Case: NAACP Pennsylvania State Conference v. Boockvar

Plaintiff NAACP Pennsylvania State Conference sued Pennsylvania's Secretary of State and Director of the Bureau of Election Services and Notaries ("State Defendants"). It alleges that Pennsylvania's election laws and practices during the pandemic severely burden the right to vote of Pennsylvania voters, and disproportionately burden African-American and Latino voters in violation of Article I, sec. 5 of the Pennsylvania Constitution. It further alleges Pennsylvania's election laws and practices, including reducing polling places and restricting access to mail-in and early voting disproportionately burden some but not other voters in violation of Article I, sections 1 and 26 of the Pennsylvania Constitution. It seeks injunctive relief that defendants be required to maintain a sufficient number of polling places, give adequate notice to voters of any change in polling places through mail, permit early voting for the General Election, increase access to vote by mail, and use hand-marked paper ballots for the General Election in all polling places while retaining at least one accessible voting machine per polling place for those who request one and as required by federal law.

The case was assigned to Judge P. Kevin Brobson, whose opinion was filed on September 11, 2020. The Court found that the plaintiff failed to satisfy the high burden that must be satisfied before the Court may grant the requested mandatory injunctive relief. The Court stated that the plaintiff failed to prove that, absent the requested injunctive relief, the plaintiff and/or its members are likely to suffer immediate and irreparable harm, and did not show that voters will suffer some cognizable harm to their right to vote in the absence of the requested relief. In considering expert testimony from Dr Marc Meredith (who stated that the "cost of voting" in person increases when polling places are moved and such costs may cause potential voters to vote by mail rather than in person or to abstain from voting altogether, and that racial and ethnic minorities are more likely to be disenfranchised due to such increased costs), the Court stated that the "cost-to-vote" principle did not have value in the present case. The plaintiff would have had to show by evidence that without the requested mandatory preliminary injunction, the cost to vote in the General Election would have been so high that it would infringe upon the constitutional right to vote and have one's vote counted, and the plaintiff failed to do so. The Court also found that the plaintiff failed to present evidence that the State Defendants were ignoring the risks of COVID-19 transmission and mitigation efforts when planning for the General Election. Given that the requirement of irreparable harm was not shown, the Court did not fully engage in the balancing of harms analysis required by the second criteria for a preliminary injunction. Nevertheless, the Court made some observations that the requested relief would impose costs and burdens on all 67 counties of the Commonwealth of Pennsylvania that are not insignificant. The Court also stated that the requested relief would disrupt efforts to educate voters on mail-in voting and plans for the General Election. Additionally, the Court expressed concern that issuing the requested relief would confuse the public as to how, where and when they may cast their vote. The Court was also not persuaded that the plaintiff established a very strong showing that it has a clear right to the relief sought, as the the plaintiff did not allege that a specific provision of the Election Code was unconstitutional on its face or as-applied. Rather, the plaintiff alleged that the Election Code as a whole was inadequate to address the unique circumstances of voting during a pandemic, with the inadequacy being more acute for African-American and Latino voters. However, the bulk of the plaintiff's concerns were confined to a few of the more populous counties in the Commonwealth and in response to the consolidation of polling places, which had expired. This was insufficient to present a strong case for a statewide enforcement of the requested injunctive relief. Even if the plaintiff could present this case, the Court was not convinced that it had the power to grant the requested relief. The Court also stated that the requested relief would not preserve the status quo or restore the parties to any prior status, and the requested relief was overbroad when compared to the alleged constitutional injury. The Court found that the plaintiff was seeking to venture into policymaking territory regarding elections, which is reserved to the General Assembly under the United States Constitution. Therefore, the plaintiff failed to meet its burden of establishing the criteria for the entitlement to the mandatory preliminary injunction and its application was denied.