On Saturday, a federal judge dismissed — with prejudice — the Trump campaign’s lawsuit against Pennsylvania Secretary Kathy Boockvar. While former President Barack Obama appointed the judge, he is a Republican and a member of the Federalist Society. The Trump campaign pledged to appeal the ruling, heading toward the Supreme Court. However, Pennsylvania is expected to certify the election results on Monday, which gives the campaign an extremely short window for any action.
“Today’s decision turns out to help us in our strategy to get expeditiously to the U.S. Supreme Court. Although we fully disagree with this opinion, we’re thankful to the Obama-appointed judge for making this anticipated decision quickly, rather than simply trying to run out the clock,” Trump attorneys Rudy Giuliani and Jena Ellis wrote in a statement after the case had been dismissed.
“We will be seeking an expedited appeal to the Third Circuit. There is so much evidence that in Pennsylvania, Democrats eliminated our opportunity to present 50 witnesses and other evidence that election officials blatantly ignored Pennsylvania’s law denying independent review,” the attorneys added. “This resulted in 682,777 ballots being cast illegally, wittingly or unwittingly.”
“This is just an extension of the Big Tech, Big Media, Corrupt Democrat censorship of damning facts the American public needs to know,” Giuliani and Ellis claimed. “We hope that the Third Circuit will be as gracious as Judge [Matthew] Brann in deciding our appeal one way or the other as expeditiously as possible. This is another case that appears to be moving quickly to the United States Supreme Court.”
(We actually read the 37-page ruling BEFORE reacting.) pic.twitter.com/4nhuakofrt
— Jenna Ellis (@JennaEllisEsq) November 22, 2020
While the campaign claimed the case was headed to higher courts, Sen. Pat Toomey (R-Pa.), who knows Brann personally, vouched for the judge and said the ruling represented the end of Trump’s viable challenges to the preliminary election results.
“With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign’s lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said in a statement.
“I congratulate President-elect Biden and Vice President-elect Kamala Harris on their victory,” the senator added. “They are both dedicated public servants and I will be praying for them and for our country.”
— Senator Pat Toomey (@SenToomey) November 22, 2020
Indeed, Brann’s ruling appears particularly damning, coming as it does from a Republican and a member of the Federalist Society.
The ruling explains that this lawsuit has already undergone a tortured procedural history, despite the fact it was filed less than two weeks ago. The plaintiffs — the Trump campaign and two voters who failed to follow election procedure and had their ballots cast out because they were not given a chance to “cure” them — made multiple attempts at amending the pleadings and had attorneys appear and withdraw in a matter of 72 hours. The case has involved “at least two perceived discovery disputes, one oral argument, and a rude and ill-conceived voicemail which distracted the Court’s attention from the significant issues at hand.”
The campaign filed the lawsuit on November 9, alleging seven counts against Boockvar and seven county election boards: two equal-protection claims, two due-process claims, and three claims under the Electors and Elections Clauses. Brann set an oral argument on motions to dismiss for November 17 and any evidentiary hearing on November 19.
On November 12, two of the Trump campaign’s attorneys — Ronald Hicks and Carolyn McGee with the firm Porter Wright Morris & Arthur LLP — withdrew from the case and two Texas attorneys — John Scott and Douglas Brian Hughes — joined the original attorney, Linda Kerns. On November 13, the Third Circuit Court of Appeals issued a decision in Bognet v. Secretary Commonwealth of Pennsylvania (2020), which addressed issues of standing and equal protection that Brann claims undermined the campaign’s legal claims.
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On November 15, the campaign filed a First Amended Complaint, cutting off five of the seven counts from the original lawsuit, leaving one equal-protection claim and one Electors and Elections Clauses claim. The plaintiffs have preserved the Electors and Elections Clauses claim for review, leaving the case to rest on the equal-protection claim.
Less than 24 hours before the oral argument was scheduled to begin, Kerns, Scott, and Hughes asked to leave the case. Brann allowed Scott and Hughes to leave, but did not allow Kerns to drop the case, since she had been one of the original attorneys in the litigation. Attorney Marc Scaringi asked the court to postpone the oral argument and evidentiary hearing, but the court denied his request. On November 17, Giuliani joined the legal team on behalf of the campaign. Brann concluded that the evidentiary hearing was no longer necessary.
“Plaintiffs’ only remaining claim alleges a violation of equal protection. This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent,” the judge wrote.
According to Brann, the lawsuit had melded two claims that should be kept separate: equal-protection claims from the Trump campaign and from the plaintiff individual voters. He ruled that both parties lacked standing and a good equal-protection argument.
The voters claimed that their votes were thrown out because Boockvar had allowed some counties to set up a ballot “curing” system and allowed other counties not to do so. The individual voters live in Republican-leaning counties, where election officials did not set up such a system. In Democrat-leaning counties, officials did set up such a system and contacted people who had improperly filled out their ballots, in order to give these voters a chance to cast provisional ballots.
Pennsylvania law does not mandate or forbid election officials from setting up such a system. While the individual plaintiff voters did have their ballots cast out, it was not because of Boockvar nor because of the Democratic counties in the lawsuit. Therefore, Brann reasoned, the individual voters lacked standing to bring a case.
Although it is unfortunate that the plaintiffs’ ballots were thrown out, the judge noted that when Democratic-leaning counties set up a ballot curing procedure, they “in fact lifted a burden on the right to vote, even if only for those who live in those counties. Expanding the right to vote for some residents of a state does not burden the rights of others.” Brann ruled that Boockvar did not violate the Fourteenth Amendment by allowing some counties to set up a curing procedure while others did not.
The Trump campaign’s standing arguments proved particularly weak because they involved twisting precedent out of context, Brann argued. As for the campaign’s equal-protection claims, they boiled down to one paragraph and took the Bush v. Gore (2000) case out of context, he claimed.
Toomey’s response to the ruling seems extreme at first, but Brann’s arguments are persuasive. The Trump campaign needs to reverse Biden’s apparent victory in Pennsylvania in order to hope to contest the overall election results, and the history of this litigation does not bode well for Trump’s efforts.
It remains to be seen how the Third Circuit Court of Appeals will handle the case, and whether or not the Trump campaign will be able to appeal to the Supreme Court in time to prevent Pennsylvania’s certification of its election results.
If this ruling isn’t the end of the line for the Trump campaign’s legal challenges, it seems that point is drawing near. Sidney Powell has said the campaign is planning another legal filing in Pennsylvania, but time is running short.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.