Donald J. Trump for President v. Sec’y. Of Commonwealth of Pennsylvania (3rd Circuit United States Court of Appeals, November 27, 2020)
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here. The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is
not a fraud case.” Mot. to Dismiss Hr’g Tr. 118:19–20, 137:18. Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.”
“Most of the claims in the Second Amended Complaint boil down to issues of state law. But Pennsylvania law is willing to overlook many technical defects. It favors counting votes as long as there is no fraud. Indeed, the Campaign has already litigated and lost many of these issues in state courts. The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes.”
“The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000 vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”
“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims. Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter.”
The three judge court was unanimous in rejecting the President’s efforts to block certification of Biden’s electoral victory in Pennsylvania. What the President was objecting to were two things. First some counties required election observers to stand between 6 and 20 feet away from the ballot counters for obvious public health reasons. Second, some counties consistent with the directions they had all received from the Secretary of State allowed voters to cure their mail-in ballot defects; this was about 6,000 votes. What were they curing? For example, they were supposed to return their ballots inside two envelopes, and they sent it back inside one envelope.
President Trump now intends to appeal to the US Supreme Court believing his hand picked justices will overturn the ballots of 7 million Pennsylvania voters and direct the state legislature to award the state’s votes to Trump. Well, good luck with that. The 3rd Circuit’s decision was written by a Trump appointed judge, and all of his colleagues on the panel were GOP appointees to the federal bench.
Lucien Wulsin
11/28/20