Petition for Writ of Certiorari — Jim Bognet, et al., Petitioners v. Veronica Degraffenreid, Acting Secretary of Pennsylvania, et al.
Supreme Court briefNov 20, 2020
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Opinion and Judgment of the United
States Court of Appeals for the Third
Circuit, Bognet v. Boockvar, No.
20-3214 (Nov. 13, 2020) . . . . . . . . App. 1
Appendix B Memorandum Order of the United
States District Court for the Western
District of Pennsylvania, Bognet v.
Boockvar, No. 3:20-cv-00215
(Oct. 28, 2020) . . . . . . . . . . . . . . . App. 59
App. 1
APPENDIX A
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-3214
[Filed: November 13, 2020]
JIM BOGNET, DONALD K. MILLER, DEBRA
MILLER, ALAN CLARK, JENNIFER CLARK,
Appellants
v.
SECRETARY COMMONWEALTH OF
PENNSYLVANIA; ADAMS COUNTY BOARD OF
ELECTIONS; ALLEGHENY COUNTY BOARD OF
ELECTIONS; ARMSTRONG COUNTY BOARD OF
ELECTIONS; BEAVER COUNTY BOARD OF
ELECTIONS; BEDFORD COUNTY BOARD OF
ELECTIONS; BERKS COUNTY BOARD OF
ELECTIONS; BLAIR COUNTY BOARD OF
ELECTIONS; BRADFORD COUNTY BOARD OF
ELECTIONS; BUCKS COUNTY BOARD OF
ELECTIONS; BUTLER COUNTY BOARD OF
ELECTIONS; CAMBRIA COUNTY BOARD OF
ELECTIONS; CAMERON COUNTY BOARD OF
ELECTIONS; CARBON COUNTY BOARD OF
ELECTIONS; CENTRE COUNTY BOARD OF
ELECTIONS; CHESTER COUNTY BOARD OF
App. 2
ELECTIONS; CLARION COUNTY BOARD OF
ELECTIONS; CLEARFIELD COUNTY BOARD OF
ELECTIONS; CLINTON COUNTY BOARD OF
ELECTIONS; COLUMBIA COUNTY BOARD OF
ELECTIONS; CRAWFORD COUNTY BOARD OF
ELECTIONS; CUMBERLAND COUNTY BOARD OF
ELECTIONS; DAUPHIN COUNTY BOARD OF
ELECTIONS; DELAWARE COUNTY BOARD OF
ELECTIONS; ELK COUNTY BOARD OF
ELECTIONS; ERIE COUNTY BOARD OF
ELECTIONS; FAYETTE COUNTY BOARD OF
ELECTIONS; FOREST COUNTY BOARD OF
ELECTIONS; FRANKLIN COUNTY BOARD OF
ELECTIONS; FULTON COUNTY BOARD OF
ELECTIONS; GREENE COUNTY BOARD OF
ELECTIONS; HUNTINGDON COUNTY BOARD OF
ELECTIONS; INDIANA COUNTY BOARD OF
ELECTIONS; JEFFERSON COUNTY BOARD OF
ELECTIONS; JUNIATA COUNTY BOARD OF
ELECTIONS; LACKAWANNA COUNTY BOARD OF
ELECTIONS; LANCASTER COUNTY BOARD OF
ELECTIONS; LAWRENCE COUNTY BOARD OF
ELECTIONS; LEBANON COUNTY BOARD OF
ELECTIONS; LEHIGH COUNTY BOARD OF
ELECTIONS; LUZERNE COUNTY BOARD OF
ELECTIONS; LYCOMING COUNTY BOARD OF
ELECTIONS; MCKEAN COUNTY BOARD OF
ELECTIONS; MERCER COUNTY BOARD OF
ELECTIONS; MIFFLIN COUNTY BOARD OF
ELECTIONS; MONROE COUNTY BOARD OF
ELECTIONS; MONTGOMERY COUNTY BOARD
OF ELECTIONS; MONTOUR COUNTY BOARD OF
ELECTIONS; NORTHAMPTON COUNTY BOARD
OF ELECTIONS; NORTHUMBERLAND COUNTY
App. 3
BOARD OF ELECTIONS; PERRY COUNTY BOARD
OF ELECTIONS; PHILADELPHIA COUNTY
BOARD OF ELECTIONS; PIKE COUNTY BOARD
OF ELECTIONS; POTTER COUNTY BOARD OF
ELECTIONS; SCHUYLKILL COUNTY BOARD OF
ELECTIONS; SNYDER COUNTY BOARD OF
ELECTIONS; SOMERSET COUNTY BOARD OF
ELECTIONS; SULLIVAN COUNTY BOARD OF
ELECTIONS; SUSQUEHANNA COUNTY BOARD
OF ELECTIONS; TIOGA COUNTY BOARD OF
ELECTIONS; UNION COUNTY BOARD OF
ELECTIONS; VENANGO COUNTY BOARD OF
ELECTIONS; WARREN COUNTY BOARD OF
ELECTIONS; WASHINGTON COUNTY BOARD OF
ELECTIONS; WAYNE COUNTY BOARD OF
ELECTIONS; WESTMORELAND COUNTY BOARD
OF ELECTIONS; WYOMING COUNTY BOARD OF
ELECTIONS; YORK COUNTY BOARD OF
ELECTIONS
DEMOCRATIC NATIONAL COMMITTEE,
______________________
Intervenor
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 3-20-cv-00215
District Judge: Honorable Kim. R. Gibson
_______________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 9, 2020
App. 4
Before: SMITH, Chief Judge, SHWARTZ and SCIRICA,
Circuit Judges
(Filed: November 13, 2020)
Brian W. Barnes
Peter A. Patterson
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Counsel for Appellants
Mark A. Aronchick
Michele D. Hangley
Robert A. Wiygul
Hangley Aronchick Segal Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
J. Bart DeLone
Sean A. Kirkpatrick
Keli M. Neary
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Dimitrios Mavroudis
Jessica Rickabaugh
Joe H. Tucker, Jr.
Tucker Law Group
Ten Penn Center
1801 Market Street, Suite 2500
Philadelphia, PA 19103
Counsel Secretary Commonwealth of Pennsylvania
App. 5
Elizabeth A. Dupuis
Molly E. Meachem
Babst Calland
330 Innovation Boulevard
Suite 302
State College, PA 16803
Counsel for Armstrong, Bedford, Blair, Centre
Columbia, Dauphin, Fayette, Huntingdon, Indiana,
Lackawanna, Lawrence, Northumberland, Venango,
and York County Boards of Elections
Christine D. Steere
Deasey Mahoney & Valentini
103 Chesley Drive
Lafayette Building, Suite 101
Media, PA 19063
Counsel for Berks County Board of Elections
Edward D. Rogers
Elizabeth V. Wingfield
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Counsel for Delaware County Board of Elections
Stephen B. Edwards
Frank J. Lavery, Jr.
Andrew W. Norfleet
Lavery Law
225 Market Street
Suite 304, P.O. Box 1245
Harrisburg, PA 17108
Counsel for Franklin and Perry County Boards of
Elections
App. 6
Thomas R. Shaffer
Glassmire & Shaffer Law Offices
5 East Third Street
P.O. Box 509
Coudersport, PA 16915
Counsel for Potter County Board of Elections
Marc E. Elias
Uzoma Nkwonta
Courtney A. Elgart
Perkins Coie
700 13th Street, N.W. Suite 800
Washington, D.C. 20005
Counsel for Intervenor Democratic
Committee
National
_____________________
OPINION OF THE COURT
_____________________
SMITH, Chief Judge.
A share in the sovereignty of the state, which is
exercised by the citizens at large, in voting at
elections is one of the most important rights of
the subject, and in a republic ought to stand
foremost in the estimation of the law.—
Alexander Hamilton1
The year 2020 has brought the country
unprecedented challenges. The COVID-19 pandemic,
1
Second Letter from Phocion (April 1784), reprinted in 3 The
Papers of Alexander Hamilton, 1782–1786, 530–58 (Harold C.
Syrett ed., 1962).
App. 7
which began early this year and continues today, has
caused immense loss and vast disruption. As this is a
presidential election year, the pandemic has also
presented unique challenges regarding where and how
citizens shall vote, as well as when and how their
ballots shall be tabulated. The appeal on which we now
rule stems from the disruption COVID-19 has wrought
on the national elections. We reach our decision,
detailed below, having carefully considered the full
breadth of statutory law and constitutional authority
applicable to this unique dispute over Pennsylvania
election law. And we do so with commitment to a
proposition indisputable in our democratic process: that
the lawfully cast vote of every citizen must count.
I.
BACKGROUND & PROCEDURAL HISTORY
A. The Elections and Presidential Electors
Clause
The U.S. Constitution delegates to state
“Legislature[s]” the authority to regulate the “Times,
Places and Manner of holding Elections for Senators
and Representatives,” subject to Congress’s ability to
“make or alter such Regulations.” U.S. Const. art. I,
§ 4, cl. 1. This provision is known as the “Elections
Clause.” The Elections Clause effectively gives state
governments the “default” authority to regulate the
mechanics of federal elections, Foster v. Love, 522 U.S.
67, 69 (1997), with Congress retaining “exclusive
control” to “make or alter” any state’s regulations,
Colegrove v. Green, 328 U.S. 549, 554 (1946). Congress
has not often wielded this power but, “[w]hen exercised,
the action of Congress, so far as it extends and conflicts
with the regulations of the State, necessarily
App. 8
supersedes them.” Ex Parte Siebold, 100 U.S. 371, 384,
399 (1879) (“[T]he Constitution and constitutional laws
of the [United States] are . . . the supreme law of the
land; and, when they conflict with the laws of the
States, they are of paramount authority and
obligation.”). By statute, Congress has set “[t]he
Tuesday next after the 1st Monday in November, in
every even numbered year,” as the day for the election.
2 U.S.C. § 7.
Much like the Elections Clause, the “Electors
Clause” of the U.S. Constitution provides that “[e]ach
State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of [Presidential]
Electors.” U.S. Const. art. II, § 1, cl. 2. Congress can
“determine the Time of chusing the Electors, and the
Day on which they shall give their Votes; which Day
shall be the same throughout the United States.” U.S.
Const. art. II, § 1, cl. 4. Congress has set the time for
appointing electors as “the Tuesday next after the first
Monday in November, in every fourth year succeeding
every election of a President and Vice President.” 3
U.S.C. § 1.
This year, both federal statutes dictate that the day
for the election was to fall on Tuesday, November 3
(“Election Day”).
B. Pennsylvania’s Election Code
In keeping with the Constitution’s otherwise broad
delegation of authority to states to regulate the times,
places, and manner of holding federal elections, the
Pennsylvania General Assembly has enacted a
comprehensive elections code. In 2019, the General
App. 9
Assembly passed Act 77, which (among other things)
established “no-excuse” absentee voting in
Pennsylvania2: all eligible voters in Pennsylvania may
vote by mail without the need to show their absence
from their voting district on the day of the election. 25
Pa. Stat. and Cons. Stat. §§ 3150.11–3150.17. Under
Act 77, “[a]pplications for mail-in ballots shall be
processed if received not later than five o’clock P.M. of
the first Tuesday prior to the day of any primary or
election.” Id. § 3150.12a(a). After Act 77, “a completed
absentee [or mail-in] ballot must be received in the
office of the county board of elections no later than
eight o’clock P.M. on the day of the primary or election”
for that vote to count. Id. §§ 3146.6(c), 3150.16(c).
C. The Pennsylvania Supreme Court Decision
Soon after Act 77’s passage, Donald J. Trump for
President, Inc., the Republican National Committee
(“RNC”), and several Republican congressional
candidates and voters brought suit against Kathy
Boockvar, Secretary of the Commonwealth of
Pennsylvania, and all of Pennsylvania’s county boards
of elections. That suit, filed in the Western District of
Pennsylvania, alleged that Act 77’s “no-excuse” mail-in
voting regime violated both the federal and
Pennsylvania constitutions. Donald J. Trump for Pres.,
Inc. v. Boockvar, No. 2:20-cv-966, 2020 WL 4920952, at
*1 (W.D. Pa. Aug. 23, 2020). Meanwhile, the
Pennsylvania Democratic Party and several
Democratic elected officials and congressional
2
Throughout this opinion, we refer to absentee voting and
mail-in voting interchangeably.
App. 10
candidates filed suit in Pennsylvania’s Commonwealth
Court, seeking declaratory and injunctive relief related
to statutory-interpretation issues involving Act 77 and
the Pennsylvania Election Code. See Pa. Democratic
Party v. Boockvar, 238 A.3d 345, 2020 WL 5554644, at
*1 (Pa. Sept. 17, 2020). Secretary Boockvar asked the
Pennsylvania Supreme Court to exercise extraordinary
jurisdiction to allow it to immediately consider the
case, and her petition was granted without objection.
Id. at *3.
Pending resolution of the Pennsylvania Supreme
Court case, Secretary Boockvar requested that the
Western District of Pennsylvania stay the federal case.
Trump for Pres. v. Boockvar, 2020 WL 4920952, at *1.
The District Court obliged and concluded that it would
abstain under Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496 (1941). See Trump for Pres.
v. Boockvar, 2020 WL 4920952, at *21. The RNC then
filed a motion for limited preliminary injunctive relief
asking that all mailed ballots be segregated, but the
District Court denied the motion, finding that the
plaintiffs’ harm had “not yet materialized in any
actualized or imminent way.” Donald J. Trump for
Pres., Inc. v. Boockvar, No. 2:20-cv-966, 2020 WL
5407748, at *1 (W.D. Pa. Sept. 8, 2020).
With the federal case stayed, the state court matter
proceeded. The Pennsylvania Democratic Party argued
that a combination of the COVID-19 pandemic and
U.S. Postal Service (“USPS”) mail-delivery delays made
it difficult for absentee voters to timely return their
ballots in the June 2020 Pennsylvania primary
election. Pa. Democratic Party, 2020 WL 5554644, at
App. 11
*10. The Pennsylvania Democratic Party claimed that
this voter disenfranchisement violated the
Pennsylvania Constitution’s Free and Equal Elections
Clause, art I., § 5,3 and sought, among other things, a
weeklong extension of the deadline for receipt of ballots
cast by Election Day in the upcoming general
election—the same deadline for the receipt of ballots
cast by servicemembers residing overseas. Id. at *2.
Secretary Boockvar originally opposed the extension
deadline; she changed her position after receiving a
letter from USPS General Counsel which stated that
Pennsylvania’s ballot deadlines were “incongruous with
the Postal Service’s delivery standards,” and that to
ensure that a ballot in Pennsylvania would be received
by 8:00 P.M. on Election Day, the voter would need to
mail it a full week in advance, by October 27, which
was also the deadline to apply for a mail-in ballot. Id.
at *13; 25 Pa. Stat. and Cons. Stat. § 3150.12a(a).
