DemAbroad Response
DemAbroad Response
DemAbroad Response
20-3371
IN THE
DONALD J. TRUMP FOR PRESIDENT, INC.; LAWRENCE ROBERTS; AND DAVID JOHN HENRY,
Plaintiff-Appellants,
— v. —
Intervenor Defendant-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA, IN CASE NO. 20-CV-2078, HONORABLE MATTHEW W. BRANN
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TABLE OF CONTENTS
ARGUMENT ............................................................................................... 9
II. This Appeal Comes Far Too Late For Effective Relief.............. 15
CONCLUSION ......................................................................................... 21
CERTIFICATE OF SERVICE.................................................................. 25
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TABLE OF AUTHORITIES
Page(s)
Cases
Fulani v Hogsett,
917 F2d 1028 (7th Cir. 1990), cert. den. 501 U.S. 1206
(1991) .................................................................................................... 19
Kelly v. Pennsylvania,
Docket No. ___ M.D. 2020 ...................................................................... 2
iii
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Perry v Judd,
840 F Supp 2d 945 (ED Va 2012), injunction denied, 471
Fed. Appx. 219 (4th Cir. 2012) ............................................................ 19
Purcell v. Gonzalez,
549 U.S. 1 (2006) .................................................................................. 16
Reynolds v. Sims,
377 U.S. 533 (1964) ........................................................................ 11, 13
Shelley v Kraemer,
334 US 1 (1948) .................................................................................... 13
iv
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Yick Wo v. Hopkins,
118 U.S. 356 (1886) ........................................................................ 10, 11
Statutes
Other Authorities
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PRELIMINARY STATEMENT 1
The attorneys for the President of the United States should not
broadcast Sept. 22, 1970). Yet, apparently, that third, last chance is all
they seek from this Court. All the while, they have – with no apparent
sense of irony given the amount their theory of the case turns on
certify the election results and now seek to have this Court disregard
democracy. It is not. Mail voting has existed since the founding, and
1
No counsel for a party authored this brief in whole or in part, and no such
counsel or any party made a monetary contribution toward the preparation or
submission of this brief. No person other than amicus curiae or its counsel made a
monetary contribution to this brief’s preparation or submission.
2
See generally, Olivia Waxman, Voting by Mail Dates Back to America’s
Earliest Years. Here’s How It’s Changed Over the Years, TIME (Sept. 28, 2020).
1
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their ballots – submits this brief to provide the Court to provide context
to have this Court place still more obstacles in the paths of Americans
3
Federal Voting Assistance Program, U.S. Citizens Abroad And Their Voting
Behaviors In 2018: Overseas Citizen Population Analysis Summary Brief (2018),
available at https://www.fvap.gov/uploads/FVAP/Reports/FVAP_voters_brief_v3a-
(1).pdf (“FVAP Brief”).
4
Notably, proposed intervenors Rep. Mike Kelly et al. (who have also filed in
this Court), have separately sued to have a 2019 expansion of access to mail-in
absentee ballots declared retroactively unconstitutional. See Kelly v. Pennsylvania,
Docket No. ___ M.D. 2020 (Commonwealth Ct. of Penn.). Given the status of those
ballots, just as Appellants do in their Second Amended Complaint, intervenors
acknowledge that the relief they seek is disenfranchising more than seven million
citizens of Pennsylvania by “direct[ing] that the Pennsylvania General Assembly
choose Pennsylvania’s electors.” Complaint in Kelly at 24; see also App-482
(proposed Second Amended Complaint, seeking an order “providing for the
Pennsylvania General Assembly to choose Pennsylvania’s electors”).
2
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Their theory of the case seeks to pick off adverse votes, after voters have
ballots as well as when and how they cast or intended to cast them” –
and in doing so, ask this Court to run through virtually every guardrail
the Supreme Court and this Court alike have erected around cases like
this. Bognet v. Sec'y Pa., No. 20-3214, 2020 U.S. App. LEXIS 35639, at
Americans living outside the United States. More than that, though,
5
The Republican Party does not have any comparable organization. DA
provides its overseas voter registration services on a non-partisan basis (including
through its website at www.votefromabroad.org).
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registration effort and support overseas voters with a 24/7 help desk.
voters for all 50 states and the 6 non-state U.S. jurisdictions, 6 including:
contacts the various Secretary of State offices and Local Election Offices
also contact LEOs on behalf of overseas and military voters who need
ballots. Since DA works closely with voters who use absentee and mail-
in ballots every year, they are experts in dealing with these issues in all
6
That is, District of Columbia, Puerto Rico, American Samoa, Guam, U.S.
Virgin Islands, and Northern Mariana Islands.
4
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spend much more staff time and resources counseling its members on
staff, if the Appellants receive the ultimate relief they seek. In short,
DA has a vital interest in ensuring that the Court does not (at
Americans live abroad for many reasons: for work or to live near
family, to study, or to serve their country. But when they move abroad,
they do not give up their U.S. citizenship or their rights, including their
might prefer to vote in person, because they live far from their polling
5
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live in the United States do not: they may live in different time zones
for example, in the military—may require them to live in areas that are
States. Their ballots must travel through the mail systems of at least
two countries (in some cases, in both directions), and must still be
ballot styles, and so on, all without help from the poll workers or Board
7
42 U.S.C. § 1973ff, et seq.
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overseas have their ballots rejected at shocking rates for what should be
Assistance Commission found that “by far the most common reason for
rejection [of a UOCAVA ballot] was that a ballot was received after a
has found that among UOCAVA voters, the “voting rate would be over
ballots by physical mail. See 25 P.S. § 3146.6. That places the State on
the minority side of a vital divide: including the States that have
States allow voters abroad to return their ballots by email or fax. 10 This
8
U.S. Election Assistance Commission, Election Administration and Voting
Survey: 2018 Comprehensive Report 98 (2018), available at
https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf.
9
FVAP Brief at 3.
10
See FVAP, Ballot/FWAB States Transmission Methods, available online at
https://www.fvap.gov/uploads/FVAP/Images/FWABTransmissionMethods.pdf. Note
that Pennsylvania allows UOCAVA voters to request their ballot by fax or email,
but not to return the ballot by any means other than physical mail.
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voters abroad. While in-state voters, when they realize they have made
a mistake, they can (often but not always, depending on the reason they
are voting by mail) cure their ballots with a provisional vote. Voters
abroad cannot.
are stark. Even when voters request their ballots at the earliest
September 19th this year. With global postal mail slowed down because
face delays of 6-8 weeks in the mail 11 – meaning the 45 days provided by
the MOVE Act only create a possibility that a particular ballot will be
counted, even if mailed back to the State the same day a voter receives
it.
11
Other countries have had their mail stop entirely.
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allegations are none of these things), 12 the remedy they seek would
ballot is tabulated and counted – to the extent the remedy does not just
toss out ballots entirely. Adding that on top of the many barriers that
ARGUMENT
12
Judge Brann observed that, rather than “[a]s one might expect,” coming to
court “formidably armed with compelling legal arguments and factual proof of
rampant corruption,” Appellants made only, “speculative accusations, unpled in the
operative complaint and unsupported by evidence.” App-062. Other courts have
also, faced with similar factual claims by the President’s campaign, found that these
claims are not exactly well-supported. See, e.g., Donald J. Trump for President, Inc.
v. Benson, 20-000225-MZ, Slip. Op. at 1 (Mich. Ct. of Claims Nov. 6, 2020) (noting
that “[t]he complaint does not specify when, where, or by whom plaintiff was
excluded. Nor does the complaint provide any details about why the alleged
exclusion occurred,” and excluding “supplemental evidence” as pure hearsay).
9
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sole relief they seek from this Court), the only non-moot relief sought in
The President of the United States (and his campaign) has for
campaign have brought, presenting one iota of proof. On the eve of the
must be done!” 13
As the Supreme Court has long recognized, the right to vote is the
13
See https://twitter.com/realDonaldTrump/status/1323430341512622080.
10
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Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). This jurisprudential and
political touch point has become so well accepted that the qualification
States Postal Serv., 2020 U.S. Dist. LEXIS 172430 (SDNY 2020).
Appellants ask the Court itself to place a severe burden on the right to
LEXIS 4872, at *22 (2020), stay denied, 2020 U.S. LEXIS 5181 (2020),
11
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motion for expedited cert. denied, 2020 U.S. LEXIS 5181 (2020), ballots
arriving after Election Day ordered segregated, 2020 U.S. LEXIS 5181
(2020) (cleaned up). See also, Donald J. Trump for President, Inc. v
ballot may be the only practical means to exercise that right.” Bush v
Fla 2000). See also, United States v Cunningham, 2009 US Dist LEXIS
1367, 1368 (ND Ga 2012), aff’d, 778 F.3d 926 (11th Cir. 2015) (“Despite
their differences of opinion, there is no doubt that both parties share the
Thus, because the Court itself will be making choices about which
12
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classes of voters may have their ballots counted, it should scrutinize its
own actions just as it would those of election officials (if not more so).
