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    PA Interv Reply

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    Diana Prince
    This document is Donald J. Trump for President, Inc.'s reply in support of its motion to intervene as a petitioner in two Supreme Court cases regarding mail-in ballot deadlines in Pennsylvania. It argues that intervention is proper because the campaign has a direct interest in the outcome of the presidential election. It also argues that its representation would not be adequately represented by existing parties. Finally, it contends that concerns about standing do not prevent intervention, and that adding the campaign as a party could resolve any standing issues.

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    PA Interv Reply

    Uploaded by

    Diana Prince
    40 views8 pages
    This document is Donald J. Trump for President, Inc.'s reply in support of its motion to intervene as a petitioner in two Supreme Court cases regarding mail-in ballot deadlines in Pennsylvania. It argues that intervention is proper because the campaign has a direct interest in the outcome of the presidential election. It also argues that its representation would not be adequately represented by existing parties. Finally, it contends that concerns about standing do not prevent intervention, and that adding the campaign as a party could resolve any standing issues.

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    Trump Election lawsuit

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    20201106152355859_PA Interv Reply

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    This document is Donald J. Trump for President, Inc.'s reply in support of its motion to intervene as a petitioner in two Supreme Court cases regarding mail-in ballot deadlines in Pennsylvania. It argues that intervention is proper because the campaign has a direct interest in the outcome of the presidential election. It also argues that its representation would not be adequately represented by existing parties. Finally, it contends that concerns about standing do not prevent intervention, and that adding the campaign as a party could resolve any standing issues.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    40 views8 pages

    PA Interv Reply

    Uploaded by

    Diana Prince
    This document is Donald J. Trump for President, Inc.'s reply in support of its motion to intervene as a petitioner in two Supreme Court cases regarding mail-in ballot deadlines in Pennsylvania. It argues that intervention is proper because the campaign has a direct interest in the outcome of the presidential election. It also argues that its representation would not be adequately represented by existing parties. Finally, it contends that concerns about standing do not prevent intervention, and that adding the campaign as a party could resolve any standing issues.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 8

    Nos.

    20-542, 20-574

    In the Supreme Court of the United States


    __________________
    REPUBLICAN PARTY OF PENNSYLVANIA,
    Petitioner,
    v.
    KATHY BOOCKVAR, IN HER OFFICIAL CAPACITY AS
    PENNSYLVANIA SECRETARY OF STATE, ET AL.,
    Respondents.
    __________________
    JOSEPH B. SCARNATI, III, ET AL.,
    Petitioners,
    v.
    PENNSYLVANIA DEMOCRATIC PARTY, ET AL.,
    Respondents.
    __________________
    On Petitions for Writs of Certiorari to the
    Pennsylvania Supreme Court
    __________________
    DONALD J. TRUMP FOR PRESIDENT, INC.’S
    REPLY IN SUPPORT OF MOTION FOR LEAVE TO
    INTERVENE AS PETITIONER
    __________________
    Patrick Strawbridge Jay Alan Sekulow
    CONSOVOY MCCARTHY PLLC Counsel of Record
    Ten Post Office Square Stuart J. Roth
    8th Floor South PMB #706 Jordan Sekulow
    Boston, MA 02109 CONSTITUTIONAL LITIGATION
    (617) 227-0548 AND ADVOCACY GROUP, P.C.
    William S. Consovoy 1701 Pennsylvania Ave. NW,
    Thomas R. McCarthy Suite 200
    Tyler R. Green Washington, D.C. 20006
    Cameron T. Norris (202) 546-8890
    CONSOVOY MCCARTHY PLLC jsekulow@claglaw.com
    1600 Wilson Blvd., Ste. 700
    Arlington, VA 22209 Counsel for Movant
    (703) 243-9423 November 6, 2020
    i

    TABLE OF CONTENTS
    TABLE OF CITED AUTHORITIES ........................... ii
    INTRODUCTION ........................................................ 1
    ARGUMENT................................................................ 1
    CONCLUSION ............................................................ 4
    ii

    TABLE OF CITED AUTHORITIES


    Conservation Law Found. of New England v.