Secretary Boockvar accordingly recommended a
three-day extension to the received-by deadline. Pa.
Democratic Party, 2020 WL 5554644, at *12–13.
In a September 17, 2020 decision, the Pennsylvania
Supreme Court concluded that USPS’s existing delivery
standards could not meet the timeline built into the
Election Code and that circumstances beyond voters’
control should not lead to their disenfranchisement. Pa.
Democratic Party, 2020 WL 5554644, at *18. The Court
accordingly held that the Pennsylvania Constitution’s
3
The Free and Equal Elections Clause of the Pennsylvania
Constitution provides: “Elections shall be free and equal; and no
power, civil or military, shall at any time interfere to prevent the
free exercise of the right of suffrage.” Pa. Const. art. 1, § 5.
App. 12
Free and Equal Elections Clause required a three-day
extension of the ballot-receipt deadline for the
November 3 general election. Id. at *18, *31. All ballots
postmarked by 8:00 P.M. on Election Dayand received
by 5:00 P.M. on the Friday after Election Day,
November 6, would be considered timely and counted
(“Deadline Extension”). Id. at *31. Ballots postmarked
or signed after Election Day, November 3, would be
rejected. Id. If the postmark on a ballot received before
the November 6 deadline was missing or illegible, the
ballot would be presumed to be timely unless “a
preponderance of the evidence demonstrates that it
was mailed after Election Day” (“Presumption of
Timeliness”). Id. Shortly after the ruling, Pennsylvania
voters were notified of the Deadline Extension and
Presumption of Timeliness.
D. Appeal to the U.S. Supreme Court, and This
Litigation
The Republican Party of Pennsylvania and several
intervenors, including the President pro tempore of the
Pennsylvania Senate, sought to challenge in the
Supreme Court of the United States the
constitutionality of the Pennsylvania Supreme Court’s
ruling. Because the November election date was fast
approaching, they filed an emergency application for a
stay of the Pennsylvania Supreme Court’s order
pending review on the merits. The U.S. Supreme Court
denied the emergency stay request in a 4-4 decision.
Republican Party of Pa. v. Boockvar, No. 20A54, 592
U.S. __, 2020 WL 6128193 (Oct. 19, 2020); Scarnati v.
Boockvar, No. 20A53, 592 U.S. __, 2020 WL6128194
(Oct. 19, 2020). After denial of the stay, the petitioners
App. 13
moved for expedited consideration of their petition for
certiorari. In denying that motion, Justice Alito noted
that, per the Pennsylvania Attorney General, all
county boards of elections would segregate ballots
received during the Deadline Extension period from
those received by 8:00 P.M. on Election Day.
Republican Party of Pa. v. Boockvar, No. 20-542, 592
U.S. __, 2020 WL 6304626, at *2 (Oct. 28, 2020) (Alito,
J., statement). Justice Alito later issued an order
requiring that all county boards of elections segregate
such ballots and count them separately. Republican
Party of Pa. v. Boockvar, No. 20A84, 2020 WL 6536912
(Mem.) (U.S. Nov. 6, 2020) (Alito, J.).
In the meantime, on October 22, 2020, three days
after the U.S. Supreme Court declined to stay the
Pennsylvania Supreme Court’s order, Plaintiffs herein
filed this suit in the Western District of Pennsylvania.
Plaintiffs are four registered voters from Somerset
County, Pennsylvania, who planned to vote in person
on Election Day (“Voter Plaintiffs”) and Pennsylvania
congressional candidate Jim Bognet. Defendants are
Secretary Boockvar and each Pennsylvania county’s
board of elections.
Bognet, the congressional candidate, claimed that
the Deadline Extension and Presumption of Timeliness
“allow[] County Boards of Elections to accept votes . . .
that would otherwise be unlawful” and “undermine[]
his right to run in an election where Congress has
paramount authority to set the ‘times, places, and
manner’” of Election Day. Bognet v. Boockvar, No.
3:20-cv-215, 2020 WL 6323121, at *2 (W.D. Pa. Oct. 28,
2020). The Voter Plaintiffs alleged that by voting in
App. 14
person, they had to comply with the single, uniform
federal Election Day deadline, whereas mail-in voters
could submit votes any time before 5:00 P.M. on
November 6. Id. Thus, they alleged, the Pennsylvania
Supreme Court treated them in an arbitrary and
disparate way by elevating mail-in voters to a
“preferred class of voters” in violation of the U.S.
Constitution’s Equal Protection Clause and the single,
uniform, federal Election Day set by Congress. Id. The
Voter Plaintiffs also asserted that counting ballots
received after Election Day during the Deadline
Extension period would unlawfully dilute their votes in
violation of the Equal Protection Clause. Id.
All Plaintiffs sought to enjoin Defendants from
counting ballots received during the Deadline
Extension period. Id. They also sought a declaration
that the Deadline Extension and Presumption of
Timeliness are unconstitutional under the Elections
Clause and the Electors Clause as well as the Equal
Protection Clause. Id. Because Plaintiffs filed their suit
less than two weeks before Election Day, they moved
for a temporary restraining order (“TRO”), expedited
hearing, and preliminary injunction. Id.
The District Court commendably accommodated
Plaintiffs’ request for an expedited hearing, then
expeditiously issued a thoughtful memorandum order
on October 28, denying the motion for a TRO and
preliminary injunction. Id. at *7. The District Court
held that Bognet lacked standing because his claims
were too speculative and not redressable. Id. at *3.
Similarly, the District Court concluded that the Voter
Plaintiffs lacked standing to bring their Equal
App. 15
Protection voter dilution claim because they alleged
only a generalized grievance. Id. at *5.
At the same time, the District Court held that the
Voter Plaintiffs had standing to pursue their Equal
Protection arbitrary-and-disparate-treatment claim.
But it found that the Deadline Extension did not
engender arbitrary and disparate treatment because
that provision did not extend the period for mail-in
voters to actually cast their ballots; rather, the
extension only directed that the timely cast ballots of
mail-in voters be counted. Id. As to the Presumption of
Timeliness, the District Court held that the Voter
Plaintiffs were likely to succeed on the merits of their
arbitrary-and-disparate-treatment challenge. Id. at *6.
Still, the District Court declined to grant a TRO
because the U.S. Supreme Court “has repeatedly
emphasized that . . . federal courts should ordinarily
not alter the election rules on the eve of an election.”
Id. at *7 (citing Purcell v. Gonzalez, 549 U.S. 1 (2006)
(per curiam)). The District Court concluded that with
“less than two weeks before the election. . . . [g]ranting
the relief Plaintiffs seek would result in significant
voter confusion; precisely the kind of confusion that
Purcell seeks to avoid.” Id.
Plaintiffs appealed the denial of their motion for a
TRO and preliminary injunction to this Court on
October 29, less than a week before Election Day.
Plaintiffs requested an expedited briefing schedule:
specifically, their opening brief would be due on
October 30 and the response briefs on November 2.
Notably, Plaintiffs sought to file a reply brief on
November 3—Election Day. Appellants’ Emergency
App. 16
Mot. for Expedited Briefing, Dkt. No. 17. Defendants
opposed the expedited briefing schedule, arguing that
Plaintiffs’ own delay had caused the case to reach this
Court mere days before the election. Sec’y Boockvar’s
Opp. to Appellants’ Emergency Mot. for Expedited
Briefing, Dkt. No. 33. Defendants also contended that
Plaintiffs sought to punish voters by invalidating the
very rules mail-in voters had relied on when they cast
their ballots. Defendants asked us to deny the motion
for expedited briefing and offered to supply us with the
actual numbers of mail-in ballots received during the
Deadline Extension period together with an
approximate count of how many of those mail-in ballots
lacked legible postmarks. Id.
Even had we granted Plaintiffs’ motion for
expedited briefing, the schedule they proposed would
have effectively foreclosed us from ruling on this appeal
before Election Day. So we denied Plaintiffs’ motion
and instead ordered that their opening brief be filed by
November 6. Order, No. 20-3214, Oct. 30, 2020, Dkt.
No. 37. We directed Defendants to file response briefs
by November 9, forgoing receipt of a reply brief.4 Id.
With the matter now fully briefed, we consider
Plaintiffs’ appeal of the District Court’s denial of a
TRO and preliminary injunction.
4
Because we have received comprehensive briefing, and given the
weighty public interest in a prompt ruling on the matter before us,
we have elected to forgo oral argument.
App. 17
II.
STANDARD OF REVIEW
The District Court exercised jurisdiction under 28
U.S.C. § 1331. We exercise jurisdiction under
§ 1292(a)(1).
Ordinarily, an order denying a TRO is not
immediately appealable. Hope v. Warden York Cnty.
Prison, 956 F.3d 156, 159 (3d Cir. 2020). Here,
although Bognet and the Voter Plaintiffs styled their
motion as an Emergency Motion for a TRO and
Preliminary Injunction, see Bognet v. Boockvar, No.
3:20-cv-00215, Dkt. No. 5 (W.D. Pa. Oct. 22, 2020), the
District Court’s order plainly went beyond simply
ruling on the TRO request.
Plaintiffs filed their motion for a TRO and a
preliminary injunction on October 22, along with a
supporting brief. Defendants then filed briefs opposing
the motion, with Plaintiffs filing a reply in support of
their motion. The District Court heard argument from
the parties, remotely, during a 90-minute hearing. The
next day, the District Court ruled on the merits of the
request for injunctive relief. Bognet, 2020 WL 6323121,
at *7. The District Court’s Memorandum Order denied
both Bognet and the Voter Plaintiffs the affirmative
relief they sought to obtain prior to Election Day,
confirming that the Commonwealth was to count
mailed ballots received after the close of the polls on
Election Day but before 5:00 P.M. on November 6.
In determining whether Bognet and the Voter
Plaintiffs had standing to sue, we resolve a legal issue
that does not re-quire resolution of any factual dispute.
Our review is de novo. Blunt v. Lower Merion Sch.
App. 18
Dist., 767 F.3d 247, 266 (3d Cir. 2014). “When
reviewing a district court’s denial of a prelimi-nary
injunction, we review the court’s findings of fact for
clear error, its conclusions of law de novo, and the
ultimate decision . . . for an abuse of discretion.” Reilly
v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017)
(quoting Bimbo Bakeries USA, Inc. v. Botticella, 613
F.3d 102, 109 (3d Cir. 2010)) (cleaned up).
III.
ANALYSIS
A. Standing
Derived from separation-of-powers principles, the
law of standing “serves to prevent the judicial process
from being used to usurp the powers of the political
branches.” Clapper v. Amnesty Int’l USA , 568 U.S. 398,
408 (2013) (citations omitted). Article III of the U.S.
Constitution vests “[t]he judicial Power of the United
States” in both the Supreme Court and “such inferior
Courts as the Congress may from time to time ordain
and establish.” U.S. Const. art. III, § 1. But this
“judicial Power” extends only to “Cases” and
“Controversies.” Id. art. III, § 2; see also Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). To ensure that
judges avoid rendering impermis-sible advisory
opinions, parties seeking to invoke federal judicial
power must first establish their standing to do so.
Spokeo, 136 S. Ct. at 1547.
Article III standing doctrine speaks in jargon, but
the gist of its meaning is plain enough. To bring suit,
you—and you personally—must be injured, and you
must be injured in a way that concretely impacts your
own protected legal interests. If you are complaining
App. 19
about something that does not harm you—and does not
harm you in a way that is concrete—then you lack
standing. And if the injury that you claim is an injury
that does no specific harm to you, or if it depends on a
harm that may never happen, then you lack an injury
for which you may seek relief from a federal court. As
we will explain below, Plaintiffs here have not suffered
a concrete, particularized, and non-speculative injury
necessary under the U.S. Constitution for them to
bring this federal lawsuit.
The familiar elements of Article III standing require
a plaintiff to have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Id. (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992);
Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000)). To plead an
injury in fact, the party invoking federal jurisdiction
must establish three sub-elements: first, the “invasion
of a legally protected interest”; second, that the injury
is both “concrete and particu-larized”; and third, that
the injury is “actual or imminent, not conjectural or
hypothetical.” Spokeo, 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at 560); see also Mielo v. Steak ’n
Shake Operations, 897 F.3d 467, 479 n.11 (3d Cir.
2018). The second sub-element requires that the injury
“affect the plaintiff in a personal and individual way.”
Lujan, 504 U.S. at 560 n.1. As for the third, when a
plaintiff alleges future injury, such injury must be
“certainly impending.” Clapper, 568 U.S. at 409
(quoting Lujan, 504 U.S. at 565 n.2). Allegations of
“possible” future injury simply aren’t enough. Id.
App. 20
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)). All ele-ments of standing must exist at the
time the complaint is filed. See Lujan, 504 U.S. at 569
n.4.
With these guideposts in mind, we turn to whether
Plaintiffs have pleaded an Article III injury. They bring
several claims under 42 U.S.C. § 1983, asserting
deprivation of their constitutional rights. They allege
that Defendants’ implemen-tation of the Pennsylvania
Supreme Court’s Deadline Extension and Presumption
of Timeliness violates the Elections Clause of Article I,
the Electors Clause of Article II, and the Equal
Protection Clause of the Fourteenth Amendment.
Because Plaintiffs lack standing to assert these claims,
we will affirm the District Court’s denial of injunctive
relief.
1. Plaintiffs lack standing under the
Elections Clause and Electors Clause.
Federal courts are not venues for plaintiffs to assert
a bare right “to have the Government act in accordance
with law.” Allen v. Wright, 468 U.S. 737, 754 (1984),
abrogated on other grounds by Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 126–27
(2014). When the alleged injury is undifferentiated and
common to all members of the public, courts routinely
dismiss such cases as “generalized grievances” that
cannot support standing. United States v. Richardson,
418 U.S. 166, 173–75 (1974). Such is the case here
insofar as Plaintiffs, and specifically candidate Bognet,
theorize their harm as the right to have government
administered in compliance with the Elections Clause
and Electors Clause.
App. 21
To begin with, private plaintiffs lack standing to sue
for alleged injuries attributable to a state government’s
violations of the Elections Clause. For example, in
Lance v. Coffman, 549 U.S. 437 (2007) (per curiam),
four private citizens challenged in federal district court
a Colorado Supreme Court decision invalidating a
redistricting plan passed by the state legislature and
requiring use of a redistricting plan created by
Colorado state courts. Id. at 438. The plaintiffs alleged
that the Colorado Supreme Court’s interpretation of
the Colorado Constitution violated the Elections Clause
“by depriving the state legislature of its responsibility
to draw congressional districts.” Id. at 441. The U.S.
