A Battleground County in a Battleground State

With a pandemic raging and in-person gatherings deemed unsafe, voting officials in Delaware County, Pennsylvania—a battleground county in a battleground state—were counting on remote-voting procedures to make the November presidential election safe, efficient, and fair. Much was at stake. The volume of remotely-cast ballots was unprecedented, the world was watching, and threats of litigation had been swirling for months.

Before, during, and after Election Day, a team of Ballard Spahr attorneys beat back more than a half-dozen lawsuits filed in Pennsylvania state and federal courts. The suits challenged the ways people could vote without being present in-person. Mail-in voting required a substantial investment by Delaware County, including purchases of equipment like ballot drop boxes and a bulk mail sorting machine financed by a $2.2 million grant to the County from the Center for Technology and Civic Life, a nonprofit organization that provided grants on a nonpartisan basis to localities throughout the country to defray the costs of election administration.

Ballard’s litigation victories on behalf of Delaware County included:

• Working with other counties in a similar situation to Delaware County, the team won two significant rulings in federal court in Pittsburgh: an abstention involving the Trump campaign’s constitutional attacks on Pennsylvania’s election law and the refusal to grant a preliminary injunction to the Trump campaign.
• Winning a series of rulings from the Pennsylvania Supreme Court holding that the Pennsylvania Election Code permits the use of drop boxes and other mobile collection sites. The court also held that mail-in ballots received up to three days after Election Day can be counted. Action shifted back to federal court in Pittsburgh, which ultimately rejected the remaining claims, including the assertion that the election practices found compliant by the Pennsylvania Supreme Court still violated the Constitution.
• Defeating a motion for a temporary restraining order and obtaining dismissal of a complaint filed in the Middle District of Pennsylvania by the Amistad Project of the Thomas More Society. The conservative organization filed cases across the country, attacking grants provided to cities and counties on a nonpartisan basis by a nonprofit organization. The grants were awarded to help municipalities pay the increased costs associated with the dramatic increase in mail-in voting. The Third Circuit subsequently affirmed the dismissal.
• Successfully defending Delaware County against a last-minute bid to enjoin the roll-out of a mobile voter services unit at the Philadelphia Union soccer stadium. Plaintiffs claimed that the County Board of Elections violated the Pennsylvania Sunshine Act by failing to include notice on a meeting agenda and that the vote was therefore invalid. The Pennsylvania Court of Common Pleas rejected that argument, finding that the meeting and vote were properly noticed. Plaintiffs filed an emergency appeal to the Commonwealth Court, which, after an oral argument, again denied plaintiffs’ request for an injunction.
• Working with the Commonwealth of Pennsylvania and other counties to defeat a lawsuit brought against Delaware County by individual voters and the Trump campaign—represented by Rudy Giuliani—in the Middle District of Pennsylvania. Mr. Giuliani asked the court to deny certification of the presidential election based on cure procedures applied in certain counties that alerted voters in those counties of the need to correct technical errors in mail-in ballots, as well as limitations on poll watcher access in certain counties.

This representation helped secure the Third Circuit’s widely reported decision that the Trump team did not have standing to challenge the Pennsylvania Supreme Court’s grant of a three-day extension for county boards of election to receive ballots mailed by Election Day. The decision made national headlines.

“Free, fair elections are the lifeblood of our democracy,” U.S. Circuit Judge Stephanos Bibas wrote for the unanimous three-judge panel. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

The Ballard Spahr team was led by Edward D. Rogers and included Terence Grugan, Thomas Burke, Paul Keller Ort, Kahlil C. Williams, Elizabeth Wingfield, and Gianni DiMezza.