Late Saturday, by way of an Order and Opinion, U.S. District Court Judge Matthew W. Brann dismissed President Donald J. Trump's unprecedented "legal" effort to prevent the Commonwealth of Pennsylvania from certifying the results of an election in which his opponent, Joseph R. Biden, defeated him by more than 80,000 votes, according to the soon to be certified, unofficial results. Judge Brann also dismissed Trump's Motion for a Temporary Restraining Order (TRO) as moot.

The reasons for bringing what the judge clearly found to be a frivolous and absurd legal challenge to a swift conclusion were summed up by the Court in the "Introduction" to his 36-page eviscerating opinion...

The judge later went on to say [emphasis his]: "Prohibiting certification of the election results would not reinstate the Individual Plaintiffs' right to vote. It would simply deny more than 6.8 million people their right to vote."

It is of little moment that Trump's personal attorney, Rudy Giuliani, said he would seek an "expedited appeal" of the decision to the U.S. Third Circuit Court of Appeal. There is seemingly no chance that the 3rd Circuit would issue a TRO to prevent the Counties from certifying their results on Monday, Nov. 23, as mandated by PA election law statutes.

As the Intervenor Defendant Democratic National Committee (DNC) correctly observed in its Opposition to President's TRO Motion, the Trump Campaign, whose attorneys conceded they did not have evidence of fraud, asked the Court to block certification so they "might gather evidence to support" their speculative accusations. That, the DNC observed, has "the legal standard backwards: Plaintiffs must demonstrate that they have a likelihood of success on the merits before obtaining such relief; a preliminary injunction is not a fact-finding tool to confirm speculative claims."

Any delay could cause irreparable harm to millions of PA voters who lawfully cast their votes because it could potentially "prevent certification of election results on a Commonwealth-wide basis in time to meet the federal safe-harbor deadline [December 8]...or even the meeting of electors to cast their votes (December 14)", the DNC added.

For the record, though Judge Brann was appointed by President Barack Obama, he is a member of the right-wing Federalist Society and National Rifle Association. As Politico notes in their coverage, he "is regarded as a conservative judge and an atypical Obama nominee. Brann, who was selected by Sen. Pat Toomey (R-Pa.), served as a regional Republican Party chairman in Pennsylvania for about a decade before being nominated to the federal bench."

UPDATE, 11/23/2020: The U.S. 3rd Circuit Court of Appeal issued an Order scheduling an expedited briefing schedule on Trump's Amended Motion for an Expedited Review. The Appellate Court directed Trump's attorneys to file their brief before 4:00 p.m. (ET) today and gave the respondents until 4:00 p.m. tomorrow to file their opposition briefs, adding: "The Court will advise if oral argument desired."

Trump's appeal did not seek to prevent PA counties from certifying the results --- a task that, by statute, should be completed today. It simply asked that Trump be allowed to file a second amended complaint.

U.C. Irvine Law Professor Rick Hasen, one of this nation's foremost experts in election law, described Trump's appeal as seemingly "crazy", "bizarre" and "weak":

The "scathing ruling" included Judge Brann's observation that the "haphazard" manner in which Trump's lawyers "stitched together" their case was analogous to the erection of "Frankenstein's monster".

UPDATE 11/27/2020: By way of 21-page Opinion, authored by Judge Stephanos Bibas, a former Univ. of PA law professor and member of the ultra-conservative Federalist Society, a U.S. Third Circuit Court of Appeal three judge panel unanimously rejected the President's appeal from Judge Brann's dismissal of Trump's First Amended Complaint without leave to amend.

At the outset, Judge Bibas observed:

Judge Brann did not abuse his discretion in refusing to permit Trump to file a second amended complaint. Setting aside untimeliness --- here the election has already been certified --- the proposed second amendment complaint amounted to nothing more than an effort to "repackage", as a federal issues (Due Process and Equal Protection), the Trump's campaigns unsuccessful efforts to repeatedly challenges PA's election laws in state courts. This included cited PA Supreme Court rulings that limited partisan poll watchers to county residents and which upheld setting distance limits between poll watchers and counting tables.

"[N]othing in the Due Process Clause requires poll watchers or representatives," Judger Bibas observed, "let alone watchers from outside the county or less than eighteen feet from the nearest table. The Campaign cites no authority for those propositions, and we know of none."

The Trump campaign complained that Democratic majority counties were more lenient in offering voters the ability to cure mail-in ballots than had been the case in some Republican majority counties. But the Court observed that these types of variances didn't reveal an Equal Protection violation because the Trump campaign "never pleads nor alleges that anyone treated it differently from the Biden campaign" either with respect to restrictions on poll watchers or in permitting voters to cure defects in their mail-in ballots.

The proposed second amended complaint did not allege "facts showing improper vote counting." It did not allege "facts showing that the Trump campaign was singled out for adverse treatment."

While the above rulings were dispositive, the Court also pointed to the multiple reasons why there was no justification for the drastic request that the appellate court stay PA's certification of the Election. "Democracy depends on counting all lawful votes promptly and finally," Judge Bibas observed, "not setting them aside without proof. The public must have confidence that the Government honors and respects their votes."

                 

Article Categories: Pennsylvania, DNC, U.S. Constitution, Accountability, Rudy Giuliani, Joe Biden, Donald Trump, Election 2020