Good evening, followers of Rudy's judicial hijinks and other interested partes. Trump v. Boockvar - the "The Normal Kind" case - just got tossed out, with prejudice and without leave to amend.

Anyone up for a liveteet? Great, let's get started:…
I sometimes skim before livetweets, but I'm starting this one cold - I didn't even read the snipped that @j_remy_green posted.

I did, however, see the docket. Dismissed with prejudice and without leave to amend suggests that nothing about the case impressed the judge.
We got the punchline from the docket, so there's no need to jump to the end. We can start at the beginning.

The start of the memorandum makes it clear that this addresses only the motions to dismiss - which makes sense. If defendants prevail on this (and we know they did)...
...there's no reason to even worry about the TRO motion. And if the dismissal includes standing grounds, there's unlikely to be reason to worry about the motion to re-amend the amended complaint.
Even if I didn't already know the outcome, I'd have guessed it at this point, which is still on Page 1 of the 37-page opinion.
If Rudy Giuliani or someone with the legal acumen of a turnip or is reading, you don't want to be on the receiving end of "strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence."
OK - so we've got unhappy judge and 12(b)(6) language.

Seriously - this is not the kind of tone any lawyer wants to have directed their way by a court. In this case, that tone is very very well-earned.
This is nice, clear writing. It's one of the more clear explanations of how the Elections Clause fits into the Constitution that I've seen.

(Of course, the judge has almost certainly been working on this since at least Wednesday, and probably earlier.)
The explanation of the background here is also quite good. It's exactly the kind of clear, linear writing I love to see in opinions.

It also does a wonderful job of framing the issue as far as notice and cure is concerned.
I didn't bother to read the complaint thoroughly, but it looks like it was even more deficient than I suspected when I looked at the First Amended Complaint just before the hearing.
This section is, I think, a bit more detailed than required. But it doesn't hurt to have the extra clarity, particularly in an opinion that's very likely to be published.

"Tortured" is another word that you don't want to read, particularly when it refers to your efforts to handle extremely basic procedural steps.

That's in part because a tortured docket leads inevitably to a tortured court, and you don't want to do that.
There appears to be another subtle reminder here that the associate who made the phone call should find a new job, preferably one that will never bring that associate near Judge Brann.

But well-done that associate jumping on the judge's back when Rudy was already breaking it.
Seriously, that might have been the dumbest thing done this election cycle by any lawyer not named Rudolph William Louis Giuliani.
That said, Plaintiffs needing multiple tries to try to amend and attempting to take discovery, resulting in "perceived" discovery disputes, probably did more to aggravate the judge.
Right - so back to what I mentioned earlier about not having thoroughly read the complaint. Here's why just alleging that Philly had a notice-and-cure was stupid: they sued 6 additional counties for the same thing.
I know this seems like it should go without saying but apparently 2020 means it can't:

If you are going to sue someone for doing something, you probably need to allege that they did that thing somewhere in your complaint.
OK. So the first set of lawyers made it 3 days, and the change-out happened right when the preliminary injunction filing was being filed, which isn't at all a point in litigation where you really desperately want stability and coherence.
The rest of the paragraph isn't that important, except it's got our threadnought crossover moment, so let's appreciate just how on-brand 2020 is staying.
The bit where the court says "addressed issues of standing and equal protection relevant to the Plaintiffs' claims" can also be read as "issued binding, case-killing precedent before the ink was dry on the motion for the preliminary injunction."
The discussion of the FAC is important because that's the pleading before the court for this motion to dismiss. (Which will also be relevant if Rudy makes it to the Third Circuit before he finishes melting.)
If this sounds to you like it might hint at some mild annoyance on the part of the judge, you're not alone.
I think this bit is judge-speak for "they didn't even try hard enough to get the participation trophy."
OK, I only just now saw the typo on "livetweet" at the top of the thread. My face is very red, and it's way too late to change it because we have fleets but NO EDIT BUTTON.
Anyway - moving on:

Judge Bann is actually being quite kind to all the Plaintiffs lawyers here. They represented when moving for the substitution, IIRC, that it would not delay matters, then virtually immediately moved to delay matters. That went unmentioned.
I like the way FN 35 deals with the subtraction from the team.
No, this is not how you want the judge to describe your sole remaining cause of action.
You also don't want the court to explain, like they would to a 1L, that you're trying to cobble something together to wriggle around controlling law. Or that you changed your standing theory a couple of days into the case.

Oh, no, that stings.
"The Court will thus analyze Plaintiff's claims as if they had been raised properly..."

Oh, ow. That's harsh. Called for, but harsh.

