A federal judge in Pennsylvania yesterday rejected a Trump campaign lawsuit that sought to prevent certification of the presidential election results in that state. U.S. District Judge Matthew Brann dismissed the campaign's claims with prejudice, meaning it cannot try again with a revised complaint. Brann's scathing ruling, which concludes that neither the campaign nor the two Pennsylvania voters named as plaintiffs had standing to bring the suit and in any event failed to state any valid constitutional claims, vividly illustrates the chasm between the arguments Donald Trump's lawyers are making in court and his assertion that systematic fraud denied him his rightful victory in the presidential election.
"Plaintiffs ask this Court to disenfranchise almost seven million voters," Brann writes. "This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens."
Instead, Brann says, "this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted."
The Trump campaign and the two voters, John Henry and Lawrence Roberts, sued seven counties and Pennsylvania Secretary of the Commonwealth Kathy Boockvar (a Democrat), arguing that they had violated the 14th Amendment's guarantee of equal protection by allowing some voters to correct mistakes that otherwise would have made their absentee ballots invalid. According to the Trump campaign, that policy unfairly favored Democrats over Republicans.
In a November 2 email, Boockvar encouraged counties to "provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected" for technical reasons so those ballots could be corrected, or "cured." Some counties, including those named as defendants in the lawsuit, acted on that suggestion, while others did not. The upshot, according to the Trump campaign, was that Republicans were less likely than Democrats to have the opportunity to cure their ballots.
Henry's ballot, which he cast in Lancaster County, was rejected because he failed to place it in the required "secrecy envelope." Roberts' ballot, which he cast in Fayette County, was rejected for an unknown reason. Neither voter was given a chance to cure his ballot.
"The general gist of their claims is that Secretary Boockvar, by failing to prohibit counties from implementing a notice-and-cure policy, and Defendant Counties, by adopting such a policy, have created a 'standardless' system and thus unconstitutionally discriminated against Individual Plaintiffs," Brann writes. "Though Plaintiffs do not articulate why, they also assert that this has unconstitutionally discriminated against the Trump Campaign."
Instead of seeking an opportunity to cure their ballots so their votes would be counted, Henry and Roberts, joined by the Trump campaign, asked Brann to block certification of Pennsylvania's election results. "Prohibiting certification of the election results would not reinstate the Individual Plaintiffs' right to vote," Brann notes. "It would simply deny more than 6.8 million people their right to vote."
That extraordinary, counterintuitive remedy would do nothing to address any injury suffered by Henry and Roberts, which in any case was not caused by Boockvar or the defendant counties. If Henry and Roberts have a beef, it is with the counties where they live, which declined to follow Boockvar's suggestion by letting voters cure their mail-in ballots. Brann concludes that Henry and Roberts do not have standing to sue parties that did not cause the injuries they allege or to seek an order that would not correct those injuries.
"Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others," Brann says. "Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race. This is simply not how the Constitution works….Granting Plaintiffs' requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs' requested relief."
Nor was Brann impressed by the argument that allowing counties to notify voters about errors in their ballots amounted to unconstitutional discrimination. "Though states may not discriminatorily sanction procedures that are likely to burden some persons' right to vote more than others, they need not expand the right to vote in perfect uniformity," he writes. "All Plaintiffs have alleged is that Secretary Boockvar allowed counties to choose whether or not they wished to use the notice-and-cure procedure. No county was forced to adopt notice-and-cure; each county made a choice to do so, or not. Because it is not irrational or arbitrary for a state to allow counties to expand the right to vote if they so choose, Individual Plaintiffs fail to state an equal-protection claim."
The Trump campaign argued that it had "competitive standing" to sue Boockvar and the counties. But according to Brann's reading of the case law, that theory "applies to challenges regarding the eligibility of a candidate," a description that does not fit this case.
Brann's disdain for the quality of the Trump campaign's legal representation is apparent throughout his decision. "Neither in the [first amended complaint] nor in its briefing does the Trump Campaign clearly assert what its alleged injury is," Brann says. "Instead, the Court was required to embark on an extensive project of examining almost every case cited to by Plaintiffs to piece together the theory of standing as to…the Trump Campaign."
Leaving aside the issue of standing, the campaign's equal protection claim, "like Frankenstein's Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent," Brann writes. And although the campaign complained about restrictions on poll observers in Pennsylvania, "Plaintiffs fail to plausibly plead that there was 'uneven treatment' of Trump and Biden watchers and representatives," since they do not even allege that "the Trump Campaign's watchers were treated differently than the Biden campaign's watchers."
Six days after the lawsuit was filed on November 9, the plaintiffs whittled their original seven claims down to two and "deleted numerous allegations that were pled in the original complaint." A November 13 decision by the U.S. Court of Appeals for the 3rd Circuit in an unrelated case negated one of the two remaining claims, leaving just the equal protection argument.
Refusing to let the Trump campaign file another amended complaint, Brann notes that "among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." He concludes that "amendment would unduly delay resolution of the issues," noting that "Plaintiffs have already amended once as of right," "Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims," and "the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020."
Brann also notes that the plaintiffs repeatedly changed attorneys. On November 12, three days after the lawsuit was filed, Ronald L. Hicks Jr. and Carolyn McGee withdrew from the case, and two lawyers from Texas signed on. Four days later, the Texas lawyers dropped out, and one of the original attorneys, Linda Kerns, tried to do so as well, but Brann rejected her request. "I believed it best to have some semblance of consistency in counsel ahead of the oral argument" scheduled for the next day, Brann explains. That evening, Marc Scaringi joined the legal team. Rudy Giuliani, Trump's personal lawyer, jumped in the following morning, just before the oral argument.
Giuliani began that hearing by alleging "widespread nationwide voter fraud," although he later conceded "this is not a fraud case." Two days later, he held a press conference where he renewed his claim that Joe Biden had stolen the election through "massive fraud," a criminal conspiracy he said was "easily provable." Giuliani said he had "hundreds" of affidavits alleging election fraud in Michigan but admitted that just eight of them had been made public. He did not mention that a state judge had already concluded that the allegations about irregularities in Michigan provided "no basis" for preventing the certification of that state's election results.
Sen. Patrick Toomey (R–Pa.), who after the election said "the president's allegations of large-scale fraud and theft of the election are just not substantiated," responded to Brann's ruling by urging Trump to accept reality. "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 press release.
The senator noted that Brann's decision follows legal defeats for the Trump campaign in other states. "These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the 46th President of the United States," he said. "I congratulate President-elect Biden and Vice President-elect Kamala Harris on their victory."
[This post has been updated with comments from Toomey.]