J. Ranjan Order

Case 2:20-cv-00966-NR Document 409 Filed 08/23/20 Page 1 of 37
UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
No. 2:20-cv-966
DONALD J. TRUMP FOR PRESIDENT, INC., et al.,
Plaintiffs
v.
KATHY BOOCKVAR, in her capacity as Secretary of the

Commonwealth of Pennsylvania, et al.,
Defendants.
OPINION
J. Nicholas Ranjan, United States District Judge
Plaintiffs in this case are President Trump’s

reelection campaign, the Republican National Committee,
and several other Republican congressional candidates and
electors. They filed this suit, alleging federal and state
constitutional violations stemming from Pennsylvania’s
recent implementation of a mail-in voting plan.
In their complaint, Plaintiffs point to the 2020

primary election, where “no excuse” mail-in voting was
first implemented in Pennsylvania, and describe an
election plagued by chaos. They say the primary was a
“hazardous, hurried, and illegal implementation of
unmonitored mail-in voting which provides fraudsters an
easy opportunity to engage in ballot harvesting,
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manipulate or destroy ballots, manufacture duplicitous

votes, and sow chaos.” [ECF 234, ¶ 1]. They fear the same
will occur in the November general election, where much
more, of course, is at stake.
According to Plaintiffs, Pennsylvania’s mail-in

voting plan is not just bad, but unconstitutional. They say
it is a product of overreach by the Pennsylvania Secretary
of the Commonwealth, Kathy Boockvar, that will lead to
“vote dilution” (i.e., if unlawful votes are counted, then that
“dilutes” lawful votes). They also allege that because of the
patchwork, inconsistent implementation of the Secretary’s
guidance across Pennsylvania’s 67 counties, equal-
protection principles are violated. Due to the imminent
election, and at Plaintiffs’ request, the Court ordered
expedited discovery and scheduled an evidentiary hearing
in mid-September, where Plaintiffs would be required to
present evidence of these constitutional violations.
Defendants are Secretary Boockvar and all 67

county boards of elections in Pennsylvania. Several
organizations have also intervened claiming a stake in the
election.1 Many of these Defendants and Intervenors have
moved to dismiss, arguing that the Court lacks the legal
authority to decide this case. They argue that Plaintiffs
lack standing; that their claims are moot, unripe, or legally
flawed; and that venue is improper in this District. Short
of dismissal, Defendants argue that the Court should
“abstain” from deciding the merits and temporarily stay
the case, so that the state courts can resolve many of these
same issues that are pending before them.
After carefully considering the arguments raised by

the parties, the Court finds that the appropriate course is
abstention, at least for the time being. In other words, the
Court will apply the brakes to this lawsuit, and allow the
Pennsylvania state courts to weigh in and interpret the
1 Those organizations include the Pennsylvania State

Democratic Party, the League of Women Voters, the
NAACP Pennsylvania State Conference, Common Cause
Pennsylvania, Citizens for Pennsylvania’s Future, the
Sierra Club, and the Pennsylvania Alliance for Retired
Americans.
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state statutes that undergird Plaintiffs’ federal-

constitutional claims.
Under the abstention doctrine set forth in R.R.

Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941), federal
courts decline to decide federal-constitutional claims if (1)
doing so requires interpretation of “unsettled questions of
state law,”; (2) permitting resolution of the unsettled state-
law questions by state courts would “obviate the need for,
or substantially narrow the scope of adjudication of the
constitutional claims”; and (3) an “erroneous construction
of state law would be disruptive of important states
policies[.]” Chez Sez III Corp. v Township of Union, 945
F.2d 628, 631 (3d Cir. 1991).
Here, most of Plaintiffs’ federal claims turn on

interpretations of the Pennsylvania election code, as
amended by Act 77, and allegations that Secretary
Boockvar’s guidance violates it. Because Act 77 was only
recently enacted, in October 2019, no Pennsylvania state
court has interpreted the provisions on which Plaintiffs
rely. What’s more, for nearly all these claims, the correct
interpretation of the statutory text is unclear. And while
Plaintiffs do assert one facial constitutional challenge and
allege a few violations of statutory provisions that are
probably not ambiguous, these claims are intertwined with
those that are less clear. Thus, the state court’s resolution
of the uncertain questions could narrow even these claims,
or at least cause Plaintiffs to present them in a different
posture. Under these exceptional circumstances, the
mandatory elements of Pullman abstention are satisfied.
Discretionary considerations also weigh heavily in

favor of abstention. With a national election less than
three months away, several parallel proceedings pending
in state court, and all this unfolding amid an
unprecedented pandemic that has paralyzed much of the
world, this Court cannot afford to issue a decision that
could be rendered advisory, unnecessary, or erroneous if
the Pennsylvania courts adopt a different interpretation of
ambiguous state law. Additionally, state-court resolution
of these uncertain statutory issues would not merely
remove ambiguity from, or narrow the scope of, Plaintiffs’
federal claims—it may afford Plaintiffs any relief they are
entitled to. Indeed, if Plaintiffs are right, a state court
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could simply decide whether Defendants’ conduct violates

the election code and, if it does, enjoin it on that basis.
Conversely, a state-court finding that Secretary Boockvar’s
guidance was lawful could defeat, or at least play a critical
role in the Court’s analysis of, Plaintiffs’ constitutional
claims that are based on that guidance.
For these reasons, discussed in detail below, the

Court is persuaded that the important principles
underlying the Pullman abstention doctrine—federalism,
comity, constitutional avoidance, error prevention, and
judicial efficiency—all weigh strongly in favor of letting
state courts decide predicate disputes about the meaning
of Pennsylvania’s state election code.
The Court will thus grant Defendants’ motions to

the extent that they request Pullman abstention, and
otherwise stay all proceedings until the Pennsylvania
courts have weighed in on the unsettled state-law issues.
To be clear, the Court is not abdicating its responsibility to
decide the federal-constitutional issues that are potentially
presented by the case. Rather, the Court is waiting until
the state courts have interpreted the predicate statutory
provisions, which may avoid the need for the Court to hear
Plaintiffs’ constitutional claims, or at least change the
dimension of those claims. Once that has happened, if any
of Plaintiffs’ federal claims remain viable, Plaintiffs may
return to this Court to re-start proceedings for those claims
to be heard.
BACKGROUND
I. Factual background.2
Plaintiffs seek declaratory and injunctive relief from

certain policies allegedly adopted by the Commonwealth of
Pennsylvania and its county election boards. Plaintiffs
believe these policies are at odds with the Pennsylvania
2 The following facts are drawn from the allegations in

Plaintiffs’ operative complaint, which the Court must
accept as true when analyzing Defendants’ motions under
Fed. R. Civ. P. 12(b)(6). At this early stage, the Court has
not made any factual findings based on the review of any
evidence, and other parties have not had an opportunity to
challenge that evidence or present evidence of their own.
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election code and violate their rights under the federal and
state constitutions. See [ECF 234].
A. Secretary Boockvar’s guidance.
On June 2, 2020, Pennsylvania held a primary

election—the first since the legislature’s adoption of “no
excuse” mail-in voting under Act 77. [Id. at ¶ 91]. In
anticipation of that election, Secretary Boockvar issued
three sets of “guidance” to the various county election
boards. This guidance purported to “define both what is
required by Act 77 and what is permissible under Act 77 or
some other portion of the Election Code.” [Id. at ¶ 117].
The relevant guidance provided as follows:
1. Guidance on verifying mail-in and

absentee ballots without an
objection.
First, according to Secretary Boockvar’s January 10,

2020, guidance, “[a] county board of elections cannot
decline [a] voter’s application for a mail-in or absentee
ballet [sic], unless there is a bona fide objection to the mail-
in or absentee ballot application.” [Id. at ¶ 118] (emphasis
in original).
During the recent primary election, several counties

relied on Secretary Boockvar’s guidance and approved all
applications for absentee or mail-in ballots without acting
to verify each applicant’s qualifications absent a “bona fide
objection.” [Id. at ¶ 121].
2. Guidance on “drop boxes” and other

ballot-collection locations.
Second, the Secretary’s guidance also stated that

“county election boards may provide for mail-in and
absentee application processing and balloting at more than
one [county elections office] located within county borders.”
[Id. at ¶ 122]. Further, the Secretary advised that “[w]hen
choosing a location for the [county elections office], counties
should consider, at a minimum, . . . choos[ing] locations
that serve heavily populated urban/suburban areas, as well
as rural areas,” including locations “near heavy traffic
areas such as commercial corridors, large residential areas,
major employers and public transportation routes.” [Id.].
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During the recent primary election, about 20 county

election boards followed the Secretary’s guidance by
permitting absentee and mail-in ballots to be returned to
locations such as shopping centers, parking lots,
fairgrounds, parks, retirement homes, college campuses,
fire halls, municipal government buildings, and elected
officials’ offices. [Id. at ¶ 126]. In most cases, ballots were
collected at these locations by using “unmonitored and/or
unsecured drop-off boxes” or similar means. [Id. at ¶ 129].
Additionally, the Philadelphia County Board of

