[EL] 3rd Circuit PA ruling; ELB News and Commentary 11/27/20

[Rick Hasen]

Breaking: Third Circuit Unanimously Rejects Trump Emergency Appeal in Pennsylvania Case [link to opinion]<https://electionlawblog.org/?p=119102>
Posted on November 27, 2020 9:33 am<https://electionlawblog.org/?p=119102> by Rick Hasen<https://electionlawblog.org/?author=3>

In a 21-page unanimous and scathing unpublished opinion<https://electionlawblog.org/wp-content/uploads/3rd-trump.pdf>, the Third Circuit has rejected the appeal of the Trump campaign in the Pennsylvania federal case challenging the election results. Judge Bibas, a Trump appointee, begins the opinion: “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.”

This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges. It shows the absurdity of the litigation: besides the fact that the case was poorly lawyered—Rudy Giuliani’s oral argument was the worst I have heard in 25 years of following election law cases–the case was as weak and conclusory in its allegations of wrongdoing as it was spectacularly antidemocratic in seeking to disenfranchise all of Pennsylvania’s voters by putting the matter after the fact into the hands of the state legislature. It was an awful lawsuit, and it was right to be rejected by the court, but it is still good to see the courts hold and not allow for a lawsuit that would have overturned the results of a legitimate election on the flimsiest of pretexts.

The Trump campaign can try to take this to the Supreme Court—if it is indeed true as reported in the NY Times that Giuliani is being paid $20,000 a day for his work, why wouldn’t he?–but it will get no better reception there. As divided as the Supreme Court is ideologically, this kind of absurd and dangerous litigation will not get a friendly reception there.

A few excerpts from the opinion:

“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.”

The opinion concludes:

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

And there is no basis to grant the unprecedented injunction sought here. First, for the reasons already given, the Campaign is unlikely to succeed on the merits. Second, it shows no irreparable harm, offering specific challenges to many fewer ballots than the roughly 81,000-vote margin of victory. Third, the Campaign is responsible for its delay and repetitive litigation. Finally, the public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail. Plus, discarding those votes could disrupt every other election on the ballot.

We will thus affirm the District Court’s denial of leave to amend, and we deny an injunction pending appeal….

This post has been updated.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


A Wuffle: “Does Donald Trump Really Believe he Won the 2020 Election?”<https://electionlawblog.org/?p=119100>
Posted on November 27, 2020 7:27 am<https://electionlawblog.org/?p=119100> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from A Wuffle:

When President Trump says he really won the election, most Biden supporters think he is delusional and a candidate for an insane asylum, as are Trump voters who, in remarkably large numbers, believe him that there was massive fraud on the basis of exactly NO evidence. And, yes,  he (and they) are wrong about the fraud.  But please don’t be fooled into thinking that President Trump really believes that he won the 2020 election, or that he truly believes that fraud was rampant.  This is a deliberate ploy! And it’s working!!  Donald Trump is a lot smarter (and a lot less delusional) than liberals want to believe. Not being the idiot liberals paint him as, he read the handwriting on the wall re his presidential approval ratings and has known for quite a while that his 2020 coronation was far from inevitable.

Well before he actually lost, Trump had  been setting himself up for a claim of being cheated of  his legal victory. For most of this year there has been a steady drumbeat of tweets, with views echoed by his network of sycophants, that mail balloting was simply a recipe for fraud, and that the Democrats were preparing themselves to be the ones do the defrauding. That drumbeat has only intensified after the election.

Trump’s claim of fraud has been aided by the fact that some battleground states where Republicans controlled election mechanics delayed  the counting of mail ballots until after the polls have closed. That guaranteed that the early vote was heavily Republican while the later predominantly mail-in vote slowly eroded Trump’s winning margins. In several battleground states, Trump’s early lead was  eventually erased  and he lost, though the initial tallies made it look very likely he would win. That sequencing made it so much easier to tell a story of an  election stolen by the Democrats, than where the early vote showed a Democratic victory  and later returns showed the Democratic margin  falling, but not by enough to change the outcome, though that didn’t stop Trump supporters from calling foul in Arizona, where it was the late votes that favored Trump.

Trump initially succeeded in persuading more than 50 million of those that voted for him  that “we wuz robbed.”  Now that number seems to have shrunk to only somewhere around 30 million. Still, the outrage of folk believing they were cheated of a victory they earned, fueled by the next four years of Trump tweets, will generate extraordinary Republican turnout in 2022;  and 2024. Trump’s role as Mr. Republican will continue, untainted by any appellation of him as that most despised of all creatures, “a loser.”  His influence will be almost as strong out of office as in office. Any Republican who doesn’t fall in line will find himself fired –in a primary, that is. And if we don’t have Donald Trump to kick around again in 2024 in another presidential run, it won’t be because he is too old to seek office – just look at Joe Biden. And there is a Trump dynasty in place to succeed him, whose members are already being given prominence for their political roles rather than simply being praised for their alleged business acumen.

