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.

[TakebackGOP]

They didn’t listen when the court ruled for them to allow the ballot observers in.

[God_Country_Trump_Guns]

I actually think the fraud allegation was dropped at a time when DJT was represented only by a solo-practicing attorney whose specialty was child custody and alimony. God bless her, I think she was in over her head, and she thought by striking those allegations, she could put together a complaint that skirted around the recent PA Supreme Court decision on ballot curing.

I’m not blaming her. She was trying her best, and she received death threats.

But given the timing, I doubt striking those allegations was a strategic decision.

[lepton]

It is what he said, in his own words, the guy is undermining Trump whether intentionally or not. Sad to see.

---

It is not what he said. His words in regards fraud said something entirely different.

[Steve Van Doorn]

They half listened. The general ruling was that they where in the same room thus they where observing. and stated the law doesn’t stipulate the distance they need to be

[God_Country_Trump_Guns]

You actually make a good point. I’ve said it before, but let me restate if I may: Federal courts can only adjudicate actual disputes before them. They cannot adjudicate hypothetical issues, because that would be legislating, and that is reserved for Congress.

So, generally, before a claimant can seek Federal relief, he must show that there is an actual injury. If I speculate that someone is going to infringe my patent, I can’t go to Fed court to get a restraining order on grounds that I suspect a future injury.

However, I wonder if some of these could have been couched as an actual injury. It takes some clever lawyering, but, who knows, maybe it could have been done. At least it should have been tried.

Also, in retrospect, the GOP precincts’ decision to NOT allow curing defective mail-in ballots was probably the wrong strategy.

I am sorry I don’t have better answers. I don’t practice in PA, and although I know my way in and out of Fed Court quite well procedurally, the substance of election law is not my field.

[itsahoot]

On the plus side, now I know what it feels like to live through a soft coup.

You have been living through an unsuccessful soft one for the last four years.

[lepton]

said, “He allowed idiotic early case ruling that 100 feet is close enough to observe the count.”
Rudy didn’t contest it which is the same as allowing it to carry over to all other cases in PA.

---

It was contested all the way to the PA SC, who ruled 5-2 that since the law doesn’t specify a distance, whatever distance they were at was OK. It wasn’t let just stand.

[lepton]

I see how virtually nothing was done before the election to stop fraud,

---

One would have to go through all the cases to see whether there were actually a lot of missed opportunities, but my understanding is that there was an attempt to fix things, but the cases were discarded by the courts as lacking standing as there had not yet been any actual harm.

[Hostage]

Fair enough, Now where does it fail to be taken up on appeal to the US Supreme Court? Don't answer, you don't know.

I relied on White House Lawyer Jenna Ellis who is much more in the know than any retrograde anonymous poster sniping away at Giuliani.

After digging a few minutes, I see the Constitutional basis for appealing to the Supreme Court is clear. As written by an astute Constitutional scholar regarding the Third Circuit's denial:

"If election laws were violated by the governor, the secretary of state, local elections officials , or the state courts then the US Constitution regarding who controls choosing of electors was violated, the state's constitution was violated, and the 14th. amendments "equal protection" clause was violated. If the election was unconstitutional then it should be tossed out and choosing of electors should be done by the state legislature per the constitutional provisions."

It is clear these three Third Circuit Justices did the Trump Campaign a huge 'favor'. By denying fraud exists in the appeal presented, the 3-Justice Panel deliberately overstepped and opened the door for the Campaign to reach SCOTUS on Constitutional grounds as is made clear in the explanation above.

If the Third Circuit had remanded to the lower court, there would have been delay in providing a foundation to what the PA legislature is getting ready to do. The legal ploy by Giuliani and his team was masterful. Obviously, this is not Giuliani's first rodeo. Now they take the evidence of Fraud to SCOTUS without returning to the district court and at the same time leave PA legislators bristling with revelations unveiled at public hearings in which POTUS himself participated.

Where do you come off with hand waving away such appeals? I know where, nowhere.

Don't bother to answer. Anyone can see you haven't the legal expertise at a sufficient level to elucidate a contrarian argument here.

As I write, PA State Senator Mastriano (R), a patriot and veteran, has the votes in the PA legislature to seat PA's electors with all authority to do so.

