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

[Adam Bonin]

I will weigh in here, for the only time post-election, to correct the
record: it was an MTV youth town hall hosted by Allison Stewart and Tabitha
Soren.
https://www.washingtonpost.com/archive/lifestyle/1994/04/20/the-commander-in-briefs/04219ef3-aa61-4f28-8869-6217476c1b47/


On Fri, Nov 27, 2020, 1:13 PM <paul.gronke at gmail.com> wrote:

> I hereby declare this is my next article or book title. Many people are
> saying it will be a blockbuster.
>
> *          Ballots, not briefs*
>
> P.S. Is this a subtle Arsenio Hall reference?
>
> On Nov 27, 2020, at 9:54 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> 
>
>
>
>
> 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 In a 21-page unanimous and scathing unpublished opinion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 *
>
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