Case 1:24-cv-01671-CCC Document 1 Filed 09/30/24 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

Hon. Guy Reschenthaler, a member of

the U.S. House of Representatives,
Hon. Dan Meuser, a member of the
U.S. House of Representatives, Hon.
Glenn “G.T.” Thompson, a member of
the U.S. House of Representatives,
Hon. Lloyd Smucker, a member of the
U.S. House of Representatives,
Hon. Mike Kelly, a member of the U.S.
House of Representatives,

Plaintiffs,
-vs-
COMPLAINT
Al Schmidt, in his official capacity
as Secretary of the Commonwealth FILE NO: 1:24-CV-01671
Jonathan Marks, in his official
capacity as the Deputy Secretary for
Elections and Commissions for the
Commonwealth of Pennsylvania,
or his successor,

Defendants.

Plaintiffs, by and through their undersigned counsel, respectfully allege and

represent the following for their Complaint.

1. The Plaintiffs are Congressmen seeking re-election to the U.S. House of

Representatives in the November 5, 2024, general election in the Commonwealth of

Pennsylvania (“Commonwealth” or “Pennsylvania”).

2. Plaintiffs seek prospective declaratory and injunctive relief to ensure legal

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compliance with federal and state law regarding the verification of voter registration

applicants’ identity and eligibility before accepting and counting ballots from UOCAVA

applicants in the Commonwealth of Pennsylvania.

3. The federal Uniformed and Overseas Citizens Absentee Voting Act

(UOCAVA) establishes special voting privileges reserved for members of the military,

their family members, and other non-military U.S. citizens abroad.

4. UOCAVA requires states to first determine if a voter registration applicant

is qualified to receive those voting privileges. The federal law requires all states to “accept

and process, with respect to any election for Federal office, any otherwise valid voter

registration application and absentee ballot application…” [52 U.S.C. § 20302(a)(a)(2)]

before triggering the privileges for UOCAVA eligible voters. (Emphasis added).

5. To verify identity and eligibility and to determine if an application is

otherwise valid, the federal Help America Vote Act (HAVA) establishes the minimum

standards. 52 U.S.C. § 21083(a)(5)(A)(i-iii)(verification of voter registration information).

Applicants who seek to vote in a federal election must provide, at the time of registration,

a valid driver’s license number. Id. If the individual has not been issued a driver’s license,

they may use the last four digits of their social security number (or if they have neither,

the State can assign them a unique identifying number and verify their identity and

eligibility using other approved documents). Id.

6. In addition to the minimum federal requirements, Pennsylvania law, 25

Pa.C.S. § 3502 explicitly requires UOCAVA applicants to satisfy the voter eligibility

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requirements of the Commonwealth. 25 Pa.C.S. § 3502. To be eligible under

Pennsylvania law, applicants must “satisfy the voter eligibility requirements of the

Commonwealth including residency requirements.” (§ 3502).

7. The Pennsylvania Election Code establishes that a UOCAVA application

may be rejected if an “omission prevents election officials from determining whether

the UOCAVA applicant is eligible to vote.” 25 Pa.C.S. § 3515.

8. In direct conflict with federal and state law, Defendants Secretary of the

Commonwealth Al Schmidt or Deputy Secretary for Elections Johnathan Marks, or

both, have issued directives and guidance to county officials to exempt UOCAVA

applicants entirely from any verification requirements.

9. The Defendants’ non-verification position has been confirmed in sworn

testimony in the General Assembly. Ex. B (House Committee Meetings, Public Hearing

on election administration considerations (in particular in advance of the 2022 General Election), at

59:10–1:00:14 (Sept. 14, 2022).1

10. When asked about how UOCAVA applicants are verified in a 2022

hearing, the Deputy Secretary for Elections, Johnathan Marks testified: “That group of

voters are specifically exempted from [sic] the HAVA verification requirements… They

do not have to provide PennDOT ID or last 4 of SSN… There’s no systematic

verification.” Id.

1
This exhibit in the record is a video recording, available at
https://www.legis.state.pa.us/cfdocs/legis/CMS/ArchiveDetails.cfm?SessYear=2021
&MeetingId=2450&Code=-1&Chamber=H

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11. The Defendants’ non-verification position is also confirmed in their 2023

Pennsylvania Military and Overseas Voters Guidance (10/18/23) (Ex. E) which includes

the Department of State’s “position.”

12. “The Department’s position is that covered voters are exempt from the

Election Code’s ID requirements for absentee voters.” Id.

13. The Defendants cannot cite to any legal authority, statutory or

otherwise, as a valid legal basis for their “position” that covered voters are exempt of

identification requirements because no such exemption exists in state or federal law.

14. Under the U.S. Constitution’s Supremacy Clause, preemption occurs when

a state law or practice conflicts with a federal law and when it is impossible to comply

with both state law and federal law.

15. Because the Defendants’ statewide directives conflict with federal law, and

it is impossible to comply with both the directives and federal law, the Defendants’

statewide directives are preempted by federal law.

16. The Commonwealth’s practice is an illegally structured election process

which makes Pennsylvania’s elections vulnerable to ineligible votes by individuals or

entities who could purport to be UOCAVA-eligible, register to vote without verification

of identity or eligibility but receive a ballot by email and then vote a ballot without

providing identification at any step in the process.

17. The Commonwealth’s “position” allows UOCAVA applicants to register

to vote and to cast ballots in federal elections that do not comply with the requirements

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of federal and state law. Defendants’ disregard for the law creates an opportunity for

inclusion of ineligible ballots such that the ultimate tally of the votes may not accurately

reflect the legal results which could affect a close Congressional election—an injury to

Plaintiffs.

18. Foreign nations, in efforts to interfere with U.S. elections, could easily

submit falsified FPCAs for votes to unduly influence U.S. elections. See, e.g.,

https://www.justice.gov/opa/press-release/file/1449226/dl (last visited Sept. 30,

2024) (Sealed indictment, U.S. v. Seyed Mohmnad Hosein Mousa Kazemi, 21 Cr. 644).