Supreme Court held that the plaintiffs lacked Article
III standing because they claimed harm only to their
interest, and that of every citizen, in proper application
of the Elections Clause. Id. at 442 (“The only injury
plaintiffs allege is that the law—specifically the
Elections Clause—has not been followed.”). Their relief
would have no more directly benefitted them than the
public at large. Id. The same is true here. If anything,
Plaintiffs’ “interest in the State’s ability to ‘enforce its
duly enacted laws’” is even less compelling because
Pennsylvania’s “election officials support the
challenged decree.” Republican Nat’l Comm. v.
Common Cause R.I., No. 20A28, 591 U.S. __, 2020 WL
4680151 (Mem.), at *1 (Aug. 13, 2020) (quoting Abbott
v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018)).
Because the Elections Clause and the Electors
Clause have “considerable similarity,” Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 576
U.S. 787, 839 (2015) (Roberts, C.J., dissenting)
(discussing how Electors Clause similarly vests power
App. 22
to determine manner of appointing elec-tors in “the
Legislature” of each State), the same logic applies to
Plaintiffs’ alleged injury stemming from the claimed
viola-tion of the Electors Clause. See also Foster, 522
U.S. at 69 (characterizing Electors Clause as Elections
Clause’s “counterpart for the Executive Branch”); U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 804–05
(1995) (noting that state’s “duty” under Elections
Clause “parallels the duty” described by Electors
Clause).
Even a party that meets Article III standing
require-ments must ordinarily rest its claim for relief
on violation of its own rights, not those of a third party.
Pitt News v. Fisher, 215 F.3d 354, 361–62 (3d Cir.
2000). Plaintiffs assert that the Pennsylvania Supreme
Court’s Deadline Extension and Presumption of
Timeliness usurped the General Assembly’s
prerogative under the Elections Clause to prescribe
“[t]he Times, Places and Manner of holding Elections.”
U.S. Const. art. I, § 4, cl. 1. The Elections Clause
grants that right to “the Legislature” of “each State.”
Id. Plaintiffs’ Elections Clause claims thus “belong, if
they belong to anyone, only to the Pennsylvania
General Assembly.” Corman v. Torres, 287 F. Supp. 3d
558, 573 (M.D. Pa. 2018) (three-judge panel) (per
curiam). Plaintiffs here are four individual voters and
a candi-date for federal office; they in no way constitute
the General Assembly, nor can they be said to comprise
any part of the law-making processes of Pennsylvania.
Ariz. State Legislature, 576 U.S. at 824.5 Because
5
Bognet seeks to represent Pennsylvania in Congress, but even if
he somehow had a relationship to state lawmaking processes, he
App. 23
Plaintiffs are not the General Assembly, nor do they
bear any conceivable relationship to state lawmaking
processes, they lack standing to sue over the alleged
usurpation of the General Assembly’s rights under the
Elections and Electors Clauses. No member of the
General Assembly is a party to this lawsuit.
That said, prudential standing can suspend Article
III’s general prohibition on a litigant’s raising another
person’s legal rights. Yet Plaintiffs don’t fit the bill. A
plaintiff may assert the rights of another if he or she
“has a ‘close’ relation-ship with the person who
possesses the right” and “there is a ‘hindrance’ to the
possessor’s ability to protect his own interests.”
Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (citation
omitted). Plaintiffs cannot invoke this exception to the
rule against raising the rights of third parties because
they enjoy no close relationship with the General
Assembly, nor have they alleged any hindrance to the
General Assembly’s ability to protect its own interests.
See, e.g., Corman, 287 F. Supp. 3d at 573. Nor does
Plaintiffs’ other theory of prudential standing, drawn
from Bond v. United States, 564 U.S. 211 (2011),
advance the ball.
would lack personal standing to sue for redress of the alleged
“institutional injury (the diminution of legislative power), which
necessarily damage[d] all Members of [the legislature] . . . equally.”
Raines v. Byrd, 521 U.S. 811, 821 (1997) (plaintiffs were six out of
535 members of Congress); see also Corman, 287 F. Supp. 3d at
568–69 (concluding that “two of 253 members of the Pennsylvania
General Assembly” lacked standing to sue under Elections Clause
for alleged “deprivation of ‘their legislative authority to apportion
congressional districts’”); accord Va. House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1953 (2019).
App. 24
In Bond, the Supreme Court held that a litigant has
pru-dential standing to challenge a federal law that
allegedly impinges on the state’s police powers, “in
contravention of constitutional principles of federalism”
enshrined in the Tenth Amendment. Id. at 223–24. The
defendant in Bond challenged her conviction under 18
U.S.C. § 229, which Congress enacted to comply with a
chemical weapons treaty that the United States had
entered. Id. at 214–15. Convicted under the statute she
sought to challenge, Bond satisfied Article III’s
standing requirements. Id. at 217 (characterizing
Bond’s sentence and incarceration as concrete, and
redressable by invalidation of her conviction); id. at
224–25 (noting that Bond was subject to “[a] law,”
“prosecution,” and “punishment” she might not have
faced “if the matter were left for the Commonwealth of
Pennsylvania to decide”). She argued that her conduct
was “local in nature” such that § 229 usurped the
Commonwealth’s reserved police powers. Id. Rejecting
the Government’s contention that Bond was barred as
a third party from asserting the rights of the
Commonwealth, id. at 225, the Court held that “[t]he
structural principles secured by the separation of
powers protect the individual as well” as the State. Id.
at 222 (“Federalism also protects the liberty of all
persons within a State by ensuring that laws enacted
in excess of delegated governmental power cannot
direct or control their actions. . . .When government
acts in excess of its lawful powers, that [personal]
liberty is at stake.”).
But the nub of Plaintiffs’ argument here is that the
Penn-sylvania Supreme Court intruded on the
authority delegated to the Pennsylvania General
App. 25
Assembly under Articles I and II of the U.S.
Constitution to regulate federal elections. They do not
allege any violation of the Tenth Amendment, which
provides that “[t]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people.” U.S. Const. amend X. Nor could they. After all,
states have no inherent or reserved power over federal
elections. U.S. Term Limits, 514 U.S. at 804–05. When
“deciding issues raised under the Elections Clause,”
courts “need not be concerned with preserving a
‘delicate balance’ between competing sovereigns.”
Gonzalez v. Arizona, 677 F.3d 383, 392 (9th Cir. 2012).
Either federal and state election law “operate
harmoniously in a single procedural scheme,” or they
don’t—and the federal law preempts (“alter[s]”) state
election law under the Elections Clause. Id. at 394. An
assessment that the Pennsylvania Supreme Court
lacked the legislative authority under the state’s
constitution necessary to comply with the Elections
Clause (Appellants’ Br. 24–27) does not implicate Bond,
the Tenth Amendment, or even Article VI’s Supremacy
Clause.6 See Gonzalez, 677 F.3d at 390–92 (contrasting
6
Our conclusion departs from the recent decision of an Eighth
Circuit panel which, over a dissent, concluded that candidates for
the position of presidential elector had standing under Bond to
challenge a Minnesota state-court consent decree that effectively
extended the receipt deadline for mailed ballots. See Carson v.
Simon, No. 20-3139, 2020 WL 6335967, at *5 (8th Cir. Oct. 29,
2020). The Carson court appears to have cited language from Bond
without considering the context—specifically, the Tenth
App. 26
Elections Clause with Supremacy Clause and
describing for-mer as “unique,” containing “[an]
unusual delegation of power,” and “unlike virtually all
other provisions of the Constitution”). And, of course,
third-party standing under Bond still presumes that
the plaintiff otherwise meets the re-quirements of
Article III; as discussed above, Plaintiffs do not.
Plaintiff Bognet, a candidate for Congress who is
currently a private citizen, does not plead a cognizable
injury by alleging a “right to run in an election where
Congress has paramount authority,” Compl. ¶ 69, or by
pointing to a “threatened” reduction in the
competitiveness of his election from counting absentee
ballots received within three days after Election Day.
Appellants’ Br. 21. Bognet does not explain how that
“right to run” affects him in a particularized way when,
in fact, all candidates in Pennsylvania, including
Bognet’s opponent, are subject to the same rules. And
Bognet does not explain how counting more timely cast
votes would lead to a less competitive race, nor does he
offer any evidence tending to show that a greater
proportion of mailed ballots received after Election Day
than on or before Election Day would be cast for
Bognet’s opponent. What’s more, for Bognet to have
standing to enjoin the counting of ballots arriving after
Election Day, such votes would have to be sufficient in
number to change the outcome of the election to
Bognet’s detriment. See, e.g., Sibley v. Alexander, 916
Amendment and the reserved police powers—in which the U.S.
Supreme Court employed that language. There is no precedent for
expanding Bond beyond this context, and the Carson court cited
none.
App. 27
F. Supp. 2d 58, 62 (D.D.C. 2013) (“[E]ven if the Court
granted the requested relief, [plaintiff] would still fail
to satisfy the redressability element [of standing]
because enjoining defendants from casting the . . . votes
would not change the outcome of the election.” (citing
Newdow v. Roberts, 603 F.3d 1002, 1011 (D.C. Cir.
2010) (citations omitted)). Bognet does not allege as
much, and such a prediction was inherently speculative
when the complaint was filed. The same can be said for
Bognet’s alleged wrongfully incurred expenditures and
future expenditures. Any harm Bognet sought to avoid
in making those expenditures was not “certainly
impending”—he spent the money to avoid a speculative
harm. See Donald J. Trump for Pres., Inc. v. Boockvar,
No. 2:20-cv-966, 2020 WL 5997680, at *36 (W.D. Pa.
Oct. 10, 2020). Nor are those expenditures “fairly
traceable” under Article III to the actions that Bognet
challenges. See, e.g., Clapper, 568 U.S. at 402, 416
(rejecting argument that plaintiff can “manufacture
standing by choosing to make expenditures based on
hypothetical future harm that is not certainly
impending”).7
Plaintiffs therefore lack Article III standing to
challenge Defendants’ implementation of the
Pennsylvania Supreme Court’s Deadline Extension and
7
The alleged injury specific to Bognet does not implicate the
Qualifications Clause or exclusion from Congress, Powell v.
McCormack, 395 U.S. 486, 550 (1969), nor the standing of
members of Congress to bring actions alleging separation-ofpowers violations. Moore v. U.S. House of Reps., 733 F.2d 946, 959
(D.C. Cir. 1984) (Scalia, J., concurring).
App. 28
Presumption of Timeliness under the Elections Clause
and Electors Clause.
2. The Voter Plaintiffs lack standing under
the Equal Protection Clause.
Stressing the “personal” nature of the right to vote,
the Voter Plaintiffs assert two claims under the Equal
Protection Clause.8 First, they contend that the
influence of their votes, cast in person on Election Day,
is “diluted” both by (a) mailed ballots cast on or before
Election Day but received between Election Day and
the Deadline Extension date, ballots which Plaintiffs
assert cannot be lawfully counted; and (b) mailed
ballots that were unlawfully cast (i.e., placed in the
mail) after Election Day but are still counted because
of the Presumption of Timeliness. Second, the Voter
Plaintiffs allege that the Deadline Extension and the
Presumption of Timeliness create a preferred class of
voters based on “arbitrary and disparate treatment”
that values “one person’s vote over that of another.”
Bush v. Gore, 531 U.S. 98, 104–05 (2000). The Voter
Plaintiffs lack Article III standing to assert either
injury.
a. Vote Dilution
As discussed above, the foremost element of
standing is injury in fact, which requires the plaintiff
to show a harm that is both “concrete and
particularized” and “actual or imminent, not
conjectural or hypothetical.” Spokeo, 136 S. Ct. at
8
Only the Voter Plaintiffs bring the Equal Protection count in the
Complaint; Bognet did not join that count.
App. 29
1547–48 (citation omitted). The Voter Plaintiffs lack
standing to redress their alleged vote dilution because
that alleged injury is not concrete as to votes counted
under the Deadline Extension, nor is it particularized
for Article III purposes as to votes counted under the
Deadline Extension or the Presumption of Timeliness.
i. No concrete injury from vote dilution
attributable to the Deadline Extension.
The Voter Plaintiffs claim that Defendants’
implementation of the Deadline Extension violates the
Equal Protection Clause because “unlawfully” counting
ballots received within three days of Election Day
dilutes their votes. But the source of this purported
illegality is necessarily a matter of state law, which
makes any alleged harm abstract for purposes of the
Equal Protection Clause. And the purported vote
dilution is also not concrete because it would occur in
equal proportion without the alleged procedural
illegality—that is, had the General Assembly enacted
the Deadline Extension, which the Voter Plaintiffs do
not challenge substantively.9
9
We exclude the Presumption of Timeliness from our concreteness
analysis. Plaintiffs allege that the federal statutes providing for a
uniform election day, 3 U.S.C. § 1 and 2 U.S.C. § 7, conflict with,
and thus displace, any state law that would authorize voting after
Election Day. They claim that the Presumption permits,
theoretically at least, some voters whose ballots lack a legible
postmark to vote after Election Day, in violation of these federal
statutes. So unlike the Deadline Extension, Plaintiffs contend that
the General Assembly could not enact the Presumption consistent
with the Constitution. This conceptualization of injury is thus
more properly characterized as “concrete” than is the purported
Deadline Extension injury attributable to voters having their
App. 30
The concreteness of the Voter Plaintiffs’ alleged vote
dilution stemming from the Deadline Extension turns
on the federal and state laws applicable to voting
procedures. Federal law does not provide for when or
how ballot counting occurs. See, e.g., Trump for Pres.,
Inc. v. Way, No. 20-cv-01753, 2020 WL 5912561, at *12
(D.N.J. Oct. 6, 2020) (“Plaintiffs direct the Court to no
federal law regulating methods of determining the
timeliness of mail-in ballots or requiring that mail-in
ballots be postmarked.”); see also Smiley v. Holm, 285
U.S. 355, 366 (1932) (noting that Elections Clause
delegates to state lawmaking processes all authority to
prescribe “procedure and safeguards” for “counting of
votes”). Instead, the Elections Clause delegates to each
state’s lawmaking function the authority to prescribe
such procedural regulations applicable to federal
elections. U.S. Term Limits, 514 U.S. at 832–35 (“The
Framers intended the Elections Clause to grant States
authority to create procedural regulations . . . .
