I have written on this case several times, so I’m not going to do a full procedural review here. If you don’t know the full backstory and would like to learn more, you can check out the following:
Two points to make before I delve into what the Third Circuit did and said in affirming the district court’s dismissal of the suit with prejudice.
First, I predicted that the Third Circuit would reverse the lower court, and allow the Trump campaign to file a Second Amended Complaint — which I expected Judge Brann to once again dismiss based on a lack of standing. But doing so would have resulted in a better and more “coherent” record for appellate review in terms of the factual allegations being made, the legal theory for relief being advanced, and the “standing” determination that Judge Brann was nonetheless required by case law to use one again to dismiss. But the record for the Trump Campaign going forward would be better than the mess that had been made in the filing of the original complaint, the filing of a First Amended Complaint, the request to file a Second Amended Complaint — which as set forth in Court was going to be simply returning to the Original Complaint which was defective already.
Second, I said multiple times the handling of the case was poorly executed, leading to a turnover of counsel, and mish-mash of legal claims and factual “conclusions” seemingly tossed into a “word salad” complaint which read more like a transcript of “Fox and Friends” than a coherent and well thought out legal pleading.
This record of filings was made worse during oral argument on the motions where Rudy Giuliani, who argued the case — his first appearance in a courtroom in nearly 30 years according to some — stated on the record that the case was not about “fraud.” That was a huge concession — made long before all the facts were known — one that both the district court judge and the appeals court noted in their rulings.
But I expected the Third Circuit to grant the motion to file a Second Amended Complaint because Judge Brann in the District Court had not gone through the normal exercise of establishing why another effort at amending the complaint would be “futile.” In fact, Judge Brann suggested it would not be futile, as he was not ruling that a losing candidate in an election would never have standing to file a lawsuit in federal court — only that the manner in which the Trump Campaign had written its complaint did not establish standing.
But the Third Circuit ruled that it would, in fact, have been futile to amend. In doing so, however, it did something that Judge Brann did not do — it looked at the proposed Second Amended Complaint and said even if they allowed it to be filed, it still suffered from the fatal defects of the Original.
This is a bit of a procedural issue — normally when a plaintiff makes a motion to amend their complaint, a copy of the proposed amended complaint is filed along with the motion. The Court then reviews the proposed amended version, and makes a decision as to whether or not to allow it to be filed. Judge Brann did not do that here. His opinion dismissing the case and denying leave to filed and amended complaint did not go through the various counts of the proposed amended complaint and address why it did not solve the problems he found to be present in the First Amended Complaint he was dismissing. He found that allowing a reinstatement of claims that were dismissed via the filing of the First Amended Complaint would likely prevent the Counties from certifying their results by the November 23 deadline. On that basis he denied the motion for leave to amend without further analysis.
So, did the Third Circuit simply do what all the commentators claim it did — toss the Trump Campaign out on its ear while castigating it or bringing facially meritless claims into federal court to prevent certification of the election result in Pennsylvania. Yes — and no.
There is no question that the Opinion has harsh words for the work done by the lawyers for the Trump Campaign. But that is distinct from criticism of the Trump Campaign which is seeking to pursue its lawful right to challenge the outcome in Pennsylania. The Opinion spares few words in review the poorly conceived and drafted claims that made up the original complaint, and which were proposed to be re-alleged in the Second Amended Complaint. All those criticisms are warranted — it was bad lawyering as I have repeated several times.
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.
Those criticisms all concern drafting errors in the way the complaint was written. None address whether the Trump Campaign lacked the legal right to challenge the election.
But the Court did address the issue of election challenges in a different way, one that I found interesting. It may be a complete “false flag” signifying nothing, or it might be something different.
Multiple times when dismissing allegations made by the Trump Campaign, the Third Circuit states that the Pennsylvania Supreme Court has already resolved the issue against the Trump Campaign as a matter of state law in some other litigation. The Third Circuit avoids offering its own views on the issues by simply waving them off as state law claims, and the Pennsylvania state courts have already addressed them. Here are some examples:
The Pennsylvania Supreme Court ruled against the Campaign, holding: “[T]he Election Code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or date, where no fraud or irregularity has been alleged.” Id. at *1. That holding undermines the Campaign’s suggestions that defective ballots should not have been counted.
The Pennsylvania Supreme Court held that the Election Code requires only that poll watchers be in the room, not that they be within any specific distance of the ballots. In re Canvassing Observation Appeal of: City of Phila. Bd. of Electors, No. 30 EAP 2020, ___ A.3d ___, 2020 WL 6737895, at *8–9 (Pa. Nov. 17, 2020).
The Pennsylvania Supreme Court has long “liberally construed” its Election Code “to protect voters’ right to vote,” even when a ballot violates a technical requirement. Shambach v. Bickhart, 845 A.2d 793, 802 (Pa. 2004). “Technicalities should not be used to make the right of the voter insecure.” Appeal of James, 105 A.2d 64, 66 (Pa. 1954) (internal quotation marks omitted). That court recently reiterated: “[T]he Election Code should be liberally construed so as not to deprive, inter alia, electors of their right to elect a candidate of their choice.” Pa. Dem. Party, 238 A.3d at 356. Thus, unless there is evidence of fraud,
Pennsylvania law overlooks small ballot glitches and respects the expressed intent of every lawful voter. In re: Canvass of Absentee and Mail-in Ballots, 2020 WL 6875017, at *1 (plurality opinion). In our federalist system, we must respect Pennsylvania’s approach to running elections. We will not make more of ballot technicalities than Pennsylvania itself does.
I note this because it takes me back to the point that four Justices of the US Supreme Court have already expressed concern with the Pennsylvania Supreme Court’s election law jurisprudence — specifically with regard to its decision changing the plain text of an election law statute after the General Assembly had refused to pass an amendment with the changes. There seem to be four Justices who would examine the Pennsylvania Court’s decisions under the “Electors Clause” of the Constitution, which commits the “manner” of conducting elections to the “legislature” of each state. Some of the decisions which the Third Circuit refers to in the opinion are decisions likely to end up as petitions for review before the Supreme Court.
I believe there is a sentiment among some of the Justices to “dial back” the “lawfare” which takes place in federal courts every four years, often leading to federal judges imposing alterations by injunction on state election processes under the guise of “equal protection.” That won’t go away completely, but if the Court staked out very clear ground that election proceedings in the states shall proceed in the manner set forth in text of state election law, that would curtail the 11th-hour litigation every four years to a significant degree. If there are multiple challenges pending which all involve decisions traceable to Pennsylvania Supreme Court — including this one where the Third Circuit seems to go out of its way to say it is following the lead of that Court, the US Supreme Court might take them all up as part of one ominbus matter.