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Pennsylvania Mail-In Ballot Deadline Upheld by Appeals Court

Nov. 13, 2020, 7:44 PM

Four Pennsylvania voters and a GOP candidate lost their constitutional challenge to the state’s mail-in ballot deadline Friday, when the Third Circuit ruled that they lacked standing to bring the lawsuit and that rewriting the rule at the last minute would have done “more harm than good” even if the case had merit.

“Whether that rule was wisely or properly put in place is not before us now,” Chief Judge D. Brooks Smith wrote for the court. “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.”

The lawsuit, filed in a Pittsburgh federal court, was one of a flurry of court cases brought by political parties, voters, and campaigns—including President Trump’s—over a state law providing for “no excuse” absentee voting because of the Covid-19 pandemic.

Although the statute expressly requires mailed ballots to be received by Election Day, Pennsylvania’s top court granted a three-day extension in September for ballots postmarked by Election Day. The court cited U.S. Postal Service delays in its ruling.

The U.S. Supreme Court declined to step in Oct. 19, splitting 4-4, and subsequently passed on taking the case on an expedited basis. Justice Samuel Alito noted at the time that the state planned to segregate ballots received after Election Day.

The suit by four voters and Republican congressional candidate Jim Bognet followed on Oct. 22 in the U.S. District Court for the Western District of Pennsylvania. It alleged violations of the equal protection clause and two constitutional provisions regulating elections.

After agreeing to expedite the case, Judge Kim R. Gibson threw it out Oct. 28. The plaintiffs cited only “generalized grievances” affecting the whole state equally, not the sort of ballot “dilution"—impacting some voters more than others—that might give them standing to sue, the judge said.

The U.S. Court of Appeals for the Third Circuit affirmed. The equal protection clause comes into play “only when the plaintiff is part of a group of voters whose votes will be weighed differently compared to another group,” the court said.

“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” on time because of postal delays, Smith wrote. “It is passing strange to assume that one of these voters would be denied ‘equal protection of the laws’ were both votes counted.”

The appeals court also cited “a string of Supreme Court election law decisions,” including several from earlier this year, upholding the principle that federal courts should normally refrain from causing “significant voter confusion” by altering “election rules on the eve of an election.”

Judges Anthony J. Scirica and Patty Shwartz joined the ruling.

Bognet and the voters were represented by Cooper & Kirk PLLC. The state was represented by Hangley Aronchick Segal Pudlin & Schiller, Tucker Law Group LLC, and its attorney general’s office. The Democratic National Committee, which intervened in the case, was represented by Perkins Coie LLP.

Various county elections boards were represented by Babst, Calland, Clements & Zomnir PC, Deasey Mahoney & Valentini Ltd., Ballard Spahr LLP, Lavery Law, and Glassmire & Shaffer Law Offices PC.

The case is Bognet v. Sec. Commonwealth of Pa., 3d Cir., No. 20-3214, 11/13/20.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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