Posted on 11/22/2020 10:05:08 AM PST by Kaslin
This particular case involved claims that seven Pennsylvania counties and the Secretary of the Commonwealth inappropriately allowed voters who submitted defective mail-in ballots to “cure” the defect by voting a provisional ballot on election day.
The issues in the case involve whether such a “curing” process is allowable under Pennsylvania law, and whether the actions by the counties and the Secretary of the Commonwealth caused an “injury” to the Plaintiffs by expanding the opportunity for registered voters to cast their ballots.
This case was always going to end up in a dismissal based on a lack of standing on the part of the Plaintiffs to assert the type of claims they were bringing. The controlling case law at the appellate court level dictated the outcome. The purpose of bringing the case was to initiate a process that allows the Trump Campaign’s claims to move through the trial court, appeals court, and on to the Supreme Court, which has the authority to overrule lower court “standing” cases and give the Trump Campaign the ability to pursue its claims. You can’t get to the Supreme Court without starting in the district court, and the Trump Campaign could only get to the Supreme Court by LOSING.
The initial complaint had seven causes of action. It was filled by two individual plaintiffs and the Trump campaign. The individual plaintiffs were voters from counties OTHER than the seven counties that were named as defendants, and each had their mail-in ballot rejected for technical defects. Their counties did not contact them to advise them of the rejection, and they were not given a chance to cure the defect by submitting a provisional ballot.
The legal claim was that because the seven counties allowed voters with rejected mail-in ballots to “cure” their defect, the equal protection rights of the individual plaintiffs were violated when their counties did not do the same. As the Judge appropriately noted, the complaint of the two individual voters is with their own counties — the seven named defendant counties didn’t do anything to them.
If the Trump Campaign wanted individuals to be co-Plaintiffs it should have found Trump voters in the seven counties who had their votes rejected and were not notified in the manner that Biden voters were notified. THEN you would have disparate treatment of voters in one county — Trump voters v. Biden voters — where the Plaintiffs could allege that the County treated them differently under identical circumstances.
While this case was pending, the Third Circuit Court of Appeals handed down a decision in another election-related lawsuit which affected this case by establishing that the Plaintiffs in this case lacked standing to bring the kinds of claims they were alleging.
But, in what looks like a panicked and poorly thought out move — while attorneys representing the Trump Campaign were being changed — one of the attorneys filed a First Amended Complaint that dismissed five of the seven claims due to the new Third Circuit decision. Not only did they drop five of the seven claims, they struck from the complaint several factual allegations because they were related to the five claims that were dropped.
That was a mistake. A plaintiff can amend a complaint one time as a matter of right — but once the Amended Complaint is filed, the original complaint ceases to exist. Everything that was dropped was no longer before the Court when the motions to dismiss were heard. What they should have done was leave the complaint alone, acknowledge the new decision of the Third Circuit, let the district court judge do what he was going to do anyway — then appeal.
After that attorney changes were complete, during the hearing Rudy Giuliani advised the Court that the Plaintiffs were going to amend their complaint again. But a Plaintiff does not have right to a second amended complaint — you can only amend a second time with permission of the Court. In his order dismissing the case, the Judge Brann denied permission to amend a second time.
But, in doing so he actually did the Trump Campaign a favor. Another amended complaint would have sparked another round of motions to dismiss, another hearing, and more days wasted rather than pushing the case through the appeals court. The outcome in the district court was going to be the same whether there was another amended complaint or not – he was going to dismiss the case on standing grounds.
