Thread by @gabrielmalor

Pennsylvania hearing in Trump's challenge to the election is getting started. Automated phone system says there are 3,999 people listening. (Out of a max 4,000 capacity.)

Right now they're doing appearances. This is just where the judge confirms who's present for which party. Most a physically present. A few were appearing telephonically.

Giuliani just confirmed that he will be the lead attorney for plaintiffs.

Giuliani says they want to amend the complaint a second time to restore one of the due process claims they deleted in the filing on Sunday.

All this shuffling among attorneys and the amended complaint suggests there have been strategy disagreements among the plaintiff attorneys.

Giuliani now saying they want to bring back a due process claim they dropped on Sunday is of a piece.

Alright, we're getting started to the meat of it. Giuliani is starting with a broadside on mail-in voting in general.

He keeps referring to voter fraud.

Note: there is no voter fraud causes of action in the lawsuit as filed.

Giuliani is now arguing that GOP observers were not allowed to view all of the counting of mail-in ballots in Democratic stronghold counties of Philadelphia and Allegheny.

Note: the campaign dropped the GOP observers causes of action from the lawsuit on Sunday.

Giuliani previously confirmed that the Electors Clause claim is foreclosed by a 3d Cir. decision from last week.

That leaves the equal protection claim related to cured ballots. So far Giuliani has not mentioned this cause of action.

Finally, Giuliani has got around to the cured ballots question. This is the only live issue in this lawsuit at the moment.

And . . . line went dead.

Le sigh.

We'll see if we can get it back. So far, Giuliani has meandered through wild allegations, unmoored from this particular lawsuit. He needs to focus on the notice/cure issue.

Well, that was very interesting while it lasted. Sounds like everyone just got kicked off.

Man, you'd think they'd have these phone conferences figured out by now. It's only been nine months since the pandemic started and everyone switched.

(Or the federal district courts could just bite the bullet and switch to good ol' reliable YouTube streaming like so many state courts and a few of the federal circuit courts.)

Alrighty, I am back in the teleconference for the Trump campaign's federal challenge to the election in Pennsylvania.

I think they will be resuming again momentarily.

Defense counsel is talking about the equal protection claim. He's reviewing cases that find no constitutional violation in allegations that state procedures were altered in aways which expanded the right to vote.

There's a new defense lawyer on to talk about abstention (short version: fed. courts stay out!), and he wants to talk about a few things that Giuliani raised first.

Unfortunately, he's appearing remotely, and I can't understand him very well.

This new defense attorney has a bit of a Trumpian way of talking. He's insulting Giuliani—"I don't think he understands or has even read the argument". A minute ago he referred to today's PA Supreme Court decision, and had an aside about the "Chief who is a great Chief justice."

Okay, I said he had a "Trumpian way of talking" before. Now he's more yelling in anger that he even has to be talking about this a la Bernie.

Not a great way to argue in district court.

This new guy just said "I say hallelujah! for Secretary Boockvar."

I really don't like this guy. This is not good argument.

The short of it is that this guy giving a very dramatic paean for voting. Which is cool, just out of place in this venue.

While we're on a break, I would definitely read a few hundred words on the logistics of an AT&T conference call with 8,000 participants.

Both sides have now had their say, and the judge has questions.

To plaintiffs: (1) how can it be justified to disqualify all of PA's votes based on a complaint from two voters that they didn't get to cure their ballots.

Giuliani answers, that the mail-in ballots have to be thrown out bc "those ballots could be from Mickey Mouse!"

He alleges the same conspiracy to change ballots occurred in Michigan and another state (I missed it, maybe Wisconsin).

I'm not sure that Giuliani is actually answering the question.

Says the two plaintiff voters lost their right to vote because they voted in their counties rather than one of the Democratic counties.

Giuliani asks, rhetorically, "Why would they sue in their counties? Their counties were following the law. . . . They didn't do anything wrong?"

This is never going to fly.

Giuliani returns to the issue of whether GOP observers were allowed to watch counting, claims that is still part of the lawsuit even though that cause of action was dropped out of the complaint on Sunday.

The judge tries to stop him and ask a question, and Giuliani just runs over the judge.

The lead defense attorney chimes in to point out again that the only claim left that's still live is the equal protection claim.

The judge's second question is also to plaintiffs, and he point-blanks the issue: "neither count in the amended complaint alleges fraud, right?"

Giuliani responds that they are alleging fraud.

Judge nudges him again, "remember what I am bound to look at."

Heh.

Okay, a bit of a retreat for Giuliani, who seems to concede that the complaint does not plead fraud.

Third question, also to plaintiffs: why are you suing defendants when you could have sued the counties that caused your client's injuries?

(namely, not being given an opportunity to cure bad ballots)

Kerns answers that they can sue these counties rather than the counties which disqualified the plaintiff-voters' ballots because they're seeking vindication under the equal protection clause.

Giuliani says it is a classic Bush v. Gore case to set up a system where the northern counties treated ballots differently than the defendant counties.

