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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONALD J. TRUMP FOR
PRESIDENT, INC., et al.,

No. 4:20-CV-02078
(Judge Brann)

Plaintiffs,
v.
KATHY BOOCKVAR, et al.,
Defendants.
MEMORANDUM OPINION
NOVEMBER 21, 2020
Pending before this Court are various motions to dismiss Plaintiffs’ First
Amended Complaint. Plaintiffs in this matter are Donald J. Trump for President,
Inc. (the “Trump Campaign”), and two voters, John Henry and Lawrence Roberts
(the “Individual Plaintiffs”).1 Defendants, who filed these motions to dismiss,
include seven Pennsylvania counties (the “Defendant Counties”), as well as
Secretary of the Commonwealth Kathy Boockvar.2
I.

INTRODUCTION
In this action, the Trump Campaign and the Individual Plaintiffs

(collectively, the “Plaintiffs”) seek to discard millions of votes legally cast by
Pennsylvanians from all corners – from Greene County to Pike County, and

                                                            
1
2

Doc. 125.
Id. Since the filing of the initial complaint, there have also been several intervenors and
amicus petitioners.

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everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise
almost seven million voters. This Court has been unable to find any case in which
a plaintiff has sought such a drastic remedy in the contest of an election, in terms
of the sheer volume of votes asked to be invalidated. One might expect that when
seeking such a startling outcome, a plaintiff would come formidably armed with
compelling legal arguments and factual proof of rampant corruption, such that this
Court would have no option but to regrettably grant the proposed injunctive relief
despite the impact it would have on such a large group of citizens.
That has not happened. Instead, this Court has been presented with strained
legal arguments without merit and speculative accusations, unpled in the operative
complaint and unsupported by evidence. In the United States of America, this
cannot justify the disenfranchisement of a single voter, let alone all the voters of its
sixth most populated state. Our people, laws, and institutions demand more. At
bottom, Plaintiffs have failed to meet their burden to state a claim upon which
relief may be granted. Therefore, I grant Defendants’ motions and dismiss
Plaintiffs’ action with prejudice.
II.

BACKGROUND
A.

Legal and Factual Background

The power to regulate and administer federal elections arises from the
Constitution.3 “Because any state authority to regulate election to those offices
                                                            
3

Cook v. Gralike, 531 U.S. 510, 522 (2001).
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could not precede their very creation by the Constitution, such power ‘had to be
delegated to, rather than reserved to by, the States.’”4 Consequently, the Elections
Clause “delegated to the States the power to regulate the ‘Times, Places, and
Manner of holding Elections for Senators and Representatives,’ subject to a grant
of authority to Congress to ‘make or alter such Regulations.’”5 Accordingly,
States’ power to “regulate the incidents of such elections, including balloting” is
limited to “the exclusive delegation of power under the Elections Clause.”6
Pennsylvania regulates the “times, places, and manner” of its elections
through the Pennsylvania Election Code.7 The Commonwealth’s Constitution
mandates that “[e]lections 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.”8
Recognizing this as a foundational principle, the Pennsylvania Supreme Court has
declared that the purpose of the Election Code is to promote “freedom of choice, a
fair election and an honest election return.”9
In October 2019, the General Assembly of Pennsylvania enacted Act 77,
which, “for the first time in Pennsylvania,” extended the opportunity for all

                                                            
4
5
6
7
8

9

Id. (quoting U.S. Term Limits v. Thornton, 514 U.S. 779, 804 (1995)).
Id. (quoting U.S. Const. Art. I, § 4, cl. 1).
Id. at 523.
25 P.S. §§ 2601, et seq.
Pa. Democratic Party v. Boockvar, 238 A.3d 345, 356 (Pa. 2020) (quoting Pa. Const., Art. I,
§ 5).
Id. (quoting Perles v. Hoffman, 213 A.2d 781, 783 (Pa. 1965)).
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registered voters to vote by mail.10 Following the beginning of the COVID-19
outbreak in March 2020, the General Assembly enacted laws regulating the mail-in
voting system.11 Section 3150.16 of the Election Code sets forth procedural
requirements that voters must follow in order for their ballot to be counted.12
These procedures require, for example, that voters mark their ballots in pen or
pencil, place them in secrecy envelopes, and that ballots be received by the county
elections board on or before 8:00 P.M. on Election Day.13
Nowhere in the Election Code is any reference to “curing” ballots, or the
related practice of “notice-and-cure.” This practice involves notifying mail-in
voters who submitted procedurally defective mail-in ballots of these deficiencies
and allowing those voters to cure their ballots.14 Notified voters can cure their
ballots and have their vote counted by requesting and submitting a provisional
ballot.15
Recently, the Supreme Court of Pennsylvania in Democratic Party of
Pennsylvania v. Boockvar addressed whether counties are required to adopt a
notice-and-cure policy under the Election Code.16 Holding that they are not, the

                                                            
10

11
12
13
14
15
16

Id. at 352 (citing 25 P.S. §§ 3150.11-3150.17). Prior to the enactment of Act 77, voters were
only permitted to vote by mail if they could “demonstrate their absence from the voting
district on Election Day.” Id. (internal citations omitted).
E.g., 25 P.S. § 3150.16.
Id.
Id.
Pa. Democratic Party, 238 A.3d at 372.
Doc. 93 at 9.
Pa. Democratic Party, 238 A.3d at 374.
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court declined to explicitly answer whether such a policy is necessarily
forbidden.17
Following this decision, Secretary Boockvar sent an email on November 2,
2020 encouraging counties to “provide information to party and candidate
representatives during the pre-canvass that identifies the voters whose ballots have
been rejected” so those ballots could be cured.18 From the face of the complaint, it
is unclear which counties were sent this email, which counties received this email,
or which counties ultimately followed Secretary Boockvar’s guidance.
Some counties chose to implement a notice-and-cure procedure while others
did not.19 Importantly, however, Plaintiffs allege only that Philadelphia County
implemented such a policy.20 In contrast, Plaintiffs also claim that Lancaster and
York Counties (as well as others) did not adopt any cure procedures and thus
rejected all ballots cast with procedural deficiencies instead of issuing these voters
provisional ballots.21
Both Individual Plaintiffs had their ballots cancelled in the 2020 Presidential
Election.22 John Henry submitted his mail-in ballot to Lancaster County; however,
it was cancelled on November 6, 2020 because he failed to place his ballot in the
                                                            
17

18
19
20
21
22

Id. (holding only that the Election Code “does not provide for the ‘notice and opportunity to
cure’ procedure sought by Petitioner”).
Doc. 125 at ¶ 129.
Id. at ¶¶ 124-27.
Id. at ¶ 127.
Id. at ¶ 130.
Id. at ¶¶ 15-16.
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required secrecy envelope.23 Similarly, after submitting his ballot to Fayette
County, Lawrence Roberts discovered on November 9, 2020 that his ballot had
been cancelled for an unknown reason.24 Neither was given an opportunity to cure
his ballot.25
B.