[including] ‘whether the electors should vote by ballot
or vivâ voce . . . .’” (quoting James Madison, 2 Records
of the Federal Convention of 1787, at 240 (M. Farrand
ed. 1911) (cleaned up)); Smiley, 285 U.S. at 366
(describing state authority under Elections Clause “to
provide a complete code for congressional elections . . .
in relation to notices, registration, supervision of
voting, protection of voters, prevention of fraud and
corrupt practices, counting of votes, duties of inspectors
and canvassers, and making and publication of election
returns”). That delegation of authority embraces all
timely voted ballots received and counted after Election Day. That
said, we express no opinion about whether the Voter Plaintiffs
have, in fact, alleged such a concrete injury for standing purposes.
App. 31
procedures “which experience shows are necessary in
order to enforce the fundamental right involved.”
Smiley, 285 U.S. at 366. Congress exercises its power
to “alter” state election regulations only if the state
regime cannot “operate harmoniously” with federal
election laws “in a single procedural scheme.” Gonzalez,
677 F.3d at 394.
The Deadline Extension and federal laws setting
the date for federal elections can, and indeed do,
operate harmoni-ously. At least 19 other States and the
District of Columbia have post-Election Day absentee
ballot receipt deadlines.10 And many States
10
See AS § 15.20.081(e) & (h) (Alaska – 10 days after Election Day
if postmarked on or before Election Day); West’s Ann. Cal. Elec.
Code § 3020(b) (California – three days after Election Day if
postmarked on or before Election Day); DC ST § 1-1001.05(a)(10A)
(District of Columbia – seven days after the election if postmarked
on or before Election Day); 10 ILCS 5/19-8, 5/18A-15 (Illinois – 14
days after the election if postmarked on or before Election Day);
K.S.A. 25-1132 (Kansas – three days after the election if
postmarked before the close of polls on Election Day); MD Code,
Elec. Law, § 9-505 (Maryland – the second Friday after Election
Day if postmarked on or before Election Day); Miss. Code Ann.
§ 23-15-637 (Mississippi – five business days after Election Day if
postmarked on or before Election Day); NV Rev Stat § 293.317
(Nevada – by 5:00 P.M. on the seventh day after Election Day if
postmarked by Election Day, and ballots with unclear postmarks
must be received by 5:00 P.M. on the third day after Election Day);
N.J.S.A. 19:63-22 (New Jersey – 48 hours after polls close if
postmarked on or before Election Day); McKinney’s Elec. Law
§ 8-412 (New York – seven days after the election for mailed
ballots postmarked on Election Day); N.C. Gen. Stat.
§ 163-231(b)(2) and Wise v. Circosta, Nos. 20-2104, 20-2107, 2020
WL 6156302, at *2 (4th Cir. Oct. 20, 2020) (North Carolina –
recognizing extension from three to nine days after the election the
App. 32
also accept absentee ballots mailed by over-seas
uniformed servicemembers that are received after
Election Day, in accordance with the federal Uniformed
and Overseas Citizens Absentee Voting Act, 52 U.S.C.
§§ 20301–20311. So the Voter Plaintiffs’ only cognizable
basis for alleging dilution from the “unlawful” counting
of invalid ballots is state law defining lawful and
unlawful ballot counting practices. Cf. Wise v. Circosta,
Nos. 20-2104, 20-2107, 2020 WL 6156302, at *5 (4th
Cir. Oct. 20, 2020) (“Whether ballots are illegally
counted if they are received more than three days after
Election Day depends on an issue of state law from
which we must abstain.” (emphasis in original)),
application for injunctive relief denied sub nom. Moore
v. Circosta, No. 20A72, 592 U.S. __, 2020 WL 6305036
(Oct. 28, 2020). The Voter Plaintiffs seem to admit as
much, arguing “that counting votes that are unlawful
under the General Assembly’s enactments will
unconstitutionally dilute the lawful votes” cast by the
Voter Plaintiffs. Appellants’ Br. 38; see also id. at 31. In
deadline for mail ballots postmarked on or before Election Day);
Texas Elec. Code § 86.007 (the day after the election by 5:00 P.M.
if postmarked on or before Election Day); Va. Code 24.2-709
(Virginia – by noon on the third day after the election if
postmarked on or before Election Day); West’s RCWA 29A.40.091
(Washington – no receipt deadline for ballots postmarked on or
before Election Day); W. Va. Code, §§ 3-3-5, 3-5-17 (West Virginia
– five days after the election if postmarked on or before Election
Day); see also Iowa Code § 53.17(2) (by noon the Monday following
the election if postmarked by the day before Election Day); NDCC
16.1-07-09 (North Dakota – before the canvass if postmarked the
day before Election Day); R.C. § 3509.05 (Ohio – 10 days after the
election if postmarked by the day before Election Day); Utah Code
Ann. § 20A-3a-204 (seven to 14 days after the election if
postmarked the day before the election).
App. 33
other words, the Voter Plaintiffs say that the Election
Day ballot receipt deadline in Pennsylvania’s codified
election law renders the ballots untimely and therefore
unlawful to count. Defendants, for their part, contend
that the Pennsylvania Supreme Court’s extension of
that deadline under the Free and Equal Elections
Clause of the state constitution renders them timely,
and therefore lawful to count.
This conceptualization of vote dilution—state actors
counting ballots in violation of state election law—is
not a concrete harm under the Equal Protection Clause
of the Fourteenth Amendment. Violation of state
election laws by state officials or other unidentified
third parties is not always amenable to a federal
constitutional claim. See Shipley v. Chicago Bd. of
Election Comm’rs, 947 F.3d 1056, 1062 (7th Cir. 2020)
(“A deliberate violation of state election laws by state
election officials does not transgress against the
Constitution.”) (cleaned up); Powell v. Power, 436 F.2d
84, 88 (2d Cir. 1970) (rejecting Equal Protection Clause
claim arising from state’s erroneous counting of votes
cast by voters unqualified to participate in closed
primary). “It was not intended by the Fourteenth
Amendment . . . that all matters formerly within the
exclusive cognizance of the states should become
matters of national concern.” Snowden v. Hughes, 321
U.S. 1, 11 (1944).
Contrary to the Voter Plaintiffs’ conceptualization,
vote dilution under the Equal Protection Clause is
concerned with votes being weighed differently. See
Rucho v. Common Cause, 139 S. Ct. 2484, 2501 (2019)
(“‘[V]ote dilution’ in the one-person, one-vote cases
App. 34
refers to the idea that each vote must carry equal
weight.” (emphasis added)); cf. Baten v. McMaster, 967
F.3d 345, 355 (4th Cir. 2020), as amended (July 27,
2020) (“[N]o vote in the South Carolina system is
diluted. Every qualified person gets one vote and each
vote is counted equally in determining the final tally.”).
As explained below, the Voter Plaintiffs cannot
analogize their Equal Protection claim to
gerrymandering cases in which votes were weighted
differently. Instead, Plaintiffs advance an Equal
Protection Clause argument based solely on state
officials’ alleged violation of state law that does not
cause unequal treatment. And if dilution of lawfully
cast ballots by the “unlawful” counting of invalidly cast
ballots “were a true equal-protection problem, then it
would transform every violation of state election law
(and, actually, every violation of every law) into a
potential federal equal-protection claim requiring
scrutiny of the government’s ‘interest’ in failing to do
more to stop the illegal activity.” Trump for Pres. v.
Boockvar, 2020 WL 5997680, at *45–46. That is not
how the Equal Protection Clause works.11
Even if we were to entertain an end-run around the
Voter Plaintiffs’ lack of Elections Clause standing —by
11
Bush v. Gore does not require us to perform an Equal Protection
Clause analysis of Pennsylvania election law as interpreted by the
Pennsylvania Supreme Court. See 531 U.S. at 109 (“Our
consideration is limited to the present circumstances . . . .”); id. at
139–40 (Ginsburg, J., dissenting) (discussing “[r]are[]” occasions
when Supreme Court rejected state supreme court’s interpretation
of state law, one of which was in 1813 and others occurred during
Civil Rights Movement—and none decided federal equal protection
issues).
App. 35
viewing the federal Elections Clause as the source of
“unlawfulness” of Defendants’ vote counting—the
alleged vote dilution would not be a concrete injury.
Consider, as we’ve noted, that the Voter Plaintiffs take
no issue with the content of the Deadline Extension;
they concede that the General Assembly, as other state
legislatures have done, could have enacted exactly the
same Deadline Extension as a valid “time[], place[],
and manner” regulation consistent with the Elections
Clause. Cf. Snowden, 321 U.S. at 8 (concluding that
alleged “unlawful administration by state officers of a
state statute fair on its face, resulting in its unequal
application to those who are entitled to be treated
alike, is not a denial of equal protection” (emphasis
added)); Powell, 436 F.2d at 88 (“Uneven or erroneous
application of an otherwise valid statute constitutes a
denial of equal protection only if it represents
‘intentional or purposeful discrimination.’” (emphasis
added) (quoting Snowden, 321 U.S. at 8)). Reduced to
its essence, the Voter Plaintiffs’ claimed vote dilution
would rest on their allegation that federal law required
a different state organ to issue the Deadline Extension.
The Voter Plaintiffs have not alleged, for example, that
they were prevented from casting their votes, Guinn v.
United States, 238 U.S. 347 (1915), nor that their votes
were not counted, United States v. Mosley, 238 U.S. 383
(1915). Any alleged harm of vote dilution that turns not
on the proportional influence of votes, but solely on the
federal illegality of the Deadline Extension, strikes us
as quintessentially abstract in the election law context
and “divorced from any concrete harm.” Spokeo, 136 S.
Ct. at 1549 (citing Summers v. Earth Island Inst., 555
U.S. 488, 496 (2009)). That the alleged violation here
relates to election law and the U.S. Constitution, rather
App. 36
than the mine-run federal consumer privacy statute,
does not abrogate the requirement that a concrete
harm must flow from the procedural illegality. See, e.g.,
Lujan, 504 U.S. at 576 (“[T]here is absolutely no basis
for making the Article III inquiry turn on the source of
the asserted right.”).
The Voter Plaintiffs thus lack a concrete Equal
Protection Clause injury for their alleged harm of vote
dilution attributable to the Deadline Extension.
ii. No particularized injury from votes
counted under the Deadline Extension
or the Presumption of Timeliness.
The opposite of a “particularized” injury is a
“generalized grievance,” where “the impact on plaintiff
is plainly undifferentiated and common to all members
of the public.” Id. at 575 (cleaned up); see also Lance,
549 U.S. at 439. The District Court correctly held that
the Voter Plaintiffs’ “dilution” claim is a “paradigmatic
generalized grievance that cannot support standing.”
Bognet, 2020 WL 6323121, at *4 (quoting Carson v.
Simon, No. 20-cv-02030, 2020 WL 6018957, at *7 (D.
Minn. Oct. 12, 2020), rev’d on other grounds, No.
20-3139, 2020 WL 6335967 (8th Cir. Oct. 29, 2020)).
The Deadline Extension and Presumption of
Timeliness, assuming they operate to allow the illegal
counting of unlawful votes, “dilute” the influence of all
voters in Pennsylvania equally and in an
“undifferentiated” manner and do not dilute a certain
group of voters particularly.12
12
In their complaint, the Voter Plaintiffs alleged that they are all
“residents of Somerset County, a county where voters are
App. 37
Put another way, “[a] vote cast by fraud or mailed in
by the wrong person through mistake,” or otherwise
counted illegally, “has a mathematical impact on the
final tally and thus on the proportional effect of every
vote, but no single voter is specifically disadvantaged.”
Martel v. Condos, No. 5:20-cv-00131, 2020 WL 5755289,
at *4 (D. Vt. Sept. 16, 2020). Such an alleged “dilution”
is suffered equally by all voters and is not
“particularized” for standing purposes. The courts to
consider this issue are in accord. See id.; Carson, 2020
WL 6018957, at *7–8; Moore v. Circosta, Nos.
1:20-cv-00911, 1:20-cv-00912, 2020 WL 6063332, at *14
(M.D.N.C. Oct. 14, 2020), emergency injunction pending
appeal denied sub nom. Wise v. Circosta, Nos. 20-2104,
20-2017, 2020 WL 6156302 (4th Cir. Oct. 20, 2020),
application for injunctive relief denied sub nom. Moore
v. Circosta, No. 20A72 (U.S. Oct. 28, 2020); Paher v.
Cegavske, 457 F. Supp. 3d 919, 926–27 (D. Nev. Apr.
30, 2020).
But the Voter Plaintiffs argue that their purported
“vote dilution” is an injury in fact sufficient to confer
standing, and not a generalized grievance belonging to
all voters, because the Supreme Court has “long
requesting absentee ballots at a rate far less than the state
average” and thus, somehow, the Voter Plaintiffs’ votes “will be
diluted to a greater degree than other voters.” Compl. ¶ 71
(emphasis in original). Plaintiffs continue to advance this
argument on appeal in support of standing, and it additionally
suffers from being a conjectural or hypothetical injury under the
framework discussed infra Section III.A.2.b.ii. It is purely
hypothetical that counties where a greater percentage of voters
request absentee ballots will more frequently have those ballots
received after Election Day.
App. 38
recognized that a person’s right to vote is ‘individual
and personal in nature.’” Gill v. Whitford, 138 S. Ct.
1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S.
533, 561 (1964)). “Thus, ‘voters who allege facts
showing disadvantage to themselves as individuals
have standing to sue’ to remedy that disadvantage.” Id.
(quoting Baker v. Carr, 369 U.S. 186, 206 (1962)).
The Voter Plaintiffs’ reliance on this language from
Baker and Reynolds is misplaced. In Baker, the
plaintiffs challenged Tennessee’s apportionment of
seats in its legislature as violative of the Equal
Protection Clause of the Fourteenth Amendment. 369
U.S. at 193. The Supreme Court held that the plaintiffs
did have standing under Article III because “[t]he
injury which appellants assert is that this classification
disfavors the voters in the counties in which they
reside, placing them in a position of constitutionally
unjustifiable inequality vis-à-vis voters in irrationally
favored counties.” Id. at 207–08.
Although the Baker Court did not decide the merits
of the Equal Protection claim, the Court in a series of
cases—including Gray v. Sanders, 372 U.S. 368 (1963),
and Reynolds—made clear that the Equal Protection
Clause prohibits a state from “diluti[ng] . . . the weight
of the votes of certain . . . voters merely because of
where they reside[],” just as it prevents a state from
discriminating on the basis of the voter’s race or sex.