Fourth question is along this line: what action by Sec. Boockvar set up this allegedly different system of treating ballots?

Kerns assails Boockvar's authority, says she did not have the authority to change the law.

(But this doesn't actually answer the question. As I pointed out when the lawsuit was filed, Boockvar's instructions went out to *every* county, not just the defendant counties.

IOW, she didn't set up a different system for anyone.)

Fifth question from the Judge to plaintiffs: "is the campaign bringing its own equal protection claim, or is the equal protection claim derivative of the plaintiff-voter claim?"

I think Kerns isn't sure how to answer this one, so she sticks with the safe answer: "it's both."

Judge pokes at Kerns: "aren't you happy I kept you as co-counsel on this case?"

(She asked to withdraw yesterday, and was denied.)

6th question to plaintiffs: does the campaign have standing to pursue the plaintiff-voters' rights when they could sue for themselves?

The answer here is by Giuliani, and it's a word salad. Sorry.

7th question is about whether counties are really "Republican counties" or "Democratic counties."

Giuliani is not responsive. Actually, tries to turn things back to Sec. Boockvar, which isn't a bad move.

Oops, references again restoring the dropped due process count.

8th question from Judge to plaintiffs is whether they have an 3d Cir precedent on the question of competitive standing.

(This district court comes within the 3d Cir. Court of Appeals.)

There's a new plaintiff attorney answering now, and the answer seems to be maybe there was a district court case from the 1990s that was affirmed on appeal.

He keeps referring to it as his own case, which is interesting.

9th question: beyond competitive standing, is the campaign asserting any other theories of standing.

Giuliani jumps in: "yes, your honor." But more word salad follows. Giuliani's answer just doesn't reach the elements of standing. He instead goes back to GOP observers.

WRT to the 8th question -->

https://twitter.com/bradheath/status/1328836949713571840

Giuliani has not answered the judge's question about which alternative theories of standing the campaign is arguing.

Gives a rambling answer about miscounting ballots "around the country."

LOL, defense counsel googled that case that plaintiffs offered and points out that it doesn't have anything to do with standing.

Judge says "yeah, we didn't find it either."

10th question: turning to the merits, what standard of review should I apply?

Giuliani: "The normal one." But he thinks the judge is asking about the standard on a motion to dismiss.

Judge asks "strict scrutiny?" I think he's talking about merits.

Judge is clarifying question "how does making it easy for some people to vote burden plaintiff's right to vote?"

Kerns returns to the notice/cure claim, and the judge asks again: "the action of the [GOP] counties constitute a denial of the vote?"

Giuliani chimes in: either everyone should have been able to cure, or no one should have been able to cure.

Judge: "if I conclude that rational basis standard applies, why don't the defendant's actions meet that standard."

Giuliani: "how is it rational for one state to have two vastly different standards depending on the location in the state?"

Judge getting animated now: "hold on, why is this a constitutional question, and not more properly determined by the state?"

Giuliani returns to his theory based on Bush v. Gore.

Judge now has some questions for the defense. But defense wants a chance to respond to some of these plaintiff answers.

First question for defendants is about standing.

Second question is "why doesn't the Trump campaign have standing here?"

Defense counsel Donovan says they cannot point to causation or redressability. (These are two constitutional components of standing.)

Giuliani jumps in to make the point that vote dilution is the same thing as vote denial. (It's not.)

Third question for defense: why isn't this redressable?

Fourth question is on Pullman abstention.

Fifth question is on Rooker-Feldman, which is whether federal courts exercise appeal authority over state court decisions in all but some specifically excepted cases. (Answer: no.)

People are laughing over Giuliani's "the normal one" answer, but I think he was legit confused about whether the judge was asking about the standard applied to motions to dismiss rather than the merits.

https://twitter.com/gabrielmalor/status/1328838287197343744

Judge Brann is done with questions.

He's covering some housekeeping. Sets tomorrow at 5pm for plaintiffs to file a brief in opposition to the motion to dismiss.

Giuliani, dumbly, asks if he's getting leave to amend the complaint again.

Oh boy, Judge Brann sounds like he's not quite as amused as he was a little while ago.

So plaintiffs can file by 5pm tomorrow, and defendants can reply by noon on Thursday.

Judge also suggests that plaintiffs might consider a new motion for prelim injunction since they amended the complaint. Also by 5pm tomorrow.

Judge noting that to amend the complaint again, they have to get leave to file from the Court or concurrence from defendants.

Judge: "I'm not a betting man, but I bet they will not concur."

Judge explaining to Giuliani that there is actually a procedure for amending a complaint another time.

(You get one freebee in federal court. Then the rule is you have to ask permission since everyone is mad that you've wasted everyone's time the first two times around.)

Judge Brann is finishing up with a tiff that happened between Linda Kerns and some associate at Kirkland & Ellis.

Judge says "this is not a sanctionable thing," but sends Donovan to remind the chuckleheads that Kerns, Giuliani, and Scaringi have a right to represent clients.