The 2020 Election Results

In large part due to the coronavirus pandemic still plaguing our nation, the
rate of mail-in voting in 2020 was expected to increase dramatically. As
anticipated, millions more voted by mail this year than in past elections. For
weeks before Election Day, ballots were cast and collected. Then, on November 3,
2020, millions more across Pennsylvania and the country descended upon their
local voting precincts and cast ballots for their preferred candidates. When the
votes were counted, the Democratic Party’s candidate for President, Joseph R.
Biden Jr., and his running-mate, Kamala D. Harris, were determined to have
received more votes than the incumbent ticket, President Donald J. Trump and
Vice President Michael R. Pence. As of the day of this Memorandum Opinion, the
Biden/Harris ticket had received 3,454,444 votes, and the Trump/Pence ticket had
received 3,373,488 votes, giving the Biden ticket a lead of more than 80,000 votes,
per the Pennsylvania state elections return website.26 These results will become
                                                            
23
24
25
26

Id. at ¶ 15.
Id. at ¶ 16.
Id. at ¶¶ 15-16.
Pa. Dep’t of State, Unofficial Returns, Statewide, https://www.electionreturns.pa.gov/ (last
visited on November 21, 2020).
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official when counties certify their results to Secretary Boockvar on November 23,
2020 – the result Plaintiffs seek to enjoin with this lawsuit.
C.

Procedural History

Although this case was initiated less than two weeks ago, it has already
developed its own tortured procedural history. Plaintiffs have made multiple
attempts at amending the pleadings, and have had attorneys both appear and
withdraw in a matter of seventy-two hours. There have been at least two perceived
discovery disputes, one oral argument, and a rude and ill-conceived voicemail
which distracted the Court’s attention from the significant issues at hand.27 The
Court finds it helpful to place events in context before proceeding further.
In the evening of November 9, 2020, Plaintiffs filed suit in this Court against
Secretary Boockvar, as well as the County Boards of Elections for the following
counties: Allegheny, Centre, Chester, Delaware, Montgomery, Northampton, and
Philadelphia.28 The original complaint raised seven counts; two equal-protection
claims, two due-process claims, and three claims under the Electors and Elections
Clauses.29
The following day, I convened a telephonic status conference with the
parties to schedule future proceedings. During that conference, I learned that
several organizations, including the Democratic National Committee, sought to file
                                                            
27
28
29

Doc. 131 (denied).
See Doc. 1.
Id.
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intervention motions with the Court. Later that day, I set a briefing schedule.30
Additionally, November 17, 2020 was set aside for oral argument on any motions
to dismiss, and the Court further told the parties to reserve November 19, 2020 in
their calendars in the event that the Court determined that an evidentiary hearing
was necessary. Subsequent to the Court’s scheduling order, the proposedintervenors filed their motions, and the parties filed their briefings. Plaintiffs then
filed a motion for a preliminary injunction on November 12, 2020.31
On November 12, 2020, Plaintiffs also underwent their first change in
counsel. Attorneys Ronald L. Hicks, Jr., and Carolyn B. McGee with Porter
Wright Morris & Arthur LLP filed a motion seeking to withdraw from the case.
The Court granted this motion, and Plaintiffs retained two attorneys from Texas,
John Scott and Douglas Brian Hughes, to serve as co-counsel to their original
attorney, Linda A. Kerns.
The next day, November 13, 2020, was a relatively quiet day on the docket
for this case, but an important one for the parties. That day, the United States
Court of Appeals for the Third Circuit issued a decision in Bognet v. Secretary
Commonwealth of Pennsylvania.32 This decision, though not factually connected

                                                            
30
31
32

See Doc. 35.
Doc. 89.
No. 20-3214, 2020 WL 6686120 (3d Cir. Nov. 13, 2020) (pending publication).
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to this matter, addressed issues of standing and equal protection relevant to the
Plaintiffs’ claims.33
Thereafter, on Sunday, November 15, 2020 – the day Plaintiffs’ response to
Defendants’ motions to dismiss was due – Plaintiffs filed a First Amended
Complaint (the “FAC”) with the Court. This new complaint excised five of the
seven counts from the original complaint, leaving just two claims: one equalprotection claim, and one Electors and Elections Clauses claim.34 In addition, a
review of the redline attached to the FAC shows that Plaintiffs deleted numerous
allegations that were pled in the original complaint.
Plaintiffs acknowledge that under the Third Circuit’s decision in Bognet, this
Court cannot find that Plaintiffs have standing for their Elections and Electors
Clauses claim in the FAC. Plaintiffs represent that they have included this claim in
the FAC to preserve the argument for appellate review. Because Plaintiffs have
made this concession, and because the Third Circuit’s decision in Bognet is clear,
this Court dismisses Count II for lack of standing without further discussion.
Defendants filed new motions to dismiss and briefs in support thereof on
November 16, 2020. That evening, less than 24 hours before oral argument was to
begin, Plaintiffs instituted a second series of substitutions in counsel. Ms. Kerns,

                                                            
33

34

For example, Bognet held that only the General Assembly had standing to raise claims under
the Elections and Electors Clauses. Id. at *7. This ruling effectively shut the door on
Plaintiffs’ allegations under those clauses of the Constitution.
Doc. 125.
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along with Mr. Scott and Mr. Hughes, requested this Court’s permission to
withdraw from the litigation. I granted the motions of the Texan attorneys because
they had been involved with the case for approximately seventy-two hours.
Because oral argument was scheduled for the following day, however, and because
Ms. Kerns had been one of the original attorneys in this litigation, I denied her
request. I believed it best to have some semblance of consistency in counsel ahead
of the oral argument. That evening, attorney Marc A. Scaringi entered an
appearance on behalf of Plaintiffs. Furthermore, Mr. Scaringi asked the Court to
postpone the previously-scheduled oral argument and evidentiary hearing. The
Court denied Mr. Scaringi’s motion for a continuance; given the emergency nature
of this proceeding, and the looming deadline for Pennsylvania counties to certify
their election results, postponing those proceedings seemed imprudent.
On November 17, 2020, the Court prepared to address the parties in oral
argument. That morning, attorney Rudolph W. Giuliani entered his appearance on
behalf of Plaintiffs. With this last-minute appearance, Plaintiffs had made their
final addition to their representation.35 At the conclusion of the argument, I
determined that an evidentiary hearing (previously scheduled to take place on
November 19, 2020) was no longer needed and cancelled that proceeding. Instead,
I imposed a new briefing schedule in light of the FAC’s filing, which arguably

                                                            
35

Ms. Kerns has since withdrawn from the case.
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mooted the initial motions to dismiss. The parties submitted briefing on the
issues.36
D.

