Election 2020

Third Circuit Rejects Trump Campaign's Appeal

Judge Stephanos Bibas, on behalf of unanimous panel, finds the Trump campaigns arguments have "no merit."

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The U.S. Court of Appeals for the Third Circuit roundly rejected the Trump campaign's appeal in its effort to challenge the election results in Pennsylvania. Judge Stephanos Bibas wrote the opinion for the panel, which also included Judges Smith and Chagares.

The opinion is brief, and pulls no punches. Here is how it begins:

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.

The Trump Presidential Campaign asserts that Pennsylvania's 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign "doesn't plead fraud. . . . [T]his is not a fraud case." Mot. to Dismiss Hr'g Tr. 118:19–20, 137:18. 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. This case is not about whether those claims are true. Rather, the Campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not.

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.

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 appeal. The Campaign asked for a very fast briefing schedule, and we have granted its request. Because the Campaign wants us to move as fast as possible, we also deny oral argument. We grant all motions to file overlength responses, to file amicus briefs, and to supplement appendices. We deny all other outstanding motions as moot. This Court's mandate shall issue at once.

For those who care about such things, Judge Bibas was among President Trump's first nominees to the federal appellate bench. He is widely admired for his intellect and is generally considered quite conservative. A former law professor (most recently at the University of Pennsylvania, where he co-taught a seminar on conservative thought with Professor Amy Wax), he was regular speaker at Federalist Society events prior to his nomination. Judges Smith and Chagares were both appointed by President George W. Bush.

P.S. The panel also assessed costs against the Trump campaign. In other words, they will have to pay Pennsylvania's costs for defending against this appeal.

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  1. This can, I presume, be appealed to SCOTUS.

    But far more interesting is the lawsuit that Sidney Powell reportedly filed, some 74 pages long, citing actual fraud in PA.

    1. 1. Pennsylvania and Michigan are not the same state.
      2. 3rd Circuit denied the Trumpists a 2d amended complaint. That’s the only issue that would go before the SC. If the Trumians win at the SC, they get to amend at the district level, if I understand correctly. So, goes to the SC and the SC grants a 2d amendment and the district throws it out again. Tick, tick, tick.

    2. On behalf of whom?

    3. I guess I can’t argue that Ms. Powell’s complaints are interesting. I don’t think I’ve ever seen someone misspell the name of the court twice on the caption page alone.

      1. That’s pretty interesting.

    4. SC will not touch this case. They will just deny the cert without comment.

    5. This can, I presume, be appealed to SCOTUS.

      And after that, to heaven.

    6. It’s an order denying a preliminary injunction; the appeal itself is still pending on en expedited basis.

      I’m not an appellate lawyer, but my understanding is that this oder itself is not automatically eligible for an appeal because it’s not a final order. Thus, any appeal from current status would have to be an interlocutory appeal, which faces additional hurdles (beyond the whipping behind the woodshed that both Judge Brann and Judge Bibas have rightly administered).

      1. 1. No, this appears to be final order terminating the case. See the last paragraph:

        We will thus affirm the District Court’s denial of leave to amend, and we deny an in- junction pending appeal. The Campaign asked for a very fast briefing schedule, and we have granted its request. Because the Campaign wants us to move as fast as possible, we also deny oral argument. We grant all motions to file overlength responses, to file amicus briefs, and to supplement appendices. We deny all other outstanding motions as moot. This Court’s mandate shall issue at once.

        2. Unlike the circuit courts’ limited appellate jurisdiction, the Supreme Court has jurisdiction to entertain a petition from a case in the court of appeals at any stage of the case. 28 U.S.C. §  1254 (authorizing writ of certiorari “upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree”). Of course, certiorari is very unlikely before the court of appeals has a chance to rule. But it is permissible.

        1. Would it be unlikely in a case like this, given the importance and time issues? Not that they will, but if this were an election case with actual merit

  2. Everyone should read the opinion, it is as searing an indictment of the competency of the Trump legal team as one could devise.

    The case presumably will now be appealed to the Supreme Court. But everyone should expect that the Supremes will run as far away from this legal malpractice as they can. And everyone should remember that here the issue is not fraud, which has not been alleged by the Trump team, it is a question of whether or not the Trump team can file a second amended complaint (which restores issues the Trump team had in their original complaint but which they withdrew in their first amended complaint, what a bunch of geniuses) which the Districct (that’s the way Sidney Powell spells it, and gosh what a great legal mind she has ) CCourt and now the CCircuit CCourt has rejeccted in terms about as strong as a ccourt can state.

    On the plus side the Trump team should rejoicce in the one great win they so far have achieved here; they have not been sancctioned for violating a whole bunch of behavioural norms ethics that the legal profession imposes on its members.

    1. Does El Sid’s computer not have a space bar? I tried reading the MI complaint, and it is physically difficult to do so.

      1. Perhaps she was trying to write it in German.

    2. ‘cc’ is to be read as a hard ‘c’. So your spelling of ‘rejoicce’ is incorrect. 😉

  3. Poor Michigan. Some Trumpists can’t tell the difference between Minnesota and Michigan, now we have one who can’t tell the difference between Pennsylvania and Michigan. I’ve tried to read Psycho Sidney’s 100+ page brief in Georgia and don’t have the pain tolerance to read the Michigan one which, though but 74 pages, is said to be worse, so I don’t know if Ed’s confusion of Michigan and Pennsylvania is something he acquired from the SS brief or if it is an original confusion to him.