Judge repeats that "it's not sanctionable, but it's bad form."

"Convey my disdain back to your man."

Judge apologizes to Kerns.

Eeesh, that guy exercised bad judgement.

Kerns notes that she does not want the associate's name to be out. As far as she knows it isn't.

Kerns is complaining that Donovan wasn't responsive to her when she complained. I think she's suggesting that Donovan should be instructed to apologize.

I think there's a dog barking on the line now?

Clearly, somebody is over this.

I can't tell what the judge is saying.

Ah. Judge is now suggesting that if Kerns still wants out, she can file another request to withdraw.

The judge is now suggesting that if any lawyers are staying in town, they should patronize one of the restaurants in town.

JUDGE. ENOUGH.

Alright, I'm out.

I hope that was edifying, if you're still with me. If it was driving you nuts, next time use the "mute this conversation" feature in the future.

Judge Brann has now made an audio recording of Tuesday's wild hearing in the Trump campaign's challenge to the election in Pennsylvania available on YouTube.

My live tweets of this hearing are upthread.

Fed. judge dismisses the Trump campaign's lawsuit challenging the election in Pennsylvania. And he denies leave to amend the complaint another time.

Judge Brann rejects the "strained legal arguments without merit and speculative accusations, unpled in the operative complaint."

Here's the link to the ruling: courtlistener.com/recap/gov.usco…

This is brutal.

"Frankenstein's Monster."

"Dismissal with prejudice" means that neither the campaign nor the voters can bring this lawsuit again.

https://twitter.com/Tmuster1/status/1330292748830773249

First, Judge Brann finds that neither the voter-plaintiffs nor the campaign has standing.

The judge notes that the remedy sought for the voter-plaintiffs doesn't doesn't actually restore their votes, it disfranchises 6.8 million other people.

They therefore failed to demonstrate redressability.

If that sounds vaguely familiar to you, it's because that's what I wrote on the day that they filed this lawsuit:

https://twitter.com/gabrielmalor/status/1325943153770291200

Judge Brann discusses the various cases the Trump campaign relied on to claim it had standing, including the, Marks v. Stinson, whose plaintiff, in an ultra-surreal moment actually stood up and argued to Judge Brann during Tuesday's hearing.

The judge was not persuaded.

Judge Brann could have stopped there, but he's more professional than that, and I'm sure he's figuring that this will be appealed.

So he discusses, in the alternative, whether plaintiffs have actually pleaded a claim.

Note: we're not in a situation where this case can spend a lot of time bouncing back and forth between the district court and the circuit court, assuming anyone appeals.

So the court will make the alternative sufficiency of pleading ruling to expedite things. It's a good move.

On the voter-plaintiffs' equal protection claim, " it is perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots."

And the judge returns to the rights-remedy mismatch.

"This is simply not how the Constitution works."

And there's a terrific footnote in here about an issue I think I saw @bradheath flag first. Judge notes "[c]uriously" plaintiffs seek to block only the presidential results even though the allegedly bad ballots have other races.

@bradheath And Judge Brann rejects the campaign's legal theorycraft about Bush v. Gore.

"[T]hey misapprehend the issues at play in that case."

Alrighty. What happens now, you might ask? First, note we're on a clock: Pennsylvania certifies the vote on Monday.

Plaintiffs can seek reconsideration. (There isn't time for this, and it isn't going to happen anyway.)

Plaintiffs can appeal. This would go to the 3d Cir.

As part of an appeal, they can ask the 3d Cir. to temporarily stop Pennsylvania from certifying the vote on Monday while the appeal is considered. (I would expect them to go this route.)

LOL. "Losing this case is going to help us get it expeditiously to the Supreme Court."

Okay. Go with that.

https://twitter.com/Bencjacobs/status/1330322997740261377

The campaign statement is, much like this lawsuit, gibberish.

The Trump campaign now cliams that "Democrats eliminated our opportunity to present 50 witnesses and other evidence."

Um . . what?

The campaign also weirdly implies that Judge Brann censored them, and then says he was gracious.

"We are disappointed we did not at least get the opportunity to present our evidence at a hearing. Unfortunately the censorship continues."

Odd, but not, err, unexpected from these particular lawyers.

This line:

Democrats eliminated their opportunity to present witnesses and evidence?

Huh?

BTW, if you are huge lawgeek nerd, you can go back through here, where I live-tweeted the hearing, to see how Judge Brann's questions and the campaign's utter failure to offer persuasive answers impacted the outcome.

https://twitter.com/gabrielmalor/status/1328836937252220931

Remember "the normal one"?

The judge is like "I straight-up asked you this! I told you this was going to be an issue!! Why didn't you brief it?!"

And the fifth and sixth questions from the judge had to do with whether the campaign's claim was derivative of the plaintiff-voters and whether the campaign could have standing if so.

That naturally ended up in the judge's decision going against the campaign.