    Mosbacher, 966 F.2d 39 (1st Cir. 1992) .................. 3

    Mullaney v. Anderson, 342 U.S. 415 (1952) ............... 4

    Planned Parenthood of Wis. v. Kaul, 942 F.3d 793


    (7th Cir. 2019) .......................................................... 3

    Scarnati v. Boockvar, No. 20A53, 2020 WL


    6128194 (U.S. Oct. 19, 2020) ................................... 4

    Trbovich v. United Mine Workers of Am., 404 U.S.


    528 (1972) ................................................................. 2

    Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164


    F.3d 1080 (8th Cir. 1999) ........................................ 3

    Utah Ass’n of Cntys. v. Clinton, 255 F.3d 1246


    (10th Cir. 2001) ........................................................ 3
    INTRODUCTION
    If the presidential election hinges on the questions
    presented here, then the President’s reelection cam-
    paign should be a party. That conclusion is simple. So
    simple that nearly all parties (including the Demo-
    cratic plaintiffs who filed this case) have no objection
    to Movant’s intervention. Pennsylvania’s Secretary of
    State objects, but the Secretary’s arguments are
    largely nonresponsive to the question of intervention.
    The Court should grant Movant’s motion.

    ARGUMENT
    At the outset, this motion is not an appeal from
    the Pennsylvania Supreme Court’s (unreasoned) de-
    nial of Movant’s intervention. Cf. Sec’y Resp. 1-2. Mo-
    vant is not asking this Court to let it intervene in the
    state-court proceedings, or to “review[]” the state
    court’s application of Pennsylvania intervention law
    (something this Court has no jurisdiction to review
    anyway). Sec’y Resp. 1. Movant is asking this Court to
    let it intervene here. That question requires this Court
    to exercise its own discretion based on the interven-
    tion rules embodied in federal law. See Mot. 2.

    As for those federal intervention rules, the Secre-


    tary contests only two requirements: timeliness and
    inadequacy. She claims that Movant waited too long
    to intervene in this Court and that the existing peti-
    tioners adequately represent Movant’s interests. Sec’y
    Resp. 2-4. Neither argument works.
    2

    With respect to timeliness, Movant seeks to inter-


    vene as a petitioner, and the relevant certiorari peti-
    tions were filed less than two weeks ago. The Secre-
    tary does not explain how 14 days is a meaningful “de-
    lay.” Sec’y Resp. 4. The added burden on the Secretary
    is zero: She has not yet filed her briefs in opposition,
    and she would have to file those briefs even without
    Movant’s intervention. Even if she had filed them, the
    Secretary would suffer no prejudice because Movant
    simply adopts the existing petitions as its own. Cf.
    N.B.D. v. Ky. Cabinet for Health & Family Servs., No.
    19-638 (granting leave to intervene as a petitioner
    even though the motion was filed after the brief in op-
    position).

    With respect to inadequate representation, the


    Secretary ignores the Court’s holding that the re-
    quired showing is “minimal.” Trbovich v. United Mine
    Workers of Am., 404 U.S. 528, 538 n.10 (1972). Rule
    24 calls for no more than “sufficient doubt” that rep-
    resentation “‘may be’ inadequate.” Id. at 538 & n.10.
    That minimal doubt exists here. Movant is the real
    party in interest; it has the most direct and tangible
    stake in Pennsylvania’s vote count. Movant should
    thus be permitted to control the representation of its
    interest, which it cannot do unless it’s a party. Cf. id.
    at 539 (noting that intervenor should not be obliged to
    depend on an existing party’s performance as “‘his
    lawyer’”). Further, the party that the Secretary con-
    tends represents Movant’s interest—the state Repub-
    lican party—“agrees that the Motion should be
    granted.” Party Resp. 1. When an existing party does
    not oppose intervention, courts consider this nonoppo-
    sition telling evidence that the representation may be
    3

    inadequate. E.g., Utah Ass’n of Cntys. v. Clinton, 255


    F.3d 1246, 1256 (10th Cir. 2001); Conservation Law
    Found. of New England v. Mosbacher, 966 F.2d 39, 44
    (1st Cir. 1992).