The media have emphasized that conservatives live in a bubble, where facts about the importance of mask wearing, and the need for social distancing, and the sheer stupidity of alienating our long-term democratic allies, don’t penetrate.  And liberals can’t understand why Trump supporters somehow fail to recognize that, with lots of votes still outstanding,  only a would-be dictator would demand that counting stop while they are still ahead. But liberals live in their own bubble. 48% of this country, more than 71 million people,  voted for Donald Trump, and I bet most of you who read this essay, won’t know more  than a handful of them, and for those you do know, you will have no idea why they voted as they did.  Nor will most liberals have a clue as why some African-Americans and a quite substantial  number of Hispanics (most of whom were not of Cuban descent) exhibited what any good Marxist would recognize as false consciousness and did likewise.

*A Wuffle is a political satirist whose poetry has been quoted by the United States Supreme Court, but unfortunately without mentioning his name. A shy person, he can be reached, via his long-time office mate, at Bgrofman at uci.edu
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Should Donald Trump be prosecuted? Proceed with caution.”<https://electionlawblog.org/?p=119096>
Posted on November 27, 2020 7:22 am<https://electionlawblog.org/?p=119096> by Richard Pildes<https://electionlawblog.org/?author=7>

@RuthMarcus:

It’s not an easy call. Anyone who believes it to be simple is not grappling with the implications of taking the unprecedented step of lodging criminal charges against a former president<https://www.theatlantic.com/ideas/archive/2020/10/case-criminally-investigating-ex-president/616804/>. The United States is not a place, chants notwithstanding, where those in power lock up their political enemies. There is a delicate line between the pursuit of justice and indulging the urge for retribution….

Prosecuting Trump for pre-presidential or nonpresidential actions would be easier, less freighted with questions about criminalizing the operations of government, than a case centered on his actions as president. Here, the possibilities are abundant. For example, whether his manipulations of the tax code amount to criminal tax fraud, or whether he violated campaign finance laws by covering up his hush money payments<https://www.washingtonpost.com/politics/2019/03/11/everyone-involved-hush-money-payments-says-they-were-campaign-related-except-trump/?itid=lk_inline_manual_9>. And the questions are reasonably straightforward: Can a case be proven? Would charges be brought against someone else with the same fact pattern?…

The issue of prosecuting Trump for what he did as president is much more complex. It cannot be that a president is simultaneously immune from being prosecuted while in office and should not be targeted after departure, lest the new administration appear to be pursuing a political opponent. Indeed, the 2000 opinion<https://biotech.law.lsu.edu/blaw/olc/sitting_president.htm> on this subject by the Justice Department’s Office of Legal Counsel explicitly contemplated that “the immunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial.” Doing otherwise would not be a get-out-of-jail-free card for presidents; it would amount to assuring them they never have to worry about going to jail at all….

In short, investigate now, and prosecute judiciously. No president can be above the law, but the law needs to move with extreme care — and no haste — in this exquisitely difficult situation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


During Thanksgiving Press Availability, Trump Engaged in Repeated, Despicable Lies About Hundreds of Thousands of Fraudulent Votes Cast in Each State, Trying to Explain His Election Loss; FOX News Broadcast It in Full without Fact Checking<https://electionlawblog.org/?p=119093>
Posted on November 27, 2020 7:22 am<https://electionlawblog.org/?p=119093> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch the full remarks here<https://www.c-span.org/video/?478850-1/president-trump-mistake-electoral-college-votes-joe-biden>.

Let’s not be blasé about the President lying to the American people, falsely claiming hundreds of thousands of fraudulent votes being cast per state. This is horrible and despicable. He’s proved none of this. Horrifying. He must have lied more than 100 times in these remarks, truly something worthy of study by historians focusing on disinformation.

I happened to watch FOX News carry the remarks in full (not live, so they knew what they are carrying), without a moment of fact checking. Here<https://twitter.com/rickhasen/status/1332104454531739648>‘s what it looked like on FOX right after the despicable remarks:
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump’s baseless election fraud claims in Georgia turn Senate runoffs into a ‘high-wire act’ for Republicans”<https://electionlawblog.org/?p=119091>
Posted on November 27, 2020 7:13 am<https://electionlawblog.org/?p=119091> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trump-fraud-claims-georgia-republicans-run-offs-perdue-loeffler/2020/11/26/0c4d6b3a-2f30-11eb-bae0-50bb17126614_story.html>

Sen. David Perdue was encouraging a crowd at a gun club south of Atlanta to support him and fellow Republican Kelly Loeffler in their bids for Georgia’s Senate seats, which he called the only thing standing between America and “a radical socialist agenda.”

