Breaking: Third Circuit Unanimously Rejects Trump Emergency Appeal in Pennsylvania Case [link to opinion]

In a 21-page unanimous and scathing unpublished opinion, the Third Circuit has rejected the appeal of the Trump campaign in the Pennsylvania federal case challenging the election results. Judge Bibas, a Trump appointee, begins the opinion: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges. It shows the absurdity of the litigation: besides the fact that the case was poorly lawyered—Rudy Giuliani’s oral argument was the worst I have heard in 25 years of following election law cases–the case was as weak and conclusory in its allegations of wrongdoing as it was spectacularly antidemocratic in seeking to disenfranchise all of Pennsylvania’s voters by putting the matter after the fact into the hands of the state legislature. It was an awful lawsuit, and it was right to be rejected by the court, but it is still good to see the courts hold and not allow for a lawsuit that would have overturned the results of a legitimate election on the flimsiest of pretexts.

The Trump campaign can try to take this to the Supreme Court—if it is indeed true as reported in the NY Times that Giuliani is being paid $20,000 a day for his work, why wouldn’t he?–but it will get no better reception there. As divided as the Supreme Court is ideologically, this kind of absurd and dangerous litigation will not get a friendly reception there.

A few excerpts from the opinion:

“The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes. And federal law does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots. Each of these defects is fatal, and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend again.”

“Nor does the Campaign deserve an injunction to undo Pennsylvania’s certification of its votes. The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.”

The opinion concludes:

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

And there is no basis to grant the unprecedented injunction sought here. First, for the reasons already given, the Campaign is unlikely to succeed on the merits. Second, it shows no irreparable harm, offering specific challenges to many fewer ballots than the roughly 81,000-vote margin of victory. Third, the Campaign is responsible for its delay and repetitive litigation. Finally, the public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail. Plus, discarding those votes could disrupt every other election on the ballot.

We will thus affirm the District Court’s denial of leave to amend, and we deny an injunction pending appeal….

This post has been updated.

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