    1. Here’s what I don’t understand : Everyone knows Powell’s allegations are a pathetic joke and her cases will be laughed out of court. But obviously she sees them as a good career move. Is today’s Right so unhinged that ditzy conspiracy-mongering and legal malpractice is a professional plus?

      How in the world will Sidney Powell translate humiliating failures into ready cash in today’s Right-wing-world?

      1. Check out the cultists chanting for Sydney Powell in the comments of today’s reason articles. Yes, they are really this craven or stupid.

      2. 1. Yes, there will almost assuredly be a market for these perspectives on Newsmax, OANN, and whatever media outlet Trump launches in a couple of months.

        2. In Powell’s case, mental illness and/or substance abuse seems likely to be a contributing factor.

      3. How in the world will Sidney Powell translate humiliating failures into ready cash in today’s Right-wing-world?

        Check out her website: she’s soliciting money right now from the rubes for these suits.

  4. It is a pleasure to see the incompetence/mendacity of the Trump legal team so humiliatingly exposed, over and over.

    The last two Democratic Presidents taught Constitutional Law at the most prestigious law schools in their respective home states. By contrast we can be sure Trump has never read the document and has only a vague idea as to its contents. His legal team seems appropriate to its client.

  5. Lots of people will be happy if the electors vote and the fraud turns into a Biden presidency.

    At least no one will have to pretend any of them have any integrity.

    1. What fraud would that be. Two guys in Pennsylvania didn’t get the chance to cure their rejected ballots: therefore massive voter fraud?

      1. Sign of lack of integrity: turning a blind eye when numerous people testify about fraud or about systematically cheating procedures designed to prevent fraud.

        1. So the federal judiciary (including R judges), state courts in at least 4 states, and hundreds of election officials all have no integrity? But those claiming fraud without proof are the good ones?

          1. Plenty of evidence for anyone not willfully blind.

            No court has ruled that fraud did not occur.

            1. It is kind of hard to rule that fraud did not occur when the Plaintiff’s lead by Mr. Guilliani contend in court that fraud did not occur.

              1. Thanks for acknowledging that courts did not rule on whether fraud occurred. I agree that MollyGodiva shouldn’t pretend they did.

                1. The courts also did not rule in any of the current opinions that Ted Cruz’s father wasn’t on the grassy knoll with a 30.06 when JFK was shot.

                  1. MollyGodiva isn’t pretending they did.

                    1. Nope. You’re the one making a big deal out of non-existent potatoes.

                      The courts *have* expressly pointed to Mr. Guiliani’s on-the-record admissions that “this is not a fraud” case to agree that … they don’t have to decide that it’s not a fraud case because Plaintiff admitted it. Opinion, p.11:

                      “To start, note what it does not allege: fraud. Indeed, in oral argument before the District Court, Campaign lawyer Rudolph Giuliani conceded that the Campaign “doesn’t plead fraud.” Mot. to Dismiss Hr’g Tr. 118:19–20 (Nov. 17, 2020).He reiterated: “If we had alleged fraud, yes, but this is not a fraud case.” Id. at 137:18.”

                      Do you really need the court to include a footnote saying “seriously, we’re reaching out to that one ‘Ben_’ guy on the internet to remind him it’s *really* not a fraud case” to admit that … it’s not a fraud case?

                    2. No. I did not bring up courts at all.

                    3. What does that even try to weasel out of? You know we can read your prior posts in this thread, right? This isn’t a drunken bar conversation where you can spew “I never said that!”

                    4. dang lack of edit function.

                      Ben_:
                      “No court has ruled that fraud did not occur.”

                      Sure *sounds* like you’re making specific claims about what the courts did and didn’t say.

                    5. That was my response to the false allusion that the court made such a ruling.

                    6. Ben_: “That was my response to the false allusion that the court made such a ruling.”

                      Bwahaha, that’s a stretch. Please explain how the following comment:

                      “So the federal judiciary (including R judges), state courts in at least 4 states, and hundreds of election officials all have no integrity? But those claiming fraud without proof are the good ones?”

                      contains the unicorn-like claim that some court has ruled that fraud did not occur.

                      It says .. hm, let me quote .. that Rudy et al. are “claiming fraud without proof”.

                      Which is exactly what multiple courts have ruled. “No proof”.

                      You’re not being clever or erudite; you’re displaying fundamental ignorance about what court rulings mean. About what they rule on, and don’t rule on.

                      You’re tilting at windmills against imaginary comments that never occurred, and doing a lame-posterior job of it. Seriously, your strawman argument chops are sad, weak, and transparent. Take some time off.

                2. This is a stupid argument. Yes, no court has proven a negative. What they have ruled time and time again is that there’s no evidence of fraud. If you’re going to assert that the election was fraudulent, the burden of proof is on you (or Giuliani or Powell or whoever else you think is best positioned to make this case) to provide some evidence to back it up. As the Trump-appointed judge wrote here: “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.”

                  1. It was a response to the false allusion that courts have made such a ruling.

                    It’s only a couple short weeks since the election. Courts and the parties will have more to say.