Then the appeal to SCOTUS from the Third Circuit's 'favor' will be consolidated with several other states who will follow PA's lead in legislative decertification leaving Biden holding less than 270 electoral votes in which case the election goes to Congress where Trump wins.

And that's not even bringing in the real guns which are the arrests and prosecutions for treason. This is real and is very well laid out just yesterday by Lt. General McInerney.

Once again, the Democrats and their stupid arrogance have them underestimating the Trump Camp. The Democrats, their operatives, and their Republican double agents were very, very foolish to think they could get away with what they did. They are going to wish they never agreed to any of this and many will try to flee the country to escape what is coming. The 305th Military Intelligence Group has everything to hang them all with.

[SteveH]

> I’m not blaming her. She was trying her best, and she received death threats.

Yikes. If I could wave a magic wand there should be a way for the judges to take judicial notice of stuff like that in important cases and revisit a decision. (Rhetorically, I would wonder if this type of situation is covered in first year law school... or even a course on moral considerations in law, hmmm...) Perhaps if anyone could do it, the supremes might be able to (just a thought).

[lepton]

I actually think the fraud allegation was dropped at a time when DJT was represented only by a solo-practicing attorney whose specialty was child custody and alimony. God bless her, I think she was in over her head,

---

Are you aware of any particular actions by her?

I suspect that she was just a figurehead with the ability to file within the jurisdiction while the campaign was searching around for replacement lawyers.

[lepton]

Also, in retrospect, the GOP precincts’ decision to NOT allow curing defective mail-in ballots was probably the wrong strategy.

---

As best as I can tell, it was a matter of precedent and settled law. The state had never allowed it, even in their much smaller previous forays. The legislature also put legislation in place that would implicitly prohibit it.

[Jim Noble]

I think between now and then, enough will be produced to convince most people

So what?

[SteveH]

I like it... all of it... I could live with that...

:)

[Jim Noble]

or they will be voted out enmasse next election

By the same people who voted them in in the first place?

[Jim Noble]

At this point, what do you think Trump's chances are of winning a second term?

Zero.

[SteveH]

> 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.

That would probably be a truism if it were practical to have been achieved pre-emptively; agreed.

> 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?

Not certain at my end, but a WAG which i would imagine other folks also harbor is that much of that idealistic election reform stuff was difficult from the get go given the inertia and the election-reform-resistant embeddedness of the deep state. look at the PA legislature now— if they are not chomping at the bit now to prove their worth, then why ever could they have been presumed to favor election reform prior to the election? just because trump was aware of it does not necessarily mean that he had the political capital to expend on it and still keep all of the other numerous political promises that he did manage to keep in his first 3.5 years of office.

> You don’t wait until you jump out of an airplane to fix your parachute.

For some reason, I keep thinking of Sun Tzu... Something like pretend to be confused and weak, and then strike when your enemy is lulled into believing that you are too weak to fight back, and lets his guard down.

In order to prevent widespread rioting and so on if the courts decide in his favor, Trump needs to prevail decisively not just in the courts of law but also in the court of public opinion. He can yet do that by providing conclusive evidence of massive electoral fraud to the appropriate venues. This is worth doing because it is worthwhile to avoid as much violence as possible, and also because (speculatively) trump can catch more bad guys by his cast-wide-net strategy.

I am not a lawyer, and I try not make a habit of staying at Ho-liday Inns...

https://www.youtube.com/watch?v=11gNvDD6wI8

[Steve Van Doorn]

said, "the law doesn’t specify a distance, whatever distance they were at was OK. It wasn’t let just stand"

The term "observe" ballot counting would require the ability to read the ballots. this wouldn't need an interpretation or a manipulation of the law. They could easily determine what "observe" means by the distance an observer can see lettering on a piece of paper. I assure you it's closer then 100 feet.

This case would be thrown out if taken to an none corrupted court

[xkaydet65]

The Appellate court repeatedly st a ted that there was suppositions and allegations but beyond that very little evidence. It mentioned that several motions had been dismissed by the state courts and that it saw no reason to override those decisions. The court did not deny fraud existed. Giuliani stipulated that there was no allegation of fraud in this motion.

[SteveH]

> ... enmasse ...

it is actually “en masse” (two words)

https://www.collinsdictionary.com/dictionary/english/en-masse

(maybe it is french or something; etymology?)

https://en.wiktionary.org/wiki/en_masse

ok, back to the fray :)