Case 3:24-cv-01865-RDM Document 19 Filed 11/01/24 Page 1 of 9

IN THE UNITES STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HARRISBURG DIVISION

1789 FOUNDATION INC., d/b/a Case No. 3:24-cv-01865-RDM

CITIZEN AG, and ANTHONY
GOLEMBIEWSKI, Hon. Robert D. Mariani

Plaintiffs,
1.
v.

AL SCHMIDT, in his official capacity

as Secretary of State, and
COMMONWEALTH OF
PENNSYLVANIA,

Defendants.

PLAINTIFF’S REPLY BRIEF TO DEFENDANT’S OPPOSITION TO

PLAINITFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

In accordance with the Order of this Court dated October 31, 2024, Plaintiffs,

1789 Foundation Inc., d/b/a CITIZEN AG, and Anthony Golembiewski submit this

brief in response to Defendants’ opposition to Plaintiff’s Emergency Ex Parte

Motion for Temporary Restraining Order and Preliminary Injunction.

Absent the injunctive relief requested herein, Citizen AG and its Pennsylvania

members have legitimate concerns about their fundamental right to vote being

undermined. Millions of Pennsylvanians are concerned with the integrity of the

electoral process and this concern translates into discouragement to participate in the
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democratic process and eligible registered voters become filled with fear that

legitimate votes will be nullified or canceled, or their right to cast a vote will be

stripped away entirely.

Due to the irreparable harm Citizen AG has suffered and will continue to

suffer, and because Mr. Golembiewski will be irreparably injured absent the

injunctive relief requested herein, Plaintiffs hereby request you grant their

Emergency Ex Parte Motion for a Temporary Restraining Order and Preliminary

Injunction and asks the Court to enjoin Secretary Schmidt and the Commonwealth

of Pennsylvania from ignoring the explicit and express requirements of the NVRA,

and the provisions of 52 U.S.C. § 20507(e), which set forth the procedure for a

registrant to vote after failing to respond to a confirmation notice.

Defendants opposition fails for the following reasons:

I. THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ CLAIMS

AS ALL CLAIMS ARISE UNDER FEDERAL LAW.

Defendants’ argue that this action should be dismissed based on its application

of the strictest statutory compliance possible. More specifically, Defendants argue

that because the RTKL permits Defendants to extend the deadline by which it must

respond to an open-records request by an additional 30 days, Defendants did not

violate the RTKL.

But Plaintiffs are not suing for a state law claim; Plaintiffs claim here arises

pursuant to 52 U.S.C. § 20507(i)(1), which inter alia requires that the State (or
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Commonwealth) maintain “all records” –– which by definition includes the records

Plaintiff requested in its October 4, 2024 request. Indeed, the NVRA’s public

inspection provision is straightforward:

Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available, photocopying
at a reasonable cost, all records concerning the implementation of
programs and activities conducted for the purpose of ensuring the
accuracy and currency of official lists of eligible voters, except to
the extent that such records relate to a declination to register to vote
or to the identity of a voter registration agency through which any
particular voter is registered.
52 U.S.C. § 20507(i)(1) (emphasis added).

However, even assuming arguendo the Court were to adopt Defendants’ strict

adherence standard and apply it to the RTKL in this case, Plaintiffs submit that the

same requisite strict adherence standard be applied to the Defendants, too.

Specifically, in its “interim response letter”, the State failed to include any

information regarding the cost––yet somehow, despite not knowing the cost,

Defendant was able to somehow allegedly ascertain that it would not be until the

week following the election that it could produce records it has in its possession.

Under Pa.C.S. § 97.902(b)(2), in order for a valid 30 day extension to apply, the

interim notice “shall include a statement notifying the requester that the request for

access is being reviewed, the reason for the review, a reasonable date that a response

is expected to be provided and an estimate of applicable fees owed when the

record becomes available.”

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Thus, because this is a conjunctive and not disjunctive requirement, if the

Court were to adopt the strict adherence standard Defendants seek to have enforced,

the end result remains: the Commonwealth failed to properly invoke the 30-day

extension, and more than 5 business days have elapsed and no records have been

produced or otherwise made available for public inspection in violations of the

NVRA’s public inspection provision.

II. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION.

A. Citizen AG has Organizational Standing

It is not subject to reasonable dispute that Citizen AG has sufficiently pled––

and suffered––actionable harms that establish organizational standing. Specifically,

the Verified Complaint alleges that Citizen AG “has expended substantial resources,

including staff time, investigating Defendants' failure to comply with their NVRA

voter list maintenance obligations, communicating with Pennsylvania officials and

concerned members about Defendants' failure, and researching statements made by

Defendants in their correspondence” and “[t]he resources expended by Citizen AG

to investigate, address, research, and counteract Defendants' failure to comply with

their NVRA voter list maintenance obligations are distinct from and above and

beyond Citizen AG's regular, programmatic efforts . . .”. ECF No. 1 Complt., ¶¶ 61-

62. The Verified Complaint also alleges that, “[w]ere it not for Defendants' failure

to comply with their NVRA voter list maintenance obligations, Citizen AG would
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have expended these same resources on its regular, programmatic activities or would

not have expended them at all. Instead, it diverted its resources to counteract

Defendants' noncompliance and to protect members' rights.” Id. ¶ 63.

