By Matthew Santoni

Law360 (September 21, 2020, 12:18 PM EDT) -- President Donald Trump's reelection campaign said the Supreme Court of Pennsylvania's ruling allowing counties to collect mail-in ballots with drop boxes didn't address the campaign's claims that such boxes are vulnerable to fraud, and sought Monday to revive its federal lawsuit to stop their use in the upcoming election.

In a notice of remaining viable claims to the Pittsburgh federal court, the campaign said the Pennsylvania justices' Sept. 17 ruling didn't address its claims that drop boxes could "dilute" votes with fraudulent ones, that counties' uneven use of drop boxes might violate equal-protection rights, that drop boxes should be advertised and monitored like in-person polling places, or that Pennsylvania law barring poll watchers from coming from across county lines was unconstitutional.

"The Pennsylvania Supreme Court offered no opinion on ... the federal and state constitutional issues plaintiffs have raised on whether unmanned drop boxes enable ballot harvesting, third-party delivery, and/or fraud or other illegal casting or tampering of absentee and mail-in ballots to occur and/or go undetected in violation of federal law," the campaign's notice said.

"In light of the Pennsylvania Supreme Court's September 17, 2020 decisions," it continued, "plaintiffs remain open to the possibility that some or all of their claims can be resolved through the entry of one or more stipulations and/or consent decrees with Secretary [Kathy] Boockvar and the county election boards. However, to the extent that is not possible, then plaintiffs seek an evidentiary hearing as soon as possible."

The campaign asked U.S. District Judge J. Nicholas Ranjan for a revised schedule that would end with a two-day evidentiary hearing starting Oct. 5.

Trump's challenge to Pennsylvania's use of drop-boxes had claimed that ballots were supposed to be mailed or dropped off directly at county election offices under the state election law. Judge Ranjan paused the suit while the state courts had the first chance to interpret state law.

The justices ruled that counties could designate other locations for ballot returns — including drop boxes — and extended the deadline for mail-in ballots that were postmarked by election day to make their way to election offices to be counted. But the campaign said Monday that the state Supreme Court's rulings either didn't touch on or strengthened some of its federal claims against the state.

The campaign said the rulings didn't address its concerns that drop boxes could be more vulnerable to fraud — Judge Ranjan had earlier ordered the campaign to turn over any evidence it had of such fraud, which was submitted under seal — or that some counties could create unequal treatment in the extent to which they use or don't use drop boxes. It also claimed the courts didn't address if drop boxes or alternative ballot collection sites had to be advertised and monitored like in-person polling places.

"Defendants' failure to comply with the Pennsylvania Election Code's notice and site selection requirements when establishing drop boxes and other ballot-collection sites violates the right to vote secured by the First and Fourteenth Amendments of the United States Constitution, and the equal protection and free and equal elections clauses of the Pennsylvania Constitution," the notice said.

And although the court rulings had said third parties could not collect and return other peoples' ballots unless the voters were disabled, and that counties should not count mail-in ballots submitted without their inner secrecy envelopes between the mailing envelope and the actual vote, the campaign said the federal court should still address the issues.

"Given the Pennsylvania Supreme Court's September 17, 2020 decision, all of plaintiffs' federal and state constitutional claims of voter dilution as they relate to non-compliant absentee and mail-in ballots remain viable," the notice said. "Plaintiffs have learned that the secretary's August 19, 2020 guidance on the counting of absentee and mail-in ballots that lack an inner secrecy envelope has been removed. ... What such removal means and whether the county election boards will follow suit remains an open question."

In its amended complaint, the campaign had also claimed that when the state directed county election officials not to disqualify mail-in ballots if the voter's verification signature on the outside envelope didn't exactly match the signature on the voter's registration record, it created unequal treatment for in-person voters whose signature mismatches could be still used as grounds for challenging their vote.

While the Supreme Court did uphold the state's requirement that campaigns' poll watchers must live in the same county as the polling places they are monitoring, the federal court should still weigh elements of the campaign's claims, the notice said.

Representatives of the campaign and Boockvar did not immediately respond to requests for comment Monday.

The Pennsylvania Department of State and Boockvar are represented by Daniel T. Donovan, Susan Davies, Michael Glick, Sara Shaw Tatum, Madelyn Morris and Kristen Bokhan of Kirkland & Ellis LLP; Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP; Timothy E. Gates and Kathleen M. Kotula of the State Department's Office of Chief Counsel; Kenneth L. Joel and M. Abbegael Giunta of the Governor's Office of General Counsel; and Josh Shapiro, Karen M. Romano, Keli M. Neary, Howard G. Hopkirk, Nicole Boland and Stephen Moniak of the Pennsylvania Attorney General's Office.

The Trump campaign and Republicans are represented by Ronald L. Hicks Jr., Jeremy A. Mercer and Russell D. Giancola of Porter Wright Morris & Arthur LLP, and Matthew Morgan and Justin R. Clark of Elections LLC.

The case is Donald J. Trump for President Inc. et al. v. Boockvar et al., case number 2:20-cv-00966, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Marygrace Murphy.

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