This is so harsh that not only does it cancel out the dinner recommendation it makes me want to independently check if it was really a good one.
Judge Bann, it seems, is a firm believer in the "bottom line up front" school of writing.
The next couple of paragraphs are the standard boilerplate.
And the plaintiffs go 0-for-2 on standing.
The injury-in-fact finding, for purposes of standing, isn't surprising. I thought that's how the judge was leaning during the hearing.
This part really gets to the heart of the matter, though. Basically, the plaintiff's claim on vote denial boiled down to "we got hurt so you need to hurt everyone else."

That's - not really a thing courts are generally willing to do.
This is what it looks like when you're getting the full benefit of the doubt based on your pleadings but still falling short because your pleadings were painfully inadequate.
The highlighted part is the second or third time the Judge is pointing out that they sued the wrong counties.

And, yeah, denying 6.8 million other people the right to vote doesn't fix the fact that you didn't get to vote.
Oh, that's not a good sentence for the plaintiffs. That's really not a good sentence for the plaintiffs. At all.
*cringing wincing voice*
But the next sentence is even worse. Oh, baby, no, you don't want to make the Court spend days searching through the stuff you cite.
This paragraph is pure snark. It's legal snark, but it's snark.

To translate, the campaign seems to have gone with "we're the campaign, it's an election, of course we have standing" and the judge is going with "lol, no, you still have to satisfy the requirements."
It should go without saying that the judge is correct on that point.
Yeah, this isn't happy cheerful judge. And, seriously, you probably really do want to be aware of the litigation that the campaign you represent has engaged in.
The Cegavske case was before a different court, in a different circuit, and isn't controlling law, so it wasn't unethical to fail to cite it.

Judge Bann's discussion here, which I'd classify as somewhat testy in tone, demonstrates why they should have cited it anyway.
No judge anywhere in the multiverse is happy to find out from sources other than you that you failed to mention that another court has rejected your theory in another case.
OK, now I'm really laughing. Not only is there a crossover between this case and the Vic Mignona LOLsuit, now we've got a birther crossover - Drake v Obama was one of Orly Taitz's early cases.
This may lead to some stuff later, unfortunately. But I doubt we'll see much in the way of explicitly birther litigation directed toward Harris until January.
It makes sense that competitive standing would apply to decisions about who goes on the ballot but not voting rules. Including someone ineligible is a clear disadvantage to eligible candidates (even if often a negligible one).

Voting rules affect all candidates equally.
This remains true even if a campaign subsequently spends months hatching conspiracy theories about a form of voting that dissuade its own voters from using that form of voting.
Standing is done and we're well more than halfway through the decision, so it seems unlikely that there will be too much discussion of the merits.
The highlighted paragraph here discusses changes in the law since Rudy was engaged in the routine practice of law. It was painfully obvious during the hearing that Rudy was insufficiently aware of these landmark cases and their effect on the case he was trying to bring.
I'm going to skip over the next few paragraphs of boilerplate which further elaborate on that message.

Rudy should not skip over those paragraphs.
This bit goes toward that "strict scrutiny" thing that Rudy was having so much trouble with.
Seriously, that question wasn't even a softball pitch. It was T-Ball.

Rudy still managed to both miss the ball and hit himself in the head with the bat.
"Do not articulate why" is another "seriously, did you read what you filed before you filed it" moment.
The court going ahead and looking at the stuff that you took out then tried to put back isn't a great sign for the plaintiffs.
Here, we find the thing Judge Bann was trying to get Rudy to discuss.

Unfortunately, not only was Rudy - a lawyer bringing an elections case on behalf of a sitting President - unaware of how strict scrutiny works in this context, he was also unfamiliar with how it works at all.
I absolutely guarantee you that Judge Bann was prepared to have a detailed, on-the-record discussion of Anderson-Burdick balancing with Rudy, and that there were probably ways Rudy might have been able to help his client's case.

What Judge Bann got was "the normal kind."
Seriously, there was little chance that Rudy would have been able to push the needle all the way to "strict scrutiny," but I suspect that Judge Bann would have been open to arguments that it shouldn't just be rational basis review.
For the nonlawyers:
A good rule of thumb is that if a court is going to apply strict scrutiny, the government probably loses; if rational basis applies, the government almost always wins.
So Rudy blowing this one wasn't a small deal. The standard of review is wonky lawyerly stuff that doesn't get much attention outside law, but getting the standard of review you want can save your whole case. Literally.
Not only did Rudy apparently not know what standard of review he wanted for this case, he appears to have forgotten (if he ever actually knew) that standards of review are a thing in constitutional law AT ALL.
Also, I've been referring to Judge Brann as Judge Bann all thread, for which I both apologize and blame the fact that I was reading a Judge Dredd omnibus just before the opinion came in.
Short, simple, clear writing. Again. I do like this judge's style.
"Unhinged" is another one of those words you don't want to see in an opinion that's dismantling your case. But it was a word that, given Rudy's performance, was inevitably going to appear somewhere in here.
Footnote 118 is pretty spectacular. By which I mean "yikes."
This is, however, *EXACTLY* what Republicans are trying to do in state after state. They like most of the downballot outcomes, and they want to keep those. It's just the Presidential result they're trying to get rid of.
"Level up" and "level down" are options. "Throw the controller" is not.

Plaintiffs seek to have the court throw the controller.
The court really isn't happy with how the Plaintiffs tried to approach this case.
Not the kind of use of italics you want to see if you're on Trump's team.
It looks like we're moving on to the "beat on the plaintiffs a little bit for trying to argue their withdrawn claims in their opposition to the motion to dismiss" part of the opinion.
Yeah, "both campaigns were treated the same" is just the tiniest bit damaging to an equal protection claim.
A recurring theme throughout this has been that the pleadings were simply terrible. Although, in fairness, given that the campaigns apparently were treated the same, no lawyer could allege otherwise without violating Rule 11.
The Bush v Gore argument discussion is interesting, but I'm not going to take a deep dive into it just now - let's just say that it doesn't do what Trump's people want, and that's been true in all the cases they've brought.
And this is the crux of the matter, not just for this case but for most of the cases the Trump team has filed so far - different counties have different needs, and can have elections systems tailored to their own needs without violating the Constitution.
And leave to amend is denied because it would unduly delay resolution of the issues.

With that, we're done.
That wasn't as bench-slappy as it could have been, but it's certainly not the kind of ruling that a lawyer would want to frame or otherwise wear as a badge of pride.
Basically, it's clear that Judge Brann viewed this as a bad case brought badly.

Which is accurate.


Another thing that should go without saying:
Getting to the Supreme Court quickly can be good. But it's also good to get there under your own power, rather than on the momentum from the kick in the ass the courts below just gave you.

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More from @questauthority

23 Nov

Good afternoon, trainwreck and Pennsylvania Trumpian Litigation fans, let's get started.

I'm not going to link the filing directly here - don't want to take the time to upload it, but it should be up at this site soon.…
And I'm guessing people will give the links in the comments here when it shows up. It's long, so without further ado let's get rolling. (I want to finish in the next few hours to have time for my stream later.) Image
Read 50 tweets
23 Nov
Good afternoon, fans of out-of-control rolling stock and other followers of election litigation. It's 20 minutes to the deadline for the opening brief, and Appellants (that's the Trump team) have filed something that's not an opening brief.

Let's dig in.
The Trump people just submitted something styled as a "Appellants' Motion to Submit Emergency TRO Motion With a 6,500-Word Limit"

This is - ummm, how can I put this diplomatically - a novel document.…
There is, to be fair, a procedure for trying to obtain an INJUNCTION pending appeal. (This isn't it.)

I'm not sure that appellate temporary restraining orders are even a thing.
Read 12 tweets
23 Nov
Good afternoon, followers of Rudy's Pennsylvanian Misadventure - NEW FILING!!

I'll link the full document on the next page - and let's dig right in.
It would appear that Allegheny County might have been as confused as I was by this morning's filing, and they want the Court to help clear up their confusion.… Image
Yup - it looks like Allegheny County is less than thrilled about the apparent plan to split up the appeal and wants the 3rd Circuit to remind Rudy that this isn't the way anything works. Image
Read 9 tweets
23 Nov
Note: Allegheny county is one of the counties being sued in Trump's continuing Pennsylvania train wreck.

So that's part of the relief they requested in the operative pleading that's now moot.
Centre County has now also mooted the relief that Trump's campaign was seeking against them.

Read 8 tweets
23 Nov
Good morning, followers of Rudy's judicial hijinks and other interested parties. The First Amended Motion to Expedite the appeal of the Pennsylvania lunacy is now available.

Let's see how big a trainwreck this one is.
That this will be a trainwreck is beyond question.

These yahoos are appealing the denial of permission to file a 2nd Amended Complaint. The grounds given by the court in denying permission were that allowing amendment would result in "undue delay." Image
When you are filing a "Motion for Expedited Review" with a court of appeal asking for review of a decision that said that letting you do a thing would create undue delay, is it critical that you do everything humanly possible and more to show that you're not delaying anything.
Read 27 tweets
23 Nov
Good evening, followers of Rudy's judicial hijinks and other interested parties. The Motion to Expedite the appeal of the Pennsylvania lunacy is now available.

Your livet[w]eet starts now:
At the start it's worth noting that this is a 6-page document, so it's clearly not a merits brief. Instead, it's simply a motion for expedited review.

By the time the 3rd Circuit is prepared to rule on this, some counties may already have certified. Image
Seriously, we're about 14 hours out from at least one of the counties these clowns want to enjoin completing certification, we're more than 24 hours past the ruling they're appealing on an "emergency" basis, and this is what they came up with.


But let's dig in.
Read 18 tweets

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