) of the code had not yet been enacted.

Thus, an interpretation contrary to the one

Plaintiffs put forth remains at least plausible on its face.

The state courts should therefore have an opportunity to

weigh in on the matter.

3. Whether a drop box or other mail-

in ballot collection site must

satisfy the site and notice criteria

applicable to “polling places.”

Another unsettled question arises from Plaintiffs’

somewhat novel allegation that Defendants’ authorization

of drop-boxes and other ballot-collection sites violates

certain statutory site-selection and notice criteria that

apply to “polling places.” [ECF 234, ¶ 132 (citing 25 P.S. §§

2726, et seq.)].

Initially, the election code’s definition of “polling

place” is “the room provided in each election district for

voting at a primary or election.” 25 P.S. § 2602(q). The

question then becomes whether a drop box where mail-in

ballots are collected is “the room provided in each election

district for voting.” If it isn’t, then the criteria for “polling

places” wouldn’t apply.

On one hand, the election code’s provisions

concerning “polling places” all seem to suggest locations

where electors can go to cast their votes in person—i.e.,

rooms with voting machines. See, e.g., 25 P.S. § 2730(a)

(“The county board of elections shall cause all rooms used

as polling places to be suitably provided with heat and

light, and, in districts in which ballots are used, with a

sufficient number of voting compartments or booths with

proper supplies, in which electors may conveniently mark

their ballots, with a curtain, screen or door in the upper

part of the front of each compartment or booth so that in

the marking thereof they may be screened from the

observation of others.”).

On the other hand, the election code does

contemplate “portable or movable polling places,” 25 P.S. §

2727(c), and so, arguably, one might be able to construe

the statute to conclude that mobile drop boxes (or at least

certain kinds of mobile drop boxes) may fall within the

definition of “polling place,” and thus need to comply with

the relevant criteria.4 At a minimum, then, there are two

plausible, competing interpretations of the state statute,

which can be narrowed in a way that would impact the

constitutional claims regarding notice of drop boxes. Cf.

Georgevich, 772 F.2d at 1090 (“We believe, however, that

as counsel for the defendants insists, the parole legislation

can and must be read as a whole. When so read, it is

possible to construe the statutory scheme to afford

procedural safeguards to the plaintiff class. At the very

minimum, the coexistence of these two plausible

interpretations gives rise to an ambiguity.”).

4. Whether the election code requires

verification of voter qualifications

when accepting in-person, mail-in

ballot applications.

Finally, Plaintiffs allege that several counties

violated the election code when they followed Secretary

Boockvar’s guidance and “approved all applications for

absentee or mail-in ballots without performing the

requisite verification of the applicant’s qualifications or

identification by comparison to the applicant’s permanent

registration card.” [ECF 234, ¶ 121]. According to

Plaintiffs, Secretary Boockvar’s guidance that all

applications should be accepted unless someone makes a

“bona fide objection” contravenes Act 77’s requirement that

counties independently verify the status and eligibility of

each applicant. [Id. at ¶¶ 199-203]. Defendants and

Intervenors counter that the guidance only applied to in-

person applications, and that there is at least one plausible

4 Adding to the uncertainty of this issue is how the law

would treat drop boxes that are located at polling places.

interpretation of the election code that supports finding

that the verification requirements do not apply to such

applications.

Again, this issue turns on competing plausible

interpretations of unsettled state law. Section 3146.5(b)(2)

of the election code states that “[n]otwithstanding any

other provisions of this act . . . [i]f a voter presents the

voter’s application within the county board of elections’

office . . . a county board of elections may not deny the

voter’s request to have the ballot presented to the voter

while the voter is at the office unless there is a bona fide

objection to the absentee or mail-in ballot application.” 25

P.S. § 3146.5(b)(2).

But, later, the election code states that “[t]he county

board of elections, upon receipt of any application of a

qualified elector under section 1301-D, shall determine the

qualifications of the applicant by verifying the proof of

identification and comparing the information provided on

the application with the information contained on the

applicant’s permanent registration card.” 25 P.S. §

3150.12b(a) (emphasis added).