Elections partnered with a non-partisan group to
implement a mobile mail-in ballot drop-off initiative to
collect absentee and mail-in ballots from non-disabled
voters within Philadelphia County. [Id. at ¶ 127]. And the
Delaware County Board of Elections authorized third-
party delivery of absentee and mail-in ballots to any polling
location on Election Day through “unmonitored” drop-
boxes, where voters would “not be required to check in with
the [poll] workers.” [Id. at ¶ 128]. Delaware County also
allowed voters who returned and completed absentee or
mail-in ballots to cast provisional ballots in-person on
Election Day. [Id.].
The amount and type of notice that was given

concerning the existence, use, and location of drop boxes or
other mobile voting sites varied among the 20 counties that
implemented such measures. [Id. at ¶ 130]. Many of the
sites and notices did not comply with the site and notice
requirements that apply to “polling places” under the
election code, although the parties dispute whether, as a
matter of law, those requirements apply to drop boxes or
other mail-in ballot collection sites. [Id.].
3. Guidance regarding in-person

voting by voters who requested a
mail-in or absentee ballot.
Third, on January 30, 2020, the Pennsylvania

Department of State, with the “knowledge, approval[,]
and/or consent of Secretary Boockvar,” published guidance
advising that “[a]s soon as a voter requests a civilian
absentee ballot or mail-in ballot, they are only entitled to
vote by provisional ballot if they show up at their polling
place, and the voter is not shown on the district register as
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having voted an absentee or mail-in ballot.” [Id. at ¶¶ 138,

140]. The guidance also specified that provisional balloting
was “the only option for voters to cast their vote in the
event their absentee or mail-in ballot is not returned to the
county by 8:00 p.m. on election day.” [Id. at ¶ 140]
(emphasis in original). This was repeated by the
Department of State on March 5, 2020, when it issued
“Pennsylvania Provisional Voting Guidance” stating that
“[i]f a voter is issued an absentee or mail-in ballot for the
upcoming election, they cannot vote a regular ballot.” [Id.
at ¶¶ 143, 145].
During the recent primary election, some (but not

all) of the counties followed this guidance by “den[ying]
electors who had applied for but not voted their absentee
or mail-in ballots the right to vote a regular ballot in person
at the polling location[].” [Id. at ¶ 149]. This led to alleged
instances of “double voting” in Philadelphia. [Id. at ¶¶ 150-
151].
4. Guidance regarding mail-in and

absentee ballots that violate
procedural requirements.
Fourth, Secretary Boockvar approved a May 28,

2020, email advising counties that although the election
code “requires county boards of elections to set aside
absentee or mail-in ballots enclosed in the official ballot
envelopes that contain ‘any text, mark or symbol which
reveals the identity of the elector,’ there is no statutory
requirement, nor is there any statutory authority, for
setting aside an absentee or mail-in ballot solely because
the voter forgot to properly insert it into the official election
ballot envelope.” [Id. at ¶¶ 154-155]. The Secretary’s email
further suggested that “[t]o preserve the secrecy of such
ballots, the board of elections in its discretion may develop
a process by which the members of the pre-canvass or
canvass boards insert these ballots into empty official
election ballot envelopes or privacy sleeves until such time
as they are ready to be tabulated.” [Id. at ¶ 155].
Many counties followed this May 28, 2020, directive

and counted absentee and mail-in ballots that were not
placed in a secrecy envelope or violated other procedural
requirements set forth in the election code. [Id. at ¶¶ 157-
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158]. Other counties disagreed with the Secretary’s view

and disqualified mailed ballots that skirted these rules.
[Id.]. The result was uneven treatment of such ballots
throughout Pennsylvania. [Id. at ¶ 161].
B. Election-code provisions pertaining to

poll watchers.
A few of Plaintiffs’ claims pertain to provisions of the

election code restricting the qualifications and activities of
poll watchers. [Id. at ¶¶ 165-189, 223-236]. According to
Plaintiffs, poll watchers “serve the important purpose of
assuring voters, candidates, political parties, and political
bodies . . . that [elections are] conducted in compliance with
the law, and [are] done in a correct manner which protects
the integrity and validity of the vote and ensures that all
elections are free, open, fair, and honest.” [Id. at ¶ 188].
Pennsylvania’s election code does not permit poll

watchers to serve in an election district outside the county
where the watcher resides as a registered elector. [Id. at ¶
168]. Pennsylvania also does not permit poll watchers to
monitor “pre-canvass meetings,” although a
“representative” for each candidate and political party is
permitted to attend. [Id. at ¶¶ 97, 182, 186]. Poll watchers
are permitted to observe “polling places” from the time the
first polling-place official appears in the morning until the
time the polls are closed and the election returns are
counted and posted at the polling-place entrance. [Id. at ¶
54]. But until the polls close, only one poll watcher
representing each political party and its candidates can be
present in the polling place outside of an enclosed area.
[Id.]. Once the polls close, and while ballots are being
counted, all poll watchers are permitted to be in the polling
place outside the enclosed space. [Id.]. Consequently, as it
pertains to mail-in ballots, poll watchers are unable to
monitor the drop off or mail in of ballots before Election
Day. [Id. at ¶¶ 226-227].
In many Pennsylvania counties, there is a

significant gap between the number of voters registered as
Democrats and the number registered as Republicans. [Id.
at ¶ 177]. Because of county boards’ intended use of
numerous drop-box locations, Plaintiffs allege that it will
be difficult for candidates and political parties to find poll
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watchers to monitor all locations where ballots will be cast

in the November 2020 general election. [Id. at ¶¶ 179-182].
II. Procedural background.
Shortly after filing their original complaint,

Plaintiffs moved for expedited discovery and an expedited
declaratory-judgment hearing. [ECF 6]. Defendants
opposed the motion. The Court partially granted the
motion, scheduled a speedy hearing, and ordered certain
limited discovery before that hearing. [ECF 123, 124].
After Plaintiffs filed the original complaint, many

non-parties sought to intervene in the action. The Court
granted all intervention motions. [ECF 309].
Defendants and Intervenors moved to dismiss the

original complaint. In response, Plaintiffs filed an
amended complaint. [ECF 234]. The amended complaint
maintained the gist of the original complaint but added two
new counts and made a variety of other drafting changes.
See [ECF 242 (redline comparison of original and amended
complaints)]. At bottom, Plaintiffs continue to seek
declaratory and injunctive relief compelling Secretary
Boockvar and the various county boards of elections to
comply with provisions of Pennsylvania’s election code.
According to Defendants and Intervenors, the

amended complaint has not cured the deficiencies they
identified in their original motions. They further argue
that the new claims in the amended complaint are
similarly deficient. As a result, Defendants and
Intervenors have filed renewed motions to dismiss the
amended complaint.
While all of this was happening, on July 10, 2020,

another group of plaintiffs sued these same Defendants in
the Commonwealth Court of Pennsylvania, seeking
construction of certain election-code provisions, including
several of the critical ones that are at issue here. See [ECF
291-1]. The state-court petitioners also applied to expedite
a judicial interpretation of the relevant provisions of Act
77. [ECF 291, p. 7].
Certain Plaintiffs here have moved to intervene in

that action. [ECF 264-2]. Their motions remain pending
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as of the date of this opinion, although the Commonwealth

Court has allowed them to file amici curiae briefs while the
applications are pending.
Additionally, on August 16, 2020, Secretary

Boockvar applied to the Pennsylvania Supreme Court,
asking that court to assume immediate jurisdiction over
the pending Commonwealth Court case. [ECF 388-1].
Secretary Boockvar filed this application under 42 Pa.
Cons. Stat. § 726, often called the “King’s Bench power,”
asking the Pennsylvania Supreme Court to invoke its
“extraordinary jurisdiction” and resolve issues of
“immediate public importance.” [ECF 388, p. 1]. That
application remains pending.
LEGAL STANDARD
When it comes to motions requesting abstention
under one or more of the various abstention doctrines
recognized by the Supreme Court, courts have disagreed on
what standard to apply—Rule 12(b)(1), Rule 12(b)(6), or
neither. Compare Wells Fargo Bank, N.A. v. Carnell, No.
16-130, 2017 WL 1498087, at *3 (W.D. Pa. April 25, 2017)
(Gibson, J.) (applying the 12(b)(6) standard), with Strom v.
Corbett, No. 14-1518, 2015 WL 4507637, at *4 (W.D. Pa.
July 24, 2015) (Cercone, J.) (suggesting the 12(b)(1)
standard is more appropriate), with Christian Action
Network v. Maine, 679 F. Supp. 2d 140, 143. n.2 (D. Me.
2010) (“Because abstention is involved, I do not consider
myself limited to the facts that the plaintiff pleaded to
determine whether comity and federalism counsel against
my exercise of jurisdiction, and I do not rely upon the
pleading or burden requirements of either Rule 12(b)(1) or
Rule 12(b)(6).”).
Here, because the Court is deciding the issues

presently before it under the Pullman abstention doctrine,
the Rule 12(b)(6) standard is more appropriate. Or, it is
perhaps more accurate to say that the Rule 12(b)(1)
standard is not a good fit.
Rule 12(b)(1) allows the Court to dismiss a case if the

plaintiffs lack standing or the Court lacks subject-matter
jurisdiction over a dispute. In deciding whether the
Pullman abstention doctrine applies, however, the Court
essentially takes jurisdiction over the dispute. This is
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because the Court, in abstaining under Pullman, is