19. According to Defendants’ Absentee and Mail Ballot Report, over 25,000

UOCAVA ballots for the November 5, 2024, election have been already been

transmitted to potentially unverified UOCAVA applicants. See:

https://copaftp.state.pa.us/

20. The Defendants’ directives to county election officials to not attempt to

verify the identity or eligibility of UOCAVA applicants, as required by federal law under

UOCAVA and HAVA, is an ongoing and continuing act and, hence, is an impending

and continuing injury as the illegal election structure departs from federal legal mandates.

21. Therefore, the Plaintiffs, who are Congressional candidates, are entitled to

prospective declaratory and injunctive relief for upcoming elections.

JURISDICTION AND VENUE

22. This action arises under the Constitution of the laws of the United States.

23. This Court has jurisdiction pursuant to Articles III and VI of the United

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States Constitution, 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 28 U.S.C. § 1346(a)(2), and

42 U.S.C. § 1983.

24. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28

U.S.C. §2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and

by the general legal and equitable powers of this Court.

25. Venue is proper under 28 U.S.C. § 1391(b) because all events giving rise to

Plaintiffs’ claims against Defendants occurred in the Commonwealth of Pennsylvania.

PARTIES

26. Plaintiffs Guy Reschenthaler, Dan Meuser, Glenn “GT” Thompson,

Lloyd Smucker, and Mike Kelly are currently elected members of the U.S. House of

Representatives. All Plaintiffs seek re-election in the November 5, 2024, election.

Moreover, they intend to run for federal office in the future and have plans to do so. As

candidates, they have federal rights to a fair and equal election, including that state and

local election officials comply with federal election laws and voter registration

information verification requirements.

27. Defendant Al Schmidt is the Secretary of the Commonwealth of

Pennsylvania. He is a political appointee of the Governor and is designated as the

Commonwealth’s Chief Election Official and thus has certain duties imposed upon him

by the Commonwealth’s election code which are established by the legislature.

28. Defendant Jonathan Marks is the Deputy Secretary for Elections and

Commissions for the Commonwealth of Pennsylvania.

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29. Defendant Al Schmidt and Defendant Jonathan Marks are both within the

executive office of the Pennsylvania Department of State.

30. The Defendants or their successors are sued in their official capacity only.

The Defendants are not sued for damages, but for prospective declaratory and injunctive

relief only.

FACTUAL ALLEGATIONS

31. Plaintiffs who are Congressional candidates in the 2024 election are forced

to participate in Pennsylvania’s illegally structured federal election process.

32. The Commonwealth’s practice is an illegally structured election process

which makes Pennsylvania’s elections vulnerable to ineligible votes by individuals or

entities who could purport to be UOCAVA-eligible, register to vote without verification

of identity or eligibility but receive a ballot by email and then vote a ballot without

providing identification at any step in the process.

33. The Commonwealth’s practice allows UOCAVA applicants to register and

to cast ballots that do not comply with the requirements of federal and state law, such

that the potentially invalid ballots could be accepted, and, in turn, the invalid votes could

change the result of a close Congressional election—an injury to Plaintiffs.

34. The Defendants’ directives to county election officials to not attempt to

verify the identity or eligibility of UOCAVA applicants, as required by federal law under

HAVA and UOCAVA, is an ongoing and continuing act and, hence, is an impending

and continuing injury as the illegal election structure departs from federal legal mandates.

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35. Additionally, each Plaintiff-Congressman, under the Elections Clause, has

individual U.S. Representative standing because the Defendants’ actions and

interpretations of state law are an effective repeal or amendment to federal election law

depriving the Congressman of an opportunity to vote on the subject—an injury to each

Congressman.

36. Congressman Guy Reschenthaler is a plaintiff. He resides in Washington

County, Pennsylvania. He is running for re-election in the 14th District of Pennsylvania

on November 5, 2024. He also intends and has plans to seek a federal office in the

future. This Plaintiff would vote no if given an opportunity to vote on a federal bill to

exempt Pennsylvania from complying with the legal requirements of UOCAVA and

HAVA as detailed in this complaint.

37. Congressman Dan Meuser is a plaintiff. He resides in Luzerne County,

Pennsylvania. He is running for re-election in the 9th District of Pennsylvania on

November 5, 2024. He also intends and has plans to seek a federal office in the future.

This Plaintiff would vote no if given an opportunity to vote on a federal bill to exempt

Pennsylvania from complying with the legal requirements of UOCAVA and HAVA as

detailed in this complaint.

38. Congressman Glenn “GT” Thompson is a plaintiff. He resides in Centre

County, Pennsylvania. He is running for re-election in the 15th District of Pennsylvania

on November 5, 2024. He also intends and has plans to seek a federal office in the

future. This Plaintiff would vote no if given an opportunity to vote on a federal bill to

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exempt Pennsylvania from complying with the legal requirements of UOCAVA and

HAVA as detailed in this complaint.

39. Congressman Lloyd Smucker is a plaintiff. He resides in Lancaster County,

Pennsylvania. He is a candidate for re-election in the 11th District of Pennsylvania in the

US House of Representatives on November 5, 2024. He also intends and has plans to

seek a federal office in the future. This Plaintiff would vote no if given an opportunity

to vote on a federal bill to exempt Pennsylvania from complying with the legal

requirements of UOCAVA and HAVA as detailed in this complaint.

40. Congressman Mike Kelly is a plaintiff. He resides in Butler County,

Pennsylvania. He is running for re-election in the 16th District of Pennsylvania on

November 5, 2024. He also intends and has plans to seek a federal office in the future.

This Plaintiff would vote no if given an opportunity to vote on a federal bill to exempt

Pennsylvania from complying with the legal requirements of UOCAVA and HAVA as

detailed in this complaint.

41. To begin, the U.S. Constitution’s Elections Clause authorizes states to

regulate the times, places and manner of federal election subject to Congressional

enactments.

42. The Elections Clause, ratified in 1790, as part of the original U.S.

Constitution, provides:

The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.

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43. The Plaintiffs believe that the purpose of the Elections Clause is twofold.