There is some unresolved tension between these two

provisions. See Georgevich, 772 F.2d at 1091 (“The need for

state court interpretation results not only from unclear

language on the face of a single statute, but also from the

juxtaposition of clear, but contradictory state provisions.”);

United Servs. Auto. Ass’n v. Muir, 792 F.2d 356, 361 (3d

Cir. 1986) (“A statute is unsettled for Pullman purposes

when two of its provisions are contradictory.”).

On one hand, the election code mandates that,

“[n]otwithstanding any other provisions” in the code, when

a voter applies in person for a mail-in or absentee ballot,

the county board of elections must provide the ballot “while

the voter is at the office” unless a “bona fide objection” is

made. See 25 P.S. § 3146.5(b)(2). This seems consistent

with Secretary Boockvar’s guidance. But on the other

hand, the election code states that upon receipt of “any

application,” the counties “shall” verify the elector’s

identification and qualifications before approving the

application and providing the ballot. See 25 P.S. §

3150.12b(a). This phrasing comes closer to the affirmative

“duty to verify” that Plaintiffs assert the county boards

have. And the term “any application” would seem to

include any “in-person applications.”

Pennsylvania courts usually take pains to ensure

that “[e]very statute” is “construed, if possible, to give effect

to all its provisions.” 1 Pa. Cons. Stat. § 1921(a). Keeping

that canon in mind, it is plausible that the Commonwealth

Court or Pennsylvania Supreme Court might interpret

those dueling provisions so that the arguable duty of

verification does not apply to “in-person” applications. If

they did, Plaintiffs’ application-verification claims would

be significantly narrowed, if not eliminated altogether.

B. Poll-watching claims (Counts IV, V).

The second category of claims consists of challenges

to the constitutionality of election code provisions related

to poll watchers.

In Count IV, Plaintiffs allege violations of the First

and Fourteenth Amendments. These claims have both a

facial and an as-applied component. [ECF 234, ¶ 230 (“On

its face and as applied to the 2020 General Election . . .”)].

First, Plaintiffs allege that 25 P.S. § 2687 is facially

unconstitutional because it “arbitrarily and unreasonably”

limits poll watchers to serving only in their county of

residence and to monitoring only in-person voting at the

polling place on election day. [Id. at ¶ 226]. Second,

Plaintiffs allege that the same provision is unconstitutional

as applied in the context of Pennsylvania’s new vote-by-

mail system, where Plaintiffs claim that these poll-watcher

restrictions, combined with insecure voting procedures,

create unacceptable risks of fraud and vote dilution. [Id.

at ¶ 228]. Plaintiffs’ contention is that these limitations

make it “functionally impracticable” for candidates to

ensure that they have poll watchers present where ballots

are deposited and collected given the widespread use of

remote drop boxes and other satellite collection sites. [Id.].

Count V is the same as Count IV, but alleges that

the same poll-watching restrictions violate the

Pennsylvania Constitution, too. [Id. at ¶ 234].

None of Plaintiffs’ poll-watching claims directly ask

the Court to construe an ambiguous state statute. But the

scope and viability of Plaintiffs’ as-applied challenges turns

directly on the Court’s resolution of the disputed issues

discussed above.

That is, the constitutional harm Plaintiffs allege

here turns on their inability to recruit enough resident poll-

watchers, or distribute them to all key locations within

each county, to protect against fraudulent or “invalid”

voting that Plaintiffs say is associated with the use of

“unmonitored” drop-box sites, the counting of ballots

without secrecy envelopes, and the other supposed ill-

effects of Defendants’ policies. See, e.g., [ECF 234, ¶ 228

(“By failing to allow Pennsylvania voters to serve as poll

watchers in counties other than their county of residence

or monitor the drop off of absentee and mail-in ballots,

Election Code Section 417, 25 P.S. § 2687, makes it

extremely difficult or functionally impracticable for

candidates and parties to ensure that they have poll

watchers at all locations where ballots are being cast in

connection with the November 2020 General Election –

including remote drop boxes (which Plaintiffs contend are

not permitted under the Election Code) – thus fostering an

environment that encourages ballot fraud or tampering,

and preventing the Commonwealth, candidates, and

political parties from ensuring that the General Election is

free, fair, and transparent.”)].

