WASHINGTON — A federal appeals court on Friday handed another loss to the Trump campaign’s effort to undo President-elect Joe Biden’s win in Pennsylvania, with a judge — one of Trump’s nominees — writing that the campaign’s “claims have no merit.”
In a 3-0 decision, the US Court of Appeals for the 3rd Circuit rejected the campaign’s effort to get a do-over of its lawsuit challenging the election results in Pennsylvania, which a lower court had already tossed out last week.
“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,” Judge Stephanos Bibas wrote in a 3-0 decision from the US Court of Appeals for the 3rd Circuit.
It was the latest setback in a string of losses for Trump and Republicans in Pennsylvania — where the state formally certified the results on Nov. 24 — along with other battleground states. Biden won Pennsylvania by more than 80,000 votes, according to the tally released by the secretary of state’s office.
Campaign senior legal adviser Jenna Ellis tweeted that the ruling was part of an effort by the “activist judicial machinery in Pennsylvania” to “cover up the allegations of massive fraud.” But the case was decided by a panel of conservative-leaning judges — the two judges who joined Bibas’s opinion, Chief Judge D. Brooks Smith and Judge Michael Chagares, were nominated by former president George W. Bush.
Ellis indicated they would petition the US Supreme Court to step in, concluding: “On to SCOTUS!” The campaign’s appeal was largely about whether it could pursue a new, expanded version of its lawsuit. Even if they won on that issue before the Supreme Court, it wouldn’t undo Biden’s win in Pennsylvania, but would rather send the case back to the lower courts for more rounds of litigation.
In Friday’s opinion, Bibas wrote that the district court judge was right to deny the campaign’s effort to pursue a third version of their lawsuit because it didn’t fix the “fatal” defects with the previous one. The third version of the lawsuit that the campaign wanted to file featured complaints about “technical defects” with how Pennsylvania had run the election that the campaign already lost in state court, Bibas pointed out, and he wrote that the campaign’s claims that it was the victim of unconstitutional discrimination were “vague and conclusory.”
Bibas called out Rudy Giuliani, who has been leading the Trump campaign’s post-election legal fight, by name, which is unusual in a court ruling. The campaign since Nov. 3 has pushed baseless claims and conspiracy theories that the election was undermined by widespread fraud, but Bibas noted that Giuliani had “stressed” in court that their Pennsylvania challenge wasn’t actually a “fraud case.” Without any allegation of fraud, and with a subset of ballots at issue that wouldn’t be enough to flip the state for Trump, Bibas wrote that the campaign didn’t “deserve” an order blocking the Pennsylvania results from becoming official because its “claims have no merit.”
“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,” Bibas wrote.
The appeals court found that the campaign’s own focus on the importance of Pennsylvania’s Nov. 23 deadline for counties to certify election results defeated its push to argue for more time to relitigate the case. Bibas wrote that the amended version of the lawsuit that the campaign wanted to press repeated many of the same claims as the earlier iterations, and, even if timing wasn’t a concern, the case still would be “futile.” The fact that individual counties had discretion to decide how to run parts of the election wasn’t proof of a constitutional violation, especially when there was no evidence that county-specific rules treated the Trump campaign differently from the Biden campaign, the judge wrote.
“Though it alleges many conclusions, the Second Amended Complaint is light on facts,” Bibas wrote.
The Trump campaign filed a lawsuit on Nov. 9 in federal court in Williamsport, claiming Pennsylvania election officials unconstitutionally violated voting rights. US District Judge Matthew Brann dismissed the case on Nov. 21, finding the campaign and the two individual Pennsylvania voters who joined as co-plaintiffs lacked standing to sue. And, Brann noted, that even if they could clear that first important hurdle, they’d also failed to back up their allegations and show that even if state officials violated the Constitution, that the right thing for the court to do was invalidate the votes of all Pennsylvanians.
The case in Pennsylvania focused on two issues: first, whether poll watchers had enough access to watch ballots being processed and counted — Trump has repeatedly tweeted about this, implying that the ballot counters, who are regular citizens, are up to no good — and second, whether Pennsylvania violated the Constitution by allowing each county to decide if it wanted to give voters a chance to fix defects with absentee ballots before cancelling them, such as a missing signature or secrecy envelope.
Two days before a Nov. 17 hearing in the district court, the campaign filed a new version of its complaint that removed sections that alleged constitutional violations based on observer access. That move came shortly after the 3rd Circuit had issued an opinion in another election case that significantly undercut the campaign’s legal theories.
That’s when the case got even messier. The campaign’s lawyers — who were actually the second team involved after the first set of attorneys left — suddenly asked to leave, and were replaced by a new team that included Giuliani. Giuliani argued before Brann on Nov. 17, when he said that the previous lawyers had wrongly filed that new, narrower complaint that left out allegations of issues with observer access.
After the hearing, Giuliani asked the judge for permission to file a third version of the lawsuit, which not only added back in claims that were cut from the original version, but also added another request of the judge — instead of just asking him to block Pennsylvania from certifying the results, he argued that, alternatively, the judge could declare the results “defective.” Then, Giuliani argued the judge could order the Pennsylvania General Assembly to choose which electors to send when the Electoral College meets on Dec. 14; political parties nominate electors in each state, and the winner’s electors are ultimately appointed to represent that state in the Electoral College.
But Brann denied their request to substitute the third version of the complaint, writing that it would “unduly delay” the case, given that they’d already gotten a chance to amend their lawsuit once and the fact that Pennsylvania was the eve of certifying the results. Brann then granted Pennsylvania’s motion to dismiss the case, writing that invalidating 6.8 million votes in the state because of differences in how counties decided to run the election was “simply not how the Constitution works.”
“[This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence,” Brann wrote. “In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.”
Giuliani and Ellis released a statement spinning that loss as a win, saying that Brann’s ruling bolstered their strategy of getting “expeditiously to the U.S. Supreme Court” — even though what they ended up asking for on appeal was to have the case kicked back to the district court for another round. Giuliani and Ellis insinuated Brann was biased because he was nominated by former president Barack Obama, but as Republican Sen. Pat Toomey noted last week, Brann was a “longtime conservative Republican” before becoming a judge; Brann had been a compromise nominee by the Obama administration.
The campaign’s legal effort in the 3rd Circuit took its first hit after it was filed. The court doesn’t allow lawyers who aren’t members of the court’s bar to appear in cases unless they are pro bono, which meant Giuliani — who received special permission to appear in the Pennsylvania district court — couldn’t formally participate. On Nov. 25, the campaign filed a letter asking the court to make an exception, saying Giuliani hadn’t been able to get the “necessary certifications” because of unspecified issues related to the coronavirus pandemic.
The campaign also had to contend with the fact that Pennsylvania formally certified Biden as the state’s winner on Nov. 24. Trump’s lawyers argued in a footnote in their Nov. 25 letter to the court that the case wasn’t moot because a court could order election results “decertified.” They also argued that there was still time for the courts to step in before a “safe harbor” deadline of Dec. 8 to resolve any election challenges before the Electoral College meets on Dec. 14.
Bibas pointed out that the Trump campaign’s legal filings didn’t follow court rules, which on its own would knock out their effort to convince the court to block the Pennsylvania results. But even on the merits he wrote that the campaign failed to show they were entitled to that “extraordinary step.”
“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,” Bibas wrote. “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.”