44. First, the Elections Clause divides the legal responsibility for regulating

federal elections. That responsibility lies primarily with the states subject to

Congressional enactments.

45. Second, the Plaintiffs believe that the Elections Clause lodges the power

to regulate elections in the respective legislative branches of the states and the federal

government.

46. Congress, pursuant to the Elections Clause, enacted UOCAVA in 1986

regulating absentee voting in federal elections by military and overseas citizens.

47. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA),

P.L. 99-410, 52 U.S.C. §§ 20301–20311, 39 U.S.C. § 3406, 18 U.S.C. §§ 608–609, is

a federal law dealing with federal elections and voting rights.

48. The act requires that all U.S. states, the District of Columbia, Puerto

Rico, Guam, American Samoa, and the U.S. Virgin Islands allow certain eligible U.S.

citizens to register to vote and to vote by absentee ballot in federal elections.

49. The act is Public Law 99-410 and was signed into law by President Ronald

Reagan on August 28, 1986.

50. The Plaintiffs believe that UOCAVA facilitates military and overseas

voting distinct from other absentee voting by providing privileges to eligible voters.

51. The Plaintiffs understand that the Federal Post Card Application (FPCA)

(Ex. G) is the form used by members of the U.S. military and their family members to

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register to vote and to request an absentee ballot under UOCAVA in every state,

including Pennsylvania.

52. The FPCA may be returned by physical postal mail, email, or fax. Id.

53. Under UOCAVA, the FPCA can also be used by U.S. citizens who reside

outside of the United States but who are not members of the military. Id.

54. The FPCA is both a voter registration form and absentee ballot application

combined in a single document. Id.

55. UOCAVA, 52 U.S.C. § 20302(a)(a)(2), is accurately quoted in part as

follows and requires states to “accept and process, with respect to any election for

Federal office, any otherwise valid voter registration application and absentee ballot

application from an absent uniformed services voter or overseas voter, if the application

is received by the appropriate State election official not less than 30 days before the

election.” (Emphasis added).

56. The Plaintiffs understand that the privileges for registering and voting

under UOCAVA apply to an otherwise eligible applicant which means that in order for

the UOCAVA privileges to be in effect, there must first be a voter eligible to vote in the

state.

57. The FCPA includes fields for applicants to provide the HAVA required

driver’s license or social security number information. Id.

58. The Plaintiffs’ understanding is that federal law anticipates that the state

will have additional requirements beyond the minimum HAVA requirements. Thus, the

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FPCA also includes a field for state specific instructions and “additional information”

that the applicant must provide.

59. Non-military UOCAVA-eligible voters include study abroad students,

individuals who work outside of the U.S., and U.S. citizens who reside abroad.

60. Members of the military and their family members who vote as military

under UOCAVA must have valid IDs that could be matched to data in government

databases to verify identity and eligibility. The Plaintiffs’ understanding is that unlike

some states that allow overseas votes from those who have never lived in the state,

Pennsylvania is not a “never-resided” state, meaning that only those U.S. citizens who

lived in Pennsylvania before moving abroad would be eligible to vote in any election in

Pennsylvania. Pennsylvania, Federal Voting Assistance Program,

https://www.fvap.gov/guide/chapter2/pennsylvania (last visited May 29, 2024).

61. According to the EAC’s report, Election Administration and Voting

Survey 2020 Comprehensive report, in Pennsylvania’s last Presidential election (2020),

the state received approximately 27,000 ballots through UOCAVA, with approximately

20,000 of those ballots coming from non-military applicants.2

62. Congress, pursuant to the Elections Clause, enacted HAVA in 2002 which

included requirements for states to verify registration information for all voters including

2
ELECTION ADMINISTRATION AND VOTING SURVEY 2020
COMPREHENSIVE REPORT, U.S. Election Assistance Commission,
https://www.eac.gov/sites/default/files/document_library/files/2020_EAVS_Report
_Final_508c.pdf

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UOCAVA voters.

63. In 2002, Congress, pursuant to the Elections Clause, enacted HAVA which

included, in part, requirements on states to verify registration information for all voters

including UOCAVA voters.

64. The Help America Vote Act (HAVA), codified at 52 U.S.C § 21083 et seq.

(Pub. L. 107–252, title III, § 303, Oct. 29, 2002, 116 Stat. 1708), under 52 U.S.C.

§ 21083(a)(5), titled “Verification of voter registration information” establishes

mandates for voter registration applicants to provide information, in-part “to enable

each such [election] official to verify the accuracy of the information provided on

applications for voter registration.” Id. at § 21083(a)(5)(B) Text of HAVA, 52 U.S.C.

§ 21083). (Help America Vote Act of 2002-Conference Report: Hearing on H.R. 3295 Before the

Senate, 107th Cong. S10488–516 (2002)).

65. The Congressional record reflects that Senator Christopher “Kit” Bond

remarked about the underlying rationale and necessity for an identification process as he

is accurately quoted as stating:

Congress agreed that while the mail-in cards have made registration more
accessible, the policy has also created increased opportunities for fraud. To
address this, we created an identification requirement for first-time voters who
register by mail. The security of the registration and voting process is of
paramount concern to Congress and the identification provision and the fraud
provisions in this bill are necessary to guarantee the integrity of our public
elections and to protect the vote of individual citizens from being devalued by
fraud. Every false registration and every fraudulent ballot cast harms the system
by cancelling votes cast by legitimate voters. It undermines the confidence of the
public that their vote counts and therefore undermines public confidence in the
integrity of the electoral process.

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https://www.congress.gov/107/crec/2002/10/16/CREC-2002-10-16.pdf.

66. The Plaintiffs’ understanding is that HAVA establishes minimum

requirements for all applicants registering to vote to provide information with their

application for registration in 52 U.S.C. § 21083(a)(5)(A).

