Expect prompt rejection of its appeal to the Third Circuit.
Expect prompt rejection of its appeal to the Third Circuit.
P resident Trump’s lawyers have asked the federal appeals court for the Third Circuit for an expedited appeal of district judge Matthew Brann’s ruling on Saturday, which dismissed challenges to Pennsylvania’s conduct of the presidential election by the Trump campaign and two voters. (I outlined Judge Brann’s decision here.)
We should expect the Third Circuit to deny this application promptly.
It is a testament to the quality of Judge Brann’s ruling that the Trump campaign, despite trashing it publicly, is not appealing most of it. Instead, the application to the Third Circuit is narrow: an appeal of the district court’s refusal to permit the campaign to amend its complaint a second time so that it could reinstate claims it had earlier abandoned. The campaign sought that amendment in the hope of delaying Pennsylvania’s certification of the statewide vote, which would name presumptive President-elect Biden the winner by 83,000 votes. By state law, that certification is scheduled to happen today (November 23).
In federal procedural law, a claimant is freely permitted to amend a civil complaint once. After that, the claimant needs consent of the opposing party or leave of the court. On appeal, a district judge’s denial of leave to amend a complaint is reviewed for abuse of discretion, which is the standard of review most deferential to the lower court.
In this case, as we’ve previously recounted, the Trump campaign filed a complaint on November 9, alleging a large-scale scheme to permit fraudulent mail-in Biden votes in heavily Democratic counties, mainly through the county election boards’ supposed refusal to permit Republican poll-watchers a meaningful opportunity to monitor the canvassing of ballots. The campaign also cried foul in claiming that voