In a blistering opinion by a Donald Trump appointee, the U.S. Court of Appeals for the 3rd Circuit on Friday rejected the president's challenge to Pennsylvania's election results, saying his campaign had failed even to allege a cognizable constitutional claim. "Free, fair elections are the lifeblood of our democracy," writes Stephanos Bibas, whom Trump picked for the appeals court 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."
Appealing another scathing decision by U.S. District Judge Matthew Brann, the Trump campaign asked the 3rd Circuit to override Brann's refusal to allow a second amended complaint. The appeals court says Brann did not abuse his discretion when he dismissed the case with prejudice, given the looming certification of Pennsylvania's vote (which happened last Tuesday), the campaign's "delays and repetitive litigation," and the likelihood that the proposed complaint would be "futile."
The Trump campaign argued that Pennsylvania's election procedures violated the 14th Amendment's guarantee of equal protection in two ways. First, Secretary of the Commonwealth Kathy Boockvar urged counties to let voters "cure" mistakes on their absentee ballots that otherwise would have been rejected. Some counties followed that suggestion, while others did not. Second, the campaign alleged that election officials in some counties kept poll watchers too far away from the vote counting to see what was happening.
The 3rd Circuit notes that neither of those practices violated state or federal law. Nor does the variation between counties amount to unconstitutional discrimination under the 14th Amendment, it says. "The Campaign tries to repackage these state-law claims as unconstitutional discrimination," Bibas writes. "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….A violation of the Equal Protection Clause requires more than variation from county to county. It requires unequal treatment of similarly situated parties."
The president and his personal lawyer, Rudy Giuliani, have insisted for weeks that Joe Biden stole the election through systematic voting fraud. Giuliani began a November 17 hearing before Brann by claiming "widespread nationwide voter fraud." But he later conceded "this is not a fraud case," noting that the campaign's complaint "doesn't allege fraud."
Despite the campaign's failure to even claim illegal voting, the appeals court notes, "the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania's presidential electors. It cites no authority for this drastic remedy."
Bibas pulls no punches in describing the arguments that the campaign wanted to make. "The Campaign's claims have no merit," he writes. "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."
Although the campaign "suspects that many of the 1.5 million mail-in ballots in the challenged counties were improperly counted," the 3rd Circuit says, "it challenges no specific ballots," and "it never alleges that anyone except a lawful voter cast a vote." Of the seven counties that were named as defendants because they allowed voters to cure their absentee ballots, "four (including the three most populous) represented that they gave notice to only about 6,500 voters who sent in defective ballot packages. The Campaign never disputed these numbers or alleged its own. Even if 10,000 voters got notice and cured their defective ballots, and every single one then voted for Biden, that is less than an eighth of the margin of victory."
In short, the appeals court says, "The Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed."
A Morning Consult poll conducted from November 6 through November 9 found that 70 percent of Republicans thought the 2020 presidential election was not "free and fair." The results were similar in an Ipsos survey conducted a week later, which also found that 52 percent of Republicans believed Trump "rightfully won" the election.
To continue believing that, Trump supporters have to accept something like the following story. Democratic election officials in multiple battleground states conspired with the Biden campaign to deny Trump his rightful victory, assisted by Dominion Voting Systems, George Soros, the Clinton Foundation, and the Venezuelan, Cuban, and Chinese governments. That vast international conspiracy evidently also includes Bibas, appointed by Trump himself, plus the two other judges on the unanimous 3rd Circuit panel, D. Brooks Smith and Michael Chagares, both of whom were nominated by George W. Bush.
For no obvious reason, that scheme has been aided and abetted by Brann, described by Sen. Pat Toomey (R–Pa.) as "a longtime conservative Republican whom I know to be a fair and unbiased jurist"; all of the other judges who have been unimpressed by the Trump campaign's legal claims; Republican election officials across the country; Republican members of Congress; and heretofore Trump-friendly news outlets such as the New York Post and Fox News. To believe this story, you would also have to accept that Giuliani, who says the conspiracy is "easily provable," has solid evidence to back up his wild claims but for some reason has not managed to produce it in court.
The alternative to buying all of that is to conclude that Trump has refused to admit defeat, either for personal or political reasons, and has resorted to increasingly baroque explanations for Biden's soon-to-be-official victory. That hypothesis is consistent with everything we know about Trump from his decades in public life, including his disdain for the truth, his enormous yet fragile ego, and his allergy to accepting responsibility. It is also consistent with the yawning gap between Trump's public assertions and the claims his campaign has made in its lawsuits, which the 3rd Circuit's decision highlights once again.