Reynolds, 377 U.S. at 557 (emphasis added). The Voter
Plaintiffs consider it significant that the Court in
Reynolds noted—though not in the context of
standing—that “the right to vote” is “individual and
personal in nature.” Id. at 561 (quoting United States
App. 39
v. Bathgate, 246 U.S. 220, 227 (1918)). The Court then
explained that a voter’s right to vote encompasses both
the right to cast that vote and the right to have that
vote counted without “debasement or dilution”:
The right to vote can neither be denied outright,
Guinn v. United States, 238 U.S. 347 [(1915)],
Lane v. Wilson, 307 U.S. 268 [(1939)], nor
destroyed by alteration of ballots, see United
States v. Classic, 313 U.S. 299, 315 [(1941)], nor
diluted by ballot-box stuffing, Ex parte Siebold,
100 U.S. 371 [(1880)], United States v. Saylor,
322 U.S. 385 [(1944)]. As the Court stated in
Classic, “Obviously included within the right to
choose, secured by the Constitution, is the right
of qualified voters within a state to cast their
ballots and have them counted . . . .” 313 U.S., at
315.
…
“The right to vote includes the right to have the
ballot counted. . . . It also includes the right to
have the vote counted at full value without
dilution or discount. . . . That federally protected
right suffers substantial dilution . . . [where a]
favored group has full voting strength . . . [and]
[t]he groups not in favor have their votes
discounted.”
Reynolds, 377 U.S. at 555 & n.29 (alterations in last
paragraph in original) (quoting South v. Peters, 339
U.S. 276, 279 (1950) (Douglas, J., dissenting)).
Still, it does not follow from the labeling of the right
to vote as “personal” in Baker and Reynolds that any
App. 40
alleged illegality affecting voting rights rises to the
level of an injury in fact. After all, the Court has
observed that the harms underlying a racial
gerrymandering claim under the Equal Protection
Clause “are personal” in part because they include the
harm of a voter “being personally subjected to a racial
classification.” Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254, 263 (2015) (cleaned up). Yet a voter “who
complains of gerrymandering, but who does not live in
a gerrymandered district, ‘assert[s] only a generalized
grievance against governmental conduct of which he or
she does not approve.’” Gill, 138 S. Ct. at 1930 (quoting
United States v. Hayes, 515 U.S. 737, 745 (1995))
(alteration in original). The key inquiry for standing is
whether the alleged violation of the right to vote arises
from an invidious classification—including those based
on “race, sex, economic status, or place of residence
within a State,” Reynolds, 377 U.S. at 561—to which
the plaintiff is subject and in which “the favored group
has full voting strength and the groups not in favor
have their votes discounted,” id. at 555 n.29 (cleaned
up). In other words, “voters who allege facts showing
disadvantage to themselves” have standing to bring suit
to remedy that disadvantage, Baker, 369 U.S. at 206
(emphasis added), but a disadvantage to the plaintiff
exists only when the plaintiff is part of a group of
voters whose votes will be weighed differently
compared to another group. Here, no Pennsylvania
voter’s vote will count for less than that of any other
App. 41
voter as a result of the Deadline Extension and
Presumption of Timeliness.13
This conclusion cannot be avoided by describing one
group of voters as “those . . . who lawfully vote in
person and submit their ballots on time” and the other
group of voters as those whose (mail-in) ballots arrive
after Election Day and are counted because of the
Deadline Extension and/or the Presumption of
Timeliness. Appellants’ Br. 33 (emphasis in original).
Although the former group, under Plaintiffs’ theory,
should make up 100% of the total votes counted and
the latter group 0%, there is simply no differential
weighing of the votes. See Wise, 2020 WL 6156302, at
*8 (Motz, J., concurring) (“But if the extension went
into effect, plaintiffs’ votes would not count for less
relative to other North Carolina voters. This is the core
of an Equal Protection Clause challenge.” (emphasis in
original)). Unlike the malapportionment or racial
gerryman-dering cases, a vote cast by a voter in the
13
Plaintiffs also rely on FEC v. Akins, 524 U.S. 11 (1998), for the
proposition that a widespread injury—such as a mass tort injury
or an injury “where large numbers of voters suffer interference
with voting rights conferred by law”—does not become a
“generalized grievance” just because many share it. Id. at 24–25.
That’s true as far as it goes. But the Voter Plaintiffs have not
alleged an injury like that at issue in Akins. There, the plaintiffs’
claimed injury was their inability to obtain information they
alleged was required to be disclosed under the Federal Election
Campaign Act. Id. at 21. The plaintiffs alleged a statutory right to
obtain information and that the same information was being
withheld. Here, the Voter Plaintiffs’ alleged injury is to their right
under the Equal Protection Clause not to have their votes
“diluted,” but the Voter Plaintiffs have not alleged that their votes
are less influential than any other vote.
App. 42
so-called “favored” group counts not one bit more than
the same vote cast by the “disfavored” group—no
matter what set of scales one might choose to employ.
Cf. Reynolds, 377 U.S. at 555 n.29. And, however one
tries to draw a contrast, this division is not based on a
voter’s personal characteristics at all, let alone a
person’s race, sex, economic status, or place of
residence. Two voters could each have cast a mail-in
ballot before Election Day at the same time, yet
perhaps only one of their ballots arrived by 8:00 P.M.
on Election Day, given USPS’s mail delivery process. It
is passing strange to assume that one of these voters
would be denied “equal protection of the laws” were
both votes counted. U.S. Const. amend. XIV, § 1.
The Voter Plaintiffs also emphasize language from
Reynolds that “[t]he right to vote can neither be denied
outright . . . nor diluted by ballot-box stuffing.” 377
U.S. at 555 (citing Ex parte Siebold, 100 U.S. 371
(1879); United States v. Saylor, 322 U.S. 385 (1944)). In
the first place, casting a vote in accordance with a
procedure approved by a state’s highest court—even
assuming that approval violates the Elections
Clause—is not equivalent to “ballot-box stuffing.” The
Supreme Court has only addressed this “false”-tally
type of dilution where the tally was false as a result of
a scheme to cast falsified or fraudulent votes. See
Saylor, 322 U.S. at 386. We are in uncharted territory
when we are asked to declare that a tally that includes
false or fraudulent votes is equivalent to a tally that
includes votes that are or may be unlawful for nonfraudulent reasons, and so is more aptly described as
“incorrect.” Cf. Gray, 372 U.S. at 386 (Harlan, J.,
dissenting) (“[I]t is hard to take seriously the argument
App. 43
that ‘dilution’ of a vote in consequence of a legislatively
sanctioned electoral system can, without more, be
analogized to an impairment of the political franchise
by ballot box stuffing or other criminal activity.”).
Yet even were this analogy less imperfect, it still
would not follow that every such “false” or incorrect
tally is an injury in fact for purposes of an Equal
Protection Clause claim. The Court’s cases that
describe ballot-box stuffing as an injury to the right to
vote have arisen from criminal prosecutions under
statutes making it unlawful for anyone to injure the
exercise of another’s constitutional right. See, e.g., Ex
parte Siebold, 100 U.S. at 373–74 (application for writ
of habeas corpus); Saylor, 322 U.S. at 385–86 (criminal
appeal regarding whether statute prohibiting
“conspir[ing] to injure . . . any citizen in the free
exercise . . . of any right or privilege secured to him by
the Constitution” applied to conspiracy to stuff ballot
boxes); Anderson v. United States, 417 U.S. 211, 226
(1974) (criminal prosecution for conspiracy to stuff
ballot boxes under successor to statute in Saylor).
Standing was, of course, never an issue in those cases
because the Government was enforcing its criminal
laws. Here, the Voter Plaintiffs, who bear the burden
to show standing, have presented no instance in which
an individual voter had Article III standing to claim an
equal protection harm to his or her vote from the
existence of an allegedly illegal vote cast by someone
else in the same election.
Indeed, the logical conclusion of the Voter Plaintiffs’
theory is that whenever an elections board counts any
ballot that deviates in some way from the requirements
App. 44
of a state’s legislatively enacted election code, there is
a particularized injury in fact sufficient to confer
Article III standing on every other voter—provided the
remainder of the standing analysis is satisfied.
Allowing standing for such an injury strikes us as
indistinguishable from the proposition that a plaintiff
has Article III standing to assert a general interest in
seeing the “proper application of the Constitution and
laws”—a proposition that the Supreme Court has
firmly rejected. Lujan, 504 U.S. at 573–74. The Voter
Plaintiffs thus lack standing to bring their Equal
Protection vote dilution claim.
b. Arbitrary and Disparate Treatment
The Voter Plaintiffs also lack standing to allege an
injury in the form of “arbitrary and disparate
treatment” of a preferred class of voters because the
Voter Plaintiffs have not alleged a legally cognizable
“preferred class” for equal protection purposes, and
because the alleged harm from votes counted solely due
to the Presumption of Timeliness is hypothetical or
conjectural.
i. No legally protected “preferred class.”
The District Court held that the Presumption of
Timeliness creates a “preferred class of voters” who are
“able to cast their ballots after the congressionally
established Election Day” because it “extends the date
of the election by multiple days for a select group of
mail-in voters whose ballots will be presumed to be
App. 45
timely in the absence of a verifiable postmark.”14
Bognet, 2020 WL 6323121, at *6. The District Court
reasoned, then, that the differential treatment between
groups of voters is by itself an injury for standing
purposes. To the District Court, this supposed “unequal
treatment of voters . . . harms the [Voter] Plaintiffs
because, as in-person voters, they must vote by the end
of the congressionally established Election Day in order
to have their votes counted.” Id. The District Court
cited no case law in support of its conclusion that the
injury it identified gives rise to Article III standing.
The District Court’s analysis suffers from several
flaws. First, the Deadline Extension and Presumption
of Timeliness apply to all voters, not just a subset of
“preferred” voters. It is an individual voter’s choice
whether to vote by mail or in person, and thus whether
to become a part of the so-called “preferred class” that
the District Court identified. Whether to join the
“preferred class” of mail-in voters was entirely up to
the Voter Plaintiffs.
Second, it is not clear that the mere creation of
so-called “classes” of voters constitutes an injury in
fact. An injury in fact requires the “invasion of a legally
protected interest.” Lujan, 504 U.S. at 560. We doubt
that the mere existence of groupings of voters qualifies
as an injury per se. “An equal protection claim will not
lie by ‘conflating all persons not injured into a
preferred class receiving better treatment’ than the
plaintiff.” Thornton v. City of St. Helens, 425 F.3d 1158,
14
The District Court did not find that the Deadline Extension
created such a preferred class.
App. 46
1167 (9th Cir. 2005) (quoting Joyce v. Mavromatis, 783
F.2d 56, 57 (6th Cir. 1986)); see also, e.g., Batra v. Bd.
of Regents of Univ. of Neb., 79 F.3d 717, 721 (8th Cir.
1996) (“[T]he relevant prerequisite is unlawful
discrimination, not whether plaintiff is part of a
victimized class.”). More importantly, the Voter
Plaintiffs have shown no disadvantage to themselves
that arises simply by being separated into groupings.
For instance, there is no argument that it is
inappropriate that some voters will vote in person and
others will vote by mail. The existence of these two
groups of voters, without more, simply does not
constitute an injury in fact to in-person voters.
Plaintiffs may believe that injury arises because of
a preference shown for one class over another. But
what, precisely, is the preference of which Plaintiffs
complain? In Bush v. Gore, the Supreme Court held
that a State may not engage in arbitrary and disparate
treatment that results in the valuation of one person’s
vote over that of another. 531 U.S. at 104–05. Thus,
“the right of suffrage can be denied by a debasement or
dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of
the franchise.” Id. at 105 (quoting Reynolds, 377 U.S.
at 555) (emphasis added). As we have already
discussed, vote dilution is not an injury in fact here.
What about the risk that some ballots placed in the
mail after Election Day may still be counted? Recall
that no voter—whether in person or by mail—is
permitted to vote after Election Day. Under Plaintiffs’
argument, it might theoretically be easier for one group
of voters—mail-in voters—to illegally cast late votes
App. 47
than it is for another group of voters—in-person voters.
But even if that is the case, no group of voters has the
right to vote after the deadline.15 We remember that “a
private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.” Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (citations
omitted). And “a plaintiff lacks standing to complain
about his inability to commit crimes because no one has
a right to commit a crime.” Citizen Ctr. v. Gessler, 770
F.3d 900, 910 (10th Cir. 2014). Without a showing of
discrimination or other intentionally unlawful conduct,
or at least some burden on Plaintiffs’ own voting rights,
we discern no basis on which they have standing to
challenge the slim opportunity the Presumption of
Timeliness conceivably affords wrongdoers to violate
election law. Cf. Minn. Voters Alliance v. Ritchie, 720
F.3d 1029, 1033 (8th Cir. 2013) (affirming dismissal of
claims “premised on potential harm in the form of vote
dilution caused by insufficient pre-election verification
of [election day registrants’] voting eligibility and the
absence of post-election ballot rescission procedures”).
ii. Speculative injury from ballots
counted under the Presumption of
Timeliness.
Plaintiffs’ theory as to the Presumption of
Timeliness focuses on the potential for some voters to
vote after Election Day and still have their votes
15
Moreover, we cannot overlook that the mail-in voters potentially
suffer a disadvantage relative to the in-person voters. Whereas
in-person ballots that are timely cast will count, timely cast
mail-in ballots may not count because, given mail delivery rates,
they may not be received by 5:00 P.M. on November 6.
App. 48
counted. This argument reveals that their alleged
injury in fact attributable to the Presumption is
“conjectural or hypothetical” instead of “actual or
imminent.” Spokeo, 136 S. Ct. at 1547–48 (quoting
Lujan, 504 U.S. at 560). The Supreme Court has
emphasized that a threatened injury must be “certainly
impending” and not merely “possible” for it to
constitute an injury in fact. Clapper, 568 U.S. at 409
(emphasis in original) (quoting Whitmore v. Ark., 495
U.S. 149, 158 (1990)). When determining Article III
standing, our Court accepts allegations based on
well-pleaded facts; but we do not credit bald assertions
that rest on mere supposition. Finkelman v. NFL, 810
F.3d 187, 201–02 (3d Cir. 2016). The Supreme Court
has also emphasized its “reluctance to endorse standing
theories that rest on speculation about the decisions of
independent actors.” Clapper, 568 U.S. at 414. A
standing theory becomes even more speculative when
it requires that independent actors make decisions to
act unlawfully. See City of L.A. v. Lyons, 461 U.S. 95,
105–06 & 106 n.7 (1983) (rejecting Article III standing
to seek injunction where party invoking federal
jurisdiction would have to establish that he would
unlawfully resist arrest or police officers would violate
department orders in future).
Here, the Presumption of Timeliness could inflict
injury on the Voter Plaintiffs only if: (1) another voter
violates the law by casting an absentee ballot after
Election Day; (2) the illegally cast ballot does not bear
a legible postmark, which is against USPS policy;16
16
See Defendant-Appellee’s Br. 30 (citing 39 C.F.R. § 211.2(a)(2);
Postal Operations Manual at 443.3).