            2. In order for a court to rule that there was no fraud, it would have to get to the trail stage, but all the cases are so weak that they are being thrown out at the pre-trial stage. The judges are saying in their dismissal opinions that the evidence is woefully lacking.

              1. Yeah. If they can just keep covering their tracks for 3 more weeks they can succeed.

                1. Again, that is an awful lot of people, both R and D to cover the tracks. Why would the Rs go along with it?

                  1. Who is going along with it? I saw a survey referenced yesterday that 89% of Republicans think the election was/is stolen.

                    Even some Dems acknowledge it.

                    1. In order to pull off such a massive voter fraud operations as is being alleged by Trump, there are many Republican election officials, judges, and secretaries of states that would have to be complicit. Why would they go along with this scheme? And the general public who thinks there was fraud is only because they have been told by Trump and others that there is fraud, their opinions gives zero credence to the allegations.

                    2. Because Orange Man Bad.

                      It’s predictable that you think the public’s opinion is meaningless. What are the public going to do? Vote? HAHAHAHAHA!!

                    3. There was no fraud, Ben. Everything worked out really well, especially considering the circumstances.

                      No amount of your pointing to GOP denial of reality will change what actual reality is.

                    4. At least we don’t have to pretend people repeating those talking points have any integrity.

                    5. When Biden becomes President, and this fades into the general morass of right-wing muttering like Seth Rich, and birtherism, and Sandy Hook, and Vince Foster, you’ll truly be the one with all the integrity.

                    6. Ben: Voter fraud either happened or it did not (it did not), the election is in the past. The current opinion of people about what happened does not change what happened three weeks ago.

                    7. “I saw a survey referenced yesterday that 89% of Republicans think the election was/is stolen.”

                      And every Republican knows that if you believe in something strongly enough, it becomes true, because faith is stronger than reality.

                    8. “Because Orange Man Bad.”

                      No, because Orange Man Lost Election.

                2. Amazing you are more perceptive about the evidence than all these judges.

                  1. You should read the article above where it says that’s not what the decision was about.

                    If you care. If you don’t then you can say the court ruled that Biden got zillions and zillions more votes and he can be President for life because Orange Man Bad. Court decisions are fun when you use your imagination.

                    1. Court decisions are even more fun when you understand what court decisions mean. Which you don’t.

                    2. ‘all these judges’ is me talking about more than just this decision. Just like you are.
                      Trump’s got nothing, and it’s not close.

                      Um, are you okay?

                    3. yay! we’re going to get away with stealing the election!

                    4. No one’s stealing the election, Ben.

                      You should take some time off.

                    5. Covid panic-mongering totalitarians stole Christmas and Thanksgiving, so time off isn’t what it used to be.

                    6. “yay! we’re going to get away with stealing the election!”

                      No, you’re not.

        2. Who has testified about fraud? The Trump team´s lawsuits have been dismissed at the pleading stage, without fraud having been pled.

    2. “At least no one will have to pretend any of them have any integrity.”

      This Thanksgiving, I am grateful for unintentionally correct statements.

  6. It would be critically helpful to the lifeblood of our democracy for SCOTUS to issue, as it denies cert, a unanimous opinion that forcefully rebukes Trump in similar terms.

    1. It is the prevailing view that SC will likely deny cert without any opinion, which is what they do to cases they view as having no merit and they have no interest in.

      1. Perhaps they have an interest in rebuking a president that is waging a war against democracy.

        1. That would be highly irregular for them. They like to pretend that they are above politics.

          1. While my money is on “deny cert without comment” … Josh R makes an interesting suggestion. It only takes four to approve cert. So … Roberts, Breyer, Sotomayor, Kagan approve cert. So that the other 5 have to go along and deny on the merit, or see just *how* convoluted their outcome-oriented jurisprudence really is. I still agree that it’s highly unlikely … but ….

            1. They won’t. Approving cert will be touted by Trump and others that the case has merit.

            2. heh, I’m sure he would try that 🙂

              which does make me curious how he’ll spin the pretty-likely denial of cert. Since “his judges” will be the ones punching him in the throat.

              1. “which does make me curious how he’ll spin the pretty-likely denial of cert. ”

                Here’s a guess:
                Why, it’s a sign of just how powerful the conspiracy against him really is. They fixed the election, and now they can even fix the Supreme Court. Then something, something, send him money for reasons.

        2. This president has already been adequately “rebuked” by the dismissal of his lawsuit in the trial court and the affirmance of that dismissal by the Third Circuit.

          Garden-variety losers like Trump — who’ve been dealt with adequately by the lower courts — don’t need or deserve SCOTUS attention, and won’t get it.

          1. My idea isn’t aimed at Trump, per se. It’s aimed at the people who have bought into Trump’s bullshit because when they are convinced is when democracy’s lifeblood is in danger. A rebuke from a unanimous Court might peel off enough people to provide democracy a transfusion.

            1. Trump followers are already so reality-deprived that no objective fact can sway their opinion.

              1. Agreed. If they’ll turn on uber-Trumpkin Tucker Carlson, then they will turn on anyone.

                Indeed, I suspect at this point that if by some miracle that Trump actually conceded and admitted that the election was legitimate, they’d assume the Deep State had gotten to him and threatened him or his family.