postponing its exercise of proper jurisdiction rather than
concluding it lacks jurisdiction. See, e.g., Harrison v.
NAACP, 360 U.S. 167, 177 (1959) (“[Pullman abstention]
does not, of course, involve the abdication of federal
jurisdiction, but only the postponement of its exercise.”);
Georgevich v. Strauss, 772 F.2d 1078, 1094 (3d Cir. 1985);
Wright & Miller, Federal Practice and Procedure § 4243
(“The Supreme Court has frequently justified Pullman-
type abstention by saying that it ‘does not, of course,
involve the abdication of federal jurisdiction, but only the
postponement of its exercise.’ In line with this principle a
federal court, when it has determined to abstain, should
not dismiss the action but should stay it and retain
jurisdiction pending the proceedings in the state courts.”
(footnotes omitted)). This differentiates Pullman
abstention from other forms of abstention. See Jones v.
Coleman, 848 F.3d 744, 749 (6th Cir. 2017).
As such, the Court concludes that Rule 12(b)(1) is

not applicable here. If the Court lacked subject-matter
jurisdiction, it could not abstain under Pullman, for the
Court could not, after the state-court proceedings
concluded, renew its exercise of jurisdiction that it lacked
to begin with. Accordingly, the standard of review
applicable to deciding whether there is a lack of jurisdiction
(i.e., the Rule 12(b)(1) standard) does not seem appropriate
where Pullman forms the basis for abstention.
For these reasons, to the extent a choice must be

made at all, the Court finds that the 12(b)(6) standard,
rather than the 12(b)(1) standard, is appropriate, and thus
analyzes the Pullman issue under that standard.
The Court therefore accepts “all well-pleaded

allegations in the complaint as true,” “viewing them in the
light most favorable to the plaintiff.” Warren Gen. Hosp. v.
Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
The plaintiff must allege “sufficient factual matter

to show that the claim is facially plausible” and permit a
“reasonable inference that the defendant is liable for the
misconduct alleged.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (cleaned up). Allegations that are
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“conclusory or bare-bones,” such as “threadbare recitals of

the elements of a cause of action,” will not suffice. Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
(cleaned up). However, “detailed pleading is not generally
required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786
(3d Cir. 2016). Rather, the complaint need only contain a
“short and plain statement” showing “more than a sheer
possibility that a defendant has acted unlawfully.” Id.
(cleaned up).
When evaluating a defendant’s motion under Rule

12(b)(6), the Court may review the allegations contained in
the complaint, exhibits attached to the complaint, any
documents that are integral to or explicitly relied on by the
complaint, and matters of public record. Pension Ben.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993); Popa v. Harriet Carter Gifts, Inc., 426
F. Supp. 3d 108, 113 (W.D. Pa. 2019) (Stickman, J.)
(citations omitted). Thus, the Court may consider relevant
state-court proceedings that are pending. See, e.g., Wells
Fargo Bank, 2017 WL 1498087, at *3 (citation omitted).
DISCUSSION & ANALYSIS3

The Pullman abstention doctrine “directs that
federal courts should abstain from rendering a decision
3 As noted above, Defendants and Intervenors have moved

for dismissal on a number of other bases, including a
variety of other threshold justiciability grounds (standing,
ripeness, mootness, venue, sovereign immunity, Colorado
River abstention, Burford abstention, Wilton/Brillhart
abstention, and indefiniteness). Because the Court is
abstaining based on Pullman, it need not address these
other issues. Kelly v. Maxum Specialty Ins. Grp., 868 F.3d
274, 280 n. 3 (3d Cir. 2017). Additionally, Defendants
moved to dismiss, challenging the legal merits of some of
Plaintiffs’ claims. The Court specifically declines to
address those arguments, as that would be inconsistent
with Pullman. See Conover v. Montemuro, 477 F.2d 1073,
1079 (3d Cir. 1972) (“Pullman abstention involves no
decision on the merits of the claim[.]”) (cleaned up);
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17–18 (1987) (“We
of course express no opinion on the merits of those
challenges.”).
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when difficult and unsettled questions of state law must be

resolved before a substantial federal constitutional
question can be decided.” Grode v. Mut. Fire, Marine &
Inland Ins. Co., 8 F.3d 953, 956 (3d Cir. 1993) (cleaned up).
More precisely, abstention under Pullman “is appropriate
where an unconstrued state statute is susceptible of a
construction by the state judiciary which might avoid in
whole or in part the necessity for federal constitutional
adjudication, or at least materially change the nature of
the problem.” Planned Parenthood of Cent. N.J. v. Farmer,
220 F.3d 127, 149 (3d Cir. 2000) (cleaned up).
The purpose of abstaining is “twofold.” Id. First,

abstention avoids a “premature constitutional adjudication
which could ultimately be displaced by a state court
adjudication of state law.” Id. (quoting Pullman, 312 U.S.
at 500). Second, abstention prevents “needless friction
with state policies.” Id. These twin aims reflect the federal
judiciary’s “scrupulous regard for the rightful
independence of the state governments.” Pullman, 312
U.S. at 501 (cleaned up). They also promote “principles of
comity and federalism by avoiding needless federal
intervention into local affairs,” Pustell v. Lynn Pub. Sch.,
18 F.3d 50, 53 (1st Cir. 1994), and reflect federal courts’
longstanding reluctance to reach weighty constitutional
questions where a decision grounded in statute will do. See
Allstate Ins. Co. v. Serio, 261 F.3d 143, 149–50 (2d Cir.
2001) (“It is axiomatic that the federal courts should, where
possible, avoid reaching constitutional questions.”);
Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105
(1944) (“If there is one doctrine more deeply rooted than
any other in the process of constitutional adjudication, it is
that we ought not to pass on questions of constitutionality
. . . unless such adjudication is unavoidable.”).
In these respects, the doctrine serves a critical

constitutional and prudential function.
Of course, in deciding whether to abstain, the Court

must exercise the utmost caution. Pullman creates only a
narrow exception to the Court’s otherwise “virtually
unflagging” obligation to decide the cases before it. New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 359 (1989) (cleaned up). The Supreme Court
has repeatedly emphasized that “abstention is not to be
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ordered unless the state statute is of an uncertain nature,

and is obviously susceptible of a limiting construction.”
Zwickler v. Koota, 389 U.S. 241, 251 n.14 (1967).
To balance these considerations, “three ‘exceptional

circumstances’ must be present” before abstention is
appropriate. Farmer, 220 F.3d at 149. The Court must
find: “(1) that uncertain issues of state law underlie the
federal constitutional claims brought in the district court;
(2) that the state law issues are amenable to a state court
interpretation that would obviate the need for, or
substantially narrow, adjudication of the federal claim; and
(3) that important state policies would be disrupted
through a federal court’s erroneous construction of state
law.” Artway v. Attorney General of State of N.J., 81 F.3d
1235, 1270 (3d Cir. 1996) (citation omitted). If all three
circumstances are present, the district court is then
required to determine, in its discretion, “whether
abstention is appropriate by weighing such factors as the
availability of an adequate state remedy, the length of time
the litigation has been pending, and the impact of delay on
the litigants.” Id. (citation omitted).
Applying these legal principles to the allegations of

the amended complaint, the Court is convinced that it must
abstain from deciding this case under Pullman, at least
until the parallel litigation in the Pennsylvania
Commonwealth Court, and potentially the Pennsylvania
Supreme Court, has resolved.
As discussed below, Plaintiffs’ claims depend on

uncertain questions of state law, arising under a recently
enacted state statute, that challenge Defendants’
purported exercise of their core constitutional authority to
administer elections. How the state courts interpret the
unsettled state-law questions will dramatically alter the
nature and scope of the federal-constitutional claims before
the Court. Many of the federal claims may even be mooted
entirely. If the Court were to act now, it would risk issuing
a decision that is at odds with the state courts’
interpretation of the election code or is an advisory
opinion—the precise risks that Pullman abstention seeks
to mitigate. Given these circumstances, bedrock principles
of federalism and constitutional avoidance favor Pullman
abstention.
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I. Pullman’s first prong: uncertainty of

underlying state-law issues.
“For Pullman to apply, the state or local law

underlying the federal constitutional issue must be
uncertain.” Chez Sez III Corp., 945 F.2d at 632. The
“initial inquiry” is whether the language of the state
statute or regulation is “clear and unmistakable.” Id.; see
also Hughes v. Lipscher, 906 F.2d 961, 965 (3d Cir. 1990)
(“The first of the three special factors centers on
uncertainty of the state law. In this case that inquiry
focuses on whether the bulletin’s language is clear and
unmistakable.”).
Here, nearly all of Plaintiffs’ federal-constitutional

claims hinge on violations of the Pennsylvania election
code—and, for the most part, on violations of statutory
language amended by the recently enacted Act 77. To rule
on nearly all of Plaintiffs’ federal (and coextensive state)
constitutional claims, the Court would need to first decide
(1) how to interpret the relevant election-code provisions;
and (2) whether Secretary Boockvar’s guidance violated
each provision as the Court has interpreted it. Only then
would the Court reach the further matter of whether the
Secretary’s guidance, or the counties’ inconsistent
implementation of it, violated the federal Constitution.
Plaintiffs don’t dispute this. Instead, they argue

that the underlying state-law issues are clear. The Court
disagrees. The amended complaint asserts nine separate
counts, but they can be sorted into three overarching
categories. The Court will address each category, and the
statutory provisions they implicate, in turn. As discussed
below, many of the state statutes at issue are either
ambiguous or otherwise subject to competing plausible
interpretations.
A. Claims alleging voter dilution due to

unlawful ballot collection and counting
procedures (Counts I, II, III, VI, VII).
The first category covers claims related to allegedly

unlawful procedures implemented by some Defendants for
the collection and counting of mail-in and absentee ballots.
These include claims related to: (1) Defendants’ uneven use
- 15 -
of “drop boxes” and other satellite ballot-collection sites; (2)

procedures for verifying the qualifications of voters
applying in person for mail-in or absentee ballots; and (3)
rules for counting non-compliant ballots (such as ballots
submitted without a secrecy envelope, without an elector
declaration, or that contain stray marks on the envelope).
In Count I, Plaintiffs allege violations of the