Plaintiffs’ Claims

Plaintiffs’ only remaining claim alleges a violation of equal protection. This
claim, like Frankenstein’s Monster, has been haphazardly stitched together from
two distinct theories in an attempt to avoid controlling precedent. The general
thrust of this claim is that it is unconstitutional for Pennsylvania to give states
discretion to adopt a notice-and-cure policy. Invoking Bush v. Gore, Plaintiffs
assert that such local control is unconstitutional because it creates an arbitrary
system where some persons are allowed to cure procedurally defective mail-in
ballots while others are not.
Apparently recognizing that such a broad claim is foreclosed under the Third
Circuit’s decision in Bognet, Plaintiffs try to merge it with a much simpler theory
of harm based on the cancellation of Individual Plaintiffs’ ballots in order to satisfy
standing.37 Because Individual Plaintiffs’ votes were invalidated as procedurally

                                                            
36

37

Separately, Plaintiffs filed a motion seeking leave to file a second amended complaint. Doc.
172. Having filed the FAC as of right, Plaintiffs may file a second amended complaint only
with the opposing party's written consent or the court's leave. During the oral argument on
November 17, 2020, Defendants indicated that they would not consent to the filing of a third
pleading and did not concur in the motion for leave to file this second amended complaint.
Plaintiffs initially appeared to base their standing under the Equal Protection Clause on the
theory that the notice-and-cure policy unlawfully allowed certain ballots to be counted, and
that this inclusion of illegal ballots diluted Plaintiffs’ legal votes. Doc. 1. After Bognet
expressly rejected this theory of standing, however, Plaintiffs have since reversed course and
now argue that their standing is based on the cancellation of Individual Plaintiffs’ votes and
the Trump Campaign’s “competitive standing.” 2020 WL 6686120, at *9-10; Doc. 124 at 2.
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defective, Individual Plaintiffs argue, for purposes of standing, that their claim is
based on the denial of their votes. But on the merits, Plaintiffs appear to have
abandoned this theory of harm and instead raise their broader argument that the
lack of a uniform prohibition against notice-and-cure is unconstitutional.38 They
assert this theory on behalf of both Individual Plaintiffs and the Trump Campaign.
That Plaintiffs are trying to mix-and-match claims to bypass contrary
precedent is not lost on the Court. The Court will thus analyze Plaintiffs’ claims as
if they had been raised properly and asserted as one whole for purposes of standing
and the merits. Accordingly, the Court considers Plaintiffs as alleging two equalprotection claims. The first being on behalf of Individual Plaintiffs whose ballots
were cancelled. And the second being on behalf of the Trump Campaign and
raising the broad Bush v. Gore arguments that Plaintiffs allege is the main focus of
this lawsuit.39 The Court analyzes both claims separately for purposes of standing
and the merits analysis.
III.

STANDING
Plaintiffs lack standing to raise either of their claims. “Article III of the

United States Constitution limits the power of the federal judiciary to ‘cases’ and
                                                            

38

39

To the extent that Plaintiffs may still argue that votes have been unconstitutionally diluted
(see, FAC ¶ 97), those claims are barred by the Third Circuit’s decision in Bognet.
Plaintiffs essentially conceded that they were only setting forth the vote-denial theory for
purposes of standing when they stated on the record at oral argument that they believed
Individual Plaintiffs’ votes were lawfully cancelled. Hr’g. Tr. 110:22-111:02.
In briefing, Plaintiffs attempt to revive their previously-dismissed poll-watcher claims.
Count I does not seek relief for those allegations, but the Court considers them, infra.
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‘controversies.’”40 To satisfy the case-or-controversy requirement, a plaintiff must
establish that they have standing.41 Standing is a “threshold” issue.42 It is an
“irreducible constitutional minimum,” without which a federal court lacks
jurisdiction to rule on the merits of an action.43 Consequently, federal courts are
obligated to raise the issue of standing sua sponte.44
The plaintiff bears the burden of establishing standing.45 To demonstrate
standing, he must show: (1) 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.46 “In assessing whether a plaintiff has carried this
burden, [courts must] separate [the] standing inquiry from any assessment of the
merits of the plaintiff’s claim.”47 “To maintain this fundamental separation
between standing and merits at the dismissal stage, [courts] assume for the
purposes of [the] standing inquiry that a plaintiff has stated valid legal claims.”48
“While [the Court’s] standing inquiry may necessarily reference the ‘nature and

                                                            
40

41
42

43
44

45
46
47
48

Pa. Voters All. v. Centre Cnty., No. 4:20-CV-01761, 2020 WL 6158309, at *3 (M.D. Pa. Oct.
21, 2020) (quoting Cotrell v. Alcon Laboratories, 874 F.3d 154, 161-62 (3d Cir. 2017)).
Cotrell, 874 F.3d at 161-62.
Wayne Land & Mineral Grp., LLC v. Del. River Basin Comm’n, 959 F.3d 569, 573-74 (3d
Cir. 2020) (internal citations omitted).
Id. at 574 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
Id. (quoting Seneca Reservation Corp. v. Twp. of Highland, 863 F.3d 245, 252 (3d Cir.
2017).
Cottrell, 874 F.3d at 162 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)).
Id. (quoting Spokeo, 136 S. Ct. at 1547).
Id.
Id. (citing Info. Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024,
1029 (D.C. Cir. 2003)).
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source of the claims asserted,’ [the Court’s] focus remains on whether the plaintiff
is the proper party to bring those claims.”49
As discussed above, Plaintiffs allege two possible theories of standing.
First, Individual Plaintiffs argue that their votes have been unconstitutionally
denied. Under this theory, Individual Plaintiffs must show that Defendant
Counties’ use of the notice-and-cure procedure, as well as Secretary Boockvar’s
authorization of this procedure, denied Individual Plaintiffs the right to vote.50
Second, the Trump Campaign maintains that it has competitive standing.51
Both theories are unavailing. Assuming, as this Court must, that Plaintiffs
state a valid equal-protection claim, the Court finds that Individual Plaintiffs have
adequately established an injury-in-fact. However, they fail to establish that it was
Defendants who caused these injuries and that their purported injury of vote-denial
is adequately redressed by invalidating the votes of others. The Trump
Campaign’s theory also fails because neither competitive nor associational
standing applies, and it does not assert another cognizable theory of standing.
 

