Donald Trump’s effort to overturn the result of the US election has suffered another monumental setback, with a panel of conservative, Republican-appointed judges denying his campaign’s last-ditch appeal in Pennsylvania.
The President’s legal team, led by former prosecutor and New York City mayor Rudy Giuliani, was appealing a federal court ruling by Judge Matthew Brann, which threw out the campaign’s attempt to stop Pennsylvania from certifying Joe Biden’s victory there.
A panel of three judges from the Third Circuit Court of Appeals considered the campaign’s argument. In a withering 21-page decision today, Judge Stephanos Bibas – who was appointed by Mr Trump – concluded the President’s lawsuit had “no merit”.
He was joined in the unanimous decision by Judge Michael Chagares and the Third Circuit’s Chief Judge David Brooks Smith, both of whom were appointed by the former Republican president George W. Bush.
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so,” Judge Bibas wrote.
“Charges require specific allegations, and then proof. We have neither here.”
“The Trump presidential campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the campaign ‘doesn’t plead fraud’,” he continued.
Under questioning from Judge Brann during oral arguments, Mr Giuliani conceded the lawsuit was “not a fraud case”.
That admission was surprising, perhaps, for anyone who had listened solely to Mr Giuliani’s rhetoric in public or read Mr Trump’s tweets. But it was very much in line with the campaign’s court filings, which never alleged a specific instance of voter fraud.
Rather, the Trump team sought to invalidate hundreds of thousands of ballots based on legal technicalities and the suspicion that fraud may have been allowed to occur.
There were two core threads to its argument.
First, the campaign claimed election officials in Philadelphia, where Mr Biden’s support was most highly concentrated, had blocked its observers from properly watching the vote count.
The Philadelphia Supreme Court, i.e. the highest court at state level, has ruled that nothing improper occurred.
Second, Mr Giuliani argued Mr Trump’s supporters had been disenfranchised because some (mostly Democratic-leaning) counties allowed voters to “cure” technical problems with their mail-in ballots, while others did not.
So, for example, if a ballot was going to be rejected because it had been sent in the wrong type of envelope, officials in some counties took steps to contact the voter in question, giving them a chance to cast a provisional ballot to replace the faulty one.
The campaign said this was unfair, because most of the counties that facilitated curing leant towards Mr Biden, and most that didn’t leant towards Mr Trump.
Judge Brann had little patience for this argument, describing it as a “Frankenstein’s monster” of legal theories which had been “haphazardly stitched together”. If you’re curious, you can read his full assessment here, starting on page 11.
Anyway, back to the Third Circuit’s ruling.
“It objects that Pennsylvania’s secretary of state and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more,” Judge Bibas said, summing up the campaign’s arguments.
“This case is not about whether those claims are true. Rather, the campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the campaign amend its complaint a second time. It did not.”
The context here is that the Trump campaign changed its complaint midway through the federal court case, removing some of its requests for legal recourse.
Specifically, it dropped its attempt to throw out 680,000 votes based on the claim about its election observers.
Then, on the eve of oral arguments, the existing legal team quit the lawsuit, to be replaced the following morning by Mr Giuliani. He asked Judge Brann to let the campaign change its complaint again, to reinsert the stuff it had just taken out.
Judge Brann denied that request.
A central part of the Third Circuit’s decision was its assessment that the Trump campaign had sought to litigate state-level issues in federal court.
In other words, having failed to get anywhere in the correct jurisdiction, it threw together a nonsensical argument in an effort to get its complaints dealt with in the wrong jurisdiction.
“Most of the claims in the Second Amended Complaint boil down to issues of state law. But Pennsylvania law is willing to overlook many technical defects. It favours counting votes as long as there is no fraud,” said Judge Bibas.
“Indeed, the campaign has already litigated and lost many of these issues in state courts.
“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.
“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 (to the lawsuit), and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend.”
In short, the Third Circuit completely backed up Judge Brann’s decision not to allow the campaign to change its complaint again.
“Nor does the campaign deserve an injunction to undo Pennsylvania’s certification of its votes,” Judge Bibas wrote.
“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.
“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. The remedy would be grossly disproportionate to the procedural challenges raised.”
Mr Trump’s ultimate goal here was to invalidate the entire election in Pennsylvania, meaning the state’s Republican-controlled state legislature would choose its 20 presidential electors.
The Third Circuit slapped down that effort in scathing fashion.
“The Second Amended Complain seeks breathtaking relief: barring the Commonwealth from certifying its results, or else declaring the results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors. It cites no authority for this drastic remedy,” said Judge Bibas.
“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.”
You can read the full judgment here.
The Trump campaign says it now intends to appeal to the US Supreme Court. One of the President’s lawyers, Jenna Ellis, decried the “activist judicial machinery” of Pennsylvania and accused it of “covering up” allegations of fraud.
I mentioned this earlier, but just to reiterate, the Third Circuit panel consisted of three conservative judges, all appointed by Republican presidents.
At the district level, Judge Brann is an Obama appointee, but a lifelong Republican and a former member of the conservative Federalist Society.
Legal commentators say the Supreme Court is unlikely to even agree to hear the campaign’s appeal, let alone rule in its favour.
“This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges,” said election law expert Rick Hasen.
“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.
“As divided as the Supreme Court is ideologically, this kind of absurd and dangerous litigation will not get a friendly reception there.”
Steve Vladeck, a professor at the University of Texas School of Law, said the campaign’s lawsuit had “no chance of succeeding”.
“I’m not sure how a panel of three Republican-appointed judges could send a clearer, stronger message to all involved that this is over,” Prof Vladeck said.
“Yes, the Trump campaign can now go to SCOTUS, but with what? The court is never going to take up this dumpster fire of a lawsuit.”