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E.D. Pa.

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Great America PAC v. Wisconsin Elections Commission (James D. Peterson, W.D. Wis. 3:16-cv-795), Stein v. Thomas (Mark A. Goldsmith, E.D. Mich. 2:16-cv-14233), and Stein v. Cortés (Paul S. Diamond, E.D. Pa. 2:16-cv-6287)
Following the 2016 presidential election in which a candidate earned more votes in the Electoral College than the candidate who received the most popular votes, a minor party candidate sought recounts in the three states that the Electoral College victor won by the smallest margins. The matter was litigated in state courts and in federal courts in the Western District of Wisconsin, the Eastern District of Michigan, and the Eastern District of Pennsylvania with mixed results for the minor party candidate’s litigation efforts and no change in the Electoral College outcome. The Pennsylvania case ended with a settlement agreement requiring a change in voting technology and a payment of attorneys fees.
Subject: Recounts. Topics: Recounts; election errors; voting technology; matters for state courts; laches; intervention; recusal; case assignment; Electoral College; attorney fees.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Republican Party of Pennsylvania v. Cortés (Gerald J. Pappert, E.D. Pa. 2:16-cv-5524)
Two and one-half weeks before a presidential election, a federal lawsuit challenged a state statute that required poll watchers to serve only in their counties of residence. Five days before the election, the district judge denied the plaintiffs immediate relief because the requirement had a rational basis and because the last-minute filing was not justified.
Topics: Laches; intervention

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Democratic National Committee v. Republican National Committee (Dickinson R. Debevoise and John Michael Vazquez, D.N.J. 2:81-cv-3876), Arizona Democratic Party v. Arizona Republican Party (John J. Tuchi, D. Ariz. 2:16-cv-3752), Nevada State Democratic Party v. Nevada Republican Party (Richard F. Boulware II, D. Nev. 2:16-cv-2514), Ohio Democratic Party v. Ohio Republican Party (James S. Gwin, N.D. Ohio 1:16-cv-2645), Pennsylvania Democratic Party v. Republican Party of Pennsylvania (Paul S. Diamond, E.D. Pa. 2:16-cv-5664), North Carolina Democratic Party v. North Carolina Republican Party (Catherine C. Eagles, M.D.N.C. 1:16-cv-1288), and Michigan Democratic Party v. Michigan Republican Party (Mark A. Goldsmith, E.D. Mich. 2:16-cv-13924)
In 2004, a voter in Ohio moved to intervene in a 1981 District of New Jersey case, complaining that widespread voter registration challenges in Ohio violated a consent decree between the two major political parties in the New Jersey case. On the day before the election, the district court in New Jersey granted injunctive relief. A panel of the court of appeals, over a dissent, denied the defendants a stay, but the full court ordered en banc review on election day. Because the plaintiff was allowed to vote, the appeal was subsequently declared moot. In 2016, a suit was again filed in the District of New Jersey to enforce and extend the consent decree. Related actions were filed in six other states, plaintiffs were denied immediate relief there, and the actions were dismissed voluntarily after the election. A little more than one year later, the consent decree was terminated.
Subject: Campaign activities. Topics: Registration challenges; intervention; enforcing orders; laches; case assignment.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Smith v. Aichele (2:12-cv-488), Garcia v. 2011 Legislative Reapportionment Commission (2:12-cv-556), and Pileggi v. Aichele (2:12-cv-588) (R. Barclay Surrick, E.D. Pa.)
From January 30 through February 3, 2012, three federal complaints sought to block April 24 primary legislative elections because the district lines were based on the 2000 census. On February 8, the judge denied all requests to delay the primaries. On March 17, 2014, the court of appeals affirmed a judgment against voters because the voters did not reside in districts with legislative seats up for election in 2012.
Topics: Malapportionment; enjoining elections.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

NAACP State Conference of Pennsylvania v. Cortés (Harvey Bartle III, E.D. Pa. 2:08-cv-5048)
A federal complaint filed 12 days before a general election challenged a directive allowing the use of paper ballots only when all voting machines fail. A day after a hearing, held five days after the complaint was filed, the district judge issued a preliminary injunction requiring the offering of paper ballots when half or more of the voting machines cease to work.
Topics: Voting technology; case assignment; intervention.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

United States v. City of Philadelphia (Petrese B. Tucker, E.D. Pa. 2:06-cv-4592)
Twenty-five days before the November 2006 general election, the Justice Department filed a civil complaint against Philadelphia for failure to provide Spanish-language election resources in violation of sections 203 and 208 of the Voting Rights Act. Twelve days later, the Justice Department moved for a temporary restraining order or a preliminary injunction enforcing the Voting Rights Act and appointing federal election observers. The court declined to order federal observers because of the government’s weak case dilatorily brought.
Topics: Ballot language; laches; three-judge court.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Berg v. Obama (R. Barclay Surrick, E.D. Pa. 2:08-cv-4083)
A few days before the 2008 Democratic National Convention, an attorney filed a pro se complaint seeking to have Barack Obama declared ineligible to be President, alleging that he is not a natural born citizen. The judge denied immediate relief at an ex parte proceeding where the plaintiff could not confirm service of the complaint on the defendants. Over the next eight weeks, the court received three pro se motions to intervene: one to support the plaintiff, one to challenge John McCain’s citizenship, and one to know the facts of the case. The judge dismissed the action for lack of standing, and the court of appeals affirmed the dismissal.
Subject: Getting on the ballot. Topics: Pro se party; getting on the ballot; intervention; Electoral College.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Curtis v. Smith (Howell Cobb, E.D. Tex. 9:00-cv-241)
The plaintiffs in this federal action sued to enjoin challenges to 9,000 voter registrations in an RV park that could hold only a fraction of the voters at any one time. The plaintiffs alleged that procedures on the en masse challenge had not been precleared pursuant to section 5 of the Voting Rights Act, and a three-judge district court ultimately agreed.
Subject: Nullifying registrations. Topics: Section 5 preclearance; three-judge court; registration challenges; matters for state courts; intervention.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Meehan v. Philadelphia County Board of Commissioners (William H. Yohn, Jr., E.D. Pa. 2:04-cv-5123)
Relying on a 1994 opinion by the U.S. Court of Appeals for the Third Circuit, Republican committees filed a federal action on election day 2004 complaining that the committees had wrongfully been denied a list of persons who had received absentee ballots so that the committees could initiate challenges to absentee votes. After proceedings late on election day and on the following morning, the district judge signed consent decrees delaying by a few days the counting of absentee ballots. At the end of the week, the plaintiffs voluntarily dismissed their action.
Topics: Absentee ballots; recusal; case assignment.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

In 2010, the Judicial Conference Advisory Committee on Civil Rules requested a study of motions for sanctions based on an allegation that the nonmoving party had destroyed evidence, especially electronically stored information (ESI). The study examined the electronic docket records of civil cases filed in 2007–2008 in 19 districts, including at least one district in every circuit except the District of Columbia Circuit. This report summarizes the findings of that study and, where appropriate, compares those findings to other studies.

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