                                                            
49
50

51

Id. (brackets and internal citations omitted).
As discussed above, to the extent that Plaintiffs would have premised standing on the theory
that Pennsylvania’s purportedly unconstitutional failure to uniformly prohibit the notice-andcure procedure constitutes vote-dilution, such an assertion would be foreclosed under Bognet.
2020 WL 6686120, at *9-10. Accordingly, the Court will only consider whether Individual
Plaintiffs have standing under their vote-denial theory.
In the interest of comprehensiveness, the Court also addresses whether the Trump Campaign
has associational standing.
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A.

Voters
1.

Injury in Fact

Individual Plaintiffs have adequately demonstrated that they suffered an
injury-in-fact. “[A] person’s right to vote is ‘individual and personal in nature.’”52
Accordingly, the denial of a person’s right to vote is typically always sufficiently
concrete and particularized to establish a cognizable injury.53 This is true
regardless of whether such a harm is widely shared.54 So long as an injury is
concrete, courts will find that an injury in fact exists despite the fact that such harm
is felt by many.55
This is precisely the situation presented here. Individual Plaintiffs have
adequately pled that their votes were denied. As discussed above, the denial of a
vote is a highly personal and concrete injury. That Individual Plaintiffs had their
ballots cancelled and thus invalidated is sufficiently personal to establish an injury
in fact. It is of no matter that many persons across the state might also have had
their votes invalidated due to their county’s failure to implement a curing
                                                            
52

53

54

55

Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561
(1964)).
See Gomillion v. Lightfoot, 364 U.S. 339, 349 (1960) (Whittaker, J.) (noting the distinction
between injuries caused by outright denial of the right to vote versus those caused by
reducing the weight or power of an individual’s vote). The Court notes that much of
standing doctrine as it relates to voting rights arises from gerrymandering or vote-dilution
cases, which often involve relatively abstract harms. See, e.g., Gill, 138 S. Ct.; Gaffney v.
Cummings, 412 U.S. 735 (1973); Reynolds v. Sims, 377 U.S. 533 (1964)).
See Federal Elections Comm’n v. Akins, 524 U.S. 11, 24 (1998) (citing Public Citizen v. U.S.
Dep’t of Justice, 491 U.S. 440, 449-50 (1989)).
See id. (“[W]here a harm is concrete, though widely shared, the [United States Supreme]
Court has found ‘injury in fact.’”) (quoting Public Citizen, 491 U.S. at 449-50).
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procedure. Accordingly, the Court finds that Individual Plaintiffs have established
injury in fact.
2.

Causation

However, Individual Plaintiffs fail to establish that Defendant Counties or
Secretary Boockvar actually caused their injuries. First, Defendant Counties, by
Plaintiffs’ own pleadings, had nothing to do with the denial of Individual
Plaintiffs’ ability to vote. Individual Plaintiffs’ ballots were rejected by Lancaster
and Fayette Counties, neither of which is a party to this case. None of Defendant
Counties received, reviewed, or discarded Individual Plaintiffs’ ballots. Even
assuming that Defendant Counties unconstitutionally allowed other voters to cure
their ballots, that alone cannot confer standing on Plaintiffs who seek to challenge
the denial of their votes.
Second, Individual Plaintiffs have not shown that their purported injuries are
fairly traceable to Secretary Boockvar. Individual Plaintiffs have entirely failed to
establish any causal relationship between Secretary Boockvar and the cancellation
of their votes. The only connection the Individual Plaintiffs even attempt to draw
is that Secretary Boockvar sent an email on November 2, 2020 to some number of
counties, encouraging them to adopt a notice-and-cure policy. However, they fail
to allege which counties received this email or what information was specifically
included therein. Further, that this email encouraged counties to adopt a noticeand-cure policy does not suggest in any way that Secretary Boockvar intended or
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desired Individual Plaintiffs’ votes to be cancelled. To the contrary, this email
suggests that Secretary Boockvar encouraged counties to allow exactly these types
of votes to be counted. Without more, this Court cannot conclude that Individual
Plaintiffs have sufficiently established that their injuries are fairly traceable to
Secretary Boockvar.56
3.

Redressability

In large part because the Individual Plaintiffs cannot establish that their
injury is “fairly traceable” to the Defendants’ conduct, they also cannot show that
their injury could be redressed by a favorable decision from this Court.57 Beyond
that substantial hurdle, however, a review of the injury alleged and the relief
sought plainly shows that the Individual Plaintiffs’ injury would not be redressable.
The Individual Plaintiffs base their equal-protection claim on the theory that their

                                                            
56

57

The Third Circuit has held that a party may have standing “to challenge government action
that permits or authorizes third-party conduct that would otherwise be illegal in the absence
of the Government’s action.” Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347,
366 (3d Cir. 2014) (quoting Bloomberg L.P. v. CFTC, 949 F. Supp. 2d 91, 116 (D.D.C.
2013)). But in that case, standing was permitted to avoid a catch-22 situation where, absent
standing against a third-party government actor, a plaintiff would not be able to bring suit
against any responsible party. Id. at 367. Here, Plaintiffs allege that Secretary Boockvar is
responsible for authorizing the unconstitutional actions of Defendant Counties. However,
unlike the plaintiffs in Aichele, Plaintiffs are able to sue Defendant Counties for their
allegedly unconstitutional actions. Moreover, because this Court has already concluded that
Plaintiffs lack standing to sue Defendant Counties for their use of the notice-and-cure policy,
it would be counterintuitive for Plaintiffs to have standing to challenge Secretary Boockvar’s
authorization of this policy, which is even further removed from any purported harm that
Individual Plaintiffs have suffered.
See, e.g., Newdow v. Roberts, 603 F.3d 1002, 1011 (D.C. Cir. 2010) (noting that when an
injury is caused by a third party not before the Court, courts cannot “redress injury . . . that
results from [such] independent action.”) (ellipses and alterations in original) (quoting Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).
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right to vote was denied. Their prayer for relief seeks, in pertinent part: (1) an
order, declaration, or injunction from this Court prohibiting the Defendants from
certifying the results of the 2020 General Election in Pennsylvania on a
Commonwealth-wide basis; and (2) another order prohibiting Defendants from
certifying the results which include ballots the Defendants permitted to be cured.
Neither of these orders would redress the injury the Individual Plaintiffs
allege they have suffered. Prohibiting certification of the election results would
not reinstate the Individual Plaintiffs’ right to vote. It would simply deny more
than 6.8 million people their right to vote. “Standing is measured based on the
theory of harm and the specific relief requested.”58 It is not “dispensed in gross: A
plaintiff's remedy must be tailored to redress the plaintiff's particular injury.”59
Here, the answer to invalidated ballots is not to invalidate millions more.
Accordingly, Plaintiffs have not shown that their injury would be redressed by the
relief sought.
B.

