Pa. Certification Means Game Over For Trump, 3rd. Circ. Told

Law360 (November 24, 2020, 8:25 PM EST) -- Pennsylvania counties and election officials urged the Third Circuit on Tuesday to reject an appeal from President Donald Trump's reelection campaign, arguing that his efforts to toss out votes from Democratic-leaning counties were futile and moot after the Keystone State certified President-elect Joe Biden's win there.

Scathing briefs from Secretary of the Commonwealth Kathy Boockvar, the state's top election official, and Allegheny, Chester, Montgomery and Philadelphia counties said the Trump campaign's bid to file a third version of its lawsuit in federal court failed to fix any of the problems that got the prior version thrown out. The filings also said the suit couldn't overturn election results that were now official.

"Their claims lack any basis in law and their request for relief is outrageous. They have not identified a single vote case by an elector who was not qualified to vote or a single vote that should not have been counted," Boockvar's brief said. "Their proposed constructions of the Pennsylvania Election Code have been consistently rejected by the state courts and their pre-election challenges to election procedures have likewise been categorically rejected. … This court should not reward appellants' dilatory tactics by granting them yet another opportunity to sow confusion and doubt in the commonwealth's electoral process."

The campaign is appealing U.S. District Judge Matthew Brann's denial of a motion to file a second amended complaint after the first amended version was dismissed for lack of standing on Nov. 20. It originally sought to bar certification of Pennsylvania's election, but the state made Biden's win over Trump, 3.46 million votes to 3.38 million, official on Tuesday.

"The Trump campaign's third complaint in a matter of ten days will not cure the lack of jurisdiction, scarcity of evidence, or want of a viable constitutional claim. And now that the Pennsylvania vote is certified, any claim to enjoin certification is moot," the counties' brief said.

Trump sought to reinstate claims that observers in Democratic-leaning counties weren't given close enough access to scrutinize the validity of every ballot — claims that had been cut from the dismissed version of the lawsuit and which had been rejected by the Supreme Court of Pennsylvania, although the campaign sought to revive them as federal due-process violations.

Citing part of Judge Brann's opinion that criticized the campaign's legal arguments, Boockvar said the proposed revisions would fare no better and would be rightly denied.

"If appellants' first amended complaint is like Frankenstein's Monster, 'haphazardly stitched together from … distinct theories in an attempt to avoid controlling precedent' … their proposed second amended complaint is Frankenstein's Monster's Monster, randomly re-cobbled together, even more illogical and haphazard than the first," Boockvar's brief said.

Although the campaign had blamed the chopping of the observer-related claims on confusion and miscommunication as Trump's lawyers shifted from big law firms to a smaller team led by former New York Mayor Rudy Giuliani, Boockvar's brief said it was to avoid being thrown out based on an earlier Third Circuit decision, Bognet v. Commonwealth of Pennsylvania , which held that voters lacked standing to bring claims based on generalized accusations of vote dilution.

"The revisionist claim that the first amended complaint 'incorrectly omitted' the due process claims is a desperate effort to put time back on the clock. Appellants strategically filed the first amended complaint in an effort to dodge Bognet's fatal bullet," Boockvar's brief said.

The counties likewise said Bognet remained an insurmountable hurdle for the campaign.

"Amendment would not cure plaintiffs' lack of Article III standing to enjoin the now-certified election results — a conclusion that is unavoidable in light of this court's precedential decision in Bognet," their brief said. "From the original complaint to the proposed second amended complaint, plaintiffs did not set forth any new factual allegations plausibly pleading their standing to bring this action or a constitutional violation."

And while the campaign claimed that Monday's deadline for counties to certify their votes was not the final deadline for the lawsuit and it could still ask the court to "de-certify" the election results and/or have the state legislature decide who won, the counties said any undue delays in the case were Trump's own fault for slow-walking and backtracking what it otherwise claimed was an "emergency" case.

Trump's campaign had also asked to return to the district court for discovery, where it proposed to examine a sampling of the estimated 1.5 million mail-in ballots from the defendant counties for technical deficiencies that it said should have kept them from being counted. But Boockvar pointed out that the state Supreme Court had recently ruled that most minor defects would not disqualify votes, and had found that there was no right under state law for observers to closely scrutinize or challenge ballots during the counting process.

"Although the Trump campaign admitted that it needed discovery to determine whether it even had a viable claim, it revealed that this action is not about ensuring a fair election, but rather about snatching victory from the jaws of defeat — as it explained that its ultimate plan is to 'seek the remedy of Trump being declared the winner,'" the counties' brief said. "As the district court recognized, federal courts do not declare the winners of elections: voters do."

Intervenors from the Democratic National Committee and the NAACP also filed briefs Tuesday supporting dismissal.

"The counties faithfully discharged their constitutional duty to count and certify the votes for the presidential election. The Trump campaign's challenges to that canvassing process are unsupported by credible evidence and without legal basis," said Ilana Hope Eisenstein of DLA Piper, representing the counties. "We hope the court of appeals will bring this litigation to a swift conclusion."

Representatives for Boockvar and the Trump campaign did not immediately respond to requests for comment.

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

The counties are represented by Elizabeth A. Dupuis and Molly E. Meacham of Babst Calland Clements & Zomnir PC, Terence M. Grugan, Timothy D. Katsiff, Edward D. Rogers and Elizabeth V. Wingfield of Ballard Spahr LLP, Ilana H. Eisenstein, Brian H. Benjet, Jayne A. Risk, Brenna D. Kelly, Rachel A.H. Horton, Ben Fabens-Lassen, Danielle T. Morrison, Timothy P. Pfenninger, Sarah E. Kalman and Stephen H. Barrett of DLA Piper and Mark A. Aronchick, Michele D. Hangley and Robert A. Wiygul of Hangley Aronchick Segal Pudlin & Schiller.

Boockvar is represented by Daniel T. Brier, John B. Dempsey and Donna A. Walsh of Myers Brier & Kelly LLP and Karen M. Romano, Stephen Moniak and Nicole J. Boland of the Pennsylvania Attorney General's Office.

The case is Donald J. Trump for President et al. v. Boockvar et al., case number 20-3371, in the U.S. Court of Appeals for the Third Circuit.

--Editing by Bruce Goldman.

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