Pub. Interest Legal Found. v. Boockvar

495 F.Supp.3d 354

PUBLIC INTEREST LEGAL FOUNDATION, Plaintiff,

v.Kathy BOOCKVAR, Secretary of the Commonwealth of Pennsylvania, in her official capacity, Defendant.

1:20-cv-1905

United States District Court, M.D. Pennsylvania.

Filed October 20, 2020

Bradley J. Schlozman, Hinkle Law Firm, Wichita, KS, John Eastman, Center for Constitutional Jurisprudence, Orange, CA, Linda Ann Kerns, Law Offices of Linda Ann Kerns, LLC, Philadelphia, PA, Sue Becker, Public Interest Legal Foundation, Indianapolis, IN, for Plaintiff.

MEMORANDUM

John E. Jones III, Chief Judge

Two-and-a-half weeks before a national election of critical importance, Plaintiffs filed the instant suit alleging the improper inclusion of 21,206 supposedly deceased Pennsylvanians on voter rolls. In so doing, it asked us to accept as true its private investigation into the eligibility of thousands of voters. But we cannot and will not take Plaintiff's word for it—in an election where every vote matters, we will not disenfranchise potentially eligible voters based solely upon the allegations of a private foundation. And, because Plaintiff waited until the eleventh hour to file this suit, there is clearly insufficient time to require Defendant to separately verify Plaintiff's extensive claims. Thus, for the reasons that follow, we have denied the Motion.¹

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed a Motion for Preliminary Injunction on October 15, 2020 asking us to excise the names of thousands of "potentially deceased" voters from voter rolls across Pennsylvania. (Doc. 4). It did so after first analyzing the Pennsylvania voter rolls in early 2020. (Doc. 5 at 10). In so doing, it examined a list of registrants who were classified in the Commonwealth's SURE database as "active" in September of 2019. (Id. ). Plaintiff compared the full names and birthdates on the active registrant list to records contained in the Social Security Death Index, "commercial databases," and in public obituaries. (Id. ). It ultimately identified approximately 9,300 individuals on Pennsylvania's active voter registration list that it believed were deceased. (Id. ).

Plaintiff detailed these findings in a letter to Defendant dated May 26, 2020. (Pl. Ex 1). Defendant sought additional data from Plaintiff, which was provided on July 17, 2020. (Doc. 5 at 10-11). Plaintiff avers that it received no further communication from Defendant. (Id. at 11).

On September 18, 2020, Plaintiff sent a Notice Letter to Defendant and her legal counsel notifying them that the Commonwealth was in violation of the National Voter Registration Act ("NVRA"). (Id. ). The letter recounted Plaintiff's findings and efforts to communicate with the Commonwealth. (Pl. Ex. 2).

On September 21, 2020, Plaintiff purchased another copy of Pennsylvania's voter rolls to determine whether any further effort had been made to remove deceased registrants from the voter rolls. (Id. ). Notably, this search included both active and inactive registrants.² (Id. ). According to Plaintiff, as of September 21, 2020, there were 21,248 deceased registered voters in Pennsylvania (both active and inactive). (Id. at 12). On October 7, 2020, this number had decreased slightly to 21,206 deceased registered voters. (Id. ). Despite believing that the number of allegedly deceased voters had more than doubled, however, Plaintiffs did not notify Defendant, provide an updated list, or file this suit for, at a minimum, a week and a half. Plaintiff's counsel confirmed to the Court that they did not provide an updated list to Defendant until Saturday, October 17, a mere 48 hours before our scheduled hearing in this matter.

Plaintiff filed a brief in support of their Motion on October 15, 2020. (Doc. 5). In response, we scheduled a hearing on this matter for October 19, 2020. (Doc. 12). Defendant filed a brief in opposition on October 19, 2020. (Doc. 21). On the same day, she also filed a Motion to Strike Expert Report and Preclude the Testimony of Kenneth J. Block and accompanying brief. (Docs. 22, 23). On October 19, we heard oral argument from both parties and denied Plaintiff's Motion for Preliminary Injunction. (Doc. 27). This memorandum now follows to explain our reasoning.

II. STANDARD OF REVIEW

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Apple Inc. v. Samsung Electronics Co. , 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S. Ct. 365, 172 L.Ed.2d 249 (2008) ).