Elections Clause and the related Presidential Electors
Clause of the U.S. Constitution. [ECF 234, ¶¶ 193-205].
Plaintiffs assert that, under these provisions, only the state
legislature may set the time, place, and manner of
congressional elections and determine how the state
chooses electors for the presidency. [Id. at ¶ 196].
In support of this claim, Plaintiffs allege that

Secretary Boockvar’s guidance on the use of mail-in ballot
drop boxes, whether county boards of elections must
independently verify in-person mail-in ballot applications,
and the counting of non-compliant ballots is an executive
overreach, in that the Secretary’s guidance allegedly
violates certain provisions of the election code enacted by
the Pennsylvania General Assembly. [Id. at ¶ 201].
Plaintiffs also claim that the Secretary’s unlawful guidance
has increased the risk of fraudulent or unlawful voting and
infringed on the right to vote, which, they say, amounts to
additional violations of the First and Fourteenth
Amendments to the U.S. Constitution. [Id. at ¶¶ 202-203].
In Count II, Plaintiffs allege a violation of the Equal

Protection Clause under the Fourteenth Amendment.
Plaintiffs assert that the implementation of the foregoing
(i.e., mail-in ballot drop boxes, the verification of mail-in
ballot applications, and the counting of non-compliant
ballots) has been different in different counties, thereby
treating voters across the state in an unequal fashion. [Id.
at ¶¶ 211-213].
In Count III, Plaintiffs assert a violation of the

Pennsylvania State Constitution. Plaintiffs allege that the
same actions and conduct that comprise Counts I and II
also violate similar provisions of the Pennsylvania
Constitution. [Id. at ¶ 220].
- 16 -
Finally, in Counts VI and VII, Plaintiffs allege that

Defendants have violated provisions of the federal and
state constitutions by disregarding the election code’s
notice requirements applicable to “polling places.” [Id. at
¶¶ 237-252]. Plaintiffs allege that the drop boxes are
“polling places,” and thus subject to certain criteria for site
selection and the requirement that county election boards
provide 20 days’ public notice. [Id. at ¶ 240]. Plaintiffs
assert that Defendants’ failure to provide this notice or
select appropriate “polling places” in the primary election,
if repeated in the general election, will create the risk of
voter fraud and vote dilution. [Id. at ¶¶ 243-246].
Before deciding whether any of this alleged conduct

amounts to a constitutional violation, the Court would
have to interpret each of the underlying provisions of the
state election code. In doing so, the Court would have to
answer at least the following unsettled questions of
Pennsylvania state law:
1. Whether delivery “to said county

board of elections” means delivery
to the board’s headquarters or to a
location designated by the board.
Plaintiffs allege that the election code prohibits the

counties from accepting in-person delivery of absentee and
mail-in ballots at locations other than the election board’s
central office or headquarters, such as satellite drop-boxes.
[Id. at ¶¶131-134]. But the statutory language is not so
clear.
The code says only that ballots must be delivered in

person “to said county board of election.” 25 P.S. §
3146.6(a). This language could mean that delivery must be
made to the physical office of the county board’s
headquarters, as Plaintiffs suggest. But it also could mean
what Secretary Boockvar has, at least implicitly,
interpreted it to mean—that ballots may be delivered in-
person to any location designated by the county board.
Separately, the election code also authorizes counties to
“provid[e] such branch offices for the [election] board in
cities other than the county seat, as may be necessary,” 25
P.S. § 2645(b), and that may provide arguable justification
for some or all of the satellite collection locations, as well.
- 17 -
Plaintiffs argue that because the code provides that

the “address of the elector’s county board of election must
be printed on the outer envelope” of the ballot, it is clear
that “the only place where the absentee or mail-in ballot
can be mailed or delivered is to the address of the elector’s
county board of election.” [ECF 320, p. 57 (cleaned up)].
But the language Plaintiffs cite does not necessarily lead to
that conclusion. It could just be that the physical address
of the county board of election must be included in case the
elector wants to mail in the ballot, rather than deliver it in
person. Without the physical address, mail service would
not be possible. Including that address, on its face, does
not preclude an elector dropping off the ballot in person at
another designated location, if he or she so chooses. Such
an alternative reading at least arguably gives effect to the
address language while preserving the crux of Secretary
Boockvar’s interpretation.
Unfortunately, since Act 77 is new, no state court

has interpreted this language. Cf. Chez Sez III Corp., 945
F.2d at 632 (affirming abstention under Pullman where
ambiguous “sections of the Union Township Zoning
Ordinance” had “never been interpreted by the New Jersey
courts”). And under Pennsylvania law, Secretary
Boockvar’s interpretation is arguably afforded some
deference (though Plaintiffs dispute that). See Banfield v.
Cortes, 110 A.3d 155, 174 (Pa. 2015) (“As the question of
whether an electronic system has adequate security
measures against tampering necessarily results in a
subjective determination, the Legislature delegated this
discretionary decision to the Secretary, who is the
Pennsylvania’s chief election official. We have previously
held that a reviewing court will ordinarily defer to an
agency’s interpretation of a regulation or a statute it is
charged to enforce.”) (cleaned up).
Given all this, whether delivery of mail-in or

absentee ballots to collection locations, such as satellite
offices or drop boxes, constitutes delivery to the “county
board of elections” is unclear and unsettled under the
election code. Cf. Chez Sez III Corp., 945 F.2d at 632 (“[I]t
is unclear whether the term [‘motion picture theater’]
encompasses only large, auditorium-style uses, as the
Board found, or whether it could instead be read more
- 18 -
broadly to also include private video viewing booths of the

type involved here.”).
2. Whether ballots submitted without

a “secrecy envelope” may be
counted.
A novel question of state law is also presented by

Plaintiffs’ allegation that Defendants have violated the
election code by authorizing the counting of so-called
“naked ballots”—ballots submitted by voters without being
placed in the required “secrecy envelope.” [ECF 234,
¶¶153-161]. While Plaintiffs rely on 25 P.S. § 3146.6(a) and
§ 3146.8(g)(4)(i)-(iv) for this argument, those provisions
only describe the procedures for placing ballots in secrecy
envelopes and setting aside ballots when the envelopes
contain any “mark or symbol which reveals the identity of
the elector, the elector’s political affiliation or the elector’s
candidate preference[.]”
The issue raised by Plaintiffs’ claims—whether to

count mail-in or absentee ballots not placed in secrecy
envelopes—is not addressed by these provisions. This
contrasts with other provisions of the election code
applicable to provisional ballots, which specifically direct
that such ballots will not be counted without a secrecy
envelope. See 25 P.S. § 3050(a.4)(5)(ii)(C) (“A provisional
ballot shall not be counted” if “a provisional ballot envelope
does not contain a secrecy envelope[.]”). This difference
could suggest a contrary interpretation, since it seems “the
legislature knew how to specify unambiguously” that
ballots should not be counted without secrecy envelopes
and yet “did not do so with regard to” mail-in ballots.
Monoson v. United States, 516 F.3d 163, 167 (3d Cir. 2008).
In opposing abstention, Plaintiffs argue that the

statutory language is clear that the requirement of the
secrecy envelope is mandatory, and therefore a ballot that
is not placed inside one is void and should not be counted.
[ECF 320, pp. 56-58]. To support this argument, Plaintiffs
rely heavily on In re Canvass of Absentee Ballots of Nov. 4,
2003 Gen. Election, 843 A.2d 1223 (Pa. 2004). In Absentee
Ballots, the court held that “Section 3146.6(a)’s ‘in person’
delivery requirement is mandatory, and that the absentee
ballots of non-disabled persons who had their ballots
- 19 -
delivered in contravention of this mandatory provision are

void.” Id. at 1234. That case, however, is potentially
distinguishable for at least two reasons. First, the issue in
Absentee Ballots was whether third parties could deliver
the ballots of non-disabled voters, not whether naked
ballots could be clothed and subsequently counted. Id. at
1225, 1232. Second, when the court decided Absentee
Ballots, Sections 3050 (the provisional ballot provision
cited above) and 3150.16(a) (authorizing voting by mail-in
electors) of the code had not yet been enacted.
Thus, an interpretation contrary to the one

