No surprises here. In a sentence: “Plaintiffs delayed too long to file their action, they lack standing, they have failed to join indispensable parties, and they have failed to articulate a viable cause of action.”
One more snippet on timing:
No matter the label—“laches, the Purcell principle, or common sense”—courts “will not disrupt imminent elections absent a powerful reason for doing so.” See Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016). Plaintiffs offer none. Pennsylvania adopted UMOVA in 2012. See Act of Oct. 24, 2012, P.L. 1490, No. 189. Deputy Secretary Marks testified before the General Assembly about the State Department’s procedures for military-overseas voters on September 14, 2022. (See Doc. 23-2 (9/14/22 State Gov’t Comm. Hr’g Rec.)). And the Department issued its disputed guidance just twelve days later, revising the document slightly in September and October 2023. (See Doc. 23-5 at 9). The individual plaintiffs—each of whom successfully sought federal office several times after the relevant statutes took effect, including at least once since the guidance issued—provide no good excuse for waiting until barely a month before the election to bring this lawsuit.
When asked at oral argument why plaintiffs delayed bringing the instant challenge for more than two years after the State Department promulgated its guidance, plaintiffs’ counsel initially responded that the United States Department of Justice had recently unsealed a three-year-old indictment of several Iranians for election interference. (See 10/18/24 Hr’g Tr. 14:6-20). Plaintiffs found that indictment, which was unsealed on September 27, 2024, to be “very concerning” given “the past history of the Iranians having knowledge of how to exploit the UOCAVA voting system, the FPCA, . . . [and] the federal write-in absentee ballots.” (See id. at 14:6-20; see also Doc. 23 ¶ 172 (asserting that “Iranian nationals . . . demonstrated that bad actors could easily create and submit falsified FPCAs” to interfere with Pennsylvania’s federal elections)). But that charging document reveals no vulnerabilities on the Commonwealth’s part. Indeed, the indictment plainly states that a video “purport[ing] to depict an individual hacking into state
voter websites and then using that illicitly obtained voter information to create fraudulent [military-overseas] absentee ballots” was a “simulated intrusion” that did not involve a bona fide state or federal website, adding that the Federal Voting Assistance Program “could not be leveraged in the manner implied by” the video. See United States v. Kazemi, No. 1:21-CR-644, Doc. 2 ¶ 5 (S.D.N.Y. Oct. 21, 2021) (unsealed indictment). Pressed for anything that might corroborate whether “there’s been some Iranian influence over Pennsylvania’s overseas ballots,” counsel effectively conceded that all he had was “concerns.” (See 10/18/24 Hr’g Tr. 14:21-15:1 (emphasis added)). Plaintiffs cannot rely on phantom fears of foreign
malfeasance to excuse their lack of diligence.