If the state courts narrowly interpret the election

code to forbid drop boxes or the counting of ballots

submitted without secrecy envelopes, any alleged need for

expansive poll-watching—and any hardship imposed by

the county-residency restriction—may be eliminated. If

that happens, Plaintiffs might well obtain meaningful

relief on statutory grounds, and this Court would not have

to decide whether authorizing poll-watching by non-

residents is constitutionally necessary in this context.5

5 Unlike Plaintiffs’ as-applied challenges to the poll-

watching restrictions, Plaintiffs’ facial challenge does not

turn on or require interpretation of any ambiguous state

statute. To resolve that piece of the puzzle, the Court need

only decide if a county-residency restriction on poll

C. In-person voting claims (Counts VIII, IX).

In Counts VIII and IX, Plaintiffs assert that the

election code allows an elector that has requested a mail-in

ballot to still vote in person so long as he remits his spoiled

ballot. [Id. at ¶¶ 253-267]. Plaintiffs assert that during

the primary, some counties allowed such electors to vote in

person, while others did not, and they fear the same will

happen in the general election. [Id. at ¶ 255]. Plaintiffs

also assert that some counties allowed electors who had

voted by mail to vote in person, in violation of the election

code. [Id. at ¶¶ 257-258]. Plaintiffs argue that this conduct

also violates the federal and state constitutional provisions

concerning the right to vote and equal protection. [Id. at

¶¶ 261, 265].

These claims would not require the Court to resolve

contested matters of state law before reaching the relevant

constitutional question. Indeed, the relevant statutory text

and the Secretary’s guidance are clear (although the

parties dispute whether it applies to the upcoming general

election). But as explained below, the fact that these

discrete claims are unambiguous does not preclude

abstention.

II. Pullman’s second prong: constitutional

avoidance by resolving state-law questions.

The second prong of Pullman asks whether allowing

state courts to resolve the unsettled state-law questions

would avoid or substantially narrow the plaintiff’s federal-

constitutional claims. This prong recognizes that “where

state law appears to resolve the sole issue in the case to

plaintiffs’ satisfaction, and where the parties’ only real

disagreement concerns the propriety of federal

watching is per se unconstitutional. However, as discussed

in Section IV below, the Court will nonetheless exercise its

inherent authority to stay this and a few other discrete

aspects of Plaintiffs’ claims to which Pullman abstention

does not independently apply. Simply put, because almost

all of Plaintiffs’ case is subject to Pullman abstention, it

makes little sense to proceed in piecemeal fashion on the

few parts that are not. And, in any event, Plaintiffs have

not requested that the Court proceed in such a fashion.

intervention, the case may be more appropriately resolved

in state court.” Georgevich, 772 F.2d at 1094–95.

Here, as noted above, any analysis of Plaintiffs’

claims would begin with an interpretation of the election-

code provisions that Plaintiffs allege Defendants have

violated. But it could also end there.

In fact, any state-court resolution of those issues

would eliminate the need for this Court to decide whether

the alleged statutory violations infringe any constitutional

right. That’s because a state court could grant Plaintiffs

the exact relief they seek here by enjoining any conduct

that violates the election code, without further

consideration of whether that conduct also violates the

Constitution. “In this sense the plaintiffs hoist on their

own petard.” Phila. City Council v. Schweiker, 40 F. App’x

672, 677 (3d Cir. 2002) (“Throughout their complaint

[plaintiffs] allege that Acts 46 and 83 violate numerous

state law and constitutional provisions. If this is indeed so,

then the acts are illegal under state law or unconstitutional

under the state constitution, and a federal court would not

need to decide whether they violate the federal

Constitutions.”); see also Pierce v. Allegheny Cnty. Bd. Of

Elections, 324 F. Supp. 2d 684, 706 (W.D. Pa. 2003) (Conti,

J.) (“[I]f the state courts find the phrase ‘in person’ in

section 3146.6(a) is mandatory, the policies at issue may be

determined to be invalid under state law and, thus, the

constitutional issues need not be reached.”).

