3rd Circ. Roundly Rejects Trump's Pa. Election Appeal

Law360 (November 29, 2020, 1:26 PM EST) -- The Third Circuit resoundingly rejected President Donald Trump's effort to keep his lawsuit challenging the outcome of Pennsylvania's elections alive, denying his campaign's appeal that sought to file a third version of its previously tossed complaint in federal court.

In the latest harsh blow to Trump's efforts to overturn enough votes to erase President-Elect Joe Biden's victory, the all-Republican-appointed appellate panel said Friday that the second amended complaint the campaign wanted to file contained no specific allegations or evidence to back its claims that Pennsylvania's election was unfair to Trump.

"Charges of unfairness are serious. But calling an election unfair does not make it so," Judge Stephanos Bibas wrote for the unanimous panel. "Charges require specific allegations and then proof. We have neither here."

The panel rejected Trump's appeal as "inequitable and futile," and denied the campaign's request for an injunction blocking the certification of Pennsylvania's election results. Trump's campaign reacted Friday by looking ahead to appealing the case to the U.S. Supreme Court, even though a win would have only brought them back to the U.S. district dourt that had rejected the earlier version of the suit for lack of standing.

"The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," tweeted Trump campaign attorney Jenna Ellis on Friday. "On to SCOTUS!"

Judge Bibas was nominated to the Third Circuit by President Trump in 2017. Judge Michael A. Chagares and Chief Judge D. Brooks Smith were both nominated by President George W. Bush.

After losing their case claiming that Republican voters were harmed by Democratic-leaning counties' embrace of state guidance allowing them to contact voters whose mail-in ballots were rejected for technical reasons so those voters could fix or replace their ballots with provisional votes, the Trump campaign and two voters appealed to the Third Circuit with arguments that U.S. District Judge Matthew Brann had improperly denied the campaign's request to file a second amended complaint.

The new version would have restored claims related to poll watchers in seven Democratic-leaning counties, whom the campaign said were kept too far away from the counting to closely scrutinize all the votes, which the suit said should result in some portion of an estimated 1.5 million ballots being subtracted from Biden's total. The campaign cut those claims from the original complaint and claimed that confusion during its shuffling of attorneys was to blame, though the state pointed to another recent Third Circuit decision in Bognet v. Commonwealth of Pennsylvania that would have barred such claims as originally set forth.

Biden won Pennsylvania by more than 80,000 votes in the totals that the state certified on Thursday, which state and county officials argued made the campaign's appeal moot, but the campaign had asked the Third Circuit's permission for Rudy Giuliani to present oral arguments on why the operative deadline was actually December 8, the latest day for states to appoint their electors, and so Judge Brann was wrong to reject amendment of the suit as untimely.

Judge Bibas' opinion rejected that argument before it reached a courtroom, pointing to the campaign's prior focus on the Nov. 23 deadline.

"Having repeatedly stressed the certification deadline, the campaign cannot now pivot and object that the District Court abused its discretion by holding the campaign to that very deadline. It did not," Judge Bibas wrote.

And even though the campaign focused on the lower court's rejection of the amended complaint as being too late, the Third Circuit said it could also reject the appeal for being futile. Judge Bibas cited Giuliani's admission during oral arguments that the case was not about fraud, even though the second amended complaint repeatedly accused Democratic-leaning counties of engaging in "a deliberate scheme of intentional and purposeful discrimination" by allegedly denying closer access to Republican poll-watchers.

"That is conclusory. So is the claim that, 'upon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in defendant counties should not have been counted,'" Judge Bibas wrote. "'Upon information and belief' is a lawyerly way of saying that the campaign does not know that something is a fact but just suspects it or has heard it… Yet the campaign offers no specific facts to back up these claims."

The campaign had already litigated and lost most of the remaining issues in state courts — such as whether observers had to be able to closely observe ballot counting (they did not), or whether ballots missing minor handwritten information on their outer envelopes had to be discarded (they could be counted) — and could not convert those same issues to federal claims, the panel said.

"Seeking to turn those state-law claims into federal ones, the campaign claims discrimination. But its alchemy cannot transmute lead into gold," the opinion said.

Though it said it could have stopped with rejecting the request for a new complaint, the panel also shot down the campaign's injunction requests for good measure. The campaign's suit had no chance of succeeding and overturning Pennsylvania's election, since its best shot at tossing ballots — those that the defendant counties allowed voters to fix or replace — wouldn't have affected enough votes to change the state from blue to red, the opinion said.

"Even if 10,000 voters got notice and cured their defective ballots, and every single one then voted for Biden, that is less than an eighth of the margin of victory," Judge Bibas wrote. "Without more facts, we will not extrapolate from these modest numbers to postulate that the number of affected ballots comes close to the certified margin of victory of 80,555 votes. Denying relief will not move the needle."

The proposed alternative relief of letting the Republican-controlled state legislature appoint a pro-Trump panel of electors — a gambit Trump has shifted to with direct appeals and informal hearings outside the stricter requirements of a court or formal testimony to the legislature — was also untenable, the opinion said.

"The campaign would have us set aside 1.5 million ballots without even alleging fraud. As the deadline to certify votes has already passed, granting relief would disenfranchise those voters or sidestep the expressed will of the people," Judge Bibas wrote. "Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof. The public must have confidence that our government honors and respects their votes."

Pennsylvania Attorney General Josh Shapiro took to Twitter Friday to quote Judge Bibas' opinion and hail the state's victory.

"Again — you need evidence in order to prove your case in court. On to the next," he said.

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.

Secretary of the Commonwealth Kathy 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.

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