  7. Let’s once again marvel that the President of the US, with the support of most of the Republicans of the country, is waging an all out baseless assault on a clean and fair election. This will only have the effect of weakening our democracy, and that is their goal.

    1. Which is why I say – conduct an inquiry into this attempt to hijack a clean election. Issue a report laying out all the evidence proving how squeaky-clean the election was, then denounce the conspirators who dared cast doubt on this pure, untainted result. A full investigation by an impartial person or committee. Let Trump tremble!

      1. At this point that will not help. The Trumpers will reject any information that does not support their belief.

        1. It’s the swing voters who would be persuaded, not the clingers. Swing voters want information, and given the plethora of information about how impeccable and above reproach the elections were, an impartial investigator(s) can provide the information.

          1. The swing voters do not need any persuasion, they know that they turned out to vote and didn’t vote for Trump. It’s the otherwise nice people who DID who choose to buy in that they won even though most people didn’t want their man to keep the job.

            1. “otherwise nice people”

              Have you grown soft? Would you call the chanting, heiling audience at Nuremberg, cheering Hitler’s speeches, “nice”?

              No, re-education is clearly called for.

              1. “No, re-education is clearly called for.”

                And the call for gulags has started.

                Your mask is slipping, so you will end up in your camps for not following Covid restrictions.

      2. @ Cal Cetín: You misperceive the nature of the civil justice system and its burden of proof.

        Several impartial trial and appellate courts, in multiple states, — including, as here, federal courts comprising judges appointed by Trump and/or fellow Republican Presidents — have already “investigated” Trump’s allegations by putting them to the first level of scrutiny: Has he stated any claim on which relief could be granted, if he could prove his allegations in a full trial on the merits?

        Trump has uniformly failed to meet that initial threshold. There is no need for a further investigation: The burden of alleging viable claims was his, and having failed to meet it, his claims have been thrown out.

        Our civil justice system doesn’t go further than that, nor does it need to.

        If Trump trembles, it’s because of the seriousness and variety of civil and potentially criminal liability he faces now that he’s about to be outside the White House and beyond the protections of the presidency.

        1. Please – commissions get empaneled all the time. They often investigate matters which courts also investigate.

          The point of the commission of course will be to expose the elaborate Trumpian conspiracy to attack the squeaky-clean election results. And of course recommend prosecution for all the false witnesses who claim to have observed irregularities in the voting or perceive statistical anomalies, and other obviously perjurious claims.

          Investigating the conspiracy will of course require investigating things, not in one state only, but in all states.

          1. Another point of the commission will be to shoot down any proposals for so-called “reform” which will suppress votes by limiting mail-in ballots, require extra scrutiny, and other Jim Crow tactics.

        2. In the US courts to not investigate, they just make determination based on the facts presented and the law.

        3. “Trump has uniformly failed to meet that initial threshold. There is no need for a further investigation: The burden of alleging viable claims was his, and having failed to meet it, his claims have been thrown out.”

          No, the blame falls squarely on Rudy. Trump hasn’t the brains to direct his own effort to steal this election. That’s what he hired Rudy to take care of for him. Trump successfully got a bunch of stupid people to mark the little circle next to his name (he also got a lot MORE people to mark the little circle next to Biden’s name, but that was supposed to be taken care of by disenfranchising a lot of them at the state level by Republican Party legislatures.)

      3. I have changed my mind. We should have a non-partisan commission fully investigate this election. It is important to the historical record and those who care to establish exactly what did and did not happen. Kinda the same reason I was for the 2016 Election Russian investigation, I did not think there was any collusion, but I did want a full investigation to firmly establish the record.

        1. 61% of democrats think the Russians hacked the 2016 election, so it seems your hopes for the result of the Russian investigation were not realized.

    2. @ MollyGodiva: So stipulated re Trump’s intentions. But there won’t be any such effect, because the effort has been so spectacularly inept and comprehensively unsuccessful.

      1. To what are you referring. “He was inept and incompetent, and thus ineffective” could refer to literally anything Mr. Trump has done for the last three years, and much of what came before that period.

  8. There’s something odd here. In Brann’s decision of Nov. 21, he ruled: “Defendants’ motions to dismiss the First Amended Complaint are granted with prejudice. Leave to amend is denied.” The Circuit Court focuses on the denial of leave to amend. However, it states “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.” If Brann denied leave to amend, there is no Second Amended Complaint. So to what pleading, exactly, is the Circuit Court referring? Assuming the proposed Second Amended Complaint was presented below, is it a part of the record if leave to amend is denied?

    1. In it’s appeal, the Trumpists included their proposed 2d amended complaint. Perhaps the 3rd Circuit had no obligation to review it but looked at it anyway, for the sake of “completeness”. Also, it’s my suspicion that the opinon of futility might depend on consideration of the contents of the proposed 2d amended complaint.

    2. When you move to amend a pleading, you typically include the amended version you’re seeking to use with your motion, which the Trump campaign did. You can read the proposed second amended complaint here.

      https://www.courtlistener.com/docket/18618673/172/2/donald-j-trump-for-president-inc-v-boockvar/

    3. ” If Brann denied leave to amend, there is no Second Amended Complaint.”