By way of example, if the state courts find that the

election code must be narrowly construed to allow mail

delivery only to the physical locations of the county election

boards’ headquarters (and not to drop boxes), then

Plaintiffs would, in effect, prevail, obviating the need for

federal-court relief. By contrast, if the state courts

interpret state law to allow drop boxes, the federal claims

before this Court materially change—the question then

becomes more of a facial attack on the statute and whether

Pennsylvania law’s allowance of drop boxes violates the

federal constitution.6 And in that circumstance, the main

6 Plaintiffs have not asserted facial challenges to the

election code in the alternative to their claims that

Secretary Boockvar’s guidance violates the election code

thrust of Plaintiffs’ narrative—that of a rogue Secretary

exercising powers the legislature did not give her—would

no longer be viable. Thus, the danger in the Court deciding

this issue now is that it could end up issuing a wholly

advisory opinion, or an opinion addressing a materially

different claim than the one that will ultimately remain

after the state courts weigh in.

This risk is particularly acute in the context of two

species of claims here. Recall that one type of claim that

Plaintiffs raise is under the Elections Clause of the

Constitution, accusing Secretary Boockvar of issuing

instructions at odds with the election code, and thus

overstepping her role as an executive. This federal-

constitutional claim essentially asks the Court to consider

whether Secretary Boockvar violated state law. And that

claim may change if the state courts either adopt

narrowing constructions of the unsettled law above or,

instead, determine that Secretary Boockvar’s guidance is

consistent with the election code.

The other claims that are particularly susceptible to

narrowing are Plaintiffs’ claims under the equal-protection

clause. Those claims are such that the purported

constitutional harm is the uncertainty caused by the

absence of a definitive interpretation of state law. That is,

assuming Plaintiffs’ equal-protection theory is legally

viable, any such violation could be cured by adopting either

Plaintiffs’ interpretation or Defendants’ interpretation of

each disputed election-code provision. So long as that

interpretation is shared and applied equally by all of

Pennsylvania’s counties, there would be no uneven

treatment.

Under similar circumstances, other district courts

have found that Pullman’s second prong is satisfied, and

(other than the challenge to the poll-watching residency

requirement, discussed above). Thus, the Court could not,

at this juncture, avoid the need for abstention by assuming

that Secretary Boockvar’s interpretation of the election

code is correct and asking whether, if it is, that would

violate the Constitution. In any event, absent a definitive

interpretation of the election code, such a decision would be

effectively advisory.

ultimately abstained, where state-court remedies of

election-law violations were enough to avoid the need for

federal-constitutional adjudication. See Fuente v. Cortes,

207 F. Supp. 3d 441, 450 (M.D. Pa. 2016) (“If the state court

concurs with Plaintiff’s interpretation of the statute and

finds that a presidential primary is not within the purview

of § 2911(e)(5), then the state law does not apply to Plaintiff

whatsoever, and the basis for Plaintiff’s constitutional

claim would be eliminated.”) (cleaned up); Pierce, 324 F.

Supp. 2d at 704 (“[T]he construction of the absentee ballot

provision at issue by Pennsylvania courts as either

mandatory or directory, as discussed in this opinion, could

obviate the need to determine whether there has been a

violation of equal protection under the Fourteenth

Amendment.”); NAACP Phila. Branch v. Ridge, No. 00-

2855, 2000 WL 1146619, at *6 (E.D. Pa. Aug. 14, 2000)

(abstaining from interpreting a statute that was subject to

a “saving construction” because “a state court may conclude

that the PVRA precludes all ex-felons from voting during

the five year period following their incarceration”).

The Court agrees with the foregoing cases and finds

that the second prong of the doctrine is satisfied here.

III. Pullman’s third prong: erroneous reading of

the statute disrupts important state policies.

The final prong of Pullman abstention asks whether

“important state policies would be disrupted” if this Court

were to erroneously interpret the unsettled state law.

Here, they clearly would.

To begin with, important state policies will be

implicated if this Court intervenes in Pennsylvania’s

election on federal-constitutional grounds. Ultimately,

Pullman abstention is a doctrine “rooted in basic principles

of federalism.” Serio, 261 F.3d at 150. And under the

Constitution, the critical responsibility of administering

elections is reserved for the states. U.S. Const. art. I, § 4,

cl. 1. In discharging this duty, the powers of state

government are at their apex. States have considerable

discretion to conduct elections as they see fit, and federal

courts intervene only when the decisions of state officials

threaten to infringe the fundamental right to vote or deny

citizens the equal protection of law. See Griffin v. Roupas,

385 F.3d 1128, 1130 (7th Cir. 2004) (explaining that the

Constitution “confers on the states broad authority to

regulate the conduct of elections, including federal ones”);

Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773, 775

(5th Cir. 2000) (“[A] state’s discretion and flexibility in

establishing the time, place and manner of electing its

federal representatives has only one limitation: the state

system cannot directly conflict with federal election laws

on the subject.”).