    In any event, adequacy is not a reason to deny per-


    missive intervention—an independent basis for inter-
    vention that the Secretary’s response largely ignores.
    E.g., Planned Parenthood of Wis. v. Kaul, 942 F.3d
    793, 804 (7th Cir. 2019). So even if the Secretary were
    right about adequacy, the Court would still have
    sound practical reasons to allow intervention. Mot. at
    7-10. The real party in interest should be allowed to
    participate in this case. And the interests of justice
    and judicial economy favor giving Movant a voice
    equal to the existing petitioners, especially given the
    vital public interest at stake.

    Finally, the Secretary’s continued insistence that


    the existing petitioners lack Article III standing, see
    Sec’y Resp. 4-5, is both irrelevant and incorrect. It’s
    irrelevant because standing goes to the substance of
    whether to grant or deny the petitions, not interven-
    tion. See Turn Key Gaming, Inc. v. Oglala Sioux Tribe,
    164 F.3d 1080, 1081 (8th Cir. 1999) (“intervention can-
    not be resolved by reference to the ultimate merits”).
    That the Secretary thinks this Court should deny cer-
    tiorari because the petitioners lack standing is not rel-
    evant to whether Movant should be a party when the
    Court makes that decision. Cf. N.B.D., No. 19-638
    (granting intervention despite ultimately denying cer-
    tiorari). The Secretary’s standing arguments are in-
    correct anyway. The same arguments were raised in
    her opposition to the emergency stay applications. See
    4

    Sec’y Stay Opp. 11-14. Yet four Justices (the same


    number needed for certiorari) voted to grant those ap-
    plications. Scarnati v. Boockvar, No. 20A53, 2020 WL
    6128194 (U.S. Oct. 19, 2020).

    But if this Court has doubts about petitioners’


    standing, those doubts would only be a reason to grant
    intervention. No one seriously questions Movant’s
    standing, given its direct interest in the presidential
    election. In fact, now that Pennsylvania has entered
    the post-election, vote-counting phase, Movant is “the
    real party in interest.” Mullaney v. Anderson, 342 U.S.
    415, 416 (1952). This Court has added parties to re-
    solve “standing” concerns in similar circumstances.
    Id. That course would be particularly appropriate
    here because, contrary to the Secretary’s authorities,
    this case originated in state court and jurisdiction was
    undisputed. Cf. Sec’y Resp. 6-7. Article III did not ap-
    ply until the case arrived here, and Movant is plainly
    injured by the state court’s decision to allow illegal
    votes to be cast in Pennsylvania. “To dismiss the pre-
    sent petition[s] and require the new plaintiffs to start
    over” in state court, where the lower courts would be
    bound to follow the Pennsylvania Supreme Court’s de-
    cision anyway, “would entail needless waste and runs
    counter to effective judicial administration.” Mul-
    laney, 342 U.S. at 416-17.

    CONCLUSION
    The Court should grant this motion and allow Mo-
    vant to intervene as a petitioner.
    5

    Patrick Strawbridge Jay Alan Sekulow


    CONSOVOY MCCARTHY PLLC Counsel of Record
    Ten Post Office Square Stuart J. Roth
    8th Floor South PMB #706 Jordan Sekulow
    Boston, MA 02109 CONSTITUTIONAL LITIGATION
    (617) 227-0548 AND ADVOCACY GROUP, P.C.
    1701 Pennsylvania Ave. NW,
    William S. Consovoy Suite 200
    Thomas R. McCarthy Washington, D.C. 20006
    Tyler R. Green (202) 546-8890
    Cameron T. Norris jsekulow@claglaw.com
    CONSOVOY MCCARTHY PLLC
    1600 Wilson Blvd., Ste. 700
    Arlington, VA 22209
    (703) 243-9423

    November 6, 2020 Counsel for Movant

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