      The appeal of the denial of leave to amend has to have alleged that there was a reason such leave should have been granted, and a claim that the denial was therefore ineffective. This produces a Schrodinger situation for the appeals court to unravel, with an amended complaint both existing and not existing inside a box, which the appeals court has now opened and collapsed the wave function of.

      You get the same effect with claims of ineffective assistance of counsel. The appeals court has to examine the proceeding and determine if there was, in fact, a way the outcome could have been different with skilled counsel because if there isn’t, having ineffective counsel is no harm.

  9. I don’t think there is much behind these federal challenges. Yes, if there was clear evidence I think a federal court might get involved, but most of this is going to get sorted out in state court.

    Up until the PA appeals court ordered a halt to the certification I assumed most of these legal actions were bluster. PR if you will to build up momentum behind “the election was stolen” and “oh here is a new media outlet that will only give out the ‘real’ news…if you thought the election was stolen tune in because we have all the dirt the media won’t tell you and Big Tech censors…”

    I sincerely hope the election was honest. There are still a lot of question marks, but I’m not seeing anything that points toward widespread fraud orchestrated across multiple states. It wouldn’t surprise me if some votes got stuffed into the Philadelphia count and Nevada had some double votes from people who also have a residence in CA. And if that happened we should have full knowledge that it did. And if it effected the election that should be fully investigated. But, I doubt there are enough votes there to change the result.

    1. “But, I doubt there are enough votes there to change the result.”

      Well that’s what the Circuit said, but you know how we cannot trust these Republican appointed judges. Oh, wait a minute . . . .

    2. Jimmy, you’ve been yelling fraud since the break, don’t pretend you’ve just now been convinced to have questions. Makes one wonder if you’re sincere, or just a troll.

      The PA court has enjoined certification of all elections, after the Presidential election has already been certified. If that stands, PA won’t have a legislature, but the electors will be seated as the vote count dictates.

      1. Oh dear, your feigned reluctant conversion to suspicion about the election has not aged well, below.

        Try not lying about your bona fides next time.

    3. “I don’t think there is much behind these federal challenges. Yes, if there was clear evidence I think a federal court might get involved, but most of this is going to get sorted out in state court.”

      Trump and/or his counsel don’t think they can bully a win out of state courts. He thinks if he can get a federal case going, it might get to the Supremes where Donnie appointed a third of the judges, and he can call for a favor.

  10. Attempts to do something manifestly unjust, like nixing many ballots cast in good faith, should bring consequences (political / professional) even when the attempt fails. It’s one thing to demand hand recounts, it’s quite another to demand nixing whole elections without proof of election-changing fraud.

    1. I imagine there will be a very large percentage of Americans who will never frequent a Trump owned business ever again. That will be one consequence, but also one perpetuated unfairly by the media in many instances.

      1. Not patronizing a Trump-owned business is trivial, considering how few businesses Trump actually owns. On the other hand, he does make some money by licensing the Trump name to properties owned by others, for which a substantial number of suckers still exist. It’s not like Mar-a-Lago was going to sell many memberships in California.

  11. Coming any minute now: A statement from Rudy and Jenna thanking the Third Circuit panel for falling into their trap and opening the door for their next brilliant legal maneuver. It’s sure to be mind-bending!

    1. Too late: Campaign statement thanking them for getting it to the Supreme Court so quickly.

      1. I can’t wait to find which of his body parts will leak on national TV next.

      2. Is it too obvious to point out that this seems to be a variation of the Monty Python Black Knight scene? ” ’tis but a scratch.”

        1. It’s been meme’d already. Black knight on the ground minus all 4 limbs, yelling “I WON BY A LOT!”

    2. Jenna was proclaiming just the other day that the appeal to the 3rd Circuit was part of the plan to get this before the SC. I hope that M’Godiva is correct that the SC will pass on this one, but I’m not nearly as sanguine.

      How about that Jenna, though. All the psycho of Sidney, the Gatling gun debate skills of Kellyanne, the legal acumen of Rudy, and the intellect of Don, Jr. She’ll go far in Republican politics.

      1. I wanted to think this was all part of a PR plan, but now I am starting to wonder. Even if it ends up at the Supreme Court and gets a favorable read from the Justices the procedural posture is just going to be a remand for decision on the merits or perhaps another amended complaint.

        Maybe this is all theater for the 25% of the voters who want to consume it. Maybe it is sheer insanity. Maybe a bit of both. We will find out if the are any alternative motivations behind this litigation push though. If there are color me surprised.

        1. I wanted to think this was all part of a PR plan, but now I am starting to wonder.

          That’s not what you said last week.
          Were you lying before, or are you lying now?

          1. What did I say last week? Please let me know. I’m sure you will make something up much like you like to do.

            1. https://reason.com/volokh/2020/11/18/two-men-charged-with-submitting-8000-fraudulent-voter-registrations-in-attempt-to-get-one-elected-mayor/#comment-8593339

              The Democrats have told us time and time again there is no voter fraud. Ignore the statistical anomalies. Disregard the reports of double voting in CA and NV. None of that matters. Just….

              “Hey look over here, these dumb asses held a press conference at Four Seasons Landscape!!!!