The dictates of federalism require no less. In our

constitutional order, “[s]tates are free to serve as

laboratories of democracy.” Evenwel v. Abbott, 136 S. Ct.

1120, 1141 (2016) (Thomas, J. concurring) (cleaned up).

And in this arena, “[c]ommon sense, as well as

constitutional law, compels the conclusion” that states

must be free to engage in “substantial regulation of

elections” if “some sort of order, rather than chaos, is to

accompany the democratic processes.” Burdick v. Takushi,

504 U.S. 428, 433 (1992) (citation omitted). In practice,

this means that “[f]ederal law . . . generally defers to the

states’ authority to regulate the right to vote.” Ohio

Democratic Party v. Husted, 834 F.3d 620, 626 (6th Cir.

2016) (citation omitted).

This case strikes at the very heart of that authority.

As has been discussed, Plaintiffs’ constitutional claims

presume the alleged violation and uneven enforcement of

state election statutes by the state officials charged with

interpreting and enforcing them. Important state policies

and constitutional powers are clearly in play.

It is also clear that federal intervention could

“disrupt” Pennsylvania’s exercise of this core,

constitutional power. A federal-court constitutional

decision, premised on an erroneous interpretation of

ambiguous state law, coming less than three months before

a contentious national election, amid a global pandemic,

would risk electoral chaos and undermine the integrity of

the democratic process in the minds of voters. Cf. Fuente,

207 F. Supp. 3d at 450 (“An erroneous decision so

temporally close to the election could seriously disrupt

Pennsylvania’s election process. Furthermore, in the past,

courts have held that a mistaken interpretation of

Pennsylvania’s election law could also damage the

integrity of that election process.”); Pierce, 324 F. Supp. 2d

at 704 (“[A]n erroneous construction of the absentee ballot

provision of the election code could disrupt extremely

important state policies concerning voting rights.”); Ridge,

2000 WL 1146619, at *7 (“The court finds that voting

regulations implicate important state policies and that an

erroneous construction of the PVRA would be disruptive.”).

Put simply, the path Plaintiffs walk here is rife with

the “needless friction” abstention aims to avoid. Fuente,

207 F. Supp. 3d at 452. What they are asking is for this

Court “to find that state officials have wrongly interpreted

state law, and to replace [the officials’] interpretations with

[Plaintiffs’] own.” Id. “This role is not [the Court’s] to

assume where, as here, an alternative appropriately exists

with the Pennsylvania state courts.” Id.; see also Pullman,

312 U.S. at 498 (explaining that where a federal-

constitutional claim “touches a sensitive area of social

policy upon which the federal courts ought not to enter

unless no alternative to its adjudication is open,” the need

for constitutional adjudication should be “avoided if a

definitive ruling on the state issue would terminate the

controversy”).

For these reasons, the third prong of Pullman is also

satisfied.

IV. Discretionary considerations under Pullman.

“Having found that all three factors necessary for

this Court to abstain are satisfied,” the Court must now

make “a discretionary determination of whether abstention

is appropriate given the particular facts of this case.”

Fuente, 207 F. Supp. 3d at 450. In making its

determination, a court may “weigh[] such factors as the

availability of an adequate state remedy, the length of time

the litigation has been pending, and the impact of delay on

the litigants.” Id. at 451. At this stage of the analysis,

abstention is appropriate “absent significant reasons to the

contrary[.]” Chez Sez III Corp., 945 F.2d at 633.

Plaintiffs argue that because the general election is

imminent, the Court should not exercise its discretion to

abstain. [ECF 320, p. 60]. They also argue that, even if

abstention is appropriate, this Court has an independent

obligation to decide all requests for preliminary relief. [Id.

at pp. 59-60]. Neither of these arguments is well-taken.

