Sunday, November 29, 2020

‘This is simply not how the Constitution works’: Federal judge eviscerates Trump lawsuit over Pennsylvania results

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Trump has faced a series of legal and political setbacks in the last two days. Some of his allies on Capitol Hill have begun to publicly recognize Biden’s victory. Michigan state lawmakers, whom Trump summoned to the Oval Office on Friday, emerged insisting they would not intervene in their state’s election process to aid Trump. Georgia’s Republican governor and secretary of state certified a victory for Biden Friday, despite Trump’s objections. And a Republican-controlled board in Arizona’s largest county certified its results Friday evening and rejected any claims of fraud.

The sharply worded, 37-page opinion is a blow to the lawyer Trump picked just last weekend to spearhead his legal efforts to challenge the election, former New York Mayor Rudy Giuliani. Giuliani made an unexpected appearance in Brann’s courtroom in the small central Pennsylvania city of Williamsport on Tuesday.

Trump was counting on Giuliani’s presence to reverse the public narrative that the campaign’s legal drive to salvage the election was failing. Instead, Giuliani was mocked by legal commentators for being unprepared, unfamiliar with basic legal standards applicable to the case and even for forgetting the name of the judge.

Brann also expressed alarm at the draconian relief that Giuliani sought: The disenfranchisement of 7 million Pennsylvania voters — the state’s entire electorate — in the hopes of stripping its 20 electoral votes from Biden’s column.

“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,” he said, “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 … That has not happened.”

In his opinion, Brann picked apart each argument offered by Giuliani.

The judge dismissed the Trump campaign’s argument that its observers were unfairly denied access to vote-counting operations in certain counties, noting that both Trump and Biden’s observers were subject to the same restrictions. He also said the Trump team’s lawyers misunderstood the lessons of Bush v. Gore — the Supreme Court ruling that delivered the 2000 election to George W. Bush — in their attempt to apply it to the current case.

And Brann rejected the notion that counties who offered voters an opportunity to “cure” defective mail-in ballots should have those votes thrown out because other counties — those with a larger proportion of Trump voters — did not. The decision not to offer voters a chance to cure ballots was not made by the parties the Trump campaign sued, namely Boockvar and seven heavily Democratic counties.

In rejecting this claim, Brann shredded the Trump legal team’s mix-and-match approach to their argument.

“This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent,” Brann wrote.

Brann was appointed by President Barack Obama, but 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.

“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. 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,” the judge wrote.

The court also rejected an attempt from the Trump team to further amend its complaint.

“Given that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims; and (3) the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020, amendment would unduly delay resolution of the issues,” Brann wrote.

Brann also frowned on the merry-go-round of representation that marked the Trump campaign’s efforts throughout the suit.

“Although this case was initiated less than two weeks ago, it has already developed its own tortured procedural history,” Brann wrote. “Plaintiffs have made multiple attempts at amending the pleadings, and have had attorneys both appear and withdraw in a matter of seventy-two hours.”

Brann mentioned in passing a “rude and ill-conceived voicemail” one of the lawyers representing Trump received from a junior attorney at Kirkland & Ellis, saying it “distracted the Court’s attention from the significant issues at hand.” The judge said the message was inappropriate but he rejected a Trump lawyer’s request to impose sanctions on the firm, whose attorneys represented Boockvar.

The Trump campaign wasn’t the only party to the case to face some upheaval on its legal team. On Friday, the Kirkland lawyers moved to withdraw from the case, to be replaced by a team from the law firm, Kramer Levin, which included a key lawyer for Democrats during the impeachment of President Donald Trump, Barry Berke.

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