67. Under 52 U.S.C. § 21083(a)(5)(A), a voter registration application may not

be accepted or processed by a state unless the application includes the following:

• If an individual has been issued a driver’s license, they must provide

their driver’s license number. Id. at (a)(5)(A)(i)(I);
• In the case of an individual who has not been issued a driver’s
license, the last four digits of the applicant’s social security number
may be used. Id. at (a)(5)(A)(i)(II); or
• If an individual does not possess a driver’s license or social security
number, the state may assign a unique number, but that individual
may not vote in a Federal election unless they provide some other
document to establish identity and eligibility. Id. at (a)(5)(A)(ii).

68. Data from the Social Security Administration, from the ssa.gov website

shows that a very small percentage of adult US citizens do not have a SSN or a DLN.3

69. The Plaintiffs’ understanding is that the small number of those individuals

eligible to vote who have not been issued a driver’s license or state identification or social

security number can still register to vote and be assigned a unique voter ID number by

the state, when they prove their identity and eligibility by alternate means. 52 U.S.C.

§§ 21083(a)(5)(A)(ii)–(iii).

70. The Plaintiffs’ understanding is that examples of other acceptable

2
(https://www.ssa.gov/dataexchange/documents/HAVV%20model.pdf)

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documents include government issued documents like a U.S. Passport or military ID.

HAVA also includes documents like a copy of a current utility bill, bank statement,

government check, paycheck, or other government document that shows the name and

address of the voter. E.g., id. at § 21083(b)(2)(A)(i)(II).

71. As detailed above, UOCAVA provides for military and military families,

and non-military U.S. citizens abroad, to receive certain privileges to vote absentee.

72. Before voting, eligible citizens intending to vote through UOCAVA may

register to vote and simultaneously request an absentee ballot using the Federal Post

Card Application (FPCA). (FPCA 2013 Print Version); (copy of FPCA with

Pennsylvania instructions).

73. To determine if an applicant is eligible to receive the privileges afforded

under UOCAVA, states must first determine if the application is “otherwise valid” as a

voter registration application and as an absentee ballot application according to state and

federal requirements.

74. Pennsylvania law established identification and eligibility requirements for

voter registration applications and additional identification requirements for absentee

ballot applications.

75. HAVA, as a federal law, established the minimum level of verification of

identity and eligibility for all individuals who seek to register to vote in any federal

election. See, e.g., 52 U.S.C. § 21083(a)(5), as described above.

76. HAVA requires all voter registration applicants to provide valid voter

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registration identification before an applicant can vote in a federal election.

77. Congress passed HAVA in 2002, in part, to make it “easier to vote, harder

to cheat.” (S10488).

78. The Plaintiffs’ understanding is that § 21083(a)(5)(a) governing minimum

ID requirements, applies to all who are applying to register to vote.

79. There are additional identification requirements in 52 U.S.C. § 21083(b) for

individuals who registered by mail and then choose to vote by mail, but nothing in the

text of the law states that mail-in-specific requirements supplant the registration

identification and verification requirement of (a)(5).

80. The Plaintiffs’ understanding is that under 52 U.S.C. § 21083(b), this

section establishes additional identification requirements for first time voters who

registered to vote by mail.

81. One such requirement under 52 U.S.C. § 21083(b)(2)(i), involves an

individual who successfully registered to vote by mail but appears to vote in-person.

That individual would be required to present a current, valid photo ID, and proof of

address through some sort of bill or other government document that “shows the name

and address of the voter.” Id. at (ii)(II).

82. The Plaintiffs’ understanding is that §21083(b) also allows for casting a

provisional ballot in the absence of the required ID.

83. The Plaintiffs’ understanding is that for first time voters who registered by

mail and who choose to vote by mail for the first time, HAVA requires them to include

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a photocopy of their ID with their mail ballot.

84. The Plaintiffs’ understanding is that UOCAVA privileges apply to

“otherwise eligible” individuals who are members of the military and their family

members who are stationed far from home and to non-military US citizens who are

overseas at the time of the election.

85. UOCAVA was enacted in 1986 before email and other forms of electronic

communication were readily available.

86. Due to the “absentee” component of UOCAVA eligibility, nearly all

ballots would have necessarily been submitted by mail.

87. HAVA establishes the minimum requirements, but many states have

requirements that exceed the minimum requirement in HAVA. It is also the Plaintiffs’

understanding that state laws regarding requirements for absentee ballot applications

also vary. The Plaintiffs’ understanding is that one of the privileges afforded to eligible

UOCAVA voters is the right to vote absentee even if the state laws would have

otherwise limited access to absentee ballots.

88. When HAVA was passed in 2002, Congress enumerated an exception for

UOCAVA voters who registered by mail and who would be necessarily voting absentee

by mail.

89. UOCAVA eligible voters are not required to submit a photocopy of their

ID with the ballot when they return the ballot by mail. HAVA paragraph 52 U.S.C.

§ 21083(b)(1) – requiring a copy of the ID with the ballot --shall not apply in the case of

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a person who is “entitled to vote by absentee ballot under the Uniformed and Overseas

Citizens Absentee Voting Act.”

90. The Plaintiffs’ understanding is that HAVA exempts UOCAVA qualified

voters from the (b)(1) requirement to also include a copy of their ID with their mail

ballot but does not exempt UOCAVA voters from ever providing identification

information prior to voting, or from the general (a)(5) requirements to provide HAVA

required identification information when registering to vote.

91. Consistent with HAVA’s b(1)exception, Pennsylvania’s election code

exempts qualified UOCAVA electors from the additional absentee ballot proof of

identification requirements.

Pa. Stat. § 3146.2(j) Notwithstanding the provisions of this section requiring

proof of identification, a qualified absentee elector shall not be required to
provide proof of identification if the elector is entitled to vote by absentee ballot
under the Uniformed and Overseas Citizens Absentee Voting Act (Public Law
99-410, 100 Stat. 924) or by an alternative ballot under the Voting Accessibility
for the Elderly and Handicapped Act (Public Law 98-435, 98 Stat. 1678).

92. Consistent with HAVA, if an applicant is determined to be a qualified

elector according to state and federal law and if they are determined to be eligible to

receive UOCAVA voting privileges, that elector shall not be required to provide the

additional proof of identification otherwise required for absentee ballots in Pennsylvania

law.

