3rd Circuit Unanimously Rejects Trump Appeal in PA Case

US Court of Appeals for the 3rd Circuit ^ | 11/27/20 | Judge Bibas

[Alter Kaker]

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. The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.” Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.

This case is not about whether those claims are true. Rather, the Campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not. Most of the claims in the Second Amended Complaint boil down to issues of state law. But Pennsylvania law is willing to overlook many technical defects. It favors counting votes as long as there is no fraud. Indeed, the Campaign has already litigated and lost many of these issues in state courts.

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.

[Owen]

I can’t be sure, of course, but this case was presented in a very narrow way. That looks a great deal like the desire was to have an immediate decision.

There is time pressure and they needed to get all the way to SCOTUS quickly. There, presumably a broader presentation will take place.

I think this is all calendar tactics.

[Bayard]

What’s also good here is this was done this week soon after they picked it up and expedited it.

[Honest Nigerian]

I have not read the court filing. But that opinion seems like a representative for the Biden camp wrote it .... wait for it .... to be read on the evening news.

[Alter Kaker]

If I’m reading this blurb correctly, Rudy et al. did not file a court complaint of fraud, such as the 600,000/3,200 Biden data dump revealed on Wednesday...?

Correct. The Trump campaign has not claimed fraud in this case or in any other case. In fact they've taken pains to make clear they AREN'T claiming fraud. There are other lawsuits out there alleging fraud, but they aren't from Trump or the Trump campaign. While Rudy and Trump have talked about fraud in front of the cameras, they have not alleged fraud in any court of law.

[pnz1]

The states doing everything “wrong” have invalidated the votes of all the states who did it the right way.

[Williams]

Uh folks, this was a disastrous decision written by the Trump appointed Judge.

But all you legal scholars think this is great.

Until you see someone show a court that enough votes should be switched, there will be no change.

No, it’s not a victory.

[Jim Noble]

I predict right here that five originalist judges will decline to grant cert on the grounds that this is a nonjusticeable political question, and that Amy Coney Barrett will write the decision.

[Petrosius]

Yep, trust Giuliani to undermine the case, saying there was no fraud.

Giuliani did not say that there was no fraud, he did not plead fraud as the issue in this case. He was pleading that the violations of the voting process—which are uncontested—were enough to overturn the legitimacy and certification of the vote.

[Deo volente]

Five citizens are all that is standing between the American Republic and utter destruction.

We know their names. John Roberts is probably not on the short list.

Pray!!

[jstolzen]

Um, if you say “there’s no fraud” (even though there clearly was) to a lower court, how’s that help us if and when it gets to SCOTUS?

One would think that SCOTUS, IF they hear it (no guarantee they will) will say..”gee, you said there’s no fraud” (to the lower court).

Doesn’t seem like “strategery” to me. Seems like Rudy shouldn’t be the one presenting our case.

[existentially_kuffer]

Tom Fitton, would of been a better choice!

[kiryandil]

Here's the United States Court of Appeals for the Third Circuit [As of July 17, 2019]:

Judges:  	 14
Circuit Justice: Samuel Alito
Chief Judge:     D. Brooks Smith

==================

Age	Title	        Judge	                Duty station	  Born	Term of service	                Appointed by
69	Chief Judge	D. Brooks Smith	        Duncansville, PA  1951	2002–present   &2016–present	G.W. Bush
73	Circuit Judge	Theodore McKee	        Philadelphia, PA  1947	1994–present   &2010–2016      	Clinton
71	Circuit Judge	Thomas L. Ambro	        Wilmington, DE	  1949	2000–present	—	—	Clinton
58	Circuit Judge	Michael Chagares	Newark, NJ	  1962	2006–present	—	—	G.W. Bush
63	Circuit Judge	Kent A. Jordan	        Wilmington, DE	  1957	2006–present	—	—	G.W. Bush
55	Circuit Judge	Thomas Hardiman	      * Pittsburgh, PA	  1965	2007–present	—	—	G.W. Bush
63	Circuit Judge	Joseph A. Greenaway Jr.	Newark, NJ	  1957	2010–present	—	—	Obama
59	Circuit Judge	Patty Shwartz	        Newark, NJ	  1961	2013–present	—	—	Obama
52	Circuit Judge	Cheryl Ann Krause	Philadelphia, PA  1968	2014–present	—	—	Obama
61	Circuit Judge	Luis Felipe Restrepo	Philadelphia, PA  1959	2016–present	—	—	Obama
51	Circuit Judge	Stephanos Bibas	      * Philadelphia, PA  1969	2017–present	—	—	Trump
54	Circuit Judge	David J. Porter       * Pittsburgh, PA	  1966	2018–present	—	—	Trump
49	Circuit Judge	Paul Matey	      * Newark, NJ	  1971	2019–present	—	—	Trump
47	Circuit Judge	Peter J. Phipps	        Pittsburgh, PA	  1973	2019–present	—	—	Trump

=========================                                                               Senior Circuit
88	Senior Circuit  Dolores Sloviter	inactive	  1932	1979–2013	2013–present	Carter   &1991–1998  
86	Senior Circuit 	Walter King Stapleton	Wilmington, DE	  1934	1985–1999	1999–present	Reagan
87	Senior Circuit 	Morton Ira Greenberg	Trenton, NJ	  1933	1987–2000	2000–present	Reagan
80	Senior Circuit 	Anthony Joseph Scirica	Philadelphia, PA  1940	1987–2013	2013–present	Reagan   &2003–2010
90	Senior Circuit 	Robert Cowen	        Trenton, NJ	  1930	1987–1998	1998–present	Reagan
80	Senior Circuit 	Richard Lowell Nygaard	Erie, PA	  1940	1988–2005	2005–present	Reagan
85	Senior Circuit 	Jane Richards Roth	Washington, D.C.  1935	1991–2006	2006–present	G.H.W. Bush
73	Senior Circuit 	Midge Rendell	        Philadelphia, PA  1947	1997–2015	2015–present	Clinton
74	Senior Circuit 	Julio M. Fuentes	Newark, NJ	  1946	2000–2016	2016–present	Clinton
76	Senior Circuit 	D. Michael Fisher	Pittsburgh, PA	  1944	2003–2017	2017–present	G.W. Bush

& denotes Chief Judge of the Court
* denotes Federalist Society member
# denotes Federalist Society associate

[BradyLS]

Onward and upward...

[SanchoP]

But Pennsylvania law is willing to overlook many technical defects.

So the law is merely a vague suggestion? Maybe I'll try that approach next time I rob a bank.

[Honest Nigerian]

I have not read the court filing. But that opinion seems like a representative for the Biden camp wrote it .... wait for it .... to be read on the evening news.
Clarification - i have not read the COMPLAINT filed with the court.

[9YearLurker]

So they can’t hear the case because the remedy would be either too big or too small?

[mooncoin]

Same. Can someone explain to me how this is great?

The Federal government’s own Electoral College page (https://www.archives.gov/electoral-college/2020) already has the president as Biden & shows the PA electors for Biden (https://www.archives.gov/files/electoral-college/2020/ascertainment-pennsylvania.pdf)

[edh]

“I will always blame Kushner and Ivanka for this monumental screw up”

While I share your sentiment regarding those two, I think Trump wanted to get to SCOTUS ASAP. These lower court clowns were never going to do anything.

[RummyChick]

Why not Alito writing the opinion?

[BradyLS]

It isn’t a total loss until the SCOTUS rules.