By Matthew Santoni

Law360 (September 3, 2020, 4:31 PM EDT ) An effort by President Donald Trump's reelection campaign to set aside Pennsylvania ballots cast via drop boxes in the upcoming election should be tossed out because the state's Supreme Court could rule on the boxes' legality before votes are cast, Secretary of the Commonwealth Kathy Boockvar has told a federal court.

Boockvar and other parties to the case said U.S. District Judge J. Nicholas Ranjan should deny the campaign's request to modify the stay on its federal case and segregate mail-in ballots left in drop boxes or sent without inner "secrecy" envelopes. The state's highest court could settle the matter before the election without the federal court weighing in on a matter it had already stepped back from, the secretary's opposition brief said Wednesday.

"Even if plaintiffs' present motion were appropriate when it was filed — and it was not — intervening events have made clear that this court should defer to the Supreme Court's forthcoming interpretation of state election code issues," the opposition brief said. "Put simply, the Pennsylvania Supreme Court's exercise of its extraordinary jurisdiction along with its invitation for expedited supplemental briefing confirms the correctness of the court's abstention order, provides comfort that the Pennsylvania Supreme Court will resolve the disputed issues of state law, and defeats plaintiffs' renewed request for intrusive federal injunctive relief."

Trump's campaign and the Republican National Committee filed the federal lawsuit claiming that collecting ballots via drop boxes went against the state's election code, and argued that the potential "dilution" of votes with illegal ones posed federal constitutional violations.

State Democrats and voting-rights groups intervened in the federal lawsuit and filed a suit of their own in state court, seeking a ruling on whether Pennsylvania's recently expanded election law allowed voting through drop boxes, counting "naked ballots" and limiting campaigns' observers to monitoring polls in the counties where they lived

Judge Ranjan had said he would abstain from any rulings on the federal case while the state courts considered the same issues, and the Supreme Court of Pennsylvania agreed to fast-track the state court suit Sept. 1.

Boockvar said Wednesday that a ruling from the Supreme Court could settle whether any ballots are "illegal" and therefore eliminate the campaign's reason to keep them separate.

"The Supreme Court of Pennsylvania's order exercising its extraordinary jurisdiction over the parallel Commonwealth Court case moots plaintiffs' motion and should be the beginning and end of the matter," the opposition brief said. "That court — the highest court in Pennsylvania — exercised jurisdiction to authoritatively construe the Election Code as it relates to plaintiffs' concerns, resolving whether certain ballots will be 'illegally cast' and providing binding and uniform interpretations. Plaintiffs offer no suggestion (nor could they) that counties will ignore the Supreme Court's forthcoming decision, therefore creating the sort of inconsistencies that underlie the concerns set forth in their motion."

Boockvar and some of the other parties to the case, including the state Democratic Party, said putting a hold on ballots would require the federal court to do some of the interpretations of state law it had explicitly abstained from doing, since granting the Trump campaign's petition would require the court to weigh the merits of the campaign's case.

"It would be counter-productive to abstain ... and allow the state courts the opportunity to interpret a new statute, and then less than two weeks later, interpret that very statute immediately before the Pennsylvania Supreme Court provides the interpretation that essentially eliminates the very federal constitutional concerns that the plaintiffs have raised," the Democrats' opposition brief said. "This court should not have to engage in an exercise of predicting how the Pennsylvania Supreme Court will rule, knowing that it has accepted these issues for expedited consideration."

Counsel for the Democratic intervenors and representatives of the Trump campaign did not immediately respond to requests for comment Thursday. Representatives for Boockvar declined to comment.

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 Pennsylvania Democratic Party is represented by A. Michael Pratt, Kevin M. Greenberg, Adam R. Roseman and George Farrell of Greenberg Traurig LLP; Clifford B. Levine and Alex Lacey of Dentons; and Lazar M. Palnick.

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 Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.