Let’s establish where we are and how we got here. It’s confusing.
Let’s establish where we are and how we got here. It’s confusing.
T he Trump campaign’s litigation strategy in Pennsylvania has been very hard to follow. It has changed drastically again at the eleventh hour — or beyond.
As I detailed Wednesday, the strategy of abandoning fraud claims weirdly left the campaign pursuing a case that could not prevail . . . a fatal flaw since, without wresting Pennsylvania’s 20 electoral votes from presumptive president-elect Joe Biden, President Trump would have no chance of reversing the election result. Realizing that, the campaign is now desperately trying not only to reverse itself but to raise additional claims, even though we are past the point where Judge Matthew Brann expected to have held any necessary evidentiary hearing. For good measure, the Trump campaign is also seeking a restraining order to enjoin the Commonwealth from certifying the vote. Under Pennsylvania law, that is supposed to happen in just three days (Monday, November 23).
Essentially, the campaign is now asking to make an in-court demonstration of fraud — i.e., to prove the claims the lawyers withdrew last weekend, which were supposed to have been the subject of a hearing yesterday (Thursday) on the schedule originally ordered by the court. If permitted to try to prove their case at this late stage, the lawyers would ask the judge to strike up to 1.5 million votes, and at least as many as necessary to push Trump past Biden, who currently leads by 83,000. Otherwise, the Trump team seeks to have the federal court void the state election and direct the Republican-controlled state legislature to choose electors to cast the Commonwealth’s Electoral College votes.
Whew!
Before we try to untangle this, a word about why it is so madcap.
At times, the Trump campaign seems to have less a well-conceived strategy than a series of impulses, driven by news cycles and unfavorable rulings. It also appears to be the case that the campaign is proceeding on two tracks, legal and political, and these are not always in alignment. The legal strategy acknowledges that the will of the voters should control the outcome — although, if necessary, the Trump team would ultimately have the election invalidated to avoid its being decided by what the lawyers insist (but have not proven) are tainted ballots. The political strategy, or at least aspiration, is that state legislatures might be persuaded to intervene in defiance of the reported popular-election outcome.
We should also observe that once the president decided to contest rather than concede the election, a brutally tight time frame took effect, imposed by state and federal deadlines. It is a drastic departure from the normal litigation pace of investigation, legal research, and the formulation of cognizable claims. It is meant to be. Elections are rip-roaring affairs. They are expected to be fair but not perfect, a frustration for lawyers crying foul over procedural flaws. Elections are reversible only over the most egregious of defaults. With presidential elections, moreover, national stability requires that a winner be declared rapidly and preparations be made so that whoever wields power as of noon on January 20 is fully equipped to pursue and defend vital American interests.
With that in mind, let’s establish where we are and how we got here. It’s confusing.
The Trump campaign filed a complaint in Pennsylvania’s federal district court on November 9. It alleged that officials of the Democratic-controlled state administration, particularly Secretary of State Kathy Boockvar and election boards in heavily Democratic counties, had fraudulently created a “two-track system of voting” skewed to favor Biden.
The civil complaint alleged seven counts, which could be broken down into two categories. Counts one through three alleged that the county boards had violated state election law by preventing Republican poll watchers from observing the canvassing of ballots. This was said to result in the tabulation, on a massive scale, of ballots (presumed to be overwhelmingly cast for Biden) that were illegal because they did not meet statutory security requirements. For simplicity’s sake, we can call these the “original fraud counts.”
Counts four through seven were directed at the state’s green-lighting of a practice, not prescribed by statute, in which Democratic counties contacted voters who had submitted ballots that did not comply with state law so the voters could cure the defects. We’ll call those the “cure counts.”
In sum, the seven counts contended that the Democratic-controlled state administration’s practices transgressed the Republican-controlled state legislature’s constitutional power to set election rules and the voters’ rights to due process and equal protection of law.
The days following the filing of this original complaint were frenzied. The Trump effort to challenge the election result in several states suffered setbacks. On Friday, November 13 (as further detailed in my column), the federal appeals court for the Third Circuit (whose rulings bind Judge Brann’s district court) issued the decision in Bognet, which significantly undermined the Trump campaign’s case — strongly suggesting that the plaintiffs lacked standing, and that their claims could not succeed unless they could invalidate enough votes to change the result of the election. Simultaneously, there was a shake-up in the Trump legal team. With attorneys alternatively withdrawing and coming aboard, the president designated his private lawyer, Rudy Giuliani, to take over the post-election litigation effort.
With these developments swirling and Judge Brann having scheduled argument of the Pennsylvania case for Tuesday (November 17), the campaign made what appears to have been a hurried decision on Sunday (November 15) to streamline its case dramatically. It filed an amended complaint, dropping all three of the original fraud counts and two of the four cure counts.
This, as I’ve explained, was peculiar in that, as pared down to the two cure counts, there was no way enough ballots were involved to overcome Biden’s lead. There is no point in pursuing a case that cannot achieve the objective. Plainly reeling, the legal team, even as it was being overhauled, asked the court to postpone the Tuesday oral argument. Mindful, however, of the impending November 23 deadline for certifying the state’s vote, Judge Brann denied the application.
