In a new filing in the Third Circuit (that should appear on the docket tomorrow), the Trump campaign did not ask for the appeals court to issue an immediate order delaying certification, which is what I expected. They do not even ask for an immediate order reversing the trial court’s motion to dismiss and granting some kind of preliminary relief for additional discovery. Instead, the only ask, at least so far, is for an order for the district to consider on the merits the campaign’s proposed Second Amended complaint: “Appellants will request that this Court reverse denial of the Motion to Amend and direct the District Court to promptly decide it on the merits and proceed expeditiously to a hearing to enjoin certifying the results of the Presidential Election (or order decertification if already certified) if the Second Amended Complaint (ECF 172-2) is held to state valid claims.”
This is odd for a number of reasons. First, this is an emergency election case, and it seems crazy to me that if one were litigating over the presidential election one would NOT seek to get appellate review of an adverse ruling as soon as possible. Second, all that this asks for is for the district court to consider the proposed second amended complaint on the merits. Given the scathing ruling on the first amended complaint yesterday, and the similar defects with the second amended complaint (including lack of standing), there’s no reason to expect the district court would reach any different conclusion if it considered the second amended complaint. This is especially true given the deference usually applied to decisions about accepting a second amended complaint. Third, the motion does not even ask the Third Circuit to weigh in on the controlling legal case that was just decided last week by the circuit, something which is potentially the whole ball game on standing in the case.
There are other problems with this filing too, such as the odd claim that “The proposed Second Amended Complaint (ECF 172-2) asserts claims under the Civil Rights Act for violation of the Equal Protection and Due Process clause.” Those clauses are in the U.S. Constitution’s 14th Amendment, not the Civil Rights Act.
Just bizarre and weak.