Posted on 11/27/2020 9:53:45 AM PST by 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.
If it proves to be, it will have the exact opposite effect of what was intended.
Thanks for all the helpfulness.
Some very good people are actively engaged in an ongoing fight - not sitting back in their armchairs and opining as to ‘hindsight’ and ‘should-haves’ - and they are risking everything to do so.
If you have ‘faith’ you should be supporting them and their effort, not doubting them.
This will be a serious test for at least one more supreme.... It may be the GOP has come to a crossroads it can’t avoid. Legislatures in GA, MI, PA and WI hold the key to Trump’s reelection.
I never said SCOTUS does not have authority to review the 3rd Circuit’s opinion.
But the 3rd Circuit opinion is a very narrow decision. It merely said the District court did not abuse his discretion in denying leave to amend.
If SCOTUS grants cert, that will be the question that it reviews. There are no other questions.
Should SCOTUS grant cert, the best-case scenario is a final ruling as follows: “We hereby find that the District Court abused its discretion in denying leave to amend. We hereby reverse, and remand the case to District Court with instructions to allow Plaintiff to file a Second Amended Complaint.”
So DJT will have to go back to District Court with a Second Amended Complaint, then file another motion, but this time, the motion would not seek an order stopping certification of election results, but reversing it. This will require full-blown evidentiary ruling, all in compressed time window.
I am not saying this can’t be done. I am just saying none of this is an easy feat.
What can I do to help?
PA State Laws does specify the manner which includes inspectors for mail-in and absentee ballots. State Law was not followed. Functionaries abrogated this. There ia also the equal protection issue -- some counting centers had inspectors, others did not.
But why would you ever think Trump could win in the courts given that you're convinced Guiliani is so utterly incompetent as both a prosecutor and manager? I have no legal training whatsoever, yet it seemed clear several days after the election (when the fake-news MSM unanimously declared Biden won) that the President had a big uphill legal battle ahead of him. That's the day I posted my WAG that Trump had only a 25% chance of winning the legal battle and the election. Yesterday, I increased Trump's chances to 27% based on some positive reports from various states.
Anyway, how much does that Pennsylvania ruling today hurt Trump's chances? How do you see the rest of this thing playing out in terms of further appeals rulings, Powell's lawsuits, a potential merging of Trump's lawsuits into one SCOTUS appeal, etc.? At this point, what do you think Trump's chances are of winning a second term?
I am neither shaken nor playing chess with legalisms.
I already have very good people working for #me.
Thanks for your concern.
"I say, let the two RINO Repugs in GA go down in humiliating defeat. "
F off? For starters...
Absolutely...The lawsuits, the discussions in the GOP state legislatures, FReepers spreading the word etc. are all crucial to your- and my- understanding of the importance of focusing the “popular will” on this burlesque of an election.
The reason my faith was weakened wasn’t just the loss in the 3rd Circuit. It was also the way the whole case unfolded. I see how virtually nothing was done before the election to stop fraud, leaving DJT to try overturn an election after the fact, and how the complaint was amended and how the oral arguments were botched, and how the wrong issue was appealed.
So I ask myself “maybe a second DJT term is not in the Lord’s plan?” and also, “maybe the Lord wants Biden’s hand to be exposed,” and also “maybe this will just empower DJT to come back in 2024, stronger than ever before?”
For me (and I fully respect that we are all different) at this stage, it is better to try to find the answer through prayer and reading scripture than through analyzing legal strategy.
I am sorry, I know you wanted a better answer, but that is all I have right now.
How was Trump Team going to prove it, until they had after-the-fact proof?
The effort would have just been demonized as ‘conspiracy theory’.
(Unless you think the numbskull, useful-idiot press would have done anything...)
Not a lawyer so please forgive dumb questions.
If rudy dropped fraud unilaterally and there is no amending the complaint then can someone else pick up the banner in a new complaint?
IIRC someone else mentioned that rudy should back off and regroup, but how can he if there is no way to amend his complaint?
I thought a major issue in PA was the constitutionality of the PA SC rulings extending mail in ballot deadlines beyond Nov. 3 or whenever specified by the PA legislature— not certain what happened to that.
If the 3rd circuit had favored rudy, would that have ultimately resulted in the introduction of a longer delay to a decision and order (iow could the 3rd decision be construed in any way as doing rudy a favor in terms of timetable)?
Is there a possibility that this is all a feint, that is, legal kabuki, and the main charge is imminent on a different flank and/or new evidence and/or a different (eg military) jurisdication? this would imply that rudy, trump and gang (sekulow etc) cooked up whatever it is they are serving now so that they can drop a bigger bomb later with more payload and more ultimate damage somehow due to more surprise— and/or perhaps they are aimed at a delay or a major embarrassment at the Congressional level, when the EC reports and individual Congresscritters can object.