            2. https://reason.com/volokh/2020/11/18/two-men-charged-with-submitting-8000-fraudulent-voter-registrations-in-attempt-to-get-one-elected-mayor/#comments

              We are only supposed to be concerned about election fraud when a Republican wins. Same with recounts. Or tinkering with the Electoral College (remember Hamilton Electors?) Then it is alright. When a Democrat wins though it is always clean as whistle, seeking a recount makes you a sore loser, and allegations of voter fraud are crazy conspiracy theories that need to be suppressed by Big Tech.

            3. https://reason.com/volokh/2020/11/17/pennsylvania-supreme-court-on-election-monitoring/#comment-8592522

              Where there is smoke there is fire. What would a cop do if they weren’t sure someone committed a crime, but that same person seemed to be doing everything in their power to stop the investigation, get rid of evidence, and convince everyone around them it isn’t worth talking to the police? That same cop is going to think “gee something is up here….”

            4. https://reason.com/volokh/2020/11/07/does-biden-have-a-mandate-should-it-matter/#comments

              You saying there is no shadow over the legitimacy of this election doesn’t make it so. That is just you looking through partisan blinder and just being a jerk.

            5. And lets finish off with some Pizzagate stuff I’d missed the first time around!

              https://reason.com/volokh/2020/11/22/sunday-open-thread/#comment-8599540

              I think the Dems are used to thinking everyone has skeletons in the closet just like all their kind do. But they forget all the “normals” don’t order “pizza” by email, cheat on their spouse, let their son broker their influence to international businesses, and engage in other similar fraud.

              “Pizza” eh?

              1. Other then the fact that this is creeper kind of stalking, nothing you point affirms your allegation. I bring up lots of suspicion and reasons to cast doubt on the censorship. What is wrong with that?

                And while you are at, please illuminate me on who orders “pizza” via email? No one seems to be able to answer that question. Also love how you fail to mention that Harris was sleeping with a married man (or as we used to call women like that home-wrecker) and Hunter seems to like to peddle a lot of influence which we are supposed to believe isn’t his father.

                1. Jimmy, you asked “What did I say last week? Please let me know.” I did a search. It was not hard.

                  You switched your position, and then tried to lie about it. It did not go well.

                  Don’t go shooting up any pizza places.

                  1. But nothing you copied was even remotely to your original accusation. All you were able to do is cut and paste things completely out of context. This is why no one takes you seriously (aside from the unnecessary comment about pizzagate.)

                    And while you are at it, answer my question. Who orders pizza via email?

                    1. Vague ‘you didn’t actually own me’ won’t do it, chief.

                      Above, you claimed you thought it wasn’t fraud and just a PR thing by Trump, but now you’re being persuaded about fraud.

                      I said that was nonsense, you’ve been crying about fraud for weeks.

                      You asked for evidence, neatly implying I was making things up.
                      I provided it. Which you called creepy.

                      You’re now claiming ‘out of context!’ (four times LOL), and trying to pivot to freaking Pizzagate.

                      It’s actually pretty funny watching you flail. You got wrecked, and your bad faith revealed in a particularly stark way.

                    2. Just to be clear, I have been skeptical of the election results. There is a lot of evidence that points to some type of fraud. It hasn’t materialized yet and perhaps never will. All the quotes you put above are just that – expressions which are skeptical of the vote totals. Above I was saying even if it was fraud it doesn’t look like it was enough to change the outcome of the election. There is a big difference. Do I need to explain that to you with pictures or something?

                      So, alas, you get schooled again. And just for the record you brought up my comment about how weird the left acts compared to normal Americans. Like who orders pizza via email. Would you mind trying to explain that?

                    3. That’s a weak job of splitting the difference. It’s inconsistent with both “I wanted to think this was all part of a PR plan..” and “Where there is smoke there is fire.”

                      You’re making your positions up as you go along. I assume good faith, even with those like you. Maybe you get carried away with your argument sometimes. But this? This shows you’re a bad faith liar through and through. I don’t know what you’re getting out of this, but it’s not an intellectual debate.

                      Please, keep on with the Pizzagate inquiries in other threads. It’s going great.

                    4. It’s not a weak job splitting the difference because if you read my comments (consistent with context) they were also casting doubt where there was serious doubts. Also, raising the point that instead of being concerned like we pretended to be 2016 with illegitimate elections, it was getting glossed over (at best) and outright censored (at worst) this time around. My comments clearly show that but, as you usually do, you tried to spin them a completely different direction. And this time, like many times before, you got caught in the act.

                      As for pizza, maybe someone can answer the question of who orders pizza via email? Seems weird right?

                2. Also love how you fail to mention that Harris was sleeping with a married man (or as we used to call women like that home-wrecker)

                  For those people who thought there was any good faith in Jimmy:

                  https://www.reuters.com/article/uk-factcheck-kamala-harris-willie-brown/fact-check-kamala-harrisandwillie-brownhad-a-relationshipover-adecadeafterhe-separated-from-wife-idUSKBN26Y2RQ

                  1. I’ll save some people the click:
                    “The claim Harris “had an affair with a married man” is technically true.:
                    Shacking up with a married man, to most, is immoral. Again these are the values of us “normals” though. Maybe there is an exemption in the democrat book of morals though for someone who is separated from their spouse (but still has all the legal obligations of marriage and presumably some of the moral ones too.)

