In a hearing on motions to dismiss the campaign's lawsuit, which claimed state guidance violated equal-protection rights by allowing counties to choose whether to offer provisional ballots to voters whose mail-in ballots were discarded over technical defects like missing signatures or privacy envelopes, U.S. District Judge Matthew W. Brann wanted to know why he should discard anywhere between 680,000 and 1.2 million votes cast in counties that allowed voters to "cure" deficient ballots, or grant the campaign's request to block the certification of the entire state's votes.
"You're asking the court to invalidate 6.8 million votes, to totally disenfranchise every vote in the commonwealth," he said. "Can you tell me how this result can possibly be justified?"
Stepping in the night before the hearing as other members of the president's legal team withdrew, Giuliani said the request matched the campaign's claims of a widespread scheme to steer the election to former Vice President Joe Biden, though he eventually had to admit to the judge that he was not making voter fraud claims in this particular suit.
"The scope of the remedy is because of the scope of the injury," Giuliani told the court. "As far as we're concerned, Your Honor, these ballots could have come from Mickey Mouse."
The campaign had filed a lawsuit Nov. 9 against Secretary of the Commonwealth Kathy Boockvar, the state's top election official, and the boards of elections in several counties that allowed voters to fix or replace defective ballots with provisional votes, claiming the practice unfairly set up a "two-tier" system of voting for counties that allowed it and those that did not.
The suit also had originally claimed that some counties did not allow the campaign's observers to watch the ballot counting closely enough, and left in the allegations that the lack of observation opened the door to fraud when the suit was amended over the weekend. But any actual claims related to those allegations were cut out of the amended complaint.
Giuliani spent most of his opening argument focusing on claims of rampant fraud going unseen in "Democrat-controlled" cities and counties that were unsupported by evidence, had been largely excised from the lawsuit he was arguing, and were rendered moot by a Supreme Court of Pennsylvania ruling handed down shortly after he concluded his argument. He said between 680,000 and 1.2 million votes in Philadelphia, Pittsburgh and other "Democrat-controlled" counties had been counted without being closely watched by the campaign's observers, and should be thrown out.
"The best description of what we're alleging is a widespread, nationwide voter fraud of which this is a part," Giuliani said, saying he would offer evidence of his claims of foul play in Democratic-majority cities if the court let the case get to an evidentiary hearing.
But the Supreme Court of Pennsylvania on Tuesday afternoon ruled that the state election code did not say observers had to be able to read every envelope and ballot, just that they be "present in the room" during the precanvassing and counting. And when Judge Brann questioned the attorneys, Giuliani eventually said he had to "correct" himself and said the suit "doesn't plead fraud. It pleads a plan or a scheme."
Attorneys for the state and the defendant counties argued that the plaintiffs didn't have standing to make the case, citing the Third Circuit's recent decision in Bognet v. Boockvar denying standing to candidates challenging the state's deadline for receiving ballots, or an October ruling against the Trump campaign in Pennsylvania's Western District that said counties taking different approaches to administering their elections did not give rise to equal-protection claims.
Even if the provisional or "cured" votes were improper under state law and they "diluted" legal votes, those precedents said voter dilution affected all voters and candidates across the state and was not a particular injury that gave the campaign or the voters in its suit standing, said Daniel Donovan of Kirkland & Ellis LLP, representing Boockvar.
The individual voter plaintiffs, who said they didn't find out until too late that their votes had been canceled in counties that didn't reach out and offer them the chance to cast provisional ballots, should have sued their home counties for disenfranchising them instead of seeking to throw out everyone else's votes, Donovan said. But neither Lancaster nor Fayette counties, which Trump won, were parties to the lawsuit, he said.
Mark Aronchick of Hangley Aronchick Segal & Pudlin, representing the county boards of election, called Giuliani and the campaign's request to throw out votes "disgraceful," and urged the federal court to abstain from what he said was a state-court issue over whether the guidance violated the election code. He pointed to Pittsburgh federal judge J. Nicholas Ranjan, who repeatedly deferred to the state courts on interpreting state law in the Trump campaign's preelection lawsuit there.
"Variances in the administration of elections from county to county are not equal-protection violations. All the counties could have [offered ballot cures]; the fact that Mr. Giuliani's favored counties didn't do it doesn't mean it's not available, doesn't mean it's an equal-protection violation," Aronchick said. "I am urging you, I am pleading with you, to tell them just what Judge Ranjan told them: 'I am not getting involved.'"
Judge Brann gave the campaign until the end of Wednesday to file written responses to the motions to dismiss and any motion seeking to file another amended complaint, after Giuliani indicated he wanted to reinstate some of the claims related to the observers. Other briefs would be due by the end of the week, and the judge canceled an evidentiary hearing that had been scheduled for Thursday.
The Trump campaign is represented by Marc Scaringi of Scaringi Law, Linda Kerns of the Law Offices of Linda A. Kerns, and Rudolph Giuliani.
Pennsylvania is represented by Daniel T. Donovan, Susan M. Davies and Michael A. Glick of Kirkland & Ellis LLP and Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP.
The counties are represented by Mark A. Aronchick, John Coit, Michele D. Hangley, John B. Hill, Christina C. Matthias and Robert A. Wiygul of Hangley Aronchick Segal & Pudlin and Terence M. Grugan, Timothy D. Katsiff, Edward D. Rogers and Elizabeth Wingfield of Ballard Spahr LLP.
The case is Donald J. Trump for President Inc. et al. v. Boockvar et al., case number 4:20-cv-02078, in the U.S. District Court for the Middle District of Pennsylvania.
--Editing by Bruce Goldman.
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