App. 49
(3) that same ballot still arrives within three days of
Election Day, which is faster than USPS anticipates
mail delivery will occur;17(4) the ballot lacks sufficient
indicia of its untimeliness to overcome the Presumption
of Timeliness; and (5) that same ballot is ultimately
counted. See Donald J. Trump for Pres., Inc. v. Way,
No. 20-cv-10753, 2020 WL 6204477, at *7 (D.N.J. Oct.
22, 2020) (laying out similar “unlikely chain of events”
required for vote dilution harm from postmark rule
under New Jersey election law); see also Reilly v.
Ceridian Corp., 664 F.3d 38, 43 (3d Cir. 2011) (holding
purported injury in fact was too conjectural where “we
cannot now describe how Appellants will be injured in
this case without beginning our explanation with the
word ‘if’”). This parade of horribles “may never come to
pass,” Trump for Pres. v. Boockvar, 2020 WL 5997680,
at *33, and we are especially reluctant to endorse such
a speculative theory of injury given Pennsylvania’s
“own mechanisms for deterring and prosecuting voter
fraud,” Donald J. Trump for Pres., Inc. v. Cegavske, No.
20-1445, 2020 WL 5626974, at *6 (D. Nev. Sept. 18,
2020).18
17
See Pa. Democratic Party, 2020 WL5554644, at *12 (noting
“current two to five day delivery expectation of the USPS”).
18
Indeed, the conduct required of a voter to effectuate such a
scheme may be punishable as a crime under Pennsylvania statutes
that criminalize forging or “falsely mak[ing] the official
endorsement on any ballot,” 25 Pa. Stat. & Cons. Stat. § 3517
(punishable by up to two years’ imprisonment); “willfully
disobey[ing] any lawful instruction or order of any county board of
elections,” id. § 3501 (punishable by up to one year’s
imprisonment); or voting twice in one election, id. § 3535
(punishable by up to seven years’ imprisonment).
App. 50
To date, the Secretary has reported that at least 655
ballots without a legible postmark have been collected
within the Deadline Extension period.19 But it is mere
speculation to say that any one of those ballots was
cast after Election Day. We are reluctant to conclude
that an independent actor—here, one of 655
voters—decided to mail his or her ballot after Election
Day contrary to law. The Voter Plaintiffs have not
provided any empirical evidence on the frequency of
voter fraud or the speed of mail delivery that would
establish a statistical likelihood or even the plausibility
that any of the 655 ballots was cast after Election Day.
Any injury to the Voter Plaintiffs attributable to the
Presumption of Timeliness is merely “possible,” not
“actual or imminent,” and thus cannot constitute an
injury in fact.
B. Purcell
Even were we to conclude that Plaintiffs have
standing, we could not say that the District Court
abused its discretion in concluding on this record that
the Supreme Court’s election-law jurisprudence
counseled against injunctive relief. Unique and
important equitable considerations, including voters’
reliance on the rules in place when they made their
plans to vote and chose how to cast their ballots,
19
As of the morning of November 12, Secretary Boockvar estimates
that 655 of the 9383 ballots received between 8:00 P.M. on Election
Day and 5:00 P.M. on November 6 lack a legible postmark. See
Dkt. No. 59. That estimate of 655 ballots does not include totals
from five of Pennsylvania’s 67 counties: Lehigh, Northumberland,
Tioga, Warren, and Wayne. Id. The 9383 ballots received, however,
account for all of Pennsylvania’s counties. Id.
App. 51
support that disposition. Plaintiffs’ requested relief
would have upended this status quo, which is generally
disfavored under the “voter confusion” and election
confidence rationales of Purcell v. Gonzalez, 549 U.S. 1,
4–5 (2006). One can assume for the sake of argument
that aspects of the now-prevailing regime in
Pennsylvania are unlawful as alleged and still
recognize that, given the timing of Plaintiffs’ request
for injunctive relief, the electoral calendar was such
that following it “one last time” was the better of the
choices available. Perez, 138 S. Ct. at 2324 (“And if a
[redistricting] plan is found to be unlawful very close to
the election date, the only reasonable option may be to
use the plan one last time.”).
Here, less than two weeks before Election Day,
Plaintiffs asked the District Court to enjoin a deadline
established by the Pennsylvania Supreme Court on
September 17, a deadline that may have informed
voters’ decisions about whether and when to request
mail-in ballots as well as when and how they cast or
intended to cast them. In such circumstances, the
District Court was well within its discretion to give
heed to Supreme Court decisions instructing that
“federal courts should ordinarily not alter the election
rules on the eve of an election.” Republican Nat’l
Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205,
1207 (2020) (per curiam) (citing Purcell, 549 U.S. at 1).
In Purcell, an appeal from a federal court order
enjoining the State of Arizona from enforcing its voter
identification law, the Supreme Court acknowledged
that “[c]onfidence in the integrity of our electoral
processes is essential to the functioning of our
App. 52
participatry democracy.” 549 U.S. at 4. In other words,
“[c]ourt orders affecting elections, especially conflicting
orders, can themselves result in voter confusion and
consequent incentive to remain away from the polls. As
an election draws closer, that risk will increase.” Id. at
4–5. Mindful of “the necessity for clear guidance to the
State of Arizona” and “the imminence of the election,”
the Court vacated the injunction. Id. at 5.
The principle announced in Purcell has very
recently been reiterated. First, in Republican National
Committee, the Supreme Court stayed on the eve of the
April 7 Wisconsin primary a district court order that
altered the State’s voting rules by extending certain
deadlines applicable to absentee ballots. 140 S. Ct. at
1206. The Court noted that it was adhering to Purcell
and had “repeatedly emphasized that lower federal
courts should ordinarily not alter the election rules on
the eve of an election.” Id. at 1207 (citing Purcell, 549
U.S. at 1). And just over two weeks ago, the Court
denied an application to vacate a stay of a district court
order that made similar changes to Wisconsin’s election
rules six weeks before Election Day. Democratic Nat’l
Comm. v. Wis. State Legislature, No. 20A66, 592 U.S.
__, 2020 WL 6275871 (Oct. 26, 2020) (denying
application to vacate stay). Justice Kavanaugh
explained that the injunction was improper for the
“independent reason []” that “the District Court
changed Wisconsin’s election rules too close to the
election, in contravention of this Court’s precedents.”
Id. at *3 (Kavanaugh, J., concurring). Purcell and a
App. 53
string20 of Supreme Court election-law decisions in
2020 “recognize a basic tenet of election law: When an
election is close at hand, the rules of the road should be
clear and settled.” Id.
The prevailing state election rule in Pennsylvania
permitted voters to mail ballots up through 8:00 P.M.
on Election Day so long as their ballots arrived by 5:00
P.M. on November 6. Whether that rule was wisely or
properly put in place is not before us now. What
matters for our purposes today is that Plaintiffs’
challenge to it was not filed until sufficiently close to
the election to raise a reasonable concern in the
District Court that more harm than good would come
from an injunction changing the rule. In sum, the
District Court’s justifiable reliance on Purcell
constitutes an “alternative and independent reason[]”
for concluding that an “injunction was unwarranted”
20
See, e.g., Andino v. Middleton, No. 20A55, 592 U.S. __, 2020 WL
5887393, at *1 (Oct. 5, 2020) (Kavanaugh, J., concurring) (“By
enjoining South Carolina’s witness requirement shortly before the
election, the District Court defied [the Purcell] principle and this
Court’s precedents.” (citations omitted)); Merrill v. People First of
Ala., No. 19A1063, 591 U.S. __, 2020 WL 3604049 (Mem.), at *1
(July 2, 2020); Republican Nat’l Comm., 140 S. Ct. at 1207; see also
Democratic Nat’l Comm. v. Bostelmann, 977 F.3d 639, 2020 WL
5951359, at *1 (7th Cir. Oct. 8, 2020) (per curiam) (holding that
injunction issued six weeks before election violated Purcell); New
Ga. Project v. Raffensperger, 976 F.3d 1278, 1283 (11th Cir. Oct. 2,
2020) (“[W]e are not on the eve of the election—we are in the
middle of it, with absentee ballots already printed and mailed. An
injunction here would thus violate Purcell’s well-known caution
against federal courts mandating new election rules—especially at
the last minute.” (citing Purcell, 549 U.S. at 4–5)).
App. 54
here. Wis. State Legislature, 2020 WL 6275871, at *3
(Kavanaugh, J., concurring).
IV.
CONCLUSION
We do not decide today whether the Deadline
Extension or the Presumption of Timeliness are proper
exercises of the Commonwealth of Pennsylvania’s
lawmaking authority, delegated by the U.S.
Constitution, to regulate federal elections. Nor do we
evaluate the policy wisdom of those two features of the
Pennsylvania Supreme Court’s ruling. We hold only
that when voters cast their ballots under a state’s
facially lawful election rule and in accordance with
instructions from the state’s election officials, private
citizens lack Article III standing to enjoin the counting
of those ballots on the grounds that the source of the
rule was the wrong state organ or that doing so dilutes
their votes or constitutes differential treatment of
voters in violation of the Equal Protection Clause.
Further, and independent of our holding on standing,
we hold that the District Court did not err in denying
Plaintiffs’ motion for injunctive relief out of concern for
the settled expectations of voters and election officials.
We will affirm the District Court’s denial of Plaintiffs’
emergency motion for a TRO or preliminary injunction.
App. 55
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-3214
[Filed November 13, 2020]
JIM BOGNET, DONALD K. MILLER, DEBRA MILLER,
ALAN CLARK, JENNIFER CLARK,
v.
Appellants
SECRETARY COMMONWEALTH OF
PENNSYLVANIA; ADAMS COUNTY BOARD OF
ELECTIONS; ALLEGHENY COUNTY BOARD OF
ELECTIONS; ARMSTRONG COUNTY BOARD OF
ELECTIONS; BEAVER COUNTY BOARD OF
ELECTIONS; BEDFORD COUNTY BOARD OF
ELECTIONS; BERKS COUNTY BOARD OF
ELECTIONS; BLAIR COUNTY BOARD OF
ELECTIONS; BRADFORD COUNTY BOARD OF
ELECTIONS; BUCKS COUNTY BOARD OF
ELECTIONS; BUTLER COUNTY BOARD OF
ELECTIONS; CAMBRIA COUNTY BOARD OF
ELECTIONS; CAMERON COUNTY BOARD OF
ELECTIONS; CARBON COUNTY BOARD OF
ELECTIONS; CENTRE COUNTY BOARD OF
ELECTIONS; CHESTER COUNTY BOARD OF
ELECTIONS; CLARION COUNTY BOARD OF
ELECTIONS; CLEARFIELD COUNTY BOARD OF
ELECTIONS; CLINTON COUNTY BOARD OF
ELECTIONS; COLUMBIA COUNTY BOARD OF
ELECTIONS; CRAWFORD COUNTY BOARD OF
ELECTIONS; CUMBERLAND COUNTY BOARD OF
ELECTIONS; DAUPHIN COUNTY BOARD OF
App. 56
ELECTIONS; DELAWARE COUNTY BOARD OF
ELECTIONS; ELK COUNTY BOARD OF
ELECTIONS; ERIE COUNTY BOARD OF
ELECTIONS; FAYETTE COUNTY BOARD OF
ELECTIONS; FOREST COUNTY BOARD OF
ELECTIONS; FRANKLIN COUNTY BOARD OF
ELECTIONS; FULTON COUNTY BOARD OF
ELECTIONS; GREENE COUNTY BOARD OF
ELECTIONS; HUNTINGDON COUNTY BOARD OF
ELECTIONS; INDIANA COUNTY BOARD OF
ELECTIONS; JEFFERSON COUNTY BOARD OF
ELECTIONS; JUNIATA COUNTY BOARD OF
ELECTIONS; LACKAWANNA COUNTY BOARD OF
ELECTIONS; LANCASTER COUNTY BOARD OF
ELECTIONS; LAWRENCE COUNTY BOARD OF
ELECTIONS; LEBANON COUNTY BOARD OF
ELECTIONS; LEHIGH COUNTY BOARD OF
ELECTIONS; LUZERNE COUNTY BOARD OF
ELECTIONS; LYCOMING COUNTY BOARD OF
ELECTIONS; MCKEAN COUNTY BOARD OF
ELECTIONS; MERCER COUNTY BOARD OF
ELECTIONS; MIFFLIN COUNTY BOARD OF
ELECTIONS; MONROE COUNTY BOARD OF
ELECTIONS; MONTGOMERY COUNTY BOARD
OF ELECTIONS; MONTOUR COUNTY BOARD OF
ELECTIONS; NORTHAMPTON COUNTY BOARD
OF ELECTIONS; NORTHUMBERLAND COUNTY
BOARD OF ELECTIONS; PERRY COUNTY BOARD
OF ELECTIONS; PHILADELPHIA COUNTY
BOARD OF ELECTIONS; PIKE COUNTY BOARD
OF ELECTIONS; POTTER COUNTY BOARD OF
ELECTIONS; SCHUYLKILL COUNTY BOARD OF
ELECTIONS; SNYDER COUNTY BOARD OF
ELECTIONS; SOMERSET COUNTY BOARD OF
App. 57
ELECTIONS; SULLIVAN COUNTY BOARD OF
ELECTIONS; SUSQUEHANNA COUNTY BOARD
OF ELECTIONS; TIOGA COUNTY BOARD OF
ELECTIONS; UNION COUNTY BOARD OF
ELECTIONS; VENANGO COUNTY BOARD OF
ELECTIONS; WARREN COUNTY BOARD OF
ELECTIONS; WASHINGTON COUNTY BOARD OF
ELECTIONS; WAYNE COUNTY BOARD OF
ELECTIONS; WESTMORELAND COUNTY BOARD
OF ELECTIONS; WYOMING COUNTY BOARD OF
ELECTIONS; YORK COUNTY BOARD OF
ELECTIONS
DEMOCRATIC NATIONAL COMMITTEE,
Intervenor
______________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 3-20-cv-00215
District Judge: Honorable Kim. R. Gibson
_______________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 9, 2020
Before: SMITH, Chief Judge,
SCIRICA, Circuit Judges
SHWARTZ,
and
_____________________
JUDGMENT
_____________________
This cause came to be heard on the record from the
United States District Court for the Western District of
App. 58
Pennsylvania and was submitted on November 9, 2020.
On consideration thereof, it is now ORDERED and
ADJUDGED that the order of the District Court
entered on October 28, 2020, be and the same hereby is
AFFIRMED. All of the above in accordance with the
opinion of this Court. Each party shall bear its own
costs.
