2020
ELECTIONS
‘This is simply not how the Constitution works’:
Federal judge eviscerates Trump lawsuit over Pennsylvania results
The judge issued a withering opinion in his dismissal
of the suit that Rudy Giuliani turned up to argue in a small Pennsylvania city
this week.
By JOSH
GERSTEIN, KYLE CHENEY and ZACH MONTELLARO
11/21/2020
06:57 PM EST
A federal
judge in Pennsylvania eviscerated President Donald Trump’s attempt to throw out
millions of votes Saturday, dismissing his campaign’s lawsuit with a withering
opinion that described a dearth of proof to justify the drastic demand.
“This Court
has been presented with strained legal arguments without merit and speculative
accusations, unpled in the operative complaint and unsupported by evidence,”
U.S. District Judge Matthew Brann wrote. “In the United States of America, this
cannot justify the disenfranchisement of a single voter, let alone all the
voters of its sixth most populated state. Our people, laws, and institutions
demand more.”
The ruling
is the latest rejection by federal and state court judges of Trump’s effort to
overturn President-elect Joe Biden’s victory. And the judge’s stinging
refutation of the campaign’s claims is yet another indication that Trump’s
last-ditch effort to cling to power is slipping. Pennsylvania counties are due
to certify their votes by Monday, leaving the final statewide certification in
the hands of Secretary of State Kathy Boockvar, a Democrat and a defendant in
the lawsuit.
Trump has
faced a series of legal and political setbacks in the last two days. Some of
his allies on Capitol Hill have begun to publicly recognize Biden’s victory.
Michigan state lawmakers, whom Trump summoned to the Oval Office on Friday,
emerged insisting they would not intervene in their state’s election process to
aid Trump. Georgia’s Republican governor and secretary of state certified a
victory for Biden Friday, despite Trump’s objections. And a
Republican-controlled board in Arizona’s largest county certified its results
Friday evening and rejected any claims of fraud.
The sharply
worded, 37-page opinion is a blow to the lawyer Trump picked just last weekend
to spearhead his legal efforts to challenge the election, former New York Mayor
Rudy Giuliani. Giuliani made an unexpected appearance in Brann’s courtroom in
the small central Pennsylvania city of Williamsport on Tuesday.
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Trump was
counting on Giuliani’s presence to reverse the public narrative that the
campaign’s legal drive to salvage the election was failing. Instead, Giuliani
was mocked by legal commentators for being unprepared, unfamiliar with basic
legal standards applicable to the case and even for forgetting the name of the
judge.
Brann also
expressed alarm at the draconian relief that Giuliani sought: The
disenfranchisement of 7 million Pennsylvania voters — the state’s entire
electorate — in the hopes of stripping its 20 electoral votes from Biden’s
column.
“This Court
has been unable to find any case in which a plaintiff has sought such a drastic
remedy in the contest of an election, in terms of the sheer volume of votes
asked to be invalidated,” he said, “One might expect that when seeking such a
startling outcome, a plaintiff would come formidably armed with compelling
legal arguments and factual proof of rampant corruption … That has not
happened.”
In his
opinion, Brann picked apart each argument offered by Giuliani.
The judge
dismissed the Trump campaign’s argument that its observers were unfairly denied
access to vote-counting operations in certain counties, noting that both Trump
and Biden’s observers were subject to the same restrictions. He also said the
Trump team’s lawyers misunderstood the lessons of Bush v. Gore — the Supreme
Court ruling that delivered the 2000 election to George W. Bush — in their
attempt to apply it to the current case.
And Brann
rejected the notion that counties who offered voters an opportunity to “cure”
defective mail-in ballots should have those votes thrown out because other
counties — those with a larger proportion of Trump voters — did not. The
decision not to offer voters a chance to cure ballots was not made by the
parties the Trump campaign sued, namely Boockvar and seven heavily Democratic
counties.
In
rejecting this claim, Brann shredded the Trump legal team’s mix-and-match
approach to their argument.
“This
claim, like Frankenstein’s Monster, has been haphazardly stitched together from
two distinct theories in an attempt to avoid controlling precedent,” Brann
wrote.
Brann was
appointed by President Barack Obama, but is regarded as a conservative judge
and an atypical Obama nominee. Brann, who was selected by Sen. Pat Toomey
(R-Pa.), served as a regional Republican Party chairman in Pennsylvania for
about a decade before being nominated to the federal bench.
“Even
assuming that they can establish that their right to vote has been denied,
which they cannot, Plaintiffs seek to remedy the denial of their votes by
invalidating the votes of millions of others. Rather than requesting that their
votes be counted, they seek to discredit scores of other votes, but only for
one race. This is simply not how the Constitution works,” the judge wrote.
In a
statement signed by Giuliani and campaign legal adviser Jenna Ellis, the Trump
campaign pledged to appeal Brann's ruling, adding: "Today’s decision turns
out to help us in our strategy to get expeditiously to the U.S. Supreme Court.
Although we fully disagree with this opinion, we’re thankful to the
Obama-appointed judge for making this anticipated decision quickly, rather than
simply trying to run out the clock."
In a
statement, Toomey said Biden had won Pennsylvania and with it the presidential
election: “With today’s decision by Judge Matthew Brann, a longtime
conservative Republican whom I know to be a fair and unbiased jurist, to
dismiss the Trump campaign’s lawsuit, President Trump has exhausted all
plausible legal options to challenge the result of the presidential race in
Pennsylvania."
Trump later
assailed Brann and Toomey in a tweet, adding: "WILL APPEAL!!!"
The court
also rejected an attempt from the Trump team to further amend its complaint.
“Given
that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek
to amend simply in order to effectively reinstate their initial complaint and
claims; and (3) the deadline for counties in Pennsylvania to certify their
election results to Secretary Boockvar is November 23, 2020, amendment would
unduly delay resolution of the issues,” Brann wrote.
Brann also
frowned on the merry-go-round of representation that marked the Trump
campaign’s efforts throughout the suit.
“Although
this case was initiated less than two weeks ago, it has already developed its
own tortured procedural history,” Brann wrote. “Plaintiffs have made multiple
attempts at amending the pleadings, and have had attorneys both appear and
withdraw in a matter of seventy-two hours.”
Brann
mentioned in passing a “rude and ill-conceived voicemail” one of the lawyers
representing Trump received from a junior attorney at Kirkland & Ellis,
saying it “distracted the Court’s attention from the significant issues at
hand.” The judge said the message was inappropriate but he rejected a Trump
lawyer’s request to impose sanctions on the firm, whose attorneys represented
Boockvar.
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