Plaintiffs put forth remains at least plausible on its face.
The state courts should therefore have an opportunity to
weigh in on the matter.
3. Whether a drop box or other mail-

in ballot collection site must
satisfy the site and notice criteria
applicable to “polling places.”
Another unsettled question arises from Plaintiffs’

somewhat novel allegation that Defendants’ authorization
of drop-boxes and other ballot-collection sites violates
certain statutory site-selection and notice criteria that
apply to “polling places.” [ECF 234, ¶ 132 (citing 25 P.S. §§
2726, et seq.)].
Initially, the election code’s definition of “polling

place” is “the room provided in each election district for
voting at a primary or election.” 25 P.S. § 2602(q). The
question then becomes whether a drop box where mail-in
ballots are collected is “the room provided in each election
district for voting.” If it isn’t, then the criteria for “polling
places” wouldn’t apply.
On one hand, the election code’s provisions

concerning “polling places” all seem to suggest locations
where electors can go to cast their votes in person—i.e.,
rooms with voting machines. See, e.g., 25 P.S. § 2730(a)
(“The county board of elections shall cause all rooms used
as polling places to be suitably provided with heat and
light, and, in districts in which ballots are used, with a
sufficient number of voting compartments or booths with
proper supplies, in which electors may conveniently mark
- 20 -
their ballots, with a curtain, screen or door in the upper

part of the front of each compartment or booth so that in
the marking thereof they may be screened from the
observation of others.”).
On the other hand, the election code does

contemplate “portable or movable polling places,” 25 P.S. §
2727(c), and so, arguably, one might be able to construe
the statute to conclude that mobile drop boxes (or at least
certain kinds of mobile drop boxes) may fall within the
definition of “polling place,” and thus need to comply with
the relevant criteria.4 At a minimum, then, there are two
plausible, competing interpretations of the state statute,
which can be narrowed in a way that would impact the
constitutional claims regarding notice of drop boxes. Cf.
Georgevich, 772 F.2d at 1090 (“We believe, however, that
as counsel for the defendants insists, the parole legislation
can and must be read as a whole. When so read, it is
possible to construe the statutory scheme to afford
procedural safeguards to the plaintiff class. At the very
minimum, the coexistence of these two plausible
interpretations gives rise to an ambiguity.”).
4. Whether the election code requires

verification of voter qualifications
when accepting in-person, mail-in
ballot applications.
Finally, Plaintiffs allege that several counties

violated the election code when they followed Secretary
Boockvar’s guidance and “approved all applications for
absentee or mail-in ballots without performing the
requisite verification of the applicant’s qualifications or
identification by comparison to the applicant’s permanent
registration card.” [ECF 234, ¶ 121]. According to
Plaintiffs, Secretary Boockvar’s guidance that all
applications should be accepted unless someone makes a
“bona fide objection” contravenes Act 77’s requirement that
counties independently verify the status and eligibility of
each applicant. [Id. at ¶¶ 199-203]. Defendants and
Intervenors counter that the guidance only applied to in-
person applications, and that there is at least one plausible
4Adding to the uncertainty of this issue is how the law

would treat drop boxes that are located at polling places.
- 21 -
interpretation of the election code that supports finding

that the verification requirements do not apply to such
applications.
Again, this issue turns on competing plausible

interpretations of unsettled state law. Section 3146.5(b)(2)
of the election code states that “[n]otwithstanding any
other provisions of this act . . . [i]f a voter presents the
voter’s application within the county board of elections’
office . . . a county board of elections may not deny the
voter’s request to have the ballot presented to the voter
while the voter is at the office unless there is a bona fide
objection to the absentee or mail-in ballot application.” 25
P.S. § 3146.5(b)(2).
But, later, the election code states that “[t]he county

board of elections, upon receipt of any application of a
qualified elector under section 1301-D, shall determine the
qualifications of the applicant by verifying the proof of
identification and comparing the information provided on
the application with the information contained on the
applicant’s permanent registration card.” 25 P.S. §
3150.12b(a) (emphasis added).
There is some unresolved tension between these two

provisions. See Georgevich, 772 F.2d at 1091 (“The need for
state court interpretation results not only from unclear
language on the face of a single statute, but also from the
juxtaposition of clear, but contradictory state provisions.”);
United Servs. Auto. Ass’n v. Muir, 792 F.2d 356, 361 (3d
Cir. 1986) (“A statute is unsettled for Pullman purposes
when two of its provisions are contradictory.”).
On one hand, the election code mandates that,

“[n]otwithstanding any other provisions” in the code, when
a voter applies in person for a mail-in or absentee ballot,
the county board of elections must provide the ballot “while
the voter is at the office” unless a “bona fide objection” is
made. See 25 P.S. § 3146.5(b)(2). This seems consistent
with Secretary Boockvar’s guidance. But on the other
hand, the election code states that upon receipt of “any
application,” the counties “shall” verify the elector’s
identification and qualifications before approving the
application and providing the ballot. See 25 P.S. §
3150.12b(a). This phrasing comes closer to the affirmative
- 22 -
“duty to verify” that Plaintiffs assert the county boards

have. And the term “any application” would seem to
include any “in-person applications.”
Pennsylvania courts usually take pains to ensure

that “[e]very statute” is “construed, if possible, to give effect
to all its provisions.” 1 Pa. Cons. Stat. § 1921(a). Keeping
that canon in mind, it is plausible that the Commonwealth
Court or Pennsylvania Supreme Court might interpret
those dueling provisions so that the arguable duty of
verification does not apply to “in-person” applications. If
they did, Plaintiffs’ application-verification claims would
be significantly narrowed, if not eliminated altogether.
B. Poll-watching claims (Counts IV, V).
The second category of claims consists of challenges

to the constitutionality of election code provisions related
to poll watchers.
In Count IV, Plaintiffs allege violations of the First

and Fourteenth Amendments. These claims have both a
facial and an as-applied component. [ECF 234, ¶ 230 (“On
its face and as applied to the 2020 General Election . . .”)].
First, Plaintiffs allege that 25 P.S. § 2687 is facially

unconstitutional because it “arbitrarily and unreasonably”
limits poll watchers to serving only in their county of
residence and to monitoring only in-person voting at the
polling place on election day. [Id. at ¶ 226]. Second,
Plaintiffs allege that the same provision is unconstitutional
as applied in the context of Pennsylvania’s new vote-by-
mail system, where Plaintiffs claim that these poll-watcher
restrictions, combined with insecure voting procedures,
create unacceptable risks of fraud and vote dilution. [Id.
at ¶ 228]. Plaintiffs’ contention is that these limitations
make it “functionally impracticable” for candidates to
ensure that they have poll watchers present where ballots
are deposited and collected given the widespread use of
remote drop boxes and other satellite collection sites. [Id.].
Count V is the same as Count IV, but alleges that

the same poll-watching restrictions violate the
Pennsylvania Constitution, too. [Id. at ¶ 234].
- 23 -
None of Plaintiffs’ poll-watching claims directly ask

the Court to construe an ambiguous state statute. But the
scope and viability of Plaintiffs’ as-applied challenges turns
directly on the Court’s resolution of the disputed issues
discussed above.
That is, the constitutional harm Plaintiffs allege

here turns on their inability to recruit enough resident poll-
watchers, or distribute them to all key locations within
each county, to protect against fraudulent or “invalid”
voting that Plaintiffs say is associated with the use of
“unmonitored” drop-box sites, the counting of ballots
without secrecy envelopes, and the other supposed ill-
effects of Defendants’ policies. See, e.g., [ECF 234, ¶ 228
(“By failing to allow Pennsylvania voters to serve as poll
watchers in counties other than their county of residence
or monitor the drop off of absentee and mail-in ballots,
Election Code Section 417, 25 P.S. § 2687, makes it
extremely difficult or functionally impracticable for
candidates and parties to ensure that they have poll
watchers at all locations where ballots are being cast in
connection with the November 2020 General Election –
including remote drop boxes (which Plaintiffs contend are
not permitted under the Election Code) – thus fostering an
environment that encourages ballot fraud or tampering,
and preventing the Commonwealth, candidates, and
political parties from ensuring that the General Election is
free, fair, and transparent.”)].
If the state courts narrowly interpret the election

code to forbid drop boxes or the counting of ballots
submitted without secrecy envelopes, any alleged need for
expansive poll-watching—and any hardship imposed by
the county-residency restriction—may be eliminated. If
that happens, Plaintiffs might well obtain meaningful
relief on statutory grounds, and this Court would not have
to decide whether authorizing poll-watching by non-
residents is constitutionally necessary in this context.5
5 Unlike Plaintiffs’ as-applied challenges to the poll-

watching restrictions, Plaintiffs’ facial challenge does not
turn on or require interpretation of any ambiguous state
statute. To resolve that piece of the puzzle, the Court need
only decide if a county-residency restriction on poll
- 24 -
C. In-person voting claims (Counts VIII, IX).
In Counts VIII and IX, Plaintiffs assert that the