ATTEST:
s/ Patricia S. Dodszuweit
Clerk
Dated: November 13, 2020
App. 59
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
Case No. 3:20-cv-215
JUDGE KIM R. GIBSON
[Filed October 28, 2020]
JIM BOGNET, DONALD K. MILLER,
DEBRA MILLER, ALAN CLARK, AND
JENNIFER CLARK,
Plaintiffs,
v.
KATHY BOOCKVAR, in her capacity as Secretary of
the Commonwealth of Pennsylvania, ADAMS
COUNTY BOARD OF ELECTIONS, ALLEGHENY
COUNTY BOARD OF ELECTIONS, ARMSTRONG
COUNTY BOARD OF ELECTIONS, BEAVER
COUNTY BOARD OF ELECTIONS, BEDFORD
COUNTY BOARD OF ELECTIONS, BERKS
COUNTY BOARD OF ELECTIONS, BLAIR
COUNTY BOARD OF ELECTIONS, BRADFORD
COUNTY BOARD OF ELECTIONS, BUCKS
COUNTY BOARD OF ELECTIONS, BUTLER
COUNTY BOARD OF ELECTIONS, CAMBRIA
COUNTY BOARD OF ELECTIONS, CAMERON
COUNTY BOARD OF ELECTIONS, CARBON
App. 60
COUNTY BOARD OF ELECTIONS, CENTRE
COUNTY BOARD OF ELECTIONS, CHESTER
COUNTY BOARD OF ELECTIONS, CLARION
COUNTY BOARD OF ELECTIONS, CLEARFIELD
COUNTY BOARD OF ELECTIONS, CLINTON
COUNTY BOARD OF ELECTIONS, COLUMBIA
COUNTY BOARD OF ELECTIONS, CRAWFORD
COUNTY BOARD OF ELECTIONS, CUMBERLAND
COUNTY BOARD OF ELECTIONS, DAUPHIN
COUNTY BOARD OF ELECTIONS, DELAWARE
COUNTY BOARD OF ELECTIONS, ELK COUNTY
BOARD OF ELECTIONS, ERIE COUNTY BOARD
OF ELECTIONS, FAYETTE COUNTY BOARD OF
ELECTIONS, FOREST COUNTY BOARD OF
ELECTIONS, FRANKLIN COUNTY BOARD OF
ELECTIONS, FULTON COUNTY BOARD OF
ELECTIONS, GREENE COUNTY BOARD OF
ELECTIONS, HUNTINGDON COUNTY BOARD OF
ELECTIONS, INDIANA COUNTY BOARD OF
ELECTIONS, JEFFERSON COUNTY BOARD OF
ELECTIONS, JUNIATA COUNTY BOARD OF
ELECTIONS, LACKAWANNA COUNTY BOARD OF
ELECTIONS, LANCASTER COUNTY BOARD OF
ELECTIONS, LAWRENCE COUNTY BOARD OF
ELECTIONS, LEBANON COUNTY BOARD OF
ELECTIONS, LEHIGH COUNTY BOARD OF
ELECTIONS, LUZERNE COUNTY BOARD OF
ELECTIONS, LYCOMING COUNTY BOARD OF
ELECTIONS, MCKEAN COUNTY BOARD OF
ELECTIONS, MERCER COUNTY BOARD OF
ELECTIONS, MIFFLIN COUNTY BOARD OF
ELECTIONS, MONROE COUNTY BOARD OF
ELECTIONS, MONTGOMERY COUNTY BOARD
OF ELECTIONS, MONTOUR COUNTY BOARD OF
App. 61
ELECTIONS, NORTHAMPTON COUNTY BOARD
OF ELECTIONS, NORTHUMBERLAND COUNTY
BOARD OF ELECTIONS, PERRY COUNTY BOARD
OF ELECTIONS, PHILADELPHIA COUNTY
BOARD OF ELECTIONS, PIKE COUNTY BOARD
OF ELECTIONS, POTTER COUNTY BOARD OF
ELECTIONS, SCHUYLKILL COUNTY BOARD OF
ELECTIONS, SNYDER COUNTY BOARD OF
ELECTIONS, SOMERSET COUNTY BOARD OF
ELECTIONS, SULLIVAN COUNTY BOARD OF
ELECTIONS, SUSQUEHANNA COUNTY BOARD
OF ELECTIONS, TIOGA COUNTY BOARD OF
ELECTIONS, UNION COUNTY BOARD OF
ELECTIONS, VENANGO COUNTY BOARD OF
ELECTIONS, WARREN COUNTY BOARD OF
ELECTIONS, WASHINGTON COUNTY BOARD OF
ELECTIONS, WAYNE COUNTY BOARD OF
ELECTIONS, WESTMORELAND COUNTY BOARD
OF ELECTIONS, WYOMING COUNTY BOARD OF
ELECTIONS, AND YORK COUNTY BOARD OF
ELECTIONS,
Defendants,
and
DEMOCRATIC NATIONAL COMMITTEE,
Intervenor-Defendant.
MEMORANDUM ORDER
Pending before the Court is “Plaintiffs’ Motion for
an Immediate Temporary Restraining Order and a
Preliminary Injunction and Expedited Hearing as Soon
as Practicable” (“Motion”) and brief in support (ECF
App. 62
Nos. 5, 6) filed by Plaintiffs Jim Bognet, Donald K.
Miller, Debra Miller, Alan Clark, and Jennifer Clark
(collectively “Plaintiffs”) on October 22, 2020.
Defendant Kathy Boockvar filed her brief in opposition
on October 26,2020. (ECF No. 59). IntervenorDefendant Democratic National Committee filed its
brief in opposition that same day.1 (ECF No. 64). The
Court held a hearing via videoconference on October
27, 2020. For the following reasons, Plaintiffs’ Motion
is DENIED.
I.
Background
Plaintiff Jim Bognet resides in Hazelton,
Pennsylvania and is a candidate for Pennsylvania’s 8th
Congressional District. (ECF No.1, ¶ 10). Plaintiffs
Donald K. Miller, Debra Miller, Alan Clark, and
Jennifer Clark are all residents of Somerset County,
Pennsylvania, registered and active voters, and plan on
voting in person on Election Day, November 3, 2020
(collectively “Somerset Plaintiffs”). (Id. at ¶¶ 11-14).
Defendant Kathy Boockvar is named in her capacity
as Secretary of the Commonwealth of Pennsylvania.
(Id. at ¶ 15). Defendants Adams County Board of
Elections, Allegheny County Board of Elections,
Armstrong County Board of Elections, Beaver County
Board of Elections, Bedford County Board of Elections,
Berks County Board of Elections, Blair County Board
of Elections, Bradford County Board of Elections,
Bucks County Board of Elections, Butler County Board
1
Also filed were briefs by several County Boards of Election (ECF
Nos. 61, 63, 64, 65, 66, 67, 68), as well as an amicus brief filed by
Governor Arnold A. Schwarzenegger (ECF No. 62-1).
App. 63
of Elections, Cambria County Board of Elections,
Cameron County Board of Elections, Carbon County
Board of Elections, Centre County Board of Elections,
Chester County Board of Elections, Clarion County
Board of Elections, Clearfield County Board of
Elections, Clinton County Board of Elections, Columbia
County Board of Elections, Crawford County Board of
Elections, Cumberland County Board of Elections,
Dauphin County Board of Elections, Delaware County
Board of Elections, Elk County Board of Elections, Erie
County Board of Elections, Fayette County Board of
Elections, Forest County Board of Elections, Franklin
County Board of Elections, Fulton County Board of
Elections, Greene County Board of Elections,
Huntingdon County Board of Elections, Indiana County
Board of Elections, Jefferson County Board of
Elections, Juniata County Board of Elections,
Lackawanna County Board of Elections, Lancaster
County Board of Elections, Lawrence County Board of
Elections, Lebanon County Board of Elections, Lehigh
County Board of Elections, Luzerne County Board of
Elections, Lycoming County Board of Elections,
McKean County Board of Elections, Mercer County
Board of Elections, Mifflin County Board of Elections,
Monroe County Board of Elections, Montgomery
County Board of Elections, Montour County Board of
Elections, Northampton County Board of Elections,
Northumberland County Board of Elections, Perry
County Board of Elections, Philadelphia County Board
of Elections, Pike County Board of Elections, Potter
County Board of Elections, Schuylkill County Board of
Elections, Snyder County Board of Elections, Somerset
County Board of Elections, Sullivan County Board of
Elections, Susquehanna County Board of Elections,
App. 64
Tioga County Board of Elections, Union County Board
of Elections, Venango County Board of Elections,
Warren County Board of Elections, Washington County
Board of Elections, Wayne County Board of Elections,
Westmoreland County Board of Elections, Wyoming
County Board of Elections, and York County Board of
Elections (collectively “County Election Boards”) are
the county boards of elections for each county of the
Commonwealth of Pennsylvania. (Id. at ¶ 16).
In Pennsylvania Democratic Party v. Boockvar, the
Pennsylvania Supreme Court “adopt[ed] Secretary
[Boockvar]’s informed recommendation of a three-day
extension of the absentee and mail-in ballot received-by
deadline to allow for the tabulation of ballots mailed by
voters via the USPS and postmarked by 8:00 p.m. on
Election Day.” ___A.3d___, No. 133 MM 2020, 2020 WL
5554644, *18 (Pa. Sept. 17, 2020) (“Deadline
Extension”). Further, the Pennsylvania Supreme Court
“conclude[d] that a ballot received on or before
5:00 p.m. on November 6, 2020, [would] be presumed to
have been mailed by Election Day unless a
preponderance of the evidence demonstrate[d] that it
was mailed after Election Day.” Id. at *18 n.26
(“Presumption of Timeliness”).
In their Complaint, the Plaintiffs allege that they
are harmed by the Deadline Extension and the
Presumption of Timeliness. (ECF No. 1 at ¶¶ 68-71).
Bognet contends that he has been harmed because the
Pennsylvania Supreme Court’s decision “allows County
Boards of Elections to accept votes for Representative
that would otherwise be unlawful in his election . . .
[and] directly undermines his right to run in an
App. 65
election where Congress has paramount authority to
set the ‘Times, Places, and Manner’ and has done so in
2 U.S.C. § 7.” (Id. at ¶ 69). The Somerset Plaintiffs
allege two harms. First, they contend that “the
Pennsylvania Supreme Court has created a ‘preferred
class of voters’–those who do not have to comply with
Congress’s set Election Day.” (Id. at ¶ 70) (alteration
omitted). Second, the Somerset Plaintiffs allege that
their votes will be diluted because votes that would not
otherwise be timely will be counted. (Id. at ¶ 71).
In their Motion, Plaintiffs request that the “Court
enter an immediate temporary restraining order to
restrain the Secretary of the Commonwealth Kathy
Boockvar and the 67 County Boards of Elections . . .
from following a[] . . . policy announced by the
Pennsylvania Supreme Court in a recent decision.”
(ECF No. 5, p. 3). Plaintiffs further request that the
“Court schedule an expedited hearing and issue a
preliminary injunction as soon as practicable.” (Id.).
II.
Legal Standard
Federal Rule of Civil Procedure 65 authorizes courts
to issue preliminary injunctions and temporary
restraining orders. Injunctive relief is appropriate only
“upon a clear showing that the [movant] is entitled to
such relief.” Winter v. Nat. Res. Def Council, Inc., 555
U.S. 7, 22 (2008). In determining whether a party is
entitled to a temporary restraining order or a
preliminary injunction, a court is to consider four
factors: (1) whether the movant has shown a
reasonable probability of success on the merits;
(2) whether the movant will be irreparably harmed
without the temporary restraining order; (3) the
App. 66
balance of equities favors granting a temporary
restraining order, including any harm to the
nonmoving party; and (4) whether granting the
temporary restraining order will be in the public
interest. SI Handling Sys., Inc. v. Heisley, 753 F.2d
1244, 1254 (3d Cir. 1985); see Winter, 555 U.S. at 20.
“The factors are the same for both temporary
restraining orders and preliminary injunctions.” Corp.
Synergies Grp., LLC v. Andrews, 775 F. App’x 54, 58
n.5 (3d Cir. 2019).
III.
Findings of Fact and Discussion
The Court finds that Plaintiffs have established a
likelihood of success on their claim that the counting of
ballots received after Election Day but before 5:00 p.m.
on November 6, 2020, without a postmark or with an
illegible postmark creates a preferred class of voters
and violates their rights under the Equal Protection
Clause. The Court is of the opinion that this violation
of the Equal Protection Clause should be enjoined.
However, the Supreme Court “has repeatedly
emphasized that lower federal courts should ordinarily
not alter the election rules on the eve of an election.”
Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205, 1207 (2020). In accordance with this
guidance, the Court determines that it is required to
deny Plaintiffs’ motion for injunctive relief because
Plaintiffs raised their claim on the eve of the election,
despite the likelihood of success on the merits of their
Equal Protection Claim.
This Court received Plaintiffs’ Motion on Thursday,
October 22, 2020, and promptly ordered a response be
filed by Monday, October 26, 2020, and conducted oral
App. 67
argument on Tuesday, October 27, 2020. Due to the
time constraints imposed by the pending election, the
Court heard oral argument on Plaintiffs’ Motion
without also holding an evidentiary hearing. This
decision is issued less than one week after receipt of
the motion. Yet, even with that prompt judicial action,
this Court’s order is issued less than one week prior to
the election date.
a. Standing
“Article III of the Constitution limits the federal
courts to adjudication of ‘Cases’ and ‘Controversies.”’
DiNaples v. MRS BPO, LLC, 934 F.3d 275, 279 (3d Cir.
2019) (quoting U.S. Const. art. III, § 2, cl. 1). “Courts
enforce the case-or-controversy requirement by
requiring the plaintiff to have standing to sue.” Id.
(citation and internal quotation marks omitted).
Standing has three elements, “[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). “An injury in fact is one that is concrete and
particularized.” DiNaples, 934 F .3d at 279 (quoting
Spokeo, 136 S. Ct. at 1548) (internal quotation marks
omitted). “To be concrete, the injury must actually
exist”; “[i]t must be real, not abstract.” Id. (citation and
internal quotation marks omitted).
b. Bognet
Bognet alleges two injuries as a result of the
Deadline Extension and the Presumption of
Timeliness. First, Bognet alleges in the Complaint that
App. 68
he has been injured because County Boards of Election
are allowed “to accept votes for Representative that
would otherwise be unlawful in his election.” (ECF No.
1, ¶ 69). Second, in his declaration attached to the brief
in support, Bognet contends that his “campaign has
expended additional funds to update voters and staff on
the changes the Pennsylvania Supreme Court made to
the mail-in voting requirements in its September 17,
2020 ruling.” (ECF No. 6-2, ¶ 3). The Court finds that
the harms alleged are insufficient for Bognet to
establish standing.
