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November 22, 2020
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National Review

Judge Finds the Fatal Flaw in Trump Campaign’s Pennsylvania Case

A    federal court has thrown out the Trump campaign’s lawsuit in Pennsylvania, which challenged presumptive President-elect Joe Biden’s victory in the commonwealth. In so doing, district judge Matthew Brann refused the campaign’s eleventh-hour attempt to file a new complaint that would have reinstated election fraud claims the Trump campaign had abandoned a few days earlier. (I outlined the lawsuit here, and explained the Trump campaign’s last-ditch effort to amend it here.)Judge Brann’s 37-page opinion sets forth a variety of reasons for dismissing the case. Most of them are directed toward the complaints of two individual plaintiffs — voters who claimed that their ballots had been improperly discounted. By contrast, the court found that the Trump campaign had no standing to sue, having posited no evidence that President Trump was harmed in any cognizable way by the manner in which the election was conducted in Pennsylvania.At bottom, though, the court found that the fatal flaw in the case is the one that we have repeatedly stressed: The mismatch between the harm alleged and the remedy sought.As the judge explained, even if one accepted the dubious premise that the two voters in question were improperly denied the right to vote while others similarly situated were not, the commensurate relief would be for their votes to be counted.That, however, was not the remedy they sought. Instead, supported by the Trump campaign, the two voters petitioned the court to stop Pennsylvania from certifying — on Monday as state law requires — the commonwealth’s election result, which had Biden winning by 83,000 votes. Brann countered:> Prohibiting certification of the election results would not reinstate the Individual Plaintiffs’ right to vote. It would simply deny more than 6.8 million [Pennsylvanians] their right to vote. “Standing is measured based on the theory of harm and the specific relief requested.” It is not “dispensed in gross: A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Here, the answer to invalidated ballots is not to invalidate millions more. [Footnotes omitted.]As we detailed on Friday, the case was in a strange posture.In filing its original complaint on November 9, the Trump campaign claimed extensive vote fraud, relying mainly on the allegation that Republican poll-watchers had been denied a meaningful opportunity to observe the canvassing of ballots. But, as Brann notes (and we discussed here), on November 13, the federal appeals court for the Third Circuit (which has binding effect on Brann’s district court) issued its opinion in Bognet v. Secretary of the Commonwealth of Pennsylvania. Though not directly connected to the campaign’s case, Bognet’s reasoning substantially undercut its claims.The campaign reacted by amending its complaint, reducing the case to the narrow claim that Trump voters’ equal-protection rights (and, derivatively, the campaign’s rights) had been violated by an allegedly skewed procedure: Mail-in voters in Biden-friendly counties had been permitted to cure defects in the ballots they’d submitted, while voters in Trump-friendly counties were not. Brann rejected this claim, accepting Pennsylvania’s argument that Secretary of State Kathy Boockvar had encouraged ballot curing all over the state. Thus the state government was not at fault if not all counties availed themselves of this opportunity.That is largely beside the point, though. Even if there had been a violation of the voters’ rights, the remedy would be to count their votes. Instead, as the court observed,> 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 [i.e., the presidential race, not the other contests down-ballot]. This is simply not how the Constitution works. [Emphasis added.]Moreover:> Granting Paintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let along millions of citizens, it cannot grant Plaintiffs’ requested relief.Brann concluded that the Trump campaign had no standing to sue based, derivatively, on the harm alleged by the two voters, particularly after the Bognet ruling. He specifically rejected both of the campaign’s main equal-protection complaints: (1) that its poll-watchers were discriminatorily excluded from observing the canvass, and (2) that the opportunity for voters to cure defective ballots was deliberately done in counties the state knew to favor Biden.On the former, Brann held that this was not, as the Trump campaign maintained, an equal-protection issue. The campaign was not claiming that Trump observers were treated differently from Biden observers. On the latter, Brann concluded that the campaign was misinterpreting Bush v. Gore, and, in any event, was not claiming that Boockvar’s guidance on curing ballots differed from county to county.Most significantly, Brann denied the Trump campaign’s dilatory attempt to amend its complaint yet again late this past week, in order to reinstate claims from their original complaint, which they’d withdrawn last weekend. The court reasoned that this would “unduly delay resolution of the issues” in light of the fact that Monday, November 23, is the deadline for Pennsylvania counties to certify their election results to the state government — a necessary prelude to appointing the slate of electors who will cast the commonwealth’s Electoral College votes.In reaction to the ruling, the Trump campaign lawyers issued a statement asserting that, though they disagreed with the decision by “the Obama-appointed judge,” it was actually a boon to “our strategy to get expeditiously to the U.S. Supreme Court.”It is true that Brann was appointed by former President Barack Obama, but he is a Republican and Federalist Society member who was sponsored by the state’s Republican senator Pat Toomey — a common situation when a state’s two senators are from different parties, and an administration has to horse-trade on appointments.Trump lawyers added that the ruling denied them “the opportunity to present our evidence at a hearing.” They described that as “censorship” of “50 witnesses” who would have testified that state election officials denied the “independent review” required by Pennsylvania law. This is an apparent reference to the campaign’s claim that its poll-watchers were not given a meaningful opportunity to observe the canvass, which the lawyers say, “resulted in 682,777 ballots being cast illegally.” The campaign did not mention that it had dropped this charge from its original complaint. Nor did it allude to Brann’s conclusion that the allegation was not a cognizable equal-protection claim under federal law.The campaign says it will seek an expedited appeal to the Third Circuit — the tribunal that just decided the Bognet case, the precedent that appears to have induced the campaign to withdraw the claims it is now seeking to revive. In any event, it is anything but clear that the Supreme Court, which has thus far declined to act on Pennsylvania election-law claims relevant to the 2020 election, would agree to hear the campaign’s case — even assuming that the Third Circuit grants expedited appeal and, as even the campaign plainly expects, rules against the campaign.

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