But five minutes into the senator’s speech, a man interrupted.

“What are you doing to help Donald Trump and this fraud case?” the man screamed, as one woman said “Amen” and the crowd applauded. “What are you doing to stop what’s been going on here and this election fraud?”

The Republican candidates in Georgia’s dual Senate runoff campaign are navigating a highly unusual political labyrinth — caught in the middle of an intraparty war that has erupted since President Trump narrowly lost the state to President-elect Joe Biden and has turned his fire on the Republican leadership there.

The infighting now threatens to turn off the very Republican voters Perdue and Loeffler need to stave off challenges from their Democratic rivals, Jon Ossoff and the Rev. Raphael Warnock.

Trump and his allies have repeatedly, and falsely, accused Georgia Secretary of State Brad Raffensperger and Gov. Brian Kemp, both Republicans, of presiding over a fraudulent election. Trump has pushed the baseless claim that the Dominion Voting Systems machines used in Georgia were rigged as part of a global conspiracy, and Perdue and Loeffler have called for Raffensperger’s resignation.

But therein lies the conundrum: Perdue and Loeffler are traveling the state pleading with Republican voters to turn out on Jan. 5 — effectively asking Trump supporters to put their faith in the same voting system their president claims was manipulated to engineer his defeat.
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“‘Certainly I will’: Trump says he’ll leave if the electors vote for Biden.”<https://electionlawblog.org/?p=119089>
Posted on November 27, 2020 7:10 am<https://electionlawblog.org/?p=119089> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/live/2020/11/27/us/joe-biden-trump?action=click&module=Top%20Stories&pgtype=Homepage#certainly-i-will-trump-says-hell-leave-if-the-electors-vote-for-biden>

President Trump said on Thursday that he would leave the White House if the Electoral College formalized Joseph R. Biden Jr.’s election as president, even as he reiterated baseless claims of fraud that he said would make it “very hard” to concede.

Taking questions from reporters for the first time since Election Day, Mr. Trump also threw himself into the battle for Senate control, saying he would soon travel to Georgia to support Republican candidates in two runoff elections scheduled there on Jan. 5.

When asked whether he would leave office in January after the Electoral College cast its votes for Mr. Biden on Dec. 14 as expected, Mr. Trump replied: “Certainly I will. Certainly I will.”

Speaking in the Diplomatic Room of the White House after a Thanksgiving video conference with members of the American military, the president insisted that “shocking” new evidence about voting problems would surface before Inauguration Day. “It’s going to be a very hard thing to concede,” he said, “because we know that there was massive fraud.”

But even as he continued to deny the reality of his defeat, Mr. Trump also seemed to acknowledge that his days as president were numbered.

“Time is not on our side,” he said, in a rare admission of weakness.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“As Biden administration ramps up, Trump legal effort drags on”<https://electionlawblog.org/?p=119087>
Posted on November 26, 2020 1:10 pm<https://electionlawblog.org/?p=119087> by Richard Pildes<https://electionlawblog.org/?author=7>

Experts say the languishing legal campaign — which is no longer actively pushing to overturn the results in three or more states, as it would need to do to surpass Biden’s electoral votes — is less about flipping the election than about fueling a fundraising effort for Trump’s coffers and soothing his battered ego.

According to election law expert Rick Pildes, it was clear within a few days of the Nov. 3 election that the Trump campaign lacked the kind of claims and evidence needed for a court to overturn the result — and the effort has only spiraled downward from there, he said.

“Since then, all that has happened is that the claims have gotten more outlandish, the better lawyers have fled the campaign, and judges of all stripes — federal and state, whether appointed by Democrats or Republicans, including Trump appointees — have administered the formal death rites to this attempt,” said Pildes, a law professor at New York University….

In recent days, the key battleground states of Georgia, Michigan, Pennsylvania, Nevada and Minnesota have all certified Biden’s win, effectively dashing any lingering hopes the Trump campaign had to overturn the results there.

“Certification significantly shifts the burden of proof,” said Ned Foley, an election law expert and law professor at Ohio State University. “Post-certification, asking a court to undo the result is a very heavy lift.”…

Justin Levitt, an election law expert and professor at Loyola Law School, said that even though legal effort to overturn the election result is meritless, it is likely to continue for the foreseeable future.

“It was dead a few days after the election. It’s been undead since. And it’s remarkably hard to kill the undead for good,” he said of the campaign’s legal effort. “There will probably be some continued action in the courts either until [Senate Majority Leader] Mitch McConnell<https://thehill.com/people/mitch-mcconnell> puts his foot down or until the fundraising dries up.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>




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