93. In 2012, the Pennsylvania General Assembly enacted the Uniform Military

and Overseas Voters Act (UMOVA), which was signed into law on October 24, 2012.

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25 Pa.C.S. § 3501, et seq.

94. Pennsylvania’s UMOVA extends to Pennsylvania’s state and local elections

the accommodations and privileges for military and overseas voters found in federal

UOCAVA law. Id.

95. UMOVA applies to all elections conducted in Pennsylvania and helps to

ensure compliance with UOCAVA and the MOVE Act. Id.

96. Pennsylvania law is accurately quoted as, covered voters include all the

following: (1) A uniformed-service voter who is registered to vote in the

Commonwealth; (2) An overseas voter who is registered to vote in the Commonwealth;

(3) A uniformed-service voter who is not registered to vote in the Commonwealth but

who otherwise satisfies the voter eligibility requirements of this Commonwealth; and (4)

An overseas voter who is not registered to vote in the Commonwealth but who

otherwise satisfies the voter eligibility requirements of this Commonwealth including

residency requirements. 25 Pa.C.S. § 3502.

97. Notably, the Plaintiffs’ understanding is that Pennsylvania’s enactment of

UMOVA state law cannot supersede 52 U.S.C. § 21083(a)(5)(A) and HAVA’s voter

registration information verification requirements or UOCAVA’s requirement that

election officials first determine if the voter registration application is otherwise valid.

98. Minimum state requirements are established in the Pennsylvania Election

Code. PA Election Code § 3502 requires UOCAVA applicants to “satisfy the voter

eligibility requirements of the Commonwealth including residency requirements.”

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Further, an overseas applicant’s application can be rejected if an omission prevents an

election official from determining whether the applicant is eligible. (§ 3515).

99. Voter eligibility requirements of the Commonwealth are described in §

1301(a) and accurately quoted as:

o At least 18 years of age on the day of the next election;

o A citizen of the United States for at least one month;
o Resident of the Commonwealth for at least one month; and
o Not confined in a penal institution for conviction of a felony within the last
five years

100. The PA Department of State takes the “position” that UOCAVA

applicants are exempt from HAVA’s registration information verification requirements.

101. The Defendants’ directives and guidance to the counties on UOCAVA

applicants direct county officials not to attempt to verify identity and eligibility and not

to follow 52 U.S.C. § 21083(a)(5)(A) and its voter registration information verification

requirements.

102. The Plaintiffs’ understanding is that the majority of UOCAVA applicants

provide a DLN or SSN4 on the application but the Defendants direct counties not to

even attempt to verify the information that UOCAVA applicants provided on the

FPCA.

103. Al Schmidt is Pennsylvania’s chief election official. HAVA also charges

Secretary Schmidt—as well as his predecessors and successors who serve as the state’s

chief election official—with the responsibility to establish a system to match the

applicant’s identification numbers provided against information in official government

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databases prior to voting in a federal election:

The chief State election official and the official responsible for the
State motor vehicle authority of a State shall enter into an agreement
to match information in the database of the statewide voter
registration system with information in the database of the motor
vehicle authority to the extent required to enable each such official
to verify the accuracy of the information provided on applications
for voter registration.

52 U.S.C. § 21083(a)(5)(B)(i).

104. The chief state election official is responsible under HAVA to ensure that,

prior to accepting or processing a registration, officials verify the accuracy of the

information on a voter registration application by comparing to information in the state

motor vehicle authority and/or with information in the social security administration.

Except as provided in clause (ii), notwithstanding any other provision of law, an

application for voter registration for an election for Federal office may not be
accepted or processed by a State unless the application includes—
(I)in the case of an applicant who has been issued a current and valid driver’s
license, the applicant’s driver’s license number; or
(II) in the case of any other applicant (other than an applicant to whom clause
(ii) applies), the last 4 digits of the applicant’s social security number.

52 U.S.C. § 21083(a)(5)(A)(i) (emphasis added).

105. HAVA requires chief election officials to enter into agreements with the

state motor vehicles department and the Commissioner of the Social Security

Administration to verify information for applicants who have drivers’ licenses and for

those who do not have a state issued driver’s license or identification. Id. at

§ 21083(a)(5)(B)(i-ii).

106. In violation of HAVA, Pennsylvania’s chief election official Schmidt, or

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Deputy Secretary Marks or both, through the Department of State’s Voter ID Guidance,

from September 26, 2022, is accurately quoted, in part, as follows: “Those entitled to

vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting

Act (UOCAVA)… are not required to provide proof of identification.”

107. Although Defendants do have a process for HAVA-required verification

of applicants’ identifying information, the Defendants instruct counties not to attempt

to verify UOCAVA applicants as required under 52 U.S.C. § 21083(a)(5)(A).

108. In 2022, Deputy Secretary of the Commonwealth, Jonathan Marks

confirmed that Pennsylvania’s current practice is to exempt UOCAVA voters entirely

from verification requirements.

109. When asked how counties verify information for UOCAVA applicants

during a hearing in the General Assembly, the Deputy Secretary for Elections, Johnathan

Marks testified: “That group of voters are specifically exempted from [sic] the HAVA

verification requirements… They do not have to provide PennDOT ID or last 4 of

SSN… There’s no systematic verification.” Ex. B (House Committee Meetings, Public

Hearing on election administration considerations (in particular in advance of the 2022 General

Election), at 59:10–1:00:14 (Sept. 14, 2022).4

110. The Secretary or Deputy Secretary, or both, through the Department of

State’s Guidance on Military and Overseas Voters (Ex. E) includes the “Department’s

4
This exhibit in the record is a video recording, available at
https://www.legis.state.pa.us/cfdocs/legis/CMS/ArchiveDetails.cfm?SessYear=2021
&MeetingId=2450&Code=-1&Chamber=H)

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position” that UOCAVA applicants are exempt for ID requirements.

[https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resources/voting-and-

elections/directives-and-guidance/2023-Pennsylvania-Military-Overseas-Voters-

Guidance-2.1.pdf ]

111. Essentially, the Defendants through directives and guidance to county

election officials exempt UOCAVA applicants entirely from verification of identity and

eligibility as required under state law and federal law.

