In briefs opposing the campaign's motion to intervene in the case, the Democratic Party of Pennsylvania and Secretary of the Commonwealth Kathy Boockvar argued against Trump entering into the six-week-old dispute after Election Day, with the Democrats saying that the time may not yet be ripe for the court to hear the case, or for the campaign to intervene, although they would not oppose Trump's participation if the case were to move ahead.
"The petitions challenge the counting of ballots received between 8:00 p.m. on November 3 and 5:00 p.m. on November 6. That window of time has not closed, and it is far from clear how many ballots will be received during it," the Democrats' brief to the high court said. "Even if there were a legal basis for refusing to count any such ballots (and there is not), no reason exists to assume that the number of ballots received in that window would be large enough to be decisive in the races for president and House of Representatives."
Boockvar also said the petition to intervene came too late.
"This matter has been pending before this court for nearly six weeks. One day after Election Day, and for the second time in this case, the Trump campaign has filed a motion for leave to intervene," Boockvar's response brief said. "The Trump campaign's first motion was properly denied by the Pennsylvania Supreme Court because its generalized grievance in maintaining the electoral status quo was insufficient to justify standing or intervention. ...That defect has not been cured by the passage of time."
The Trump campaign asked Wednesday to intervene in the U.S. Supreme Court case, in which the Republican Party of Pennsylvania had challenged the state Supreme Court's order allowing counties to count ballots that were sent before the end of Election Day and received up until 5 p.m. Nov. 6. The state court had previously declined to rush the case and stop the state from accepting ballots after Nov. 3, but the state agreed to keep and count those votes separately in case the court took the issue up later.
Republicans claimed the state justices' deadline extension had usurped the Legislature's authority to set the time and manner of elections and had improperly expanded the definition of "Election Day" by potentially counting ballots mailed after Nov. 3 that slip through without a postmark or other evidence that would disqualify them.
Trump's Election Day lead in Pennsylvania had been steadily eroded as counties tallied their mail-in votes, with Democratic challenger Joe Biden behind by less than 60,000 votes Thursday evening, according to the state's election website. The Trump campaign and the Republican Party have also sought to challenge the addition of late-arriving ballots or provisional ballots cast by voters whose original ballots were canceled due to technical deficiencies to the tally. The larger share of the mail-in ballots has consistently been going to Biden.
The campaign's bid to join the case came too late, Boockvar said, since the suit had already been getting litigated for weeks and Trump's joining would be prejudicial to the other parties.
"This matter has been pending before this court for nearly six weeks and, with respect to what is at issue in this case, there is nothing that the Trump campaign was not aware of at the outset," her brief said. "The Trump campaign has not offered any justification for its delay in seeking leave to intervene before now."
Boockvar also argued that since the state Supreme Court had denied the Trump campaign's earlier motion to intervene in state court, the U.S. Supreme Court should not reverse that call. And the campaign's interests and argument aligned with the Republican Party that was already on the case — to the extent that the same Porter Wright Morris & Arthur attorneys representing the Republicans in the current case had represented Trump in prior lawsuits and made similar arguments, the brief said.
"The arguments previously raised by the Trump campaign with respect to the electors and elections clauses are virtually identical to the arguments raised by the Republican Party in this court, and it cannot reasonably be argued that the parties have divergent objectives. Indeed, in its motion to intervene, the Trump campaign expressly adopted the existing petitions filed by the Republican Party as its own," Boockvar's brief said. "That the Trump campaign has expressly adopted those arguments as its own ... belies any assertion that the Republican Party does not adequately represent the Trump campaign's interests."
The Republican Party of Pennsylvania filed a short brief saying it did not oppose the campaign's intervention.
Counsel for the Democrats and representatives for Boockvar and the Trump campaign did not immediately respond to requests for comment Thursday.
Boockvar is represented by J. Bart DeLone, Sean A. Kirkpatrick, Michael J. Scarinci and Daniel B. Mullen of the Pennsylvania Office of the Attorney General.
The Democratic Party intervenors are represented by Clifford B. Levine and Alex M. Lacey of Dentons, Donald B. Verrilli Jr., Ginger D. Anders, Rachel G. Miller-Ziegler and Jeremy S. Kreisberg of Munger Tolles & Olson LLP, Kevin Greenberg, A. Michael Pratt and Adam Roseman of Greenberg Traurig LLP and Lazar M. Palnick.
The Trump campaign is represented by Jay Alan Sekulow, Stuart J. Roth and Jordan Sekulow of the Constitutional Litigation and Advocacy Group PC and Patrick Strawbridge, William S. Consovoy, Thomas R. McCarthy, Tyler R. Green and Cameron T. Norris of Consovoy McCarthy PLLC.
The Republican Party is represented by John M. Gore and Alex Potapov of Jones Day and Kathleen Gallagher and Russell D. Giancola of Porter Wright Morris & Arthur LLP.
The case is Republican Party of Pennsylvania v. Boockvar et al., case number 20-542, in the U.S. Supreme Court.
--Editing by Bruce Goldman.
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