A panel of three Republican-appointed federal judges on Friday rejected an appeal from the Trump campaign to block the state of Pennsylvania from certifying the results of the 2020 presidential election.
“Free, fair elections are the lifeblood of our democracy,” said Judge Stephanos Bibas, who was appointed to the 3rd Circuit Court of Appeals by President Donald Trump and confirmed by the Senate in 2017. “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,” he wrote in the court’s opinion.
The Trump campaign had asked the 3rd Circuit Court to reverse a decision by a lower court judge who had rejected the campaign’s claims of unfair treatment of Republican poll watchers and mail-in ballots. Some Pennsylvania counties told voters they could fix defective ballots and others did not. The campaign also asserted that the Pennsylvania secretary of state and some counties restricted Republican poll watchers. The Trump campaign filed a lawsuit claiming this was a violation of the 14th Amendment’s Equal Protection Clause.
U.S. District Judge Matthew Brann dismissed the case, saying he had “no authority to take away the right to vote of even a single person, let alone millions of citizens.”
The campaign appealed to the 3rd Circuit on the narrow ground that Judge Brann did not permit Trump’s lawyers to amend their lawsuit a second time. But the 3rd Circuit said the District Court did not abuse its discretion by refusing to grant Trump’s lawyers’ request.
Reacting to the decision, Trump campaign senior legal adviser Jenna Ellis, speaking for Trump’s personal attorney Rudy Giuliani as well, said, “The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud.”
“We are very thankful to have had the opportunity to present proof and the facts to the PA state legislature,” Ellis tweeted. “On to SCOTUS!”
In his opinion, Trump-appointed Judge Bibas noted that Giuliani “stressed” that the Trump campaign “doesn’t plead fraud” and asserted to the District Court that “this 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,” Bibas said.
“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,” he continued.
“The Campaign tries to repackage these state-law claims as unconstitutional discrimination,” Bibas added. “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.”