That set the stage for Tuesday’s rocky proceeding. Giuliani gave a lengthy opening statement, dwelling on the campaign’s theme that the Democrats had orchestrated an extensive fraud scheme to steal the election from the president, and that hundreds of thousands of votes should be invalidated. Yet, as the six-hour proceeding ensued, Giuliani expressly conceded that the campaign was not alleging fraud and struggled with Judge Brann’s questions about the legal standard for reviewing the campaign’s remaining claims.
While I have not seen a transcript of the proceeding, it also appears that there was some discussion that the campaign was having second thoughts about the counts that had been dropped (or that their abandonment owed to some confusion while the legal team was being overhauled). Giuliani also appears to have suggested the possibility that the campaign might seek an injunction to stop the state from certifying the vote on the following Monday (just six days away).
Judge Brann was palpably skeptical about the campaign’s case and had heard enough that he decided there was no need to hold the evidentiary hearing he had reserved time to conduct on Thursday (November 19). On Wednesday, he issued a new scheduling order, canceling the hearing and giving the Trump campaign until the close of business that day (November 18) to seek leave to file a second amended complaint and any preliminary injunction motion that Giuliani might have had in mind.
Sometime late on Wednesday, the campaign filed what it proposed to be a second amended complaint. Concurrently (and confoundingly), it also filed a memorandum of law opposing dismissal of the first amended complaint (i.e., same amended complaint it was planning to supersede). According to the memo, on the prior Sunday, the campaign had “inadvertently [withdrawn] numerous allegations contained in the original Complaint” — i.e., the original fraud charges — due to “confusion caused by the withdrawal” of prior counsel. Now, the memo elaborated, with Giuliani having taken over the case and based on “new factual developments,” the campaign was filing the second amended complaint “to make clear that there was intentional misconduct” by the state’s Democratic election officials. The campaign further demanded “expedited discovery” of “the outside and inside envelopes for the approximately 1.5 million mail ballots at issue” — or at least a “significant random sample from each county.”
Judge Brann has not yet ruled on whether the second amended complaint will be permitted, or on the expedited discovery motion. Meantime, on Thursday, the campaign filed a motion for a restraining order (a day after the Wednesday deadline for doing so). Thursday was also the day the Trump legal team held its now notorious press conference (see our editorial). There, Giuliani and his co-counsel insisted that they would prove in court that hundreds of thousands of votes — in Pennsylvania, Michigan, and perhaps other cities — must be invalidated.
The proposed second amended complaint would revive and beef up the fraud charges, alleging that a “deliberate scheme of intentional and purposeful discrimination” against voters in Trump-friendly counties, and in favor of voters in Biden-friendly counties, “effectively stuff[ed] the ballot box in [Biden’s] favor with illegal votes.” The main claim, also emphasized at Thursday’s press conference, is that Trump poll-watchers were systematically corralled, excluded, and otherwise impeded from meaningfully observing the canvassing of ballots.
The new complaint would also amplify all of the original cure counts. Finally, it adds two new allegations, counts eight (mistakenly rendered as “XIII” rather than “VIII”) and nine. They contend that not only the state election officials but also the Pennsylvania supreme court violated the U.S. Constitution, harming Trump voters and usurping the power of the state legislature. The target of the campaign’s ire is the state court’s ruling on Tuesday (November 17), In re: Canvassing Operation Appeal of City of Philadelphia Board of Elections. There, the Democratic-dominated tribunal ruled, 5–2, that state law gives poll watchers a right to be present during canvassing activities, but not to be within any specific distance. This, the campaign argues, vitiates the state legislature’s clear intention that the watchers have a meaningful opportunity to monitor the goings-on, in order to promote election integrity.
In its restraining-order application, the Trump campaign asks the court to prohibit the statewide certification scheduled to occur on Monday and, ultimately, to prohibit the certification of any ballots shown to have been illegal (either because election-law specifications were not followed or because defects in the ballots were illegally cured).
Finally, if it has become practically impossible to perform a particularized inspection of ballots, the campaign would contend that the election was so pervasively fraudulent that the court must invalidate all ballots (in effect, disenfranchise the citizens of Pennsylvania) and order that the General Assembly choose the electors to cast the state’s electoral votes. The Commonwealth has a bicameral legislature, with a general assembly and a senate, so it is not clear why the campaign would propose that only the former choose the electors. But we must note, again, that both houses of the state legislature are controlled by Republicans.
To repeat, it is not clear whether Judge Brann will entertain the second amended complaint. Nor is it clear whether he will block certification of the state vote, even temporarily, in order to allow discovery, the presentation of evidence, or any other type of proceedings. All of the campaign’s applications are vigorously opposed by the state.
Judge Brann’s scheduling order anticipates that all written submissions must be submitted by noon today (November 20). Rulings could come as early as this afternoon.