The Court acknowledges that the imminence of the

general election weighs in favor of this Court acting as

quickly as possible. But Plaintiffs have at least three

options to obtain substantial relief through speedy

resolution of the unsettled state-law questions.

First, there is pending litigation in Pennsylvania

state court that appears likely to resolve many of the

unsettled state-law issues. The Pennsylvania Democratic

Party filed a lawsuit in Commonwealth Court, which is

now pending. [ECF 291-1]. Certain Plaintiffs here have

moved to intervene in that case and have been allowed

leave to file amici briefs. [ECF 264-2]. The issues in that

case involve two of the critical unsettled state-law issues

noted above: (1) whether Act 77 requires county election

boards to count non-compliant ballots, such as those not in

the secrecy envelope; and (2) whether the county board of

elections office is the only location to which mail-in ballots

may be delivered, or whether drop boxes are permitted

under Act 77. See, e.g., [ECF 291-1, pp. 46-55]. On August

16, 2020, Secretary Boockvar applied to the Pennsylvania

Supreme Court to exercise jurisdiction in the first instance

over this case. [ECF 388-1]. Thus, soon, the Pennsylvania

state courts will be able to provide conclusive

interpretations of the state-law issues that serve as the

basis for many of Plaintiffs’ claims here.7

7 Another claim in the state case is whether the poll-

watching residency requirement violates the state and

federal constitutions—which is also one of the claims here.

[ECF 264-1, ¶¶ 142-161]. Thus, there is the potential for

an inconsistent decision between this Court and the

Pennsylvania Supreme Court if this Court acts now. While

the risk of an inconsistent judgment isn’t usually the main

concern of Pullman abstention, it is a factor to consider

generally in the Court’s exercise of its discretion to abstain.

See Chiropractic Am. v. Lavecchia, 180 F.3d 99, 103 (3d Cir.

1999) (“The various types of abstention are not rigid

pigeonholes into which federal courts must try to fit cases.

Rather, they reflect a complex of consideration designed to

Second, Plaintiffs certainly can file their own case in

state court to have the state courts interpret the unsettled

state-law issues. In fact, Plaintiffs will now have a head

start in any state-court proceeding because this Court

ordered expedited discovery here, which is substantially

complete and will be equally applicable in any state-court

proceeding. [ECF 124, pp. 4, 6 (“All written discovery

requests must be served by July 24, 2020”; “All responses

to written discovery, including producing all items and

documents, shall be made by August 5, 2020”; “All fact-

witness depositions must be completed by August 26,

2020”; “All affirmative expert reports shall be completed

and simultaneously produced by August 12, 2020.

Rebuttal expert reports shall be completed and produced

by August 19, 2020. All expert depositions shall be

completed by August 26, 2020.”)]; [ECF 374, p. 2

(“Plaintiffs shall provide supplemental responses and

documents” responsive to certain written discovery

requests “no later than August 14, 2020.”)].

Third, Plaintiffs can also appeal this Court’s

abstention ruling to the Third Circuit on an expedited

basis, and, as part of any appeal, seek certification of any

unsettled and ambiguous state-law questions that have not

otherwise been raised in the pending Commonwealth

Court case.8 Abstention is, no doubt, a “blunt

instrument”—which is why certification of thorny state-

soften the tensions inherent in a system that contemplates

parallel judicial processes.”) (citation omitted).

8 An order staying a case based on Pullman abstention is

immediately appealable under the collateral-order

doctrine. See Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 712–13 (1996) (holding that an abstention-based

remand to state court was immediately appealable under

collateral order doctrine); Schweiker, 40 F. App’x at 674

(“Under our jurisprudence an abstention-based stay order

can be a final order under § 1291 even when the District

Court retains jurisdiction.”). And the Third Circuit’s local

rules allow parties to file applications to expedite appeals.

3d Cir. L.A.R. 4.1 (2011) (“A party who seeks to expedite a

case must file a motion within 14 days after the opening of

the case setting forth the exceptional reason that warrants

expedition.”).

law questions is oftentimes preferable. Expressions Hair

Design v. Schneiderman, 137 S. Ct. 1144, 1156–57 (2017)

(Sotomayor, J., concurring). While this Court has no

authority to certify state-law questions to the

Pennsylvania Supreme Court, the Third Circuit does. See

Pa. R.A.P. 3341(a)(2) (“[A]ny of the following courts may

file a petition for certification with the Prothonotary of the

Supreme Court: (1) The United States Supreme Court; or

(2) Any United States Court of Appeals.”).