Trump Campaign

The standing inquiry as to the Trump Campaign is particularly nebulous
because neither in the FAC nor in its briefing does the Trump Campaign clearly
assert what its alleged injury is. Instead, the Court was required to embark on an

                                                            
58

59

Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-CV-966, 2020 WL 5997680, at
*37 (W.D. Pa. Oct. 10, 2020) (citing Gill, 138 S. Ct. at 1934).
Gill, 138 S. Ct. at 1934 (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)).
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extensive project of examining almost every case cited to by Plaintiffs to piece
together the theory of standing as to this Plaintiff – the Trump Campaign.
The Trump Campaign first posits that “as a political committee for a federal
candidate,” it has “Article III standing to bring this action.”60 On its face, this
claim is incorrect. Simply being a political committee does not obviate the need
for an injury-in-fact, nor does it automatically satisfy the other two elements of
standing.
For this proposition, the Trump Campaign relies on two federal cases where
courts found associational standing by a political party’s state committee.
Therefore, the Court considers whether the Trump Campaign can raise
associational standing, but finds that those cases are inapposite.61 First, a
candidate’s political committee and a political party’s state committee are not the
same thing. Second, while the doctrine of associational standing is well
established, the Trump Campaign overlooks a particularly relevant, very recent
decision from another federal court – one where the Trump Campaign itself argued
that it had associational standing. In Donald J. Trump for President, Inc. v.
Cegavske,62 the Trump Campaign asserted associational standing, and that court
rejected this theory.

                                                            
60
61

62

Doc. 170 at 11.
Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006); Orloski v. Davis, 564 F.
Supp. 526 (M.D. Pa. 1983).
No. 2:20-CV-1445, 2020 WL 5626974 (D. Nev. Sept. 18, 2020).
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Associational standing allows an entity to bring suit on behalf of members
upon a showing that: (1) “its members would otherwise have standing to sue in
their own right;” (2) “the interests it seeks to protect are germane to the
organization's purpose;” and (3) “neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.”63
In Cegavske (another case in which the Trump Campaign alleged violations
of equal protection), the court found that the Trump Campaign failed to satisfy the
second prong of associational standing because it “represents only Donald J.
Trump and his ‘electoral and political goals’ of reelection.”64 That court noted that
while the Trump Campaign might achieve its purposes through its member voters,
the “constitutional interests of those voters are wholly distinct” from that of the
Trump Campaign.65 No different here. Even if the Individual Plaintiffs attempted
to vote for President Trump, their constitutional interests are different, precluding a
finding of associational standing. In any event, because the Individual Plaintiffs
lack standing in this case, the Trump Campaign cannot satisfy the first prong of
associational standing either.
The Trump Campaign’s second theory is that it has “‘competitive standing’
based upon disparate state action leading to the ‘potential loss of an election.’”66

                                                            
63
64
65
66

Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).
Cegavske, 2020 WL 5626974 at *4 (internal citations omitted).
Id.
Doc. 170 at 11 (citing Drake v. Obama, 664 F.3d 774, 783 (9th Cir. 2011)).
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Pointing to a case from the United States Court of Appeals for the Ninth Circuit,
Drake v. Obama,67 the Trump Campaign claims this theory proves injury-in-fact.
First, the Court finds it important to emphasize that the term “competitive
standing” has specific meaning in this context. Second, the Trump Campaign’s
reliance on the theory of competitive standing under Drake v. Obama is, at best,
misguided. Subsequent case law from the Ninth Circuit has explained that
competitive standing “is the notion that ‘a candidate or his political party has
standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on
the theory that doing so hurts the candidate’s or party’s own chances of prevailing
in the election.’”68 In the present matter, there is no allegation that the Democratic
Party’s candidate for President, or any other candidate, was ineligible to appear on
the ballot.
Examination of the other case law cited to by Plaintiffs contradicts their
theory that competitive standing is applicable here for the same reason. For
example, in Texas Democratic Party v. Benkiser, the United States Court of
Appeals for the Fifth Circuit found competitive standing in a case in which the
Democratic Party petitioned against the decision to deem a candidate ineligible and

                                                            
67
68

664 F.3d.
Townley v. Miller, 722 F.3d 1128, 1135 (9th Cir. 2013) (emphasis added) (quoting Drake,
664 F.3d at 782); see also Mecinas v. Hobbs, No. CV-19-05547, 2020 WL 3472552, at *1112 (D. Ariz. June 25, 2020) (explaining the current state of the doctrine of competitive
standing and collecting cases).
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replace him with another.69 Likewise, in Schulz v. Williams, the United States
Court of Appeals for the Second Circuit found competitive standing where the
Conservative party alleged an injury in fact by arguing that a candidate from the
Libertarian Party of New York was improperly placed on the ballot for the
Governor’s race in 1994.70 By way of yet another example, Plaintiffs’ citation to
Fulani v. Hogsett makes the same point; competitive standing applies to challenges
regarding the eligibility of a candidate. There, the Indiana Secretary of State was
required to certify the names of candidates for President by a certain date.71 When
the Secretary failed to certify the Democratic and Republican candidates by that
date, the New Alliance party challenged the inclusion of those candidates on the
ballot, arguing that allowing these ineligible candidates constituted an injury-infact.72 Three other cases relied on by Plaintiffs illustrate separate grounds for
stating an injury in fact, all still relating to ballot provisions.73
It is telling that the only case from the Third Circuit cited to by Plaintiffs,
Marks v. Stinson, does not contain a discussion of competitive standing or any
other theory of standing applicable in federal court.74 Simply pointing to another
                                                            