The problem for the Trump Campaign is that by filing an amended complaint that eliminated five of seven claims, and by making a mess of things when opposing the motions to dismiss, they created a horrible record with which to work when going up on appeal to the Third Circuit. This is where Judge Brann did the Campaign ANOTHER favor. In his memorandum explaining his decision to dismiss the case he stitched together a relatively comprehensible theory for standing on the part of the Trump Campaign. He did so from a mish-mash of claims and arguments presented by an ever-changing cast of attorneys for the Campaign. What he assembled on their behalf was much more comprehensible than anything the Campaign’s lawyers offered to him in their papers or Rudy’s oral argument. But his ability to do so was limited by the fact that they had dismissed claims and excised factual allegations that were in the original complaint, so those weren’t before him any longer. You can read between the lines in the following passage from his memorandum:
It is telling that the only case from the Third Circuit cited to by Plaintiffs, Marks v. Stinson, does not contain a discussion of competitive standing or any other theory of standing applicable in federal court. Simply pointing to another case where a competitor in an election was found to have standing does not establish competitive standing in this matter..The Trump Campaign has not offered another theory of standing, and therefore, cannot meet its burden of establishing Article III jurisdiction. To be clear, this Court is not holding that a political campaign can never establish standing to challenge the outcome of an election; rather, it merely finds that in this case, the Trump Campaign has not pled a cognizable theory
This is the way a judge expresses to one side “You can’t ask me to do everything for you.” The failure to get the standing theory correctly set forth was bad lawyering — bad lawyering that comes from using attorneys who are not well-versed in an area of the law which requires a significant amount of subject-maker expertise. This is why you have a legal team in place on a campaign to deal with litigation BEFORE the election, and turn them loose when the need presents itself. But the complaint should not have been filed until the facts were nailed down.
The Court’s order dismissing the case ignores the one key fact that I think is at the core of a potentially successful claim — that the seven counties, or some of them, engaged in an illegal pre-canvass of ballots prior to 7:00 am on Election Day as specified in the Election Code. With that allegation — which was never squarely made in the complaint — you have both differential treatment of Trump voters and Biden voters by one or more counties, and you also have violations of the statute by the counties as part of the same conduct that is alleged to violate the Plaintiffs’ rights. This allegation plays better to the Trump campaign’s claim of vote dilution with invalid votes being allowed to be cast.
The Counties sought permission — and were denied permission — to pre-canvass ballots prior to 7:00 am on Election Day. But there was evidence they did so anyway, and doing so allowed more invalid ballots to be cured. That allegation should have gotten the Trump Campaign the right to know how many votes were cured, and how many votes were rejected due to technical errors.
The goal of the litigation in Pennsylvania is to create a facial record — if it exists — that the seven pro-Biden counties at issue allowed a number of invalid votes to be counted, and that number is high enough — or it simply is not known — to call into question the Biden margin of victory. The “harm” is vote dilution of the voters on the losing side, which is what happens when invalid votes are allowed to be counted on the winning side, and the number of invalid ballots may have been the difference between winning and losing.
The reality of the situation is that if the Supreme Court wants to take up litigation coming out of federal courts in Pennsylvania and the Third Circuit, it will do so. The outcome in the district court doesn’t change that fact. The lawyers for the Trump Campaign did a poor job — under difficult circumstances — but in the final analysis the quality of what they did will be beside the point if there are 4 Justices who want to be heard on the issues from Pennsylvania.
Interesting synopsis for those hating on Republican Judge Brann
Trump’s lawyers made a mess of it.
Maybe someone can get it back on track.
And for pete’s sake...delve into the severability issue.
Back in the fall of 2015 the Republican State Committee Establishment resisted a Trump takeover and a compromise was reached so that a Trump person would run the campaign effort while the old Tom Ridge Republicans would still run the state committee.
I wonder how that fits into the situation that unfolded in the state with results showing the GOP candidates for State Treasurer and Auditor General winning while the Dems win for President and Attorney General.
everything they are bringing before the courts is talking about technicalities.
but nearly everything they are saying to the press is about voting machine software switching millions of votes.
I am honestly getting a little confused.
A Republican judge nominated by Barack Obama.
Because technicalities are Con Law questions..and Con Law is how you have to win this case before Biden is certified.
Wild accusations that sound like crazy conspiracy theories (even if they may be true) will not keep Biden from being certified.
The wild theories are for the court of public opinion...and investigations, hearings, etc.
And in my opinion- from my time of having watched Trump over the years..the technical aspect will bore him. He likes the “story”...not the Con Law nitty gritty details
As part of a horse trade deal...not because Obama would have nominated him otherwise.
and btw, Con Law nitty gritty details are not as interesting as a “story”.