The diversion of resources is unequivocally an allegation that rises above the

desirous, albeit inexistent, “generalized grievance” Defendants attempt to

conspicuously attribute to the claims Citizen AG raises. See, e.g., League of Women

Voters of Florida, Inc. v. Lee, 595 F.Supp.3d 1042 (2022) (holding voting rights

organization had organizational standing because the challenged provision caused

the organization to divert resources from its usual activities); Mi Familia Vota v.

Fontes, 719 F.Supp.3d 929 (2024) (finding that a nonprofit advocating for its

members had both representational and direct organizational standing to challenge

Arizona laws that threatened its members with injury and required the organization

to divert resources to counteract the effects of the laws); La Unión del Pueblo

Entero v. Abbott, 614 F.Supp.3d 509 (2022) (finding Plaintiffs had organizational

standing because the challenged provisions imposed significant burdens on their

members and constituents, forcing the organization to divert resources from other

programs to address these new barriers to voting); (emphasis added). Fair Fight

Action, Inc. v. Raffensperger, 634 F.Supp.3d 1128 (2022), (holding that an

organization could establish standing by showing that it had to divert resources

from its usual projects to assist voters affected by state action); Common Cause
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Indiana v. Lawson, 937 F.3d 944 (2019) (finding voter-advocacy organizations had

standing because they diverted resources to counteract the effects of the challenged

election laws); Arcia v. Florida Secretary of State, 772 F.3d 1335 (2014) (holding

the organizational plaintiffs had standing because they had to divert resources to

address the Secretary's programs, which constituted a concrete and demonstrable

injury. (emphasis added). Accordingly, Citizen AG has pled sufficient facts to

establish organizational standing

B. Mr. Golembiewski has Standing.

Here, Plaintiffs similarly claim that Mr. Golembiewski “will be irreparably

harmed as a Pennsylvania voter” because his “fundamental right to vote will be

undermined.” Compl. ¶ 104. In response, the Commonwealth argues that this

assertion “is based upon the mere supposition that individuals who aren’t authorized

to vote in Pennsylvania will be permitted to do so despite all protections in state and

federal law that prevents such error.” Def.’s Mot. at 11. Respectfully, Plaintiffs point

out the fact that Defendants’ repeated failures to abide by federal law––the very same

laws for which Defendants are being sued for violating––do not serve as the

protection Defendants purport these laws to be. Otherwise, we would not be here.
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C. Plaintiffs ultimately fail to state a claim.

Defendant states that Plaintiff has failed to state a claim based on two different

theories.

First, Defendant states that Plaintiff cannot rely upon the number of 277,768

inactive voters because voters may have been sent multiple notices and therefore,

the number of inactive voters may be less than the 277,768 inactive voters claimed

by Plaintiff.

Plaintiff is willing to concede that, if the information provided by Defendant

is true and that the 277,768 includes multiple notices to the same voter, that the

number of inactive voters could possibly be less than 277,768. Yet, I think we can

still all agree that the number of inactive voters is undetermined and greater than

zero. Therefore, so long as even one inactive voter exists Plaintiff has stated a claim.

Next, Defendant argues that the data provided by the Election Assistance

Commission EAVs data cannot plausibly support a claim under NVRA. Defendant

argues the information is always changing and can therefore be inaccurate. The

information provided by the Election Assistance Commission was received from

each state’s Secretary of State, including Pennsylvania, and therefore, is an accurate

reflection of the inactive voters at a captured point in time.

Defendant’s second argument fails for the same reasons as the first argument,

even if Plaintiff concedes that the number is always changing and that 277,768
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inactive voters may not be the exact number of inactive voters today, even

considering Defendant’s argument that number is unable to be undetermined at any

point in time because it is always changing, I think we can all agree that the number,

although undetermined, far exceeds zero and therefore, Plaintiff has stated a cause

of action.

II. THERE EXISTS NO EMERGENT OF IMMINENT HARM

SUPPORTING AN INJUNCTION

Defendant argues this is not an emergency that requires injunctive relief. If a

federal election, in which the integrity of the voter roll is being challenged, is only

days away from being decided, is not an emergency, then I am not sure what Plaintiff

would consider an emergency.

Defendant states that we relied upon data reviewed from 2020 and 2022 in

formulating our complaint. Defendant is correct. Reviewing and referring to that

information was necessary to show the requisite time had passed (two federal

elections) for the voters to be removed. I am not sure why Defendant thinks that

referring to that information suggests we should have brought this litigation any

sooner.

Plaintiff is simply requesting that the Court Order the Defendants to comply

with 52 U.S.C. § 20507(e) until vote counting is complete in State of Pennsylvania

and for Defendant to comply with the request previously served upon them.
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CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Honorable

Court issue a temporary restraining order consistent with the terms set forth in the

previously supplied proposed order.

Respectfully submitted,
1789 FOUNDATION, INC. d/b/a
CITIZEN AG and ANTHONY
GOLEMBIEWSKI

By: /s/ Rachel L. Dreher

Rachel L. Dreher * (FL #32092)
CITIZEN AG
111 NE 1st St, 8th Floor
Miami, FL 33132
Tel: (561) 801-8661
rachel@citizenag.org
Attorney for Plaintiffs
*pro hac vice