As for Plaintiffs’ argument that the Court, even if it

abstains, must still decide any motions seeking

preliminary relief, that misses the mark. True, if Plaintiffs

had filed a motion for a preliminary injunction, the Court

would have likely been required to rule on it before

abstaining. See, e.g., Chez Sez III Corp., 945 F.2d at 634

n.4 (noting that the district court had to consider

appellants’ request for preliminary relief even though the

court decided to abstain under the Pullman doctrine);

Pierce, 324 F. Supp. 2d at 704 (“Notwithstanding a decision

to abstain on the merits, this court is still obliged to

consider plaintiffs’ request for preliminary relief.”)

(citations omitted).

But Plaintiffs didn’t file one. Plaintiffs intentionally

opted to forgo seeking any preliminary provisional relief,

instead requesting a speedy hearing for declaratory relief

under Rule 57. [ECF 6, ¶ 9 n.3 (“Plaintiffs recognize that

the current length of time until the upcoming 2020 General

Election counsels against the filing of a preliminary

injunction motion if other means of case expedition will

lead to the necessary relief in a timely manner. Thus, to

conserve judicial resources, Plaintiffs are attempting to

meet that need by way of a speedy declaratory judgment

hearing and expedited discovery.”)].

A request for declaratory relief is a final adjudication

on the merits, not a request for preliminary relief. See

Cnty. of Butler v. Wolf, No. 20-677, 2020 WL 2769105, at *5

(W.D. Pa. May 28, 2020) (Stickman, J.) (“Contrary to a

request for preliminary injunctive relief, the entry of a

declaratory judgment is a complete and final order.”)

(citing Henglein v. Colt Indus. Operating Corp., 260 F.3d

201, 211 (3d Cir. 2001)). Plaintiffs’ deliberate choice on

how to proceed obviates the Court’s need to take any

immediate action. See Fuente, 207 F. Supp. 3d at 453

(“[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, as indeed no motion

has even been filed for such relief.”) (cleaned up).

Finally, there’s one more issue about this Court’s

discretion that no party has raised. What to do about some

of the stray claims or sub-parts of the claims that don’t

concern unsettled questions of state law? While what

appear to be the main claims in this case resolve around

unsettled state-law questions, a few don’t.

Specifically, Counts VIII and IX concern Defendants’

allegedly permitting improper provisional voting by voters

who requested mail-in or absentee ballots. As mentioned

above, there are no real ambiguities of state law underlying

these claims, and so no real reason to abstain from deciding

these claims under Pullman.

The same is true of one subset of Plaintiffs’ voter-

dilution claims. As a narrow aspect of Counts I-III,

Plaintiffs allege that third-party delivery of mail-in ballots

for non-disabled voters is clearly forbidden by the election

code, and that Delaware County allowed third-party

delivery in the primary election and is likely to do so in the

general election. The Pennsylvania Supreme Court has

already clearly spoken to this issue, so it is not unsettled.

See Absentee Ballots, 843 A.2d at 1234 (“For the forgoing

reasons, we 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.”).

Likewise, Plaintiffs’ facial challenge to the poll-

watching residency provision does not require resolution of

any real thorny issues of state law. The Court could

interpret the unambiguous state statute on its face and

judge it against the Constitution.

Even though the above subset of claims may not

independently require the Court to abstain, the Court will

nonetheless stay the entire case. This is so for two reasons.

First, typically, when a court is confronted with

some claims that implicate Pullman principles, the court

has the authority and discretion to stay the entire action.

This is consistent with the Supreme Court’s and Third

Circuit’s instructions that Pullman abstention is

appropriate where construction of a state statute may even

“in part” avoid the necessity of federal-constitutional

adjudication. Farmer, 220 F.3d at 149 (“[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.”) (quoting

Bellotti v. Baird, 428 U.S. 132, 147 (1976) (emphasis

added)). As such, staying the entire case here based on the

existence of some Pullman-implicated claims is consistent

with, and fully within, the Court’s discretion. And in any

event, Plaintiffs have not asked the Court to proceed in a

piecemeal fashion.