Is there value in actually deliberately tanking a case at the 3rd circuit level presuming that there is a bigger case somewhere else that has more certainty of saving the day for trump? for example, consider that if the USSC is set up by lawyers for deciding a number of cases in favor of trump in rapid succession, might this not be used by Democrats as a reason to rise up and call for some kind of overthrow based on some kind of presumed pro-trump conspiracy at the USSC level, thus causing widespread unintended consequences for the nation in terms of months of riots and violence that could be avoided by a “loss leader” case that pro-trump forces could point to and say with some justification that the USSC is not just a bunch of pro-trump puppet judges?
Can the alleged German server data still be successfully brought into some court under a different complaint?
Originally, I was hoping that several smoking guns would be presented to trial courts, which would result in summary reversal of election results in key states, either at trial court level, or upon review by SCOTUS.
I now think that given DJT was warning us about this three months ago, more should have been done BEFORE the election. And AFTER the election, the lawsuits should have been managed far, far better.
I don’t have visibility into the strategy sessions of Giuliani or Powell, but I wonder if some of these blatant frauds could have been predicted and addressed by court challenges before the election.
> Since the Third Circuit Court of appeals (correctly, in my opinion) ruled against Rudy, the best tactic is probably to file a brand new lawsuit in Fed Court in PA, but with different litigants. If it is the same litigants, it will be summarily dismissed under “Res Judicata” (a Latin phrase that simply means “the issue has already been decided”) The new lawsuit should allege pages and pages of facts, identify the witnesses and what they saw, and not be afraid to allege outright fraud.
If rudy avoided bringing up fraud then imaginably there would need to be some internally recognized strategical justification for that tactic. The immediate tactic that comes to my (non legally trained) mind is deliberate avoidance of res judicata via a different lawsuit yet to be filed. Admit it is speculative in nature but I can think of no other logical inference at this moment (other than gross incompetence within the entire trump legal team, which seems unlikely considering he must have behind the scenes folks such as sekulow consulting). Thoughts?
Each of your ensuing answers becomes exponentially more baffling. You say it's better to find the answer through prayer than analyzing legal strategy. So why did you waste your time reviewing court documents and rulings and analyzing legal strategy?
I also don't understand how it took you, as a self-described Federal-court legal expert, until today to realize Republicans and Trump's legal team did nothing to stop the mail-in ballot scam that President Trump warned about many months ago. People with zero legal background knew all of that heading into Election Day, almost a month ago.
> I now think that given DJT was warning us about this three months ago, more should have been done BEFORE the election. And AFTER the election, the lawsuits should have been managed far, far better.
As has been posited by numerous others, the operating conjecture of at least some pro trump commentators seems to be that since trump was aware, he had reasons to wait in the tall grass until after the election. the reason might therefore be (so the conjecture continues) that trump needed to wait until he could assert injury and demand remedy in order to fully expose the perps in a court of law and thus prove their malfeasance rather than allege without being able to prove in any absolute sense (as in the court of public opinion, which is vague).
> I don’t have visibility into the strategy sessions of Giuliani or Powell, but I wonder if some of these blatant frauds could have been predicted and addressed by court challenges before the election.
see above.
How much good does your ‘wondering’ do, now? And your doubt could be very destructive - especially when you express it publicly on a forum read worldwide.
(My husband always watches ‘White Christmas’ on the day after Thanksgiving. In one scene General Waverly says, ‘If there’s one thing I learned in the Army, it’s to stay positive’.)
I’m of the opinion that a new lawsuit, with different plaintiffs, and with different counsel, is the way to go.
Whether PA Supreme Court’s action in extending ballot cure time is a violation of the Constitution may or may not be a Federal question. Generally, the Constitution allows state legislators to pick electors. So if the state Supreme Court interferes, is that an Un-Constitutional intervention by a branch that should have nothing to say on choosing electors? Or is it within the scope of a state Supreme Court to interpret state law? A good question, and one worth asking. This should be alleged as a separate cause of action, along with access by poll watchers, and along with failure to check signatures, and along with the disparate county-level procedures for curing defective mail-in ballots.
But as I read court opinions and briefs, and rehash the issue in my mind, the one thing that becomes clear is that an ounce of prevention is more effective than a ton of cure.
It’s not like we did not have warnings. DJT was warning of mail in ballot fraud months ago. The PA legislature enacted mail in ballot procedures. Why wasn’t political pressure brought upon them to choke this? Why didn’t Republican precincts allow curing of defective mail-in ballots? Why didn’t McConnell pass uniform Federalized election security measures?
You don’t wait until you jump out of an airplane to fix your parachute.
If the Third Circuit had ruled favorably, the Second Amended Complaint would be “the operative complaint” and Team Trump could file a motion based on the allegations of that complaint, and maybe seek an order shortening time (which the trial court had been willing to grant before)
I can’t comment on what Rudy is doing here, but as a Monday morning quarterback, I can’t help but be disappointed.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.