election code allows an elector that has requested a mail-in
ballot to still vote in person so long as he remits his spoiled
ballot. [Id. at ¶¶ 253-267]. Plaintiffs assert that during
the primary, some counties allowed such electors to vote in
person, while others did not, and they fear the same will
happen in the general election. [Id. at ¶ 255]. Plaintiffs
also assert that some counties allowed electors who had
voted by mail to vote in person, in violation of the election
code. [Id. at ¶¶ 257-258]. Plaintiffs argue that this conduct
also violates the federal and state constitutional provisions
concerning the right to vote and equal protection. [Id. at
¶¶ 261, 265].
These claims would not require the Court to resolve

contested matters of state law before reaching the relevant
constitutional question. Indeed, the relevant statutory text
and the Secretary’s guidance are clear (although the
parties dispute whether it applies to the upcoming general
election). But as explained below, the fact that these
discrete claims are unambiguous does not preclude
abstention.
II. Pullman’s second prong: constitutional

avoidance by resolving state-law questions.
The second prong of Pullman asks whether allowing

state courts to resolve the unsettled state-law questions
would avoid or substantially narrow the plaintiff’s federal-
constitutional claims. This prong recognizes that “where
state law appears to resolve the sole issue in the case to
plaintiffs’ satisfaction, and where the parties’ only real
disagreement concerns the propriety of federal
watching is per se unconstitutional. However, as discussed

in Section IV below, the Court will nonetheless exercise its
inherent authority to stay this and a few other discrete
aspects of Plaintiffs’ claims to which Pullman abstention
does not independently apply. Simply put, because almost
all of Plaintiffs’ case is subject to Pullman abstention, it
makes little sense to proceed in piecemeal fashion on the
few parts that are not. And, in any event, Plaintiffs have
not requested that the Court proceed in such a fashion.
- 25 -
intervention, the case may be more appropriately resolved

in state court.” Georgevich, 772 F.2d at 1094–95.
Here, as noted above, any analysis of Plaintiffs’

claims would begin with an interpretation of the election-
code provisions that Plaintiffs allege Defendants have
violated. But it could also end there.
In fact, any state-court resolution of those issues

would eliminate the need for this Court to decide whether
the alleged statutory violations infringe any constitutional
right. That’s because a state court could grant Plaintiffs
the exact relief they seek here by enjoining any conduct
that violates the election code, without further
consideration of whether that conduct also violates the
Constitution. “In this sense the plaintiffs hoist on their
own petard.” Phila. City Council v. Schweiker, 40 F. App’x
672, 677 (3d Cir. 2002) (“Throughout their complaint
[plaintiffs] allege that Acts 46 and 83 violate numerous
state law and constitutional provisions. If this is indeed so,
then the acts are illegal under state law or unconstitutional
under the state constitution, and a federal court would not
need to decide whether they violate the federal
Constitutions.”); see also Pierce v. Allegheny Cnty. Bd. Of
Elections, 324 F. Supp. 2d 684, 706 (W.D. Pa. 2003) (Conti,
J.) (“[I]f the state courts find the phrase ‘in person’ in
section 3146.6(a) is mandatory, the policies at issue may be
determined to be invalid under state law and, thus, the
constitutional issues need not be reached.”).
By way of example, if the state courts find that the

election code must be narrowly construed to allow mail
delivery only to the physical locations of the county election
boards’ headquarters (and not to drop boxes), then
Plaintiffs would, in effect, prevail, obviating the need for
federal-court relief. By contrast, if the state courts
interpret state law to allow drop boxes, the federal claims
before this Court materially change—the question then
becomes more of a facial attack on the statute and whether
Pennsylvania law’s allowance of drop boxes violates the
federal constitution.6 And in that circumstance, the main
6 Plaintiffs have not asserted facial challenges to the

election code in the alternative to their claims that
Secretary Boockvar’s guidance violates the election code
- 26 -
thrust of Plaintiffs’ narrative—that of a rogue Secretary

exercising powers the legislature did not give her—would
no longer be viable. Thus, the danger in the Court deciding
this issue now is that it could end up issuing a wholly
advisory opinion, or an opinion addressing a materially
different claim than the one that will ultimately remain
after the state courts weigh in.
This risk is particularly acute in the context of two

species of claims here. Recall that one type of claim that
Plaintiffs raise is under the Elections Clause of the
Constitution, accusing Secretary Boockvar of issuing
instructions at odds with the election code, and thus
overstepping her role as an executive. This federal-
constitutional claim essentially asks the Court to consider
whether Secretary Boockvar violated state law. And that
claim may change if the state courts either adopt
narrowing constructions of the unsettled law above or,
instead, determine that Secretary Boockvar’s guidance is
consistent with the election code.
The other claims that are particularly susceptible to

narrowing are Plaintiffs’ claims under the equal-protection
clause. Those claims are such that the purported
constitutional harm is the uncertainty caused by the
absence of a definitive interpretation of state law. That is,
assuming Plaintiffs’ equal-protection theory is legally
viable, any such violation could be cured by adopting either
Plaintiffs’ interpretation or Defendants’ interpretation of
each disputed election-code provision. So long as that
interpretation is shared and applied equally by all of
Pennsylvania’s counties, there would be no uneven
treatment.
Under similar circumstances, other district courts

have found that Pullman’s second prong is satisfied, and
(other than the challenge to the poll-watching residency

requirement, discussed above). Thus, the Court could not,
at this juncture, avoid the need for abstention by assuming
that Secretary Boockvar’s interpretation of the election
code is correct and asking whether, if it is, that would
violate the Constitution. In any event, absent a definitive
interpretation of the election code, such a decision would be
effectively advisory.
- 27 -
ultimately abstained, where state-court remedies of

election-law violations were enough to avoid the need for
federal-constitutional adjudication. See Fuente v. Cortes,
207 F. Supp. 3d 441, 450 (M.D. Pa. 2016) (“If the state court
concurs with Plaintiff’s interpretation of the statute and
finds that a presidential primary is not within the purview
of § 2911(e)(5), then the state law does not apply to Plaintiff
whatsoever, and the basis for Plaintiff’s constitutional
claim would be eliminated.”) (cleaned up); Pierce, 324 F.
Supp. 2d at 704 (“[T]he construction of the absentee ballot
provision at issue by Pennsylvania courts as either
mandatory or directory, as discussed in this opinion, could
obviate the need to determine whether there has been a
violation of equal protection under the Fourteenth
Amendment.”); NAACP Phila. Branch v. Ridge, No. 00-
2855, 2000 WL 1146619, at *6 (E.D. Pa. Aug. 14, 2000)
(abstaining from interpreting a statute that was subject to
a “saving construction” because “a state court may conclude
that the PVRA precludes all ex-felons from voting during
the five year period following their incarceration”).
The Court agrees with the foregoing cases and finds

that the second prong of the doctrine is satisfied here.
III. Pullman’s third prong: erroneous reading of

the statute disrupts important state policies.
The final prong of Pullman abstention asks whether

“important state policies would be disrupted” if this Court
were to erroneously interpret the unsettled state law.
Here, they clearly would.
To begin with, important state policies will be

implicated if this Court intervenes in Pennsylvania’s
election on federal-constitutional grounds. Ultimately,
Pullman abstention is a doctrine “rooted in basic principles
of federalism.” Serio, 261 F.3d at 150. And under the
Constitution, the critical responsibility of administering
elections is reserved for the states. U.S. Const. art. I, § 4,
cl. 1. In discharging this duty, the powers of state
government are at their apex. States have considerable
discretion to conduct elections as they see fit, and federal
courts intervene only when the decisions of state officials
threaten to infringe the fundamental right to vote or deny
citizens the equal protection of law. See Griffin v. Roupas,
- 28 -
385 F.3d 1128, 1130 (7th Cir. 2004) (explaining that the
Constitution “confers on the states broad authority to
regulate the conduct of elections, including federal ones”);
Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773, 775
(5th Cir. 2000) (“[A] state’s discretion and flexibility in
establishing the time, place and manner of electing its
federal representatives has only one limitation: the state
system cannot directly conflict with federal election laws
on the subject.”).
The dictates of federalism require no less. In our

constitutional order, “[s]tates are free to serve as
laboratories of democracy.” Evenwel v. Abbott, 136 S. Ct.
1120, 1141 (2016) (Thomas, J. concurring) (cleaned up).
And in this arena, “[c]ommon sense, as well as
constitutional law, compels the conclusion” that states
must be free to engage in “substantial regulation of
elections” if “some sort of order, rather than chaos, is to
accompany the democratic processes.” Burdick v. Takushi,
504 U.S. 428, 433 (1992) (citation omitted). In practice,
this means that “[f]ederal law . . . generally defers to the
states’ authority to regulate the right to vote.” Ohio
Democratic Party v. Husted, 834 F.3d 620, 626 (6th Cir.
2016) (citation omitted).
This case strikes at the very heart of that authority.