112. Defendants have illegally adopted a “position” that the voter registration

requirements for verification of identity and eligibility in federal and state law can be

waived by expanding HAVA’s narrow exceptions to the additional mail ballot return

identification requirements.

113. If the Defendants’ directive and guidance are based on the Defendants’

position on or interpretation of state statutes, such as Pennsylvania’s Uniform Military

and Overseas Voters Act (UMOVA), 25 Pa.C.S. § 3501, et seq., then those state statutes,

to the extent they conflict with the federal requirements for voter registration

requirements for verification of identity and eligibility, are preempted by HAVA and

UOCAVA.

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114. Furthermore, despite the almost obvious contradiction between federal

law mandates and the Secretary’s issued directives and guidance, two Pennsylvania

administrative complaints based on Pennsylvania’s non-compliance with

§ 21083(a)(5)(A) have been rejected by Office of General Counsel. Wood v. Pennsylvania

Department of State, Docket No. 2022-04, Report of the Office of General Counsel (Jan.

3, 2023) at 8 (Ex. C); PA Fair Elections v. Pennsylvania Department of State, Docket No. 2023-

001 (appeal pending), Final Determination (No. 21, 2023) at 7 (Ex. D).

115. In the appeal to the Commonwealth Court, case no. 1512 CD 2023, the

Defendants have filed a response brief reiterating their position that UOCAVA

applicants are exempt from HAVA’s requirements for voter registration information

verification. (Ex. F)

116. But, the U.S. Department of Defense, FVAP.gov website, U.S.

Department of Justice and the U.S. Election Assistance Commission have all confirmed

that UOCAVA applicants are not exempt from voter registration application

information verification requirements.

117. The Federal Voting Assistance Program (FVAP), which is charged with

overseeing UOCAVA for the Department of Defense, provides an electronic version of

the FPCA. The website includes instructions for UOCAVA applicants to supply one or

more forms of personal identification. If federal law created an exemption from voter

registration information verification requirements for UOCAVA voters, the FPCA

would not include fields for identification, nor would it include instructions for

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providing proof of identity or eligibility.

118. The directive to county election officials is to not attempt to verify the

information provided on the FPCA and to not attempt to match information to an

official government database--even if the applicant provided a DLN or SSN4 on the

FPCA.

119. The Secretary or Deputy Secretary, or both, instructs counties to send a

UOCAVA applicant a ballot, including ballots for federal elections, without verifying

identity or eligibility in violation of HAVA and in violation of UOCAVA.

120. A 2014 brief filed by the U.S. Department of Justice on behalf of the U.S.

Elections Assistance Commission (EAC), is accurately quoted as: stated:

Arizona notes that after passage of Proposition 200, the Federal Voting
Assistance Program ("FVAP") at the Department of Defense granted its request
to add instructions regarding its proof-of-citizenship requirement to the Federal
Post Card Application, a voter registration and absentee ballot application form
for overseas citizens developed pursuant to the Uniformed and Overseas Citizens
Absentee Voting Act ("UOCAVA"), 42 U.S.C. § 1973ff(b)(2). EAC001702,
EAC0017S0-S1. However, the UOCAVA is a separate statute from the NVRA
and contains no language similar to the NVRA's limitation that the Federal Form
"may require only such identifying information ... as is necessary to enable the
appropriate State election official to assess the eligibility of the applicant and to
administer voter registration and other parts of the election process." 42 US.C. §
1973gg-7(b)(I). The FVAP's decision therefore has no bearing on the States'
requests to the EAC.

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/14/kobachmotions.p

df, p. 44 (last visited: Sep. 29, 2024).

121. This comment, by the Department of Justice on behalf of the EAC, shows

that there is NO federal exemption from ID requirements for UOCAVA applicants.

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122. In fact, the Department of Defense, Department of Justice and the EAC

have confirmed that a state can reject FPCAs that are not accompanied by documentary

proof of US citizens if state law requires that DPOC to be “otherwise valid” in the state.

123. There is no exemption to identification and eligibility verification

requirements in UOCAVA and the Supremacy clause prohibits Defendants from issuing

a directive that conflicts with federal law.

124. Furthermore, other states comply with 52 U.S.C. § 21083(a)(5)(A) and its

voter registration application information verification requirements.

125. The Plaintiffs’ understanding is that Pennsylvania’s procedures for

UOCAVA applicants in this regard contradict other state’s procedures for compliance

with federal law.

126. Publicly available documents accessible on the internet, include the

procedures for UOCAVA voters from the state of Ohio. Ex. H (Ohio 12-K Instructions

for Uniformed Services or Overseas Voters).

127. In addition to identification required on the FPCA, Ohio also instructs

UOCAVA voters to complete their ballots, and fill out identification information

envelopes, on which a UOCAVA voter must provide the last four digits of their social

security number, their Ohio driver’s license or state ID card number, or a copy of a

different form of photo ID. Id.

128. Georgia is another example of a state that has a procedure properly to

verify identity of UOCAVA voters. Ex. I (Georgia Secretary of State UOCAVA Ballot

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Issuing/Mailing PowerPoint Training Presentation PDF).

129. The Georgia training guide explains how to verify identification

information that may be provided on a UOCAVA application: “Best practice would be

to start the search by DL number since this is a data point that must be verified anyway.”

Id.

130. UOCAVA applicants in Georgia whose identification information on the

FPCA cannot be matched to an official government database are sent a provisional

ballot with instructions for how to provide proof of identity and eligibility. Id.

131. Consistent with Georgia law and federal law, if the voter fails to provide

the proof of identity and eligibility, their ballot will not be counted. Id.

