Yesterday morning, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia dismissed Donald Trump’s lawsuit challenging the state’s ballot-counting and -certification process. Trump’s next move would be to head to the Supreme Court, just as his legal team has proclaimed all along. But don’t be fooled; Trump’s chances of getting any Justice to take his case seriously are as bad as Rudy Giuliani’s oral argument performance (calamitous by “any standard of review!”). The case is dead on arrival.
This saga began nearly a week after Election Day when President Trump filed suit in a Pennsylvania federal court. His attorneys alleged that Kathy Boockvar (Pennsylvania’s Secretary of State) and seven counties violated three clauses of the U.S. Constitution during vote tabulation. They requested a preliminary injunction to bar Pennsylvania from certifying the election results.
The procedural history is quite laughable. First, Trump’s attorneys set out six counts of wrongdoing. These included the much-blustered-about allegations that poll watchers were not allowed to observe the ballot counting process. Boockvar and the counties moved to dismiss the suit.
Then Trump’s legal team asked to amend the complaint. Judge Matthew Brann granted the request. In the First Amended Complaint, Trump’s attorneys deleted four of the six counts—including all counts about poll watchers. Boockvar again moved to dismiss.
Then Trump’s legal team sought to amend the complaint again. They wanted to re-add the counts they had just deleted and tack on a few new ones. During this process, Judge Brann heard oral argument from both parties. Rudolph Giuliani (among others) represented Trump. Spoiler alert: It did not go well. Giuliani conceded that Trump was not, in fact, alleging voter fraud. He appeared not to remember the concept of “standard of review”—something every first-year law student learns. And, to give credit to the judge, Brann had to verbally assist Giuliani with the proper procedures for asking to file a second amended complaint.
Unsurprisingly, Judge Brann rejected the team’s request to amend their already-once-amended complaint. He then dismissed Trump’s suit and denied injunctive relief.
Trump appealed to the Third Circuit Court of Appeals. His attorneys chose only one, narrow ground for appeal. They argued that Judge Brann erred when he denied them leave to file a Second Amended Complaint. For good measure, they requested the same injunction against certifying Pennsylvania’s vote totals.
The Third Circuit issued a 21-page, unanimous opinion written by Stephanos Bibas (a Trump appointee, Columbia-Oxford-Yale Law grad, who is held in high regard in many legal circles). It eviscerated Trump’s appeal. Bibas penned a cool, calm, measured opinion and left Trump with just two narrow, unattractive grounds for appeal to the Supreme Court.
First, Bibas held that Brann properly denied Trump’s request to further amend his amended complaint. With a subtle jab at Giuliani, Bibas wrote that Brann got it right “on any standard of review.” Bibas presented a few supporting arguments. For starters, he noted that Trump’s litigation strategy was self-defeating. A hallmark of Trump’s argument in his Original and First Amended Complaint was that Judge Brann should issue his decision before Pennsylvania’s deadline for certification. Yet Trump then objected that Brann was wrong to deny leave to file a Second Amended Complaint, which Brann did in order to issue his decision by the certification deadline. “Having repeatedly stressed the certification deadline,” Bibas wrote, “[Trump] cannot now pivot and object that [Judge Brann] abused [his] discretion by holding [Trump] to that very deadline.”
In addition, a Second Amended Complaint would have been “futile,” Bibas concluded. That complaint was heavy on allegations but “light on facts.” Trump had already litigated most of the complaint’s allegations in other courts—and lost. And Trump didn’t support his “Equal Protection Clause” allegations with any evidence showing discriminatory treatment.
Second, Bibas rejected Trump’s request to block certification of Pennsylvania’s election results. In fact, Bibas couldn’t grant it even if he wanted to. In a fitting display of litigation incompetence, Trump requested the wrong kind of injunctive relief. Trump asked for a stay or preliminary injunction, but it was clear from his brief’s arguments that he really wanted an injunction pending appeal. Given this error, Trump of course “neither requested [an injunction pending appeal] from [Judge Brann] during the appeal nor showed that it could not make that request, as required by Federal Rule of Appellate Procedure 8(a)(2)(A),” Bibas pointed out. “That failure bars the motion.”
But even if Bibas could grant injunctive relief, “[h]e would not.” Injunctions are extraordinary remedies, and parties requesting them must prove that four certain “factors” are present. None of them are present here, Bibas wrote. First, if it isn’t clear already, Trump is not likely to succeed on the merits of this case. Second, he hasn’t identified any irreparable injury, especially since his attorneys admitted he isn’t alleging fraud and the number of ballots he has challenged is far fewer than Biden’s margin of victory. Third, granting relief would disproportionately harm the millions of Pennsylvanians who voted properly. Trump filed his complaint quite late (hence his requests for expedited decisions); he cherry-picked the votes he wants discounted, zeroing in on blue counties and not red counties; and he would have 1.5 million Pennsylvanian votes thrown out without even alleging voter fraud in court, let alone proving it existed. And fourth, granting Trump the relief he seeks would both disfavor the public interest and violate Pennsylvania election law.
Given Trump’s stunted litigation strategy and the strength of Bibas’ opinion, Trump has limited options for appeal to the Supreme Court—none of them sexy. He could argue that the Third Circuit erred in finding that Judge Brann properly denied Trump leave to file a Second Amended Complaint. He could argue that the Third Circuit (somehow) had authority to grant him the injunctive relief he seeks and then erred in refusing to so grant. Neither option presents the significant legal question that the Supreme Court is accustomed to seeing, let alone granting.
At best, Trump might get a concurrence from a Justice Thomas or Alito about the “importance of allowing the President of the United States to litigate.” See Trump v. Vance (2020); Trump v. Mazars USA, LLP (2020). But nothing more. If Trump appeals, the most likely outcome is a quiet dismissal. It takes four Justices to grant a case and five to grant emergency relief. Legal questions so starkly procedural and technical as the ones above are not likely to intrigue even one Justice—especially in a case inebriated with politics and sober of actual legal dispute. Trump’s lawsuit remains as frivolous, futile, and farcical as the day it was filed.
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