The Supreme Court has emphasized that "a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ; Apotex Inc. v. U.S. Food and Drug Admin. , 508 F.Supp.2d 78, 82 (D.D.C. 2007) ("Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly."). "Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’ " Groupe SEB USA, Inc. v. Euro–Pro Operating LLC , 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter , 555 U.S. at 22, 129 S.Ct. 365 ).

Moreover, "[a]n injunction is mandatory if the injunction will either (1) ‘alter the status quo by commanding some positive act’ or (2) provide the moving party with ‘substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.’ " Coast to Coast Entm't, LLC v. Coastal Amusements, Inc. , No. 05-3977, 2005 WL 7979273, at *9 (D.N.J. Nov. 7, 2005) (quoting Tom Doherty Assocs. v. Saban Entm't , 60 F.3d 27, 33–34 (2d Cir. 1995) ), aff'd , 931 F.3d 215 (3d Cir. 2019). "[W]here the relief ordered by the preliminary injunction is mandatory and will alter the status quo, the party seeking the injunction must meet a higher standard of showing irreparable harm in the absence of an injunction," as mandatory injunctions are generally disfavored. Bennington Foods LLC v. St. Croix Renaissance, Grp., LLP , 528 F.3d 176, 179 (3d Cir. 2008).

III. DISCUSSION

As a threshold matter, we find that Plaintiff seeks a mandatory injunction and will apply the applicable heightened standard. Were we to grant Plaintiff its requested preliminary relief, the status quo in this case would be irreparably altered—if the allegedly deceased individuals are removed, but are in fact alive, they cannot vote in the 2020 election. There would be nothing we could do to alleviate that fact at a trial on the merits. Furthermore, Plaintiff's proffered relief would require Defendant to take the "positive act" of actively removing registered voters from voter rolls. Thus, Plaintiff must bear the "particularly heavy" burden of demonstrating a right to relief that is "indisputably clear." Trinity Indus., Inc. v. Chicago Bridge & Iron Co. , 735 F.3d 131, 139 (3d Cir. 2013).

A. Likelihood of Success on the Merits

Plaintiff's claim implicates both the National Voter Registration Act and Pennsylvania state law. Section 8 of the NVRA requires election officials to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of the death of the registrant." 52 U.S.C. § 20507(a)(4)(A). While election officials are required to remove any ineligible voters from official lists no later than 90 days before the date of a general election, the removal of deceased registered voters is exempt from this requirement. 52 U.S.C. § 20507(c)(2)(B)(i). Thus, deceased registered voters may be removed from the voter rolls at any time.

The Secretary of the Commonwealth of Pennsylvania is the chief election official of Pennsylvania and is responsible for coordination of the Commonwealth's responsibilities under the NVRA. 52 U.S.C. § 2059.

Pennsylvania state law also mandates the removal from voter rolls of any elector who has been reported deceased by the Pennsylvania Department of Health ("DOH"). 25 PA. CONS. STAT § 1505(a). DOH is required to report to the appropriate county commission the death of any Pennsylvanian 18 years or older within 60 days of receiving notice of the individual's death. Id. Individual counties are then directed to "cancel the registration" of deceased electors. Id.

Pennsylvania's voter registration system, called SURE, is designed to allow election officials to "add, modify, and delete information in the system as is necessary and appropriate." 25 PA. CONS. STAT. § 1222(c)(4). All county election commissions are connected electronically to SURE and are required to maintain their registration records in the system. 25 PA. CONS. STAT. § 1222(c).

Plaintiff does not allege that this program itself is deficient, nor does it point to a specific breakdown that makes the program "unreasonable." Instead, Plaintiff argues that the sheer number of allegedly deceased registered voters it has uncovered is a "hallmark of an unreasonable list maintenance program." (Doc. 5 at 9). We disagree. Approximately 130,000 Pennsylvanians die every year.³ This means that, even assuming all 22,206 "apparently" deceased individuals died in the same year, a maximum of 17% of deceased registered voters have not been removed from the voter rolls.⁴ As Plaintiff's counsel acknowledged at yesterday's hearing, the NVRA does not require perfection. (Unofficial Transcript at 9). Nor shall we.

Without allegation, let alone proof, of a specific breakdown in Pennsylvania's voter registration system, we cannot find that the many procedures currently in place are unreasonable. Pennsylvania law requires the Department of Health, the department which issues death...