132. Alaska requires non-military UOCAVA applicants to provide a copy of

their US Passport (or similar Department of State document) with their UOCAVA voter

registration application. See https://www.elections.alaska.gov/voter-

information/military-overseas-and-college-voters/#seas (last visited: Sep. 29, 2024)

133. Minnesota’s Secretary of State’s website includes the HAVA ID

requirements for UOCAVA applicants and training materials for local election officials

and includes instructions for how to process non-matches. The SOS documents make

it clear that the UOCAVA applicants must provide a US Passport, driver’s license or

state ID number or the last four digits of their social security number. “Pursuant to

statutory requirements, the absentee record includes the following information: voter’s

name, voter’s present or former address of residence in Minnesota, school district

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number. passport number, Minnesota driver’s license or state identification card

number, or the last four digits of the voter’s social security number, category of

UOCAVA voter.” Source: https://www.sos.state.mn.us/media/5058/absentee-

voting-administration-guide.pdf (emphasis added).

134. Additionally, from the Minnesota Secretary of State PowerPoint on

UOCAVA Management:

Ex. J (Source: https://www.sos.state.mn.us/media/4925/2-02-uocava-management-

final.pptx, p. 4 (last visited: Sep. 29, 2024).

136. In 2006, a federal district court in the State of Washington issued a

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preliminary injunction confirming HAVA requires UOCAVA voter registration

information verification. Washington Ass'n of Churches v. Reed, 492 F.Supp.2d 1264 (W.D.

Wash 2006). The district court, held that the statute was likely to stand as an obstacle to

HAVA and the statute was likely to stand as an obstacle to Voting Rights Act . Id.

Afterwards, the court issued a permanent injunctive order, pursuant to stipulation of

the parties, requiring, under HAVA, that Washington State not count any ballot from an

applicant who has not provided documentation to confirm his or her identity and

eligibility sufficient for the government to complete the verification process:

(c)No [provisional] ballot cast pursuant to paragraph (1)(c) above shall be

tabulated or regarded as containing valid votes for any office or measure until the
Defendant receives information or the voter presents or submits documentation
sufficient to register the voter as described in paragraph (1)(a) [driver license no.
or social security number] or (1)(b) [alternate identification information] above.

Ex. K.

135. Pennsylvania’s guidance violates UOCAVA and does not meet HAVA’s

minimum standard.

136. HAVA sets the minimum standard for states for verification of identity.

137. The Plaintiffs’ understanding is that the Supremacy Clause bars

Pennsylvania from making exceptions to federal law because the Elections Clause makes

state law regulating times, places and manner of federal elections subject to

Congressional enactments

138. Therefore, Defendants may not create a directive that contradicts

UOCAVA and HAVA which are both Congressional enactments.

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139. The Plaintiffs’ understanding is that the HAVA minimum requirements

apply to all voter registration applicants and states must first determine if an applicant is

otherwise eligible to receive UOCAVA voting privileges.

140. The Plaintiffs’ understanding is that the only exemption granted to

qualified UOCAVA applicants under HAVA, is from the requirement for first time

voters who register by mail and vote by mail for the first time to include a photocopy of

their ID with their absentee ballots. HAVA does not exempt UOCAVA applicants from

requirements for verification of identity and eligibility for voter registration.

141. The EAC’s official guidance on the requirements of HAVA, explains that

states should not accept unverified registration applications.

Make every effort to ensure that a voter registration application is not rejected as
unverifiable until the State has given the individual an opportunity to correct the
information at issue and attempted to validate the accuracy of the government
information contained in its databases. This does not mean that States should
accept or add unverified registration applications to the statewide list.
Rather, it means only that election officials should make certain efforts before an
application is determined to be unverifiable and finally rejected. The EAC
recommends that in the event a State determines that the information provided
in a registration application does not match the information contained in a
verification database, States contact the individual in order to: (1) inform him or
her of the disparity, (2) provide a meaningful opportunity for the applicant to
respond or provide the correct information and (3) explain the consequences of
failing to reply…

https://www.eac.gov/sites/default/files/eac_assets/1/1/Implementing%20Statewide

%20Voter%20Registration%20Lists.pdf. Emphasis added.

142. Notably, Pennsylvania law does not allow U.S. citizens who have never

resided in the state to register and vote in the state.

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143. The Plaintiffs’ understanding is that eligible U.S. citizens who have

previously resided in Pennsylvania and who could apply for UOCAVA privileges would

be required to have a valid driver’s license, photo identification, a social security number

or Passport. Identification is required to board an airplane, cross the border or otherwise

travel abroad.

144. The Plaintiffs’ understanding is that for limited number of eligible

UOCAVA applicants who swear and affirm that they do not have a driver’s license or

state identification and whom have never been issued a social security number, HAVA

requires them to provide other documentation to establish identity and eligibility prior

to voting in a federal election.

145. The Plaintiffs’ understanding is that despite the fact that most applicants

who submit the FPCA do provide a driver’s license or the last four digits of their social

security number, Defendants, have instructed and continue to instruct Pennsylvania

counties not to attempt to verify the information.

146. To be eligible under Pennsylvania law, applicants must “satisfy the voter

eligibility requirements of the Commonwealth including residency requirements.” (§

3502).

147. UOCAVA requires the states to first determine if the applicant is eligible.

148. The Plaintiffs’ understanding is that in contradiction of UOCAVA and

HAVA, Defendants instruct counties not to verify information provided on the FPCA

and instruct counties not to determine if the applicant meets the eligibility requirement

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of prior Pennsylvania residence.

149. Nonetheless, the Department of State’s Guidance on Military and

Overseas voters includes the “Department’s position” that UOCAVA applicants are

exempt for ID requirements.

150. As described in the US Department of Justice indictment, Iranian

nationals, in efforts to interfere with U.S. elections, demonstrated that bad actors could

easily create and submit falsified FPCAs in Pennsylvania’s November 5, 2024 federal

elections. See, e.g., https://www.justice.gov/opa/press-release/file/1449226/dl (last

visited Sept. 30, 2024) (Sealed indictment, U.S. v. Seyed Mohmnad Hosein Mousa Kazemi, 21

Cr. 644).

COUNT I

UOCAVA and HAVA Preemption

151. Plaintiffs hereby incorporate by reference the above paragraphs as if fully

restated herein.

152. The Supremacy Clause, Art. VI, cl. 2, is accurately quoted as follows:

This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.