69
70
71
72
73

74

459 F.3d at 586.
44 F.3d 48, 53 (2d Cir. 1994).
917 F.2d 1028, 1029-30 (7th Cir. 1990).
Id.
See Green Party of Tennessee v. Hargett, 767 F.3d 533, 542-43 (6th Cir. 2014) (finding that
Plaintiffs had standing to challenge Tennessee’s ballot-access laws); see also Pavek v.
Donald J. Trump for President, Inc., 967 F.3d 905, 907 (8th Cir. 2020) (finding that
Plaintiffs had standing to challenge the ballot-ordering provision in Minnesota); Nelson v.
Warner, No. 3:19-0898, 2020 WL 4582414, at *3 (S.D. W. Va. Aug. 10, 2020) (same).
19 F.3d 873 (3d Cir. 1994).
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case where a competitor in an election was found to have standing does not
establish competitive standing in this matter. Without more, this Court declines to
take such an expansive view of the theory of competitive standing, particularly
given the abundance of guidance from other Circuits, based on Plaintiffs’ own
citations, limiting the use of this doctrine.
The Trump Campaign has not offered another theory of standing, and
therefore, cannot meet its burden of establishing Article III jurisdiction. To be
clear, this Court is not holding that a political campaign can never establish
standing to challenge the outcome of an election; rather, it merely finds that in this
case, the Trump Campaign has not pled a cognizable theory.75
IV.

MOTION TO DISMISS 12(b)(6)
A.

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a
complaint, in whole or in part, if the plaintiff has failed to “state a claim upon
which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a
claim”76 and “streamlines litigation by dispensing with needless discovery and
factfinding.”77 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of
                                                            
75

76

77

Even assuming, however, that the Trump Campaign could establish that element of standing,
it would still fail to satisfy the causation and redressability requirements for the same reasons
that the Voter Plaintiffs do. To the extent the Trump Campaign alleges any injury at all, its
injury is attenuated from the actions challenged.
Richardson v. Bledsoe, 829 F.3d 273, 289 n. 13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (Easterbrook, J.)).
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
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a dispositive issue of law.”78 This is true of any claim, “without regard to whether
it is based on an outlandish legal theory or on a close but ultimately unavailing
one.”79
Following the Roberts Court’s “civil procedure revival,”80 the landmark
decisions of Bell Atlantic Corporation v. Twombly81 and Ashcroft v. Iqbal82
tightened the standard that district courts must apply to 12(b)(6) motions.83 These
cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and
replaced it with a more exacting “plausibility” standard.84
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”85 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”86 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted

                                                            
78
79
80

81
82
83
84
85
86

Id. at 326 (internal citations omitted).
Id. at 327.
Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313, 316, 319-20 (2012).
550 U.S. 544 (2007).
556 U.S. 662 (2009).
Id. at 670.
Id.
Id. at 678 (quoting Twombly, 550 U.S. at 570).
Id.
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unlawfully.”87 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”88
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”89 No
matter the context, however, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”90
When disposing of a motion to dismiss, the Court “accept[s] as true all
factual allegations in the complaint and draw[s] all inferences from the facts
alleged in the light most favorable to [the plaintiff].”91 However, “the tenet that a
court must accept as true all of the allegations contained in the complaint is
inapplicable to legal conclusions.”92 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”93
As a matter of procedure, the Third Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
                                                            
87

88
89
90
91
92
93

Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal
quotations and citations omitted).
Twombly, 550 U.S. at 556.
Iqbal, 556 U.S. at 679.
Id. at 678 (quoting Twombly, 550 U.S. at 557).
Phillips v. County. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678;
Id. (citing Twombly, 550 U.S. at 555); see also Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”).
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must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.94
B.

Equal Protection

Even if Plaintiffs had standing, they fail to state an equal-protection claim.
The Equal Protection Clause of the Fourteenth Amendment commands that no
state shall “deny to any person within its jurisdiction the equal protection of the
laws.”95 The principle of equal protection is fundamental to our legal system
because, at its core, it protects the People from arbitrary discrimination at the hands
of the State.
But, contrary to Plaintiffs’ assertions, not all “unequal treatment” requires
Court intervention.96 The Equal Protection Clause “does not forbid
classifications.”97 It simply keeps governmental decisionmakers from treating
similarly situated persons differently.98 The government could not function if
complete equality were required in all situations. Consequently, a classification
resulting in “some inequality” will be upheld unless it is based on an inherently
suspect characteristic or “jeopardizes the exercise of a fundamental right.”99
                                                            
94
95
96
97

98
99

Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
U.S. Const. Amend. XIV, cl. 1.
Doc. 170 at 29.
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citing F.S. Royster Guano Co. v. Virginia, 253
U.S. 412, 415 (1920)).
Id. (citing F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
Id. (quoting McGowan v. Maryland, 366 U.S. 420, 425-26 (1961)).
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One such fundamental right, at issue in this case, is the right to vote. Voting
is one of the foundational building blocks of our democratic society, and that the
Constitution firmly protects this right is “indelibly clear.”100 All citizens of the
United States have a constitutionally protected right to vote.101 And all citizens
have a constitutionally protected right to have their votes counted.102
With these background principles firmly rooted, the Court turns to the merits
of Plaintiffs’ equal-protection claims. The general gist of their claims is that
Secretary Boockvar, by failing to prohibit counties from implementing a noticeand-cure policy, and Defendant Counties, by adopting such a policy, have created a
“standardless” system and thus unconstitutionally discriminated against Individual
Plaintiffs. Though Plaintiffs do not articulate why, they also assert that this has
unconstitutionally discriminated against the Trump Campaign.
As discussed above, the Court will address Individual Plaintiffs’ and the
Trump Campaign’s claims separately. Because Individual Plaintiffs premised
standing on the purported wrongful cancellation of their votes, the Court will only
analyze whether Defendants have impermissibly burdened Individual Plaintiffs’
ability to vote. Further, the Court will consider two issues raised by the Trump
Campaign; the first being whether it has stated a valid claim alleging
discrimination relating to its use of poll-watchers, and the second being whether
                                                            
100
101
102

Reynolds v. Sims, 377 U.S. 533, 554 (1964).
Id. (citing Ex parte Yarbrough, 110 U.S. 651 (1884)).
Id. (citing United States v. Mosley, 238 U.S. 383 (1915)).
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the General Assembly’s failure to uniformly prohibit (or permit) the notice-andcure procedure is unconstitutional.
1.