That is part of it as well. Public eyes glaze over talking about Con Law issues.
Judges and our legal system operate on technicalities; the idiot American brain operates on the sensational. Only the former matters, luckily.
If the average American understood the Constitution, wrapping everything up in a neat little Equal Protection package would be possible and the outcome obvious because “the rules are the rules” and the rules were shattered everywhere on/before/after Nov 3. But they don’t so the sensational is leading the day.
What is bothering me is how they’re going to make a logical link between Dominion CRIMINAL activity, which I think is very real and very large, and Constitutional violations. If they can prove Dominion software was programmed to give Biden 1.25 votes and Trump only 0.75 votes, that would seem to violate 1 person, 1 vote. Other ideas for how to tie the sensational Dominion stuff with the on-going (and necessary) technical legal arguments?
Explain why the recount matched in Georgia if there was fractional voting. Not checking signatures was fraudulent. But recounting the vote and coming up with the same number is not a good support of the fractional theory.
I would love to be told that this is wrong or doesn’t matter. Or they didn’t apply it in Georgia for some reason
I suppose. But given the chaotic happenings with the lawyers I am going with incompetence. Although, new lawyers perhaps should not be pinned for it since they were new on the job.
Lets see if the next filing at least addresses severability and the creative solution the court used to try to get around it.
OTOH, it seems like the titles of the encouraging articles have been moving from “everything is wonderful and moving right on schedule” to be more like “it’s not necessarily hopeless”.
What is bothering me is how they’re going to make a logical link between Dominion CRIMINAL activity, which I think is very real and very large, and Constitutional violations.
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That confuses/concerns me as well. It seems there is a two pronged attack by Trump’s legal team but I don’t understand how they can relate or unify the two. Of course there’s the court of public opinion too and I suppose they are playing to that as well. But its complicated business and difficult to see how it might play out.
My eyes certainly glazed over trying to read and understand all that.
By demanding an outrageous solution / restitution they knew the judge would refuse it and they are one step closer to SCOTUS that much sooner.
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The legal team has a monumental task of trying to simultaneously and quickly digest and analyze evidence from several different states — under looming time constraints. Moreover, according to Powell they are being swamped with addition information flowing in all the time. Laying the groundwork for legal progress under the circumstances must be frustratingly difficult.
I hope there’s a grand plan that somehow ties it all together in the end.
Exactly.
Overturning this election is going to depend on those boring details
The shiny object of Election Fraud isn’t going to do it.
I really really hope someone is working on those boring nitty gritty Con Law details
Right now this is war
WAR
The first casualty of war is the truth
Right now the primary misinformation disinformation campaign by the leftist media the Democrats and all of the Republicans in name only is to state that none of these cases will go anywhere until obviously highlight any and all cases that are dismissed as being the end of this it’s over go home take your ball
Just remember the Armistad project at the Thomas more law center just filed or six state suit yesterday
Most of the actual Trump teams seats have not even been filed yet they are still gathering evidence
What we have is a bunch of yahoo wanna be attorney is filing suits and getting rejected and that means nothing
Right now we’re on our side we have a lot of yours oh it’s over oh let’s go home
Do yourself a favor and ignore them
The big picture here is to fold
We need to overturn the results of this election and Donald Trump needs to convincingly be shown to have won the presidency
The second and more important point is going forward we need to end and I mean and all of the Democrats cannery cheating and methods that they use which are interwoven in our voting system unfortunately so that they could never ever be used again or at least minimized
ducking the 5 claims allows the ducked claims to be brought in a new lawsuit from new plaintiffs so long as the suit is timely. i would imagine that timeliness in this situation might include the prospective side effect of delaying the transmittal of results to the state legislatures, or equivalent. i am not a lawyer. what am i missing?
The popular vote for Trump and Biden adds up to... 153M. Either a LOT of people registered in the last 2 years, or we had 100% turn out which is as suspicious as all get out. What do you think?
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