153. The U.S. Supreme Court has recognized that the Supremacy Clause is not

a source of federal rights or confer a cause of action. The Court also recognized that the

Supremacy Clause instructs what courts should do when state and federal laws clash, but

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is silent as to who may enforce federal laws in court, and in what circumstance they may

do so. In this regard, the Court has noted that federal district courts may issue injunctive

relief upon finding state regulatory actions are preempted.

154. The Plaintiffs’ understanding is that, unlike non-election cases, under the

Elections Clause, Supremacy Clause preemption is presumed when Congress enacts laws

regulating the times, places and manner of federal elections.

155. Defendants have implemented an illegal election structure regarding

military and overseas voting that the Plaintiff-Congressional candidates are forced to

participate in to obtain their respective federal offices.

156. Defendants have implemented an illegal election structure that creates

vulnerabilities and the opportunity for ineligible ballots to dilute valid ballots from

military service members.

157. Votes tallied in the Pennsylvania illegal election structure undermine the

credibility of the election for federal office.

158. Only candidates, such as the Plaintiffs, either gain or lose by the forced

participation in the state’s illegal election activities.

159. The Plaintiffs as candidates are participating in the upcoming November

5, 2024, general election for federal office.

160. The candidates forced participation in the illegal election structure

regarding absentee voters and the tally of those votes, may not accurately reflect the

legally valid votes cast.

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161. An inaccurate vote tally is a concrete and particularized injury to the

plaintiff candidates.

162. Defendants’, guidance or directives, or both, to county election officials

not to attempt to verify the identity of UOCAVA applicants who seek to vote and

actually cast a ballot, as required by federal law under HAVA and UOCAVA (as

previously described and as incorporated for Count I), is an ongoing and continuing act

and, hence, is an impending and continuing injury as the illegal election structure departs

from federal legal mandates.

163. There is a causal connection between the challenged conduct of the

Secretary’s or the Deputy Secretary’s, or both’s, policy and guidance and the asserted

injury.

164. To verify identity and eligibility, HAVA establishes the minimum

standards. 52 U.S.C. § 21083(a)(5)(A)(i-iii)(verification of voter registration information).

165. Applicants who seek to vote in a federal election must provide at the time

of registration, a valid driver’s license number. Id.

166. If the individual has not been issued a driver’s license, they may use the last

four digits of their social security number (or if they have neither, the State shall assign

them a unique identifying number and verify their identity and eligibility using other

HAVA approved documents). Id.

167. The Plaintiffs’ understanding is that in direct conflict to federal law

(UOCAVA and HAVA), and in conflict with Pennsylvania law (25 Pa. Stat. §§3501,

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3515) Defendants have issued directives to county officials to exempt UOCAVA

applicants entirely from any attempt to verify identity or eligibility.

168. Under the U.S. Constitution’s Supremacy Clause, preemption occurs when

a state action conflicts with a federal law and when it is impossible to comply with both

state action and federal law.

169. The Plaintiffs’ understanding is that because the Defendants’ statewide

directive conflicts with federal law, the Defendants’ statewide directive is preempted by

federal law because it is impossible to comply with both the state directive and federal

law.

170. Notably, the Defendants have not specified or referenced any particular

law they rely on for their “position” or directives and guidance.

171. If the Defendants’ Directives and guidance are based on the Defendants’

position on or interpretation of state statutes, such as Pennsylvania’s Uniform Military

and Overseas Voters Act (UMOVA), 25 Pa.C.S. § 3501, et seq., then those state statutes,

to the extent they conflict with the federal requirements for voter registration

requirements for verification of identity and eligibility, are preempted by HAVA and

UOCAVA.

172. Injunctive relief will redress the injury because the former will mitigate the

latter.

173. The Secretary or Deputy Secretary, or both, are responsible for

enforcement of Commonwealth of Pennsylvania laws governing all state elections,

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including federal elections.

174. The Defendants circumvent state and federal law through directives or

guidance or both which is preempted by the federal law.

175. The Defendants’ guidance or directives, or both, directing the counties to

accept and process applications without first determining if the applications are

“otherwise valid” is preempted by federal law.

176. Plaintiffs seek prospective declaratory and injunctive relief against the

Defendants.

PRAYER FOR RELIEF

For the reasons stated in this complaint, the Plaintiffs, Pennsylvania

Congressional candidates, request that this Court grant the following relief:

1. Enter a declaratory judgment that the directives and guidance issued by the

Defendants through the Pennsylvania Department of State by the Defendants and any

underlying supporting state law purportedly superseding UOCAVA and HAVA’s voter

registration requirements for verification of the identity and eligibility of Pennsylvania

UOCAVA applicants, are preempted by federal law;

2. Issue an order granting injunctive relief enjoining Defendants Schmidt, or

Marks from any further actions funding, supporting, or facilitating the directives and

guidance based on them being preempted by federal law;

3. Issue an order for injunction instructing Defendants to provide directions to

county election officials on the legally mandated procedures to comply with federal and

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state law in upcoming elections by requiring verification of the identity and eligibility of

UOCAVA applicants, including state residency requirements, prior to accepting and

counting the UOCAVA ballots.

4. Issue an order for injunction requiring county election officials to segregate

UOCAVA ballots returned for the 2024 election until the identity and eligibility of the

applicant can be verified as required under HAVA and state law.

5. Grant such other and further relief as is just and appropriate.

Respectfully submitted,

Dated: September 30, 2024

/s/ Karen DiSalvo
Karen DiSalvo (PA No. 80309)
Election Research Institute
Mohrman, Kaardal & Erickson
1451 Quentin Road, Suite 232
Lebanon, PA 17042
[email protected]
Attorney for Plaintiffs

Erick G. Kaardal (WI No. 1035141)*

Elizabeth A. Nielsen (PA No. 335131)*
Mohrman, Kaardal & Erickson, PA
150 South Fifth Street
Suite 3100
Minneapolis, MN 55402
mklaw.com
Attorneys for Plaintiffs
*Petitions and Applications for Admission
Forthcoming

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