That is, as the Court below explained, the kind of “leveling down” relief
Thompson, 403 U.S. 217, 226-27 (1971) and Reynolds, 377 U.S. at 554.
is not in the power of this Court to violate the Constitution” and the
“Court has no authority to take away the right to vote of even a single
the least-bad option in post-election cases of this kind. That is, “[o]ne
can assume for the sake of argument that aspects of the now-prevailing
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
13
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(that is, the request added by the proposed Second Amended Complaint)
App-091-92.
On the other side of the scale, for amicus DA and the Americans
14
The result of Appellants’ proposed relief would, under Anderson-Burdick,
be a “burden [that] is exceptionally severe[:] A large number of ballots will be
invalidated, and consequently, not counted based on circumstances entirely out of
the voters’ control.” Gallagher v NY State Bd. of Elections, 2020 US Dist LEXIS
138219, at *47 (SDNY Aug. 3, 2020).
14
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steeper burden: they have no way to vote besides by mail and must
make their choices on how to cast their vote much further in advance
futile – and need not be entertained. In re New Jersey Tit. Ins. Litig.,
683 F3d 451, 462 (3d Cir. 2012) (“Thus, even if Appellants substituted a
plaintiff with concrete plans to purchase title insurance, s/he would still
futile”).
II. This Appeal Comes Far Too Late For Effective Relief.
likely have certified election results. As this Court just held in Bognet,
harm than good would come from an injunction changing the rule.”
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in the mail and finalized long before the ballots of their stateside
counterparts. And just as in Bognet, any relief would cause far more
harm than good. So, just as the Court below concluded, further
federal courts should ordinarily not alter the election rules on the eve of
S. Ct. 1205, 1207 (2020), citing Purcell v. Gonzalez, 549 U.S. 1, 4-5
equally well to this action brought after the election, which seeks to
16
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election. 15
desired set of rules and procedures, they had months before the election
did in fact bring (and lose) such related litigation, for example seeking
15
See, e.g., Samuel v Virgin Is. Joint Bd. of Elections, 2013 U.S. Dist LEXIS
3689, at *29-30 DVI 2013) (“Plaintiffs did not explain why they waited until the
eleventh hour to file their request for a TRO and preliminary injunction in which
they seek to undo an election. The timing of their filing their lawsuit confirms that
they will not suffer any irreparable harm”); Soules v Kauaians for Nukolii
Campaign Comm., 849 F2d 1176, 1180 (9th Cir. 1988) (“ Moreover, the courts have
been wary lest the granting of post-election relief encourage sandbagging on the
part of wily plaintiffs”); Hendon v. N. C. State Bd. of Elections, 710 F.2d 177, 182
(4th Cir. 1983) (“[F]ailure to require pre-election adjudication would permit, if not
encourage, parties who could raise a claim to lay by and gamble upon receiving a
favorable decision of the electorate and then, upon losing, seek to undo the ballot
results in a court action”); Lake v State Bd. of Elections, 798 F Supp 1199, 1208
(MDNC 1992) (“Such irregularities are the classic concern of the states under the
constitutional framework. Federal intervention to attempt to rectify any injury done
here would require the undoing of a completed election, a remedy properly reserved
to the State of North Carolina and available under its election laws”).
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See, e.g., Donald J. Trump for President, Inc. v Boockvar, 2020 US Dist
Having delayed this case until after election, given the margins
they face for the relief they seek to be meaningful at all, Appellants are
large groups of voters. Indeed, while they assure this Court otherwise,
“[u]ltimately, [they] will seek the remedy of Trump being declared the
16
While Appellants make reference to “legal votes cast” at App-368, both in
context and given the recent decision by the Pennsylvania Supreme Court, there is
not much left to that “legal votes” argument. And, more to the point perhaps, there
is no “legal vote”-based remedy in the Second Amended Complaint, and all
Appellants seek on appeal is an order sending the case back to the District Court for
proceedings on that complaint.