                    1. I’m not sure why you think you, rather than Democrats, speak for so-called “normals” on this topic. This is just more Flyover-Country-Is-Real-America nonsense. I think the number of people who would call someone a “homewrecker” in dating someone whose home was wrecked ten years before the putative homewrecker came on the scene is pretty small.

                      One thing I am quite certain of, though, is that people who support Trump have lost any semblance of moral high ground in talking about values. In any context, but in particular in the context of the sanctity of marriage.

                    2. So you accuse me of not posting in good faith, then include a link that prove me right. OK, not “right” in your sense of morality, in you think I was only skating on the “dishonest” side of truth or “technical” as the “fact check” article puts it.

                      Now you are the self declared morality beacon for everyone. Got it. And throw in something about Trump. OK. Anything else you would like to add to your delusional rant while you are at it?

        2. “Maybe this is all theater for the 25% of the voters who want to consume it. Maybe it is sheer insanity. Maybe a bit of both. ”

          Maybe.
          The end goal is cash in Donnie’s pocket. Still not seeing how that is supposed to come to pass, but it’s definitely the endgame.

          1. The only thing I can figure is that Guliani et al are deliberately losing as many cases as they can so that Trump can claim it’s all a big conspiracy against him.

            I mean, the filings are so poor that it must be intentional, right?

            Usually, I go by the adage “never attribute to malice what can be explained by incompetence”, but I think this might be an exception.

            Anyway, you may be right about the money thing – more court losses leads to more grievance which leads to more donations from the rubes. Although one would think that an occasional win would be good for soliciting donations.

  12. I had the pleasure to know then0-Prof Bibas when I was in law school. I will gladly second everything Prof. Alder says. He’s conservative, fair minded, intellectually rigorous, and a consummate legal professional. I might not agree with him every minute of the day, but I certainly respect him.

    It also doesn’t surprise me that he would take the Trump Campaign out behind the woodshed for a whipping like this.

    1. It’s only coincidence that the conspiracy theorists and the conservatives are hanging out together. I don’t expect that alliance to hold up for very long. Once the conservatives ascertain that there’s no point in supporting former-President Trump any more, they’ll drop him like an ineffective buffoon and disavow ever supporting him.

  13. Is this really the comment section at Reason? “They mispelled things!” “I can’t understand why their case would overturn an 81,000 vote margin!”

    My goodness a legal case like this should have months to prepare. They don’t have that. They have days. So get off the ticky tack stuff.

    They are trying to do something in service to the 97% of Trump voters (CNBC Poll) that think this was stolen. This is a huge problem for us as a country, no matter what you think of Trump. Laughing this off or being smug will not solve this problem.

    While this legal team may seem like a train going off the tracks, I see the outline. It’s a multi state, multiple law suite with each suit challenging an aspect of the law. THE LAST THING Rudy wants is to present fraud evidence in a case over ballot curing. He does not have the luxury of time, as every other lawyer would have. He knows he will not be remedied and wants to lose as fast as he can.

    Sure the media will cheerlead every loss. What else would you expect.

    Let me ask the Reason readership what you really think of the 570,000 vote spike vs 3,200 from 3AM-8AM in Philly, while the count (reporting) was stopped? BTW, same for WI, MI, GA. If you want to intellectualize it go ahead, but if this site is filled with pompus asses who overweight intellect and shun wisdom, when it is called for, let me know so I can disregard Reason as a site worth visiting.

    1. So you think these court efforts are going places? What will you think if they aren’t? I think I know, and I think that shows why your argument is unfalsifiable and not worth listening to.

      They are trying to do something in service to the 97% of Trump voters (CNBC Poll) that think this was stolen
      This is circular. Baselessly convince a bunch of your voters that the election was stolen which means it’s legitimate for you to wank about the election being stolen some more.

      And you’re quoting Giuliani about this ‘vote spike.’ You might want to check into that before you make a fool of yourself…

    2. Let’s say you’re right about the election being stolen. (You’re not, of course, but pretend you are.)

      That would be a big deal. A really big deal. The sort of thing that should have some of the top people in the business working on it. Instead you have people who file cases in the wrong court, don’t know the difference between Minnesota and Michigan, and refer to “THE UNITED STATES DISTRICCT COURT, NORTHERN DISTRCOICT COURT OF GEORGIA”.

      Doesn’t it bother you that something so important is in the hands of people so incompetent?

      1. “Let’s say you’re right about the election being stolen….”

        “Doesn’t it bother you that something so important is in the hands of people so incompetent?”

        As far as I’m concerned, Ghouliani is a cross-dressing, abortion-supporting hack. In other words, one of yours. Why would his incompetence surprise anyone?

        I can’t speak for any of the other lawyers. Of course Trump should have considered getting lawyers from some established firm. Too bad he didn’t do that. /sarc.

    3. First, I suspect an awful lot of us don’t consider ourselves to be Reason readers so much as we consider ourselves longtime followers of the Conspiracy going back to the good old days when it was part of the Washington Post. The fact that the blog is now carried by Reason is an unfortunate accident for some of us.