As has been discussed, Plaintiffs’ constitutional claims
presume the alleged violation and uneven enforcement of
state election statutes by the state officials charged with
interpreting and enforcing them. Important state policies
and constitutional powers are clearly in play.
It is also clear that federal intervention could

“disrupt” Pennsylvania’s exercise of this core,
constitutional power. A federal-court constitutional
decision, premised on an erroneous interpretation of
ambiguous state law, coming less than three months before
a contentious national election, amid a global pandemic,
would risk electoral chaos and undermine the integrity of
the democratic process in the minds of voters. Cf. Fuente,
207 F. Supp. 3d at 450 (“An erroneous decision so
temporally close to the election could seriously disrupt
Pennsylvania’s election process. Furthermore, in the past,
courts have held that a mistaken interpretation of
Pennsylvania’s election law could also damage the
- 29 -
integrity of that election process.”); Pierce, 324 F. Supp. 2d

at 704 (“[A]n erroneous construction of the absentee ballot
provision of the election code could disrupt extremely
important state policies concerning voting rights.”); Ridge,
2000 WL 1146619, at *7 (“The court finds that voting
regulations implicate important state policies and that an
erroneous construction of the PVRA would be disruptive.”).
Put simply, the path Plaintiffs walk here is rife with

the “needless friction” abstention aims to avoid. Fuente,
207 F. Supp. 3d at 452. What they are asking is for this
Court “to find that state officials have wrongly interpreted
state law, and to replace [the officials’] interpretations with
[Plaintiffs’] own.” Id. “This role is not [the Court’s] to
assume where, as here, an alternative appropriately exists
with the Pennsylvania state courts.” Id.; see also Pullman,
312 U.S. at 498 (explaining that where a federal-
constitutional claim “touches a sensitive area of social
policy upon which the federal courts ought not to enter
unless no alternative to its adjudication is open,” the need
for constitutional adjudication should be “avoided if a
definitive ruling on the state issue would terminate the
controversy”).
For these reasons, the third prong of Pullman is also

satisfied.
IV. Discretionary considerations under Pullman.
“Having found that all three factors necessary for

this Court to abstain are satisfied,” the Court must now
make “a discretionary determination of whether abstention
is appropriate given the particular facts of this case.”
Fuente, 207 F. Supp. 3d at 450. In making its
determination, a court may “weigh[] such factors as the
availability of an adequate state remedy, the length of time
the litigation has been pending, and the impact of delay on
the litigants.” Id. at 451. At this stage of the analysis,
abstention is appropriate “absent significant reasons to the
contrary[.]” Chez Sez III Corp., 945 F.2d at 633.
Plaintiffs argue that because the general election is

imminent, the Court should not exercise its discretion to
abstain. [ECF 320, p. 60]. They also argue that, even if
abstention is appropriate, this Court has an independent
- 30 -
obligation to decide all requests for preliminary relief. [Id.

at pp. 59-60]. Neither of these arguments is well-taken.
The Court acknowledges that the imminence of the

general election weighs in favor of this Court acting as
quickly as possible. But Plaintiffs have at least three
options to obtain substantial relief through speedy
resolution of the unsettled state-law questions.
First, there is pending litigation in Pennsylvania

state court that appears likely to resolve many of the
unsettled state-law issues. The Pennsylvania Democratic
Party filed a lawsuit in Commonwealth Court, which is
now pending. [ECF 291-1]. Certain Plaintiffs here have
moved to intervene in that case and have been allowed
leave to file amici briefs. [ECF 264-2]. The issues in that
case involve two of the critical unsettled state-law issues
noted above: (1) whether Act 77 requires county election
boards to count non-compliant ballots, such as those not in
the secrecy envelope; and (2) whether the county board of
elections office is the only location to which mail-in ballots
may be delivered, or whether drop boxes are permitted
under Act 77. See, e.g., [ECF 291-1, pp. 46-55]. On August
16, 2020, Secretary Boockvar applied to the Pennsylvania
Supreme Court to exercise jurisdiction in the first instance
over this case. [ECF 388-1]. Thus, soon, the Pennsylvania
state courts will be able to provide conclusive
interpretations of the state-law issues that serve as the
basis for many of Plaintiffs’ claims here.7
7 Another claim in the state case is whether the poll-

watching residency requirement violates the state and
federal constitutions—which is also one of the claims here.
[ECF 264-1, ¶¶ 142-161]. Thus, there is the potential for
an inconsistent decision between this Court and the
Pennsylvania Supreme Court if this Court acts now. While
the risk of an inconsistent judgment isn’t usually the main
concern of Pullman abstention, it is a factor to consider
generally in the Court’s exercise of its discretion to abstain.
See Chiropractic Am. v. Lavecchia, 180 F.3d 99, 103 (3d Cir.
1999) (“The various types of abstention are not rigid
pigeonholes into which federal courts must try to fit cases.
Rather, they reflect a complex of consideration designed to
- 31 -
Second, Plaintiffs certainly can file their own case in

state court to have the state courts interpret the unsettled
state-law issues. In fact, Plaintiffs will now have a head
start in any state-court proceeding because this Court
ordered expedited discovery here, which is substantially
complete and will be equally applicable in any state-court
proceeding. [ECF 124, pp. 4, 6 (“All written discovery
requests must be served by July 24, 2020”; “All responses
to written discovery, including producing all items and
documents, shall be made by August 5, 2020”; “All fact-
witness depositions must be completed by August 26,
2020”; “All affirmative expert reports shall be completed
and simultaneously produced by August 12, 2020.
Rebuttal expert reports shall be completed and produced
by August 19, 2020. All expert depositions shall be
completed by August 26, 2020.”)]; [ECF 374, p. 2
(“Plaintiffs shall provide supplemental responses and
documents” responsive to certain written discovery
requests “no later than August 14, 2020.”)].
Third, Plaintiffs can also appeal this Court’s

abstention ruling to the Third Circuit on an expedited
basis, and, as part of any appeal, seek certification of any
unsettled and ambiguous state-law questions that have not
otherwise been raised in the pending Commonwealth
Court case.8 Abstention is, no doubt, a “blunt
instrument”—which is why certification of thorny state-
soften the tensions inherent in a system that contemplates

parallel judicial processes.”) (citation omitted).
8 An order staying a case based on Pullman abstention is
immediately appealable under the collateral-order
doctrine. See Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 712–13 (1996) (holding that an abstention-based
remand to state court was immediately appealable under
collateral order doctrine); Schweiker, 40 F. App’x at 674
(“Under our jurisprudence an abstention-based stay order
can be a final order under § 1291 even when the District
Court retains jurisdiction.”). And the Third Circuit’s local
rules allow parties to file applications to expedite appeals.
3d Cir. L.A.R. 4.1 (2011) (“A party who seeks to expedite a
case must file a motion within 14 days after the opening of
the case setting forth the exceptional reason that warrants
expedition.”).
- 32 -
law questions is oftentimes preferable. Expressions Hair

Design v. Schneiderman, 137 S. Ct. 1144, 1156–57 (2017)
(Sotomayor, J., concurring). While this Court has no
authority to certify state-law questions to the
Pennsylvania Supreme Court, the Third Circuit does. See
Pa. R.A.P. 3341(a)(2) (“[A]ny of the following courts may
file a petition for certification with the Prothonotary of the
Supreme Court: (1) The United States Supreme Court; or
(2) Any United States Court of Appeals.”).
As for Plaintiffs’ argument that the Court, even if it

abstains, must still decide any motions seeking
preliminary relief, that misses the mark. True, if Plaintiffs
had filed a motion for a preliminary injunction, the Court
would have likely been required to rule on it before
abstaining. See, e.g., Chez Sez III Corp., 945 F.2d at 634
n.4 (noting that the district court had to consider
appellants’ request for preliminary relief even though the
court decided to abstain under the Pullman doctrine);
Pierce, 324 F. Supp. 2d at 704 (“Notwithstanding a decision
to abstain on the merits, this court is still obliged to
consider plaintiffs’ request for preliminary relief.”)
(citations omitted).
But Plaintiffs didn’t file one. Plaintiffs intentionally

opted to forgo seeking any preliminary provisional relief,
instead requesting a speedy hearing for declaratory relief
under Rule 57. [ECF 6, ¶ 9 n.3 (“Plaintiffs recognize that
the current length of time until the upcoming 2020 General
Election counsels against the filing of a preliminary
injunction motion if other means of case expedition will
lead to the necessary relief in a timely manner. Thus, to
conserve judicial resources, Plaintiffs are attempting to
meet that need by way of a speedy declaratory judgment
hearing and expedited discovery.”)].
A request for declaratory relief is a final adjudication

on the merits, not a request for preliminary relief. See
Cnty. of Butler v. Wolf, No. 20-677, 2020 WL 2769105, at *5
(W.D. Pa. May 28, 2020) (Stickman, J.) (“Contrary to a
request for preliminary injunctive relief, the entry of a
declaratory judgment is a complete and final order.”)
(citing Henglein v. Colt Indus. Operating Corp., 260 F.3d
201, 211 (3d Cir. 2001)). Plaintiffs’ deliberate choice on
how to proceed obviates the Court’s need to take any
- 33 -
immediate action. See Fuente, 207 F. Supp. 3d at 453