Individual Plaintiffs

States have “broad authority to regulate the conduct of elections, including
federal ones.”103 “This authority includes ‘broad powers to determine the
conditions under which the right of suffrage may be exercised.’”104 Because states
must have freedom to regulate elections if “some sort of order, rather than chaos, is
to accompany the democratic processes,”105 such regulation is generally insulated
from the stringent requirements of strict scrutiny.106
Instead, state regulation that burdens voting rights is normally subject to the
Anderson-Burdick balancing test, which requires that a court “weigh the asserted
injury to the right to vote against the ‘precise interests put forward by the State as
justifications for the burden imposed by its rule.’”107 Under this test, “any ‘law
respecting the right to vote – whether it governs voter qualifications, candidate
selection, or the voting process,’ is subjected to ‘a deferential “important

                                                            
103
104

105
106
107

Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) (citing U.S. Const. Art. I, § 4, cl. 1).
Donald J. Trump for President, Inc., 2020 WL 5997680, at *38 (quoting Shelby County, Ala.
v. Holder, 570 U.S. 529, 543 (2013)).
Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)).
Burdick, 504 U.S. at 432-33.
Crawford v. Marion County Election Board, 553 U.S. 181, 190 (2008) (quoting Burdick, 504
U.S. at 434).
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regulatory interests” standard for nonsevere, nondiscriminatory restrictions,
reserving strict scrutiny for laws that severely restrict the right to vote.’”108
The Anderson-Burdick balancing test operates on a sliding scale.109 Thus,
more restrictive laws are subject to greater scrutiny. Conversely, “minimally
burdensome and nondiscriminatory” regulations are subject to “a level of scrutiny
‘closer to rational basis.’”110 “And where the state imposes no burden on the ‘right
to vote’ at all, true rational basis review applies.”111
Here, because Defendants’ conduct “imposes no burden” on Individual
Plaintiffs’ right to vote, their equal-protection claim is subject to rational basis
review.112 Defendant Counties, by implementing a notice-and-cure procedure,
have in fact lifted a burden on the right to vote, even if only for those who live in
those counties. Expanding the right to vote for some residents of a state does not
burden the rights of others.113 And Plaintiffs’ claim cannot stand to the extent that
it complains that “the state is not imposing a restriction on someone else’s right to
vote.”114 Accordingly, Defendant Counties’ use of the notice-and-cure procedure
                                                            
108

109

110

111
112

113
114

Donald J. Trump for President, 2020 WL 5997680, at *39 (quoting Crawford, 533 U.S. at
204 (Scalia, J. concurring)).
See id. at *40; see also Arizona Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir.
2019); Fish v. Schwab, 957 F.3d 1105, 1124 (10th Cir. 2020).
Donald J. Trump for President, 2020 WL 5997680, at *39 (quoting Ohio Council 8 Am.
Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016)).
Id. (citing Biener v. Calio, 361 F.3d 206, 215 (3d Cir. 2004)).
Even after questioning from this Court during oral argument regarding the appropriate
standard of review for their equal-protection claim, Plaintiffs failed to discuss this key aspect
of the claim in briefing. See Doc. 170.
See, e.g., Short v. Brown, 893 F.3d 671, 677 (9th Cir. 2018).
Donald J. Trump for President, 2020 WL 5997680, at *44 (emphasis in original).
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(as well as Secretary Boockvar’s authorization of this procedure) will be upheld
unless it has no rational basis.115
Individual Plaintiffs’ claims fail because it is perfectly rational for a state to
provide counties discretion to notify voters that they may cure procedurally
defective mail-in ballots. Though states may not discriminatorily sanction
procedures that are likely to burden some persons’ right to vote more than others,
they need not expand the right to vote in perfect uniformity. All Plaintiffs have
alleged is that Secretary Boockvar allowed counties to choose whether or not they
wished to use the notice-and-cure procedure. No county was forced to adopt
notice-and-cure; each county made a choice to do so, or not. Because it is not
irrational or arbitrary for a state to allow counties to expand the right to vote if they
so choose, Individual Plaintiffs fail to state an equal-protection claim.
Moreover, even if they could state a valid claim, the Court could not grant
Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the
relationship between right and remedy. Though every injury must have its proper
redress,116 a court may not prescribe a remedy unhinged from the underlying right
being asserted.117 By seeking injunctive relief preventing certification of the
Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even

                                                            
115
116
117

Biener, 361 F.3d at 215.
Marbury v. Madison, 5 U.S. 137, 147 (1803).
Gill, 138 S. Ct. at 1934 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s
particular injury.”) (citing Cuno, 547 U.S. at 353).
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assuming that they can establish that their right to vote has been denied, which they
cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes
of millions of others. Rather than requesting that their votes be counted, they seek
to discredit scores of other votes, but only for one race.118 This is simply not how
the Constitution works.
When remedying an equal-protection violation, a court may either “level up”
or “level down.”119 This means that a court may either extend a benefit to one that
has been wrongfully denied it, thus leveling up and bringing that person on par
with others who already enjoy the right,120 or a court may level down by
withdrawing the benefit from those who currently possess it.121 Generally, “the
preferred rule in a typical case is to extend favorable treatment” and to level up.122
In fact, leveling down is impermissible where the withdrawal of a benefit would
necessarily violate the Constitution.123 Such would be the case if a court were to
remedy discrimination by striking down a benefit that is constitutionally
guaranteed.
                                                            
118

119
120
121
122
123

Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential
election results. Doc. 183 at 1. They suggest that their requested relief would thus not
interfere with other election results in the state. But even if it were logically possible to hold
Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the
Court would not do so.
Heckler v. Matthews, 465 U.S. 728, 740 (1984) (internal citations omitted).
Id. at 741; Califano v. Westcott, 443 U.S. 76, 90-91 (1979).
E.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
Id. (internal citations omitted).
See Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (addressing whether a city’s decision
to close pools to remedy racial discrimination violated the Thirteenth Amendment); see also
Reynolds, 377 U.S. at 554 (citing Mosley, 238 U.S. at 383).
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Here, leveling up to address the alleged cancellation of Plaintiffs’ votes
would be easy; the simple answer is that their votes would be counted. But
Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so,
they ask the Court to violate the rights of over 6.8 million Americans. It is not in
the power of this Court to violate the Constitution.124 “The disenfranchisement of
even one person validly exercising his right to vote is an extremely serious
matter.”125 “To the extent that a citizen’s right to vote is debased, he is that much
less a citizen.”126
Granting Plaintiffs’ requested relief would necessarily require invalidating
the ballots of every person who voted in Pennsylvania. Because this Court has no
authority to take away the right to vote of even a single person, let alone millions
of citizens, it cannot grant Plaintiffs’ requested relief.
2.