      Second, the fact that “97% of Trump voters (CNBC Poll) … think this was stolen” could not be less meaningful. The election was not stolen — in any state — and laughing off the asinine attempts of idiots like Guiliani, Ellis, and Powell to convince a court — any court — otherwise is the only rational, sane way to deal with their insanity.

    4. “Let me ask the Reason readership what you really think of the 570,000 vote spike vs 3,200 from 3AM-8AM in Philly, while the count (reporting) was stopped? BTW, same for WI, MI, GA.”

      I think the same thing the courts have thought, the same thing the election workers have thought, and the same thing the actual evidence shows. That they were the result of absentee and mail in ballots being added to the voting count.

      1. No one thinks that 99% of mail in ballots went Biden for 6 hours while reporting mysteriously stopped and then returned to their normal 74/26 ratio. They did by the way.

        This stop and stuff method has a known history in developing nations and dictatorships. You realize you can’t catch an 800,000 vote lead on Trump at the 74/26 ratio and so you stop the count, do the math, and bring the votes in the back door.

        On election night, I watched Rich Baris who was reporting data all night, the most accurate pollster in 2020, sigh and shake his head saying “Oh, this is not good, this kind of stuff hurts integrity, guys” He knew, we all knew at that moment what they were doing.

        This 99% ratio does not exist in a natural voting pattern which means only one thing, every one of those votes was a product of human hands.

        Trump won PA by several hundred thousand votes. Period.

        1. You can tell me Joe won mail-ins, you can’t tell me the count stopped and he had several large spikes at 99% worth 570,000 votes to him and it’s all on the up and up.

          1. You’ve figured it out. The clever scheme. That neither Trump, nor the GOP, nor any reporters on the right left or middle have managed to find.

            Or, maybe, your appeal to incredulity relies on a single data point you may or may not have properly understood and not really knowing how the count works.

            1. Sarcasto: I can’t rebut your argument, so I appeal to authority.

              1. You are like someone who has not watched a baseball game before complaining about how the umpires dictate who is safe and who is out.

                You don’t have an argument; you’re just egotistical enough to think you do.

                1. Go ahead, Sarcastr0. Defend it! You can’t obviously so you remain out of the game, lobbing insults. Go ahead, crush me if you can. Do your best. The floor is yours.

          2. I don’t need to tell you. Hell, you probably won’t believe it no matter who tells you. Because you’ve already been told by the courts, by the election workers, and by the fact checkers that your inability to understand how voting counting works is not evidence of voter fraud.

        2. ¨Trump won PA by several hundred thousand votes. Period.¨

          Extraordinary claims require extraordinary proof. Where the hell is your evidence?

          1. Would it though? The fraud is quite simple. All you’d have to do is prove that the most known insecure way to vote was abused at scale.

        3. “Trump won PA by several hundred thousand votes. Period.”

          imaginary Trump imaginarily won PA by several hundred thousand imaginary votes. But over in reality, he got the result he earned.

    5. “My goodness a legal case like this should have months to prepare. They don’t have that. They have days. So get off the ticky tack stuff.”

      So your working theory is that it takes months to spell words correctly?

      1. “So your working theory is that it takes months to spell words correctly?”

        Spellcheck is extremely slow on a Commodore64.

        1. “Spellcheck is extremely slow on a Commodore64.”

          Actually, no it isn’t. I’m guessing you don’t have much experience.

    6. ” but if this site is filled with pompus asses who overweight intellect and shun wisdom”

      You have many friends with similar qualities to yourself. Except that many, possibly most of them, can spell “pompous” on the first try.

    7. this site is filled with pompus asses who overweight intellect

      Nobody would ever accuse you of that sin.

      1. I already did.

  14. A few of the writers are worth reading. Some of the others are worth noting so you can see what the talking points and other dubious claims and nonsense is getting repeated in certain circles.

    Orange Man Bad has it’s hooks irredeemably into some of them, so there’s no room for intellect from them on Trump topics.

    Whatever pattern of votes can be hand-waved away because Orange Man Bad. The ends justify the means and denial denies the means. So there’s no problem and even if there were a problem it’s not a problem this time because they got what they wanted. And if you want to know more you’re a conspiracy nut who hates democracy.

    1. Meant as a reply to Rich Barolla above.

    2. “Orange Man Bad has it’s hooks irredeemably into some of them, so there’s no room for intellect from them on Trump topics.”

      What a convenient excuse for you people unwilling to acknowledge that Orange Man is bad at being President.

  15. Wouldn’t it be nice if the Supreme Court could realize the truth of the second Justice Harlan’s conclusion: that the first section of the Fourteenth Amendment doesn’t affect voting rights.

    https://www.law.cornell.edu/supremecourt/text/400/112

  16. I was wondering why the Court was even considering the merits of issuing a stay, and just now read the opinion. The answer is that the Court didn’t have to, for two reasons. First, the request for a stay was made moot by the Court decision. Second, request for a stay was barred because they didn’t ask the District Court for a stay. (Even I, a non-lawyer, would have guessed that you can’t appeal a failure to issue a stay if the reason the Court didn’t issue a stay is that you didn’t ask for one. I guess I’m overqualified to be on Trump’s legal team.)

    The judges never the less discuss the merits of a stay “for completeness.” I suspect that they thought Trump might try again and wanted to preemptively reject the idea of disenfranchising voters.

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