The Court finds that Bognet’s first alleged injury is
too speculative to confer standing. In Carson v. Simon,
the Plaintiffs alleged that, as candidates, their
candidacy to be state electors supported standing. 20CV-2030, 2020 WL 6018957, at *13 (D. Minn. Oct. 12,
2020). The court found this was insufficient, concluding
that “it [was] equally possible that more of the
challenged ballots [would] be cast in favor of the
Electors’ candidate; in that case, the Electors would
benefit from ballots received after election day.” Id.
(emphasis in original). Just as in Carson, Bognet’s
alleged harm is conjectural and hypothetical. See Lujan
v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). In order
for the alleged harm to actually occur, more votes
which otherwise would not have been counted must be
cast in favor of Bognet’s opponent than in his favor,
otherwise he would benefit, not be harmed by those
ballots. Further, the number of ballots cast in favor of
his opponent would have to be sufficient to change the
results of the election in order for Bognet to have been
harmed. The Court finds that the alleged harm is
conjectural and hypothetical, insufficient to establish
App. 69
standing. Further, it is far from clear that this alleged
harm is certainly impending.
Nor can Bognet establish standing based on his
expenditures. For a plaintiff to have standing, the
injury must be redressable. Spokeo, 136 S. Ct. at 1547.
Here, Bognet has already made the expenditures.
Therefore, granting the relief Bognet seeks would not
address the expenditures he has already made.
Further, to the extent Bognet made those expenditures
to address a perceived future harm, it is unclear what
harm he was seeking to avoid. As addressed above,
Bognet’s alleged harm caused by the Deadline
Extension and the Presumption of Timeliness is
conjectural and hypothetical. It is well established that
a plaintiff “cannot manufacture standing by choosing to
make expenditures based on hypothetical future harm
that is not certainly impending.” Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 416 (2013). Accordingly, the
Court finds that Bognet has failed to establish that he
has standing to bring his claims.
c. Somerset Plaintiffs
The Fourteenth Amendment to the United States
Constitution prohibits a state from “deny[ing] to any
person within its jurisdiction the equal protection of
the laws.” “States have long been held to have broad
powers to determine the conditions under which the
right of suffrage may be exercised.” Lassiter v.
Northampton Cnty. Bd. of Elections, 360 U.S. 45, 50
(1959). However, “once the franchise is granted to the
electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the
App. 70
Fourteenth Amendment.” Harper v. Virginia State Bd.
of Elections, 383 U.S. 663, 665 (1966).
Supreme Court precedent identifies two types of
voting harms prohibited by the Fourteenth
Amendment. First, “the right of suffrage can be denied
by a debasement or dilution of the weight of a citizen’s
vote.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
Second, “State[s] may not, by later arbitrary and
disparate treatment, value one person’s vote over that
of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
The Somerset Plaintiffs seek to bring claims under
both theories of harm. (ECF No. 1, ¶¶ 70-71).
i. Vote Dilution
The Somerset Plaintiffs allege that, as a result of
the Deadline Extension and the Presumption of
Timeliness fashioned by the Pennsylvania Supreme
Court, their votes will be diluted. (ECF No. 1, ¶ 71). In
Carson, the plaintiffs alleged “that votes received after
Election Day are invalid and unlawful, and thus
counting these votes [would] increase the total amount
of votes cast, which [would] in turn render their own
lawful votes less influential.” 2020 WL 6018957, at *7.
The court found this allegation insufficient to confer
standing because “such dilution affects all Minnesota
voters equally, giving no disadvantage to the
[plaintiffs].” Id. The court further concluded that the
“claim of vote dilution [was] a paradigmatic generalized
grievance that cannot support standing. The prospect
of hypothetical unlawful votes in the upcoming
presidential election is not a harm unique to the
[plaintiffs].” Id. at *8.
App. 71
Other courts throughout the country have come to
the same result. In Moore v. Circosta, the court found
that “the notion that a single person’s vote will be less
valuable as a result of unlawful or invalid ballots being
cast is not a concrete and particularized injury in fact
necessary for Article III standing.” No. 1:20-CV-911,
2020 WL 6063332, at *14 (M.D.N.C. Oct. 14, 2020).
Similarly, the court in Martel v. Candos stated that
“[i]f every voter suffers the same incremental dilution
of the franchise caused by some third-party’s
fraudulent vote, then these voters have experienced a
generalized injury.” No. 5:20-CV-131, 2020 WL
5755289, at *4 (D. Vt. Sept. 16, 2020). In Paher v.
Cegavske, the court found that the plaintiffs lacked
standing because their “purported injury of having
their votes diluted due to ostensible election fraud may
be conceivably raised by any Nevada voter. Such
claimed injury therefore does not satisfy the
requirement that Plaintiffs must state a concrete and
particularized injury.” 457 F. Supp. 3d 919, 926 (D.
Nev. 2020). The Supreme Court has “consistently held
that a plaintiff raising only a generally available
grievance about government–claiming only harm to his
and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more
directly and tangibly benefits him than it does the
public at large–does not state an Article III case or
controversy.” Lujan, 504 U.S. at 573-74.
The Court finds that the vote dilution alleged by the
Somerset Plaintiffs is too generalized to establish
standing. There is no doubt that the Deadline
Extension and the Presumption of Timeliness allow
votes to be counted that otherwise would not be.
App. 72
However, any dilution affects all voters. This
generalized harm is insufficient to confer standing.
ii. Arbitrary and Disparate Treatment
The Somerset Plaintiffs also allege that the
Deadline Extension and the Presumption of Timeliness
create a preferred class of voters, “those who do not
have to comply with Congress’s set Election Day.” (ECF
No. , ¶ 70). Further, in support of their motion, the
Somerset Plaintiffs included sworn declarations
attesting that they will be “voting in person on
November 3, 2020.” (ECF Nos. 16-3, 16-4, 16-5, 16-6).
Plaintiffs contend that because they will be voting in
person, they “must follow the law passed by Congress.
But mail-in ballot voters do not.” (ECF No. 1, ¶ 70).
As the Supreme Court explained in Gray v.
Sanders, “[t]he concept of ‘we the people’ under the
Constitution visualizes no preferred class of voters but
equality among those who meet the basic
qualifications.” 372 U.S. 368, 379-380 (1963). Further,
“once the class of voters is chosen and their
qualifications specified, we see no constitutional way by
which equality of voting power may be evaded.” Id. at
381. “The right to vote is protected in more than the
initial allocation of the franchise. Equal protection
applies as well to the manner of its exercise. Having
once granted the right to vote on equal terms, the State
may not, by later arbitrary and disparate treatment,
value one person’s vote over that of another.” Bush, 531
U.S. at 104-05 (2000).
The Court finds that the Deadline Extension does
not violate the Equal Protection Clause. As held by the
App. 73
Pennsylvania Supreme Court, the Deadline Extension
“is a three-day extension of the absentee and mail-in
ballot received-by deadline to allow for the tabulation
of ballots mailed by voters via the USPS and
postmarked by 8:00 p.m. on Election Day.” Pa.
Democratic Party, 2020 WL 5554644, at *18. This
extension merely allows ballots that were properly cast
through the act of mailing by 8:00 p.m. on Election Day
and received by 5:00 p.m. on November 6, 2020, to be
counted. Contrary to Plaintiffs’ assertion, this
extension does not extend the time period during which
Pennsylvanians may lawfully vote. Accordingly, the
Court finds that Plaintiffs have not alleged an injury
created by the Deadline Extension.
However, the Court finds that the Somerset
Plaintiffs have alleged an injury created by the
Presumption of Timeliness. Under the Presumption of
Timeliness, ballots received after 8:00 p.m. on Election
Day with no postmark or an illegible postmark are
“presumed to have been mailed by Election Day unless
a preponderance of the evidence demonstrates that it
was mailed after Election Day.” Id. at *18 n.26. The
Presumption of Timeliness itself allows for mail-in
ballots cast after Election Day (innocently or
fraudulently) to be counted if those ballots have an
illegible postmark or do not have any postmark at all.
This Presumption of Timeliness subjects in-person
voters and voters who vote by mail to different
treatment. It is impossible for an in-person voter to
submit his or her ballot after Election Day and have it
counted–the polls will be closed. In contrast, a voter
who votes by mail will be able to cast his or her ballot
after the congressionally mandated Election Day and
App. 74
have it counted, even though that ballot does not
possess the indicia of being timely (namely a valid
postmark on or before November 3, 2020).
Plaintiffs have alleged that through the
Presumption of Timeliness, the Pennsylvania Supreme
Court has created a different, extended Election Day
than the one established by Congress. The
Presumption of Timeliness changes the effective date
of the election and extends the date of the election by
multiple days for a select group of mail-in voters whose
ballots will be presumed to be timely in the absence of
a verifiable postmark. Mail-in voters whose ballots fail
to receive a legible postmark or any postmark will be
presumed to have cast their ballot timely solely by
virtue of the judicially created presumption. This
preferred class of voters will now be able to cast their
ballots after the congressionally established Election
Day, yet by virtue of the judicially imposed
presumption they will be deemed to have voted timely
if the ballot lacks a legible postmark or has no
postmark at all. This unequal treatment of voters,
created by the Pennsylvania Supreme Court, harms the
Somerset Plaintiffs because, as in-person voters, they
must vote by the end of the congressionally established
Election Day in order to have their votes counted.
Accordingly, the Court finds that the Somerset
Plaintiffs have alleged an injury sufficient to confer
standing based upon the Presumption of Timeliness
created by the Pennsylvania Supreme Court.
App. 75
d. The Court is Required to Deny the
Injunctive Relief Sought by the Plaintiffs
i.
Success on the Merits of their
Equal Protection Claim
In determining whether a temporary restraining
order or preliminary injunction is appropriate, the
Court is to first consider whether the movant has
shown a reasonable probability of success on the
merits. SI Handling Sys., 753 F.2d at 1254; see Winter,
555 U.S. at 20.
The Court finds that the Somerset Plaintiffs are
likely to succeed on the merits of the Equal Protection
claim relating to the Presumption of Timeliness. As
addressed above, the Somerset Plaintiffs have alleged
that the Pennsylvania Supreme Court, through the
Presumption of Timeliness, extended the time to cast
ballots for a specific group of voters: those voters who
cast a ballot by mail after the congressionally
established Election Day (innocently or fraudulently)
which does not receive a postmark or a legible
postmark. In contrast, the Somerset Plaintiffs, as inperson voters, must comply with the congressionally
created deadline in order to have their votes counted.
Equal Protection encompasses the manner in which
the right to vote is exercised and prevents arbitrary
and disparate treatment. Bush, 531 U.S. at 104; see
Gray, 372 U.S. at 378-79. Here, the Pennsylvania
Supreme Court acted arbitrarily in creating the
Presumption of Timeliness with little discussion. In
creating the presumption, the Pennsylvania Supreme
Court simply stated that the lack or illegibility of a
App. 76
postmark is “undeniably outside of the control of the
individual voter.” Pa. Democratic Party, 2020 WL
5554644, at *18 n.26. As addressed by Justice Mundy
in her dissent, the Pennsylvania Supreme Court
adopted the Presumption of Timeliness in a footnote
“[w]ithout further explanation.” Id. at *40 (Mundy, J,
dissenting). In addition, providing for a subset of voters
to cast ballots after the election and have those votes
counted by virtue of the judicially created presumption,
even though they do not receive a legible postmark,
while voters like the Somerset Plaintiffs are required
to cast their vote by the congressionally mandated
Election Day, is arbitrary treatment of different voters
based simply on their method of voting. Therefore, the
Presumption of Timeliness clearly results in the
disparate treatment of voters. Accordingly, the Court
finds that the Somerset Plaintiffs are likely to succeed
on the merits of their Equal Protection claim because
the Presumption of Timeliness “is not a process with
sufficient guarantees of equal treatment.” Bush, 531
U.S. at 107.
ii.
Irreparable Harm
The next consideration is whether the movant will
be irreparably harmed without the injunctive relief. SI
Handling Sys., 753 F.2d at 1254; see Winter, 555 U.S.
at 20.
Here, the Court finds that the Somerset Plaintiffs
are likely to be irreparably harmed without the
temporary restraining order. “Courts routinely deem
restrictions on fundamental voting rights irreparable
injury.” League of Women Voters of N. Carolina v.
North Carolina, 769 F.3d 224, 247 (4th Cir. 2014)
App. 77
(collecting cases). As addressed above, the Presumption
of Timeliness subjects the Somerset Plaintiffs to
arbitrary and disparate treatment. Without a
temporary restraining order, the Somerset Plaintiff are
likely to be irreparably harmed by the arbitrary and
disparate treatment caused by the Presumption of
Timeliness.
iii.
Balance of the Equities
Next, the Court must consider whether the balance
of equities favors granting injunctive relief, including
any harm to the nonmoving party. SI Handling Sys.,
753 F.2d at 1254; see Winter, 555 U.S. at 20.
The Supreme Court “has repeatedly emphasized
that lower federal courts should ordinarily not alter the
election rules on the eve of an election.” Republican
Nat’l Comm., 140 S. Ct. at 1207 (citing Purcell v.
Gonzalez, 549 U.S. 1, (2006) (per curiam)). Further,
based upon this “Purcell principle,” the Supreme Court
has prevented numerous rulings of lower federal courts
from going into effect because the rulings would have
“alter[ed] state elections laws in the period close to an
election.” Democratic Nat’l Comm. v. Wis. State
Legislature, No. 20A66, 2020 WL 6275871, at *3 (U.S.
Oct. 26, 2020) (Kavanaugh, J, concurring in denial of
application to vacate stay). Accordingly, the Court finds
that the equities weigh against granting injunctive
relief.
iv.
The Public Interest
Finally, the Court is to consider whether granting
injunctive relief would be in the public interest. SI
App. 78
Handling Sys., 753 F.2d at 1254; see Winter, 555 U.S.
at 20.
“[T]he Purcell principle . . . seeks to avoid . . .
judicially created confusion. Republican Nat’l Comm.,
140 S. Ct. at 1207. Here, the Plaintiffs filed their
Motion less than two weeks before the election. The
election is rapidly approaching. Granting the relief
Plaintiffs seek would result in significant voter
confusion; precisely the kind of confusion that Purcell
seeks to avoid. Accordingly, the Court finds that
granting injunctive relief would not be in the public
interest.
IV.
Order
Accordingly, this 28th day of October, 2020, after
hearing and due consideration of consideration of
Plaintiffs’ Motion and brief in support (ECF Nos. 5, 6),
as well as the briefs in opposition, IT IS HEREBY
ORDERED that the Plaintiffs’ Motion is DENIED.
BY THE COURT:
/s/ Kim R. Gibson
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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