(“[T]hough courts in the past have entertained parties’
requests for emergency relief contemporaneously with a
decision to abstain on the merits of the case, this scenario
is distinguishable from such instances, as indeed no motion
has even been filed for such relief.”) (cleaned up).
Finally, there’s one more issue about this Court’s

discretion that no party has raised. What to do about some
of the stray claims or sub-parts of the claims that don’t
concern unsettled questions of state law? While what
appear to be the main claims in this case resolve around
unsettled state-law questions, a few don’t.
Specifically, Counts VIII and IX concern Defendants’

allegedly permitting improper provisional voting by voters
who requested mail-in or absentee ballots. As mentioned
above, there are no real ambiguities of state law underlying
these claims, and so no real reason to abstain from deciding
these claims under Pullman.
The same is true of one subset of Plaintiffs’ voter-

dilution claims. As a narrow aspect of Counts I-III,
Plaintiffs allege that third-party delivery of mail-in ballots
for non-disabled voters is clearly forbidden by the election
code, and that Delaware County allowed third-party
delivery in the primary election and is likely to do so in the
general election. The Pennsylvania Supreme Court has
already clearly spoken to this issue, so it is not unsettled.
See Absentee Ballots, 843 A.2d at 1234 (“For the forgoing
reasons, we hold that Section 3146.6(a)’s ‘in person’
delivery requirement is mandatory, and that the absentee
ballots of non-disabled persons who had their ballots
delivered in contravention of this mandatory provision are
void.”).
Likewise, Plaintiffs’ facial challenge to the poll-

watching residency provision does not require resolution of
any real thorny issues of state law. The Court could
interpret the unambiguous state statute on its face and
judge it against the Constitution.
Even though the above subset of claims may not

independently require the Court to abstain, the Court will
nonetheless stay the entire case. This is so for two reasons.
- 34 -
First, typically, when a court is confronted with

some claims that implicate Pullman principles, the court
has the authority and discretion to stay the entire action.
This is consistent with the Supreme Court’s and Third
Circuit’s instructions that Pullman abstention is
appropriate where construction of a state statute may even
“in part” avoid the necessity of federal-constitutional
adjudication. Farmer, 220 F.3d at 149 (“[A]bstention under
Pullman ‘is appropriate where an unconstrued state
statute is susceptible of a construction by the state
judiciary which might avoid in whole or in part the
necessity for federal constitutional adjudication, or at least
materially change the nature of the problem.”) (quoting
Bellotti v. Baird, 428 U.S. 132, 147 (1976) (emphasis
added)). As such, staying the entire case here based on the
existence of some Pullman-implicated claims is consistent
with, and fully within, the Court’s discretion. And in any
event, Plaintiffs have not asked the Court to proceed in a
piecemeal fashion.
Second, staying the entire case here, as opposed to

carving out aspects of it, is consistent with the Court’s
broad discretion to manage its docket. See Cheyney State
Coll. Faculty v. Hufstedler, 703 F.2d 732, 737 (3d Cir. 1983)
(“[T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.”) (cleaned up); Mendez
v. Puerto Rican Intern. Cos., Inc., 553 F.3d 709, 712 (3d Cir.
2009) (decision to stay litigation is “left to the district court
. . . as a matter of its discretion to control its docket”)
(cleaned up).
This discretion includes the inherent authority to

stay proceedings after considering “(1) the promotion of
judicial economy; (2) the balance of harm to the parties;
and (3) the duration of the requested stay.” Cirulli v.
Bausch & Lomb, Inc., No. 08-4579, 2009 WL 545572, at *2
(E.D. Pa. Mar. 4, 2009) (cleaned up). The Court may
exercise this inherent authority sua sponte. See First
Nonprofit Ins. Co. v. Alexander, No. 09-465, 2009 WL
2256473, at *4 (E.D. Pa. July 27, 2009). And federal courts
often do so in cases where a pending state-court action
related to the case will substantially affect it or be
dispositive of the issues. See, e.g., Bechtel Corp. v. Local
- 35 -
215, Laborers’ Int’l Union of N. Am., AFL-CIO, 544 F.2d

1207, 1215 (3d Cir. 1976) (“In the exercise of its sound
discretion, a court may hold one lawsuit in abeyance to
abide the outcome of another which may substantially
affect it or be dispositive of the issues.”); Alexander, 2009
WL 2256473, at *4 (“[T]he Court is . . . empowered to stay
proceedings pending the outcome of related proceedings.”)
(citations omitted).
Here, staying the entirety of the case, as opposed to

proceeding with a speedy hearing on a small subset of
claims (only to have to do it again once the state courts
have weighed in), is a much more efficient use of judicial
resources and the parties’ time, effort, and expense. That
approach minimizes piecemeal litigation (at least in this
Court) and ensures that this Court will know the scope and
nature of Plaintiffs’ constitutional claims before it decides
them.
Given these considerations, a discretionary stay of

those few claims not subject to Pullman abstention is
appropriate. See Farms v. Kuehl Poultry LLC, No. 19-3040,
2020 WL 2490048, at *5 (D. Minn. May 14, 2020) (“As an
alternative to Pullman abstention, Defendants argue that
the case should be stayed as a matter of sound discretion.
The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for
itself, for counsel, and for litigants . . . A federal district
court has broad discretion to stay proceedings when doing
so is appropriate to control its docket.”) (cleaned up); Monk
v. Johnson & Johnson, No. 10-4841, 2013 WL 436514, at
*2 (D.N.J. Feb. 5, 2013) (“[T]he Court notes that it possess
the ‘inherent authority’ to impose a stay of these
proceedings. . . . [B]oth the newly asserted and previously
pled claims relate to the same basic events. Permitting
discovery to proceed with respect to the latter while
imposing a stay as to the former, will undoubtedly cause
confusion and conflict over the permissible scope of
discovery.”).
The Court will therefore exercise its discretion to

stay the entire action, rather than just the claims subject
to Pullman, but with one important caveat. If there is a
prolonged delay in the state courts’ adjudication of the
- 36 -
state-law issues that are subject to Pullman abstention,

Plaintiffs may file a motion with this Court to lift the stay
and proceed on any claims not subject to Pullman.
CONCLUSION
For all the reasons discussed, the Court will abstain
under Pullman and stay this case until the Pennsylvania
state courts provide clarity on the unsettled state-law
issues that underly Plaintiffs’ central claims. Defendants’
pending motions will be granted insofar as they request
such abstention. In all other respects, Defendants’ motions
will be stayed along with the rest of these proceedings.
DATED this 23rd day of August, 2020.
BY THE COURT:
/s/ J. Nicholas Ranjan

United States District Judge
- 37 -

J. Ranjan Order

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Case 2:20-cv-00966-NR Document 409 Filed 08/23/20 Page 1 of 37

UNITED STATES DISTRICT COURT

DONALD J. TRUMP FOR PRESIDENT, INC., et al.,

KATHY BOOCKVAR, in her capacity as Secretary of the

J. Nicholas Ranjan, United States District Judge

Plaintiffs in this case are President Trump’s

In their complaint, Plaintiffs point to the 2020

manipulate or destroy ballots, manufacture duplicitous

According to Plaintiffs, Pennsylvania’s mail-in

Defendants are Secretary Boockvar and all 67

After carefully considering the arguments raised by

1 Those organizations include the Pennsylvania State

state statutes that undergird Plaintiffs’ federal-

Under the abstention doctrine set forth in R.R.

Here, most of Plaintiffs’ federal claims turn on

Discretionary considerations also weigh heavily in

could simply decide whether Defendants’ conduct violates

For these reasons, discussed in detail below, the

The Court will thus grant Defendants’ motions to

Plaintiffs seek declaratory and injunctive relief from

2 The following facts are drawn from the allegations in

A. Secretary Boockvar’s guidance.

On June 2, 2020, Pennsylvania held a primary

1. Guidance on verifying mail-in and

First, according to Secretary Boockvar’s January 10,

During the recent primary election, several counties

2. Guidance on “drop boxes” and other

Second, the Secretary’s guidance also stated that

During the recent primary election, about 20 county

Additionally, the Philadelphia County Board of

The amount and type of notice that was given

3. Guidance regarding in-person

Third, on January 30, 2020, the Pennsylvania

having voted an absentee or mail-in ballot.” [Id. at ¶¶ 138,

During the recent primary election, some (but not

4. Guidance regarding mail-in and

Fourth, Secretary Boockvar approved a May 28,

Many counties followed this May 28, 2020, directive

158]. Other counties disagreed with the Secretary’s view

B. Election-code provisions pertaining to

A few of Plaintiffs’ claims pertain to provisions of the

Pennsylvania’s election code does not permit poll

In many Pennsylvania counties, there is a

watchers to monitor all locations where ballots will be cast

II. Procedural background.

Shortly after filing their original complaint,

After Plaintiffs filed the original complaint, many

Defendants and Intervenors moved to dismiss the

According to Defendants and Intervenors, the

While all of this was happening, on July 10, 2020,

Certain Plaintiffs here have moved to intervene in

as of the date of this opinion, although the Commonwealth

Additionally, on August 16, 2020, Secretary

Here, because the Court is deciding the issues

Rule 12(b)(1) allows the Court to dismiss a case if the

because the Court, in abstaining under Pullman, is

As such, the Court concludes that Rule 12(b)(1) is

For these reasons, to the extent a choice must be

The Court therefore accepts “all well-pleaded

The plaintiff must allege “sufficient factual matter

“conclusory or bare-bones,” such as “threadbare recitals of

When evaluating a defendant’s motion under Rule

DISCUSSION & ANALYSIS3