Third Circuit Rejects Trump’s Pennsylvania Appeal In A Scathing Opinion

A Republican panel of the Third Circuit Court of Appeals, in an opinion written by a Trump appointee, unanimously rejected Trump’s election appeal from Pennsylvania in a scathing opinion.

https://twitter.com/marceelias/status/1332387662045515778

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Election law expert Rick Hasen reports, Breaking: Third Circuit Unanimously Rejects Trump Emergency Appeal in Pennsylvania Case:

In a 21-page unanimous and scathing unpublished opinion, the Third Circuit has rejected the appeal of the Trump campaign in the Pennsylvania federal case challenging the election results. Judge Bibas, a Trump appointee, begins the opinion: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges. It shows the absurdity of the litigation: besides the fact that the case was poorly lawyered—Rudy Giuliani’s oral argument was the worst I have heard in 25 years of following election law cases–the case was as weak and conclusory in its allegations of wrongdoing as it was spectacularly anti-democratic in seeking to disenfranchise all of Pennsylvania’s voters by putting the matter after the fact into the hands of the state legislature. It was an awful lawsuit, and it was right to be rejected by the court, but it is still good to see the courts hold and not allow for a lawsuit that would have overturned the results of a legitimate election on the flimsiest of pretexts.

The Trump campaign can try to take this to the Supreme Court—if it is indeed true as reported in the NY Times that Giuliani is being paid $20,000 a day for his work, why wouldn’t he?–but it will get no better reception there. As divided as the Supreme Court is ideologically, this kind of absurd and dangerous litigation will not get a friendly reception there.

A few excerpts from the opinion:

“The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes. And federal law does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots. Each of these defects is fatal, and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend again.”

“Nor does the Campaign deserve an injunction to undo Pennsylvania’s certification of its votes. The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.”

The opinion concludes:

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

And there is no basis to grant the unprecedented injunction sought here. First, for the reasons already given, the Campaign is unlikely to succeed on the merits. Second, it shows no irreparable harm, offering specific challenges to many fewer ballots than the roughly 81,000-vote margin of victory. Third, the Campaign is responsible for its delay and repetitive litigation. Finally, the public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail. Plus, discarding those votes could disrupt every other election on the ballot.

We will thus affirm the District Court’s denial of leave to amend, and we deny an injunction pending appeal…

If this is the case that Trump and Giuliani had hoped to get in front of the Supreme Court to invalidate the election results in Pennsylvania, good luck. This is nothing like a Bush v. Gore situation.

Even if Pennsylvania’s 20 electoral votes were cast in doubt, Joe Biden still has more than the 270 electoral votes needed to be elected president. So what is the point?

Marc E. Elias has been keeping score: “Trump and his allies are 1-38 in post election litigation.” The only case Trump won was a Pennsylvania ballot cure deadline.

Trump’s fraudulent claims of voter fraud and irregularities, unsupported by any evidence, is an abuse of process and the judicial system. The courts should impose a substantial and severe sanction on the Trump campaign and its “D List” of attorneys, including referral to the Bar Association for disciplinary proceedings.





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4 thoughts on “Third Circuit Rejects Trump’s Pennsylvania Appeal In A Scathing Opinion”

  1. UPDATE: The Post reports, “Pennsylvania Supreme Court dismisses lawsuit against mail ballots with prejudice in another defeat for Trump”, https://www.washingtonpost.com/politics/pennsylvania-supreme-court-dismisses-lawsuit-against-mail-ballots-with-prejudice-in-another-defeat-for-trump/2020/11/28/d1d50ef4-31d2-11eb-96c2-aac3f162215d_story.html

    The Pennsylvania Supreme Court dismissed with prejudice a Republican lawsuit seeking to invalidate more than 2.5 million votes cast by mail in the general election, the latest in a string of legal defeats for the GOP as President Trump fails to undo his losses in key battleground states.

    Justices on the state high court ruled unanimously late Saturday that Republican petitioners waited too long [the legal doctrine of laches] to file their suit challenging Act 77, the 2019 law that established universal mail voting in Pennsylvania. Trump allies had asked the court to invalidate all votes cast by mail in the most recent election or direct the majority-Republican legislature to choose a slate of presidential electors. The ruling with prejudice means that the plaintiffs are barred from bringing another action on the same claim.

    “The want of due diligence demonstrated in this matter is unmistakable,” the justices wrote, noting that the lawsuit was filed “more than one year” after no-excuse mail voting was enacted in Pennsylvania. The order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”

    Concurring, Justice David N. Wecht noted that the GOP petitioners “failed to allege that even a single mail-in ballot was fraudulently cast or counted.”


    Marc Elias, the top Democrat fighting lawsuits by Republicans seeking to overturn the vote, believes the lawsuit may have brought into question the legitimacy of Rep. Kelly serving in Congress. “Republican’s own standing in Congress now in doubt — did his voter fraud lawsuit backfire?”, https://www.rawstory.com/2020/11/republicans-own-standing-in-congress-now-in-doubt-did-his-voter-fraud-lawsuit-backfire/

    “Congressman Mike Kelly has asked a PA judge to block certification of his own election. Even after this lawsuit is dismissed, the US House should refer his credentials to the Admin Committee prior to seating. If he doesn’t think he should be certified, the House should take note,” Elias argued on Wednesday.

    Following the Supreme Court rejecting the lawsuit, Elias followed up on his argument.

    “I stand by this,” Elias wrote. “Even thought the PA Supreme Court dismissed this lawsuit, Congressman Mike Kelly’s effort to block certification of his own election warrants a review by House Admin. If he doesn’t think his election should be certified, the House should not seat him.”

  2. Trump’s campaign paid $3 million for the partial recount of the presidential election in Wisconsin, requesting a retallying of the votes only in the state’s largest and most liberal (read African-American) counties of Milwaukee and Dane.

    What did he get for his money? “Milwaukee County presidential recount wraps up with Biden adding to his margin over Trump”, https://www.jsonline.com/story/news/politics/elections/2020/11/27/milwaukee-county-recount-wraps-up-biden-adding-his-margin/6428186002/

    “Milwaukee County’s recount of the presidential election vote tally came to an end Friday, with Democratic President-elect Joe Biden adding 132 votes to his margin of victory over President Donald Trump in Milwaukee County.”

    Bwahahaha!

    “The Dane County recount was expected to continue into the weekend, after a day off for Thanksgiving. Dane County Clerk Scott McDonell tweeted Friday morning that the recount was about 65% done and he expected to finish Sunday.”

  3. This past year is how the Trump’s and Kushner’s will always be remembered. Pence and the rest, too.

    They failed at everything except racism in the first three years, but 2020 is their final legacy.

    High unemployment, a record high deficit, a recession that started before the pandemic, and hundreds of thousands of dead Americans.

    Mostly preventable deaths, and millions of years of human life gone in just a few months.

    Yeah, millions, some math guy ran the numbers based on life expectancy, including co-morbidities.

    And in the third act, the Trump/Kushner crime families try to take down democracy.

    But I’m being selfish, at least rich people get to write off their private jets now, and Putin had some fun.

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