Trump Appeals After Failed Bid To Block Pa. Election Cert.

Law360 (November 22, 2020, 2:27 PM EST) -- President Donald Trump's reelection campaign launched an appeal to the Third Circuit on Sunday following a judge's decision a day earlier rejecting its bid to bar Pennsylvania election officials from certifying Joe Biden's win in the state's presidential election this month.

The appeal comes after U.S. District Judge Matthew Brann threw out claims from the campaign on Saturday that widespread irregularities in how the state handled mail-in ballots warranted an order effectively overturning the will of Keystone State voters.

In a forceful opinion, Judge Brann ruled that the campaign's case, which included claims of widespread fraud raised — and later withdrawn — during a hearing on Wednesday but which were not actually included in any pleadings with the court, could not possibly merit effectively disenfranchising millions of voters across the state.

"This court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence," the judge said. "In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more."

The campaign filed suit on Nov. 9 alleging that Pennsylvania officials instituted an unconstitutional "two-track" election system that ultimately favored Democratic voters in violation of equal protection principles.

In particular, the campaign pointed to guidance from the state's Department of State in the run-up to the election advising counties that they could take it upon themselves to implement systems to allow voters to "cure" mail-in ballots received prior to Election Day with clear deficiencies, including missing signatures or secrecy envelopes.

In practice, however, the campaign claimed that only counties with large numbers of registered Democrats ultimately opted to adopt such notice-and-cure procedures.

The campaign brought the lawsuit alongside a pair of voters from Fayette and Lancaster counties, which did not have notice-and-cure procedures in place, who said their mail-in ballots were rejected.

But Judge Brann ruled that it would be wildly out of proportion to invalidate the votes of millions of other Pennsylvania voters simply because the two voters named as plaintiffs in the lawsuit had seen their own ballots invalidated.

"Rather than requesting that their votes be counted, they seek to discredit scores of other votes," he said. "That is simply not how the constitution works."

He also rejected claims from the Trump campaign that its own equal protection rights were violated as a result of its observers being kept improperly far away from ballot counting operations in several different counties.

In dispatching those claims, Judge Brann said there were no allegations that observers for the Trump campaign were treated any differently from those from President-elect Biden's campaign.

The campaign initially claimed in its Nov. 9 complaint that its alleged inability to properly oversee canvassing operations in Philadelphia and Pittsburgh ran afoul of due process as well as equal protection safeguards under the U.S. Constitution.

The due process claims, however, were later withdrawn as part of a pared-down amended complaint the campaign went on to file.

After a reshuffling of the campaign's legal team to have Rudy Giuliani, the former New York City mayor and current personal attorney to the president, take over as lead counsel, the campaign asked to amend the complaint again to reassert its due process claims.

But Judge Brann denied that request as part of his decision on Saturday.

"Amendment would unduly delay resolution of the claims," the judge said, noting that the campaign was seeking to amend "simply in order to effectively reinstate their initial complaint and claims."

Pennsylvania is scheduled to certify the results of its election, where Biden currently leads by slightly more than 80,000 votes, on Monday.

In a statement on Saturday night, Giuliani hailed the decision as a necessary step to eventually bring the case before the U.S. Supreme Court.

"Today's decision turns out to help us in our strategy to get expeditiously to the U.S. Supreme Court," he said. "Although we fully disagree with this opinion, we're thankful to the Obama-appointed judge for making this anticipated decision quickly, rather than simply trying to run out the clock."

While Giuliani derided the judge for having been appointed by former President Barack Obama, Sen. Pat Toomey, R-Pa., hailed Judge Brann as "a longtime conservative Republican whom I know to be a fair and unbiased jurist," and said it was time for Trump to move on.

"With today's decision by Judge Matthew Brann … President Trump has exhausted all possible legal options to challenge the result of the presidential race in Pennsylvania," he said. "I congratulate President-elect Biden and Vice President-elect Kamala Harris on their victory."

The Trump campaign is represented by Marc Scaringi and Brian Caffrey of Scaringi Law and Rudolph Giuliani.

Pennsylvania is represented by Barry Berke of Kramer Levin Naftalis & Frankel 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 & Schiller, Molly E. Meacham and Elizabeth A. Dupuis of Babst Calland Clements & Zomnir PC 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.

Update: This story has been updated to reflect new developments.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Donald J. Trump For President, Inc. et al v. Boockvar et al


Case Number

4:20-cv-02078

Court

Pennsylvania Middle

Nature of Suit

Civil Rights: Other

Judge

Matthew W. Brann

Date Filed

November 09, 2020

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