Second, staying the entire case here, as opposed to

carving out aspects of it, is consistent with the Court’s

broad discretion to manage its docket. See Cheyney State

Coll. Faculty v. Hufstedler, 703 F.2d 732, 737 (3d Cir. 1983)

(“[T]he power to stay proceedings is incidental to the power

inherent in every court to control the disposition of the

causes on its docket with economy of time and effort for

itself, for counsel, and for litigants.”) (cleaned up); Mendez

v. Puerto Rican Intern. Cos., Inc., 553 F.3d 709, 712 (3d Cir.

2009) (decision to stay litigation is “left to the district court

. . . as a matter of its discretion to control its docket”)

(cleaned up).

This discretion includes the inherent authority to

stay proceedings after considering “(1) the promotion of

judicial economy; (2) the balance of harm to the parties;

and (3) the duration of the requested stay.” Cirulli v.

Bausch & Lomb, Inc., No. 08-4579, 2009 WL 545572, at *2

(E.D. Pa. Mar. 4, 2009) (cleaned up). The Court may

exercise this inherent authority sua sponte. See First

Nonprofit Ins. Co. v. Alexander, No. 09-465, 2009 WL

2256473, at *4 (E.D. Pa. July 27, 2009). And federal courts

often do so in cases where a pending state-court action

related to the case will substantially affect it or be

dispositive of the issues. See, e.g., Bechtel Corp. v. Local

215, Laborers’ Int’l Union of N. Am., AFL-CIO, 544 F.2d

1207, 1215 (3d Cir. 1976) (“In the exercise of its sound

discretion, a court may hold one lawsuit in abeyance to

abide the outcome of another which may substantially

affect it or be dispositive of the issues.”); Alexander, 2009

WL 2256473, at *4 (“[T]he Court is . . . empowered to stay

proceedings pending the outcome of related proceedings.”)

(citations omitted).

Here, staying the entirety of the case, as opposed to

proceeding with a speedy hearing on a small subset of

claims (only to have to do it again once the state courts

have weighed in), is a much more efficient use of judicial

resources and the parties’ time, effort, and expense. That

approach minimizes piecemeal litigation (at least in this

Court) and ensures that this Court will know the scope and

nature of Plaintiffs’ constitutional claims before it decides

them.

Given these considerations, a discretionary stay of

those few claims not subject to Pullman abstention is

appropriate. See Farms v. Kuehl Poultry LLC, No. 19-3040,

2020 WL 2490048, at *5 (D. Minn. May 14, 2020) (“As an

alternative to Pullman abstention, Defendants argue that

the case should be stayed as a matter of sound discretion.

The power to stay proceedings is incidental to the power

inherent in every court to control the disposition of the

causes on its docket with economy of time and effort for

itself, for counsel, and for litigants . . . A federal district

court has broad discretion to stay proceedings when doing

so is appropriate to control its docket.”) (cleaned up); Monk

v. Johnson & Johnson, No. 10-4841, 2013 WL 436514, at

*2 (D.N.J. Feb. 5, 2013) (“[T]he Court notes that it possess

the ‘inherent authority’ to impose a stay of these

proceedings. . . . [B]oth the newly asserted and previously

pled claims relate to the same basic events. Permitting

discovery to proceed with respect to the latter while

imposing a stay as to the former, will undoubtedly cause

confusion and conflict over the permissible scope of

discovery.”).

The Court will therefore exercise its discretion to

stay the entire action, rather than just the claims subject

to Pullman, but with one important caveat. If there is a

prolonged delay in the state courts’ adjudication of the

state-law issues that are subject to Pullman abstention,

Plaintiffs may file a motion with this Court to lift the stay

and proceed on any claims not subject to Pullman.

CONCLUSION

For all the reasons discussed, the Court will abstain

under Pullman and stay this case until the Pennsylvania

state courts provide clarity on the unsettled state-law

issues that underly Plaintiffs’ central claims. Defendants’

pending motions will be granted insofar as they request

such abstention. In all other respects, Defendants’ motions

will be stayed along with the rest of these proceedings.

DATED this 23rd day of August, 2020.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge