By Delphine Luneau | The Center Square
The lawsuit brought by the campaign of President Donald Trump seeking to overturn the certified results of the presidential election in Pennsylvania suffered yet another setback Friday when the federal Third Circuit Court of Appeals rejected its legal arguments in harsh terms.
The campaign had appealed a U.S. District Court judge’s earlier dismissal of the case, seeking permission to amend the lawsuit and have it heard again. But a three-judge panel – all Republican appointees – unanimously rejected the appeal.
Trump’s attorneys are widely seen as likely to appeal the case to the U.S. Supreme Court, where three of the sitting justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are Trump appointees, and three others are Republican appointees.
The scathing opinion by the Third Circuit was written by Judge Stephanos Bibas. In his ruling, he said the lawsuit includes several “fatal” defects.
“[T]he Campaign has already litigated and lost many of these issues in state courts,” Bibas wrote. “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,” he continued. “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.”
In a post to Twitter by attorney Jenna Ellis, the Trump campaign’s response sought to paint Bibas – a Trump appointee – and the other Third Circuit judges as part of a campaign to steal the election in favor of presumed President-elect Joe Biden.
“The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud,” Ellis tweeted, also attributing the statement to fellow campaign attorney Rudy Giuliani. “We are very thankful to have had the opportunity to present proof and the facts to the PA state legislature. On to SCOTUS!”
While the Trump campaign has been active legally in several states – reversing Pennsylvania would not by itself be sufficient to get him the 270 electoral votes needed to claim a second term – the Keystone State has been seen as the first and biggest domino in a plan to hold off on election certifications and have Republican-controlled legislatures appoint their own.
On Wednesday, Giuliani and Ellis brought a series of witnesses, most of whom had direct ties to the Trump campaign or Republican organizations, before a hearing of the Pennsylvania Senate Majority Policy Committee to speak about what they saw as evidence of election fraud committed in Pennsylvania.
But the lawsuit dismissed Nov. 21 by U.S. District Judge Matthew Brann didn’t make its arguments based on allegations of fraud, as that section had been removed when the lawsuit was initially amended. Giuliani, the former mayor of New York City and one of Trump’s personal attorneys, had joined the case after the removal of the fraud sections and asked Brann for permission to amend it once again to restore them, but his request was denied.
The Third Circuit, in denying the appeal, noted that the campaign had emphasized the need for haste in making its case before Brann. With certification of the vote totals looming on Nov. 23, the campaign’s attorneys had insisted that it could get no “meaningful remedy” after then. As a result, Brann refused the request that the lawsuit be amended a second time.
According to Bibas, Brann’s decision was correct, because if he had accepted the second request to amend the lawsuit, it would have necessitated additional hearings and other procedural steps in a time frame where those efforts could not be completed.
“It would have mooted the existing motions to dismiss and required new briefing, possibly new oral argument, and a reasoned judicial opinion within seventy-two hours over a weekend,’ Bibas wrote. “That is too much to ask – especially since the proposed Second Amended Complaint largely repleaded many claims abandoned by the first one.”
Bibas said that the basis of the campaign’s appeal was complaining that Brann had followed a timeline that the campaign itself had requested.
“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,” he wrote. “It did not.”
To Bibas, the lawsuit was bound to fail on a variety of fronts, riddled with too many defects for it to be salvageable.
“As discussed, the Campaign cannot win this lawsuit,” he wrote. “It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.”
“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,” Bibas wrote.
Statewide and in Bucks County, election officials have said there was no fraud.
The results of the Pennsylvania election were certified earlier this week by Pennsylvania Secretary of State Kathy Boockvar. The Electoral College is set to meet Dec. 14 to official pick the next president. Unofficial counts show Biden with a 306-232 lead over Trump based on the results of the Nov. 3 election.