Trump Campaign

Plaintiffs’ brief in opposition to the motions to dismiss spends only one
paragraph discussing the merits of its equal-protection claim. Plaintiffs raise two
arguments as to how equal protection was violated. The first is that “Defendants
excluded Republican/Trump observers from the canvass so that they would not

                                                            
124
125

126

Marbury, 5 U.S. at 147.
Perles v. County Return Bd. of Northumberland County, 202 A.2d 538, 540 (Pa. 1964)
(cleaned up).
Id. at 567.
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observe election law violations.”127 The second claims that the “use of notice/cure
procedures violated equal protection because it was deliberately done in counties
where defendants knew that mail ballots would favor Biden/Democrats.”128 The
former finds no support in the operative pleading, and neither states an equalprotection violation.
Count I of the FAC makes no mention of disparity in treatment of observers
based on which campaign they represented. Instead, Count I discusses the use of
“standardless” procedures. These are two separate theories of an equal protection
violation. That deficiency aside, to the extent this new theory is even pled,
Plaintiffs fail to plausibly plead that there was “uneven treatment” of Trump and
Biden watchers and representatives. Paragraphs 132-143 of the FAC are devoted
to this alleged disparity. None of these paragraphs support Plaintiffs’ argument. A
selection below:
 “Defendants have not allowed watchers and representatives to be
present . . .”129
 “In Centre County, the central pre-canvassing location was a large
ballroom. The set-up was such that the poll watchers did not have
meaningful access to observe the canvassing and tabulation process of
mail-in and absentee ballots, and in fact, the poll watchers and
observers who were present could not actually observe the ballots
such that they could confirm or object to the validity of the ballots.”130
                                                            
127

128
129
130

Doc. 170 at 29. Count I makes no mention of the poll-watching allegations, nor does it seek
relief for any violation of law on the basis of those allegations. Out of an abundance of
caution, however, the Court considers whether these allegations state a claim.
Id.
Doc. 125 at ¶ 134 (emphasis added).
Id. at ¶ 135 (emphasis added).
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 “In Philadelphia County, poll watchers and canvass representatives
were denied access altogether in some instances.”131
 “In Delaware County, observers were denied access to a back room
counting area . . .”132
None of these allegations (or the others in this section) claim that the Trump
Campaign’s watchers were treated differently than the Biden campaign’s watchers.
Simply alleging that poll watchers did not have access or were denied access to
some areas does not plausibly plead unequal treatment. Without actually alleging
that one group was treated differently than another, Plaintiffs’ first argument falls
flat.
Likewise, Plaintiffs cannot salvage their notice-and-cure theory by invoking
Bush v. Gore.133 Plaintiffs claim that the Equal Protection clause “imposes a
‘minimum requirement for nonarbitrary treatment of voters’ and forbids voting
systems and practices that distribute resources in ‘standardless’ fashion, without
‘specific rules designed to ensure uniform treatment.’”134 Plaintiffs attempt to craft
a legal theory from Bush, but they fail because: (1) they misapprehend the issues at
play in that case; and (2) the facts of this case are distinguishable.
Plaintiffs’ interpretation of Bush v. Gore would broaden the application of
that case far beyond what the Supreme Court of the United States endorsed. In
Bush, the Supreme Court stopped a recount of votes in Florida in the aftermath of
                                                            
131
132
133
134

Id. at ¶ 136 (emphasis added).
Id. at ¶ 137 (emphasis added).
531 U.S. 98 (2000).
Doc. 170 at 13.
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the 2000 Presidential Election. Despite Plaintiffs’ assertions, Bush does not stand
for the proposition that every rule or system must ensure uniform treatment. In
fact, the Supreme Court explicitly said so, explaining: “[t]he question before the
Court is not whether local entities, in the exercise of their expertise, may develop
different systems for implementing elections.”135 Instead, the Court explained that
its holding concerned a “situation where a state court with the power to assure
uniformity has ordered a statewide recount with minimal procedural
safeguards.”136 Where a state court has ordered such a remedy, the Supreme Court
held that “there must be at least some assurance that the rudimentary requirements
of equal treatment and fundamental fairness are satisfied.”137 In other words, the
lack of guidance from a court constituted an equal-protection violation.
In the instant matter, Plaintiffs are not challenging any court action as a
violation of equal protection, and they do not allege that Secretary Boockvar’s
guidance differed from county to county, or that Secretary Boockvar told some
counties to cure ballots and others not to. That some counties may have chosen to
implement the guidance (or not), or to implement it differently, does not constitute
an equal-protection violation. “[M]any courts that have recognized that counties
may, consistent with equal protection, employ entirely different election

                                                            
135
136
137

Bush, 531 U.S. at 109 (emphasis added).
Id.
Id.
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procedures and voting systems within a single state.”138 “Arguable differences in
how elections boards apply uniform statewide standards to the innumerable
permutations of ballot irregularities, although perhaps unfortunate, are to be
expected, just as judges in sentencing-guidelines cases apply uniform standards
with arguably different results.”139 Requiring that every single county administer
elections in exactly the same way would impose untenable burdens on counties,
whether because of population, resources, or a myriad of other reasonable
considerations.
V.

CONCLUSION
Defendants’ motions to dismiss the First Amended Complaint are granted

with prejudice. Leave to amend is denied. “Among the grounds that could justify
a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice,
and futility.”140 Given that: (1) Plaintiffs have already amended once as of right;
(2) Plaintiffs seek to amend simply in order to effectively reinstate their initial
complaint and claims; and (3) the deadline for counties in Pennsylvania to certify
their election results to Secretary Boockvar is November 23, 2020, amendment
would unduly delay resolution of the issues. This is especially true because the
Court would need to implement a new briefing schedule, conduct a second oral
argument, and then decide the issues.
                                                            
138
139
140

Donald J. Trump for President, 2020 WL 5997680, at *44.
Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 636 (6th Cir. 2020).
Lorenz v. CSX Corp., 1 F.3d 1406, 1413–14 (3d Cir.1993).
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 Case 4:20-cv-02078-MWB Document 202 Filed 11/21/20 Page 37 of 37

An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge 
 
 

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