18
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Fulani v Hogsett, 917 F2d 1028, 1031 (7th Cir. 1990), cert. den. 501 U.S.
1206 (1991). 17
17
See also, Perry v Judd, 840 F Supp 2d 945, 949 (ED Va 2012), injunction
denied, 471 Fed. Appx. 219 (4th Cir. 2012) (“[Plaintiffs] knew the rules in Virginia
many months ago; the limitations on circulators affected them as soon as they
began to circulate petitions. The plaintiffs could have challenged the Virginia law at
that time. Instead, they waited until after the time to gather petitions had ended
and they had lost the political battle to be on the ballot; then, on the eve of the
printing of absentee ballots, they decided to challenge Virginia's laws. In essence,
they played the game, lost, and then complained that the rules were unfair”);
Memphis A. Phillip Randolph Inst. v Hargett, 2020 U.S. Dist LEXIS 133721, at *24-
25 (MD Tenn 2020), aff’d, 2020 U.S. App. LEXIS 32581 (6th Cir. 2020) (“[T]he Court
finds unreasonable delay by Plaintiffs in waiting, after Governor Lee's March 12
state of emergency order, seven weeks to file the original complaint and two months
to file the Motion. As parties allegedly facing severe violations of their
constitutional rights as a result of the implicated election laws, especially
considering the existing COVID-19 pandemic, Plaintiffs should have been on the
proverbial red alert by the time the Governor's order was issued on March 12 …
[P]laintiffs seeking the very extraordinary remedy of enjoining state procedures
governing an approaching primary election needed to move more quickly than they
did, and the Court has not been satisfied by the various explanations for the delay”);
Arizona Libertarian Party v Reagan, 189 F Supp 3d 920, 924 (D Ariz 2016), aff’d,
925 F.3d 1085 (9th Cir. 2019), cert. den. 207 L. Ed. 2D 1052 (2020) (“Plaintiffs were
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Appellants are correct that the Court has the power to unwind the
certification of election results here (it does not), that relief is not
“disregard[ing] the critical point that the plaintiffs themselves did not
ask for [a particular kind of] additional relief.” Republican Nat’l Comm.
v. Democratic Nat’l Comm., 589 U.S. ___, Slip Op. at 3 (2020) (per
timeline that the Court below already found was far too long.
Appellants have had plenty of bites at the apple, and – even in the
therefore aware of the underlying basis for their challenge by August 2015. Despite
this knowledge, Plaintiffs did not file their complaint until April 12, 2016, and did
not file their ‘emergency’ motion for a temporary restraining order until May 12,
2016, less than three weeks before the June 1 deadline for nomination petitions”).
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have the right to security and confidence of knowing that their votes
were counted and the results of the November 3 election are final.
Perhaps more importantly, they also have a right to know their votes
Thus, even if the Court buys what Appellants are selling (it should not),
“one last time,” given the broad reliance on those procedures. Bognet at
49.
CONCLUSION
principles. Their faction lost an election. Thus, they urge, some relief is
and confusion introduced into the public councils, have, in truth, been
21
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perished.”
22
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relied on the mail to vote, all for the sake of faction. The Court need not
Respectfully submitted,
/s/
__________________________
J. Remy Green
COHEN&GREEN P.L.L.C.
1639 Centre Street, Suite 216
Ridgewood, New York 11385
(929) 888.9480 (telephone)
(929) 888.9457 (facsimile)
[email protected]
Sean M. Shultz
SAIDIS, SHULTZ & FISHER LLC
100 Sterling Parkway, Suite 300
Mechanicsburg, Pennsylvania
17050
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CERTIFICATE OF COMPLIANCE
32(a)(5) and the type style requirements of Rule 32(a)(6) because it has
/s/
_____________________
J. REMY GREEN
COHEN&GREEN P.L.L.C.
1639 Centre Street, Suite 216
Ridgewood, New York 11385
(929) 888.9480 (telephone)
(929) 888.9457 (facsimile)
[email protected]
24
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CERTIFICATE OF SERVICE
I certify that I have served this brief on all parties via CM/ECF.
/s/
_____________________
J. REMY GREEN
COHEN&GREEN P.L.L.C.
1639 Centre Street, Suite 216
Ridgewood, New York 11385
(929) 888.9480 (telephone)
(929) 888.9457 (facsimile)
[email protected]
25