Brad Heath Profile picture
23 Nov, 22 tweets, 7 min read
President Trump's lawyers have filed their Third Circuit brief. They're asking the court to reverse the district court's decision that they could not amend their complaint a second time.
Trump's lawyers want to make clear that they're not "seeking to disenfranchise 6.8 million voters." They're seeking to disenfranchise some subset of 1.5 million voters who cast absentee ballots in some counties.
(Though their lawsuit literally asked that the court prevent the state from certifying the results of the election.)
Trump's lawyers say the only issues they want the Third Circuit to resolve are whether they should have been able to amend their complaint to reinstate claims they dropped by mistake, and whether they can revive a related injunction motion.
Trump's lawyers want to be able to go back to the district court so they can argue that a bunch of election procedures they didn't like - curing of mail-in ballots, canvassing observation, etc - were part of a deliberate scheme to help Joe Biden become president.
Trump's lawyers say PA's "guidance" that counties count absentee ballots without the required secrecy envelopes was part of a scheme to favor Biden, nevermind that the state Supreme Court said they shouldn't be counted and it appears they therefore weren't.
Trump's lawyers go through a lot of stuff that's in their proposed amended complaint, including an allegation that the Pennsylvania Supreme Court's decision rejecting their state-law claim on poll watchers actually just shows how unconstitutional everything is.
Trump's lawyers argue that their next complaint will go much better because rather than alleging garden variety election irregularities, it alleges that those irregularities were actually part of a scheme by Democrats and elected officials to unlawfully favor Biden.
Trump's lawyers say the want to prohibit Pennsylvania from certifying its election results, or if that can't happen, they'd like a court order declaring the election "defective" and that the state legislature should decide who gets its electors.
(This is from the same filing in which the campaign said it wasn't trying to disenfranchise 6.8 million voters, so ..... )
But all that is sort of beside the point because, as Trump's lawyers make clear, the *only* issue they're raising is whether Judge Brann abused his discretion by denying them leave to amend.
Trump's lawyers make clear that a lot of what the current appeal is about is letting them fix a mistake they made in the district court by omitting some of the claims they hoped to litigate when they filed their amended complaint.
There's not a lot of argument here about why Judge Brann should be reversed. Basically, Trump's lawyers say they didn't wait too long to amend and letting them do it wouldn't have prejudiced the defendants.
Trump's lawyers cite a case saying that if a complaint is dismissed for lack of specificity, the court should let the plaintiff fix it.

But, uhh, that wasn't the reason Trump's case was dismissed.

And that was a case litigated pro se by an inmate, not by the President.
Trump's lawyers say they should get to review 1.5 million mail-in ballots, see how many it thinks are defective and deduct that number from Joe Biden's total.

That's .... bold.
Trump's lawyers also filed an emergency motion for a temporary restraining order that would "stay the effect" of Pennsylvania impending certifying its election results. That's not a thing, but it's probably close enough.
To be clear, Trump's lawyers aren't asking the Third Cir. to prevent Pennsylvania from certifying its election results. They're asking for "an injunction staying the legal effect of certification."

I guess we'll see whether they explain what, if anything, t hat actually means.
(They also cite the wrong rule, but again, little stuff.)
Using the wrong rule as one of your headings is arguably somewhat less good.
The campaign seems to be basing its motion for an injunction on a complaint it hasn't even filed yet, much of which was already tossed by a district judge for reasons they're expressly not challenging on appeal. That's ... unusual.
Here Trump's lawyers argue they shouldn't have to prove absentee votes were counted illegally, which they seem to concede they can't do. Instead, they say the state should have to prove that all the votes were legal.
.@rickhasen has a good explanation of why the relief the Trump campaign is seeking in its Third Cir. TRO (which, again, isn't a thing) doesn't make a ton of sense ->

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More from @bradheath

25 Nov
Bunch of law profs pile on in the 3d Cir.: "For the good of the country, for the good of the Constitution, for the good of democracy, and for the good of all the voters who did all the law required of them to cast lawful ballots, the Court should reject Trump's challenge." Image
(Among the group are Erwin Chemerinsky, @LeahLitman, @marinklevy.)
The brief is about remedies. Whatever else is going on with Trump's lawsuit, they say, he can't just overturn the results of an election. That would "subvert democracy, undermine federalism, and threaten the orderly transfer of power." Image
Read 4 tweets
24 Nov
Pennsylvania has filed a brief opposing Trump's request to enjoin certification of the state's election (which already happened). "No federal court has ever issued an order enjoining a state's certification, or directing decertification, of presidential electors." Image
Pennsylvania notes that Trump's lawyers didn't adhere to the procedural requirements for seeking an injunction. Image
Pennsylvania also argues that although Trump offers "the rough outline of a potential statistical analysis - and theories about an elaborate conspiracy - precedent requires much more than hypotheticals to justify injunctive relief." Image
Read 17 tweets
24 Nov
Pennsylvania responds to Trump's 3d Cir. appeal: "It is beyond time for this baseless litigation to come to an end."

It argues that Trump's campaign made a mess of the litigation, and giving it permission to file a new complaint would be futile because that one would lose, too. Image
The state says that even Trump allowed to amend, plaintiffs wouldn't have standing. "Their proposed second amended complaint is Frankenstein's Monster's Monster, randomly re-cobbled together, even more illogical and haphazard than the first." Image
The state also says that because Trump's lawyers chose not to challenge most of Judge Brann's decision -- that their claims lack merit -- they're now stuck with it. Image
Read 7 tweets
23 Nov
President Trump's lawyers just told the Third Cir. they plan to seek an emergency restraining order to block Pennsylvania from certifying its election results. Image
This is something Trump could have done when it filed its appeal. Or yesterday. Or .....
Trump's legal team says that because of the " the extreme time pressures involved in drafting and filing all of the motions and briefs required," it should get to add 1,300 words to its brief. Image
Read 5 tweets
23 Nov
Meanwhile, John Solomon has been looking through court cases and claims to have found "a mountain of evidence has been amassed in private lawsuits alleging there was, in fact, significant and widespread voting misconduct."

There isn't. This is profoundly misleading.
Here's the link if you're curious, justthenews.com/politics-polic…, though I caution you that reading it will leave you *less* informed.

Solomon claims to have found "a dozen compelling allegations of voting irregularities."

But no.
Item 1 is a Detroit poll worker who claimed thousands of ballots had been backdated or falsified. She did claim that, but Solomon leaves out quite a lot.
Read 8 tweets
23 Nov
So the big election-rigging case President Trump wants to tee up for the Supreme Court is actually whether his lawyers should have gotten permission to fix a filing they screwed up.
Best case this strategy means Trump gets to go back to the district court and lose on standing a second time?
President Trump's appeal of a judge's brutal rejection of his efforts to overturn Pennsylvania's election -- the one his lawyers said would get them to the Supreme Court -- is *only* about whether the judge should have given them leave to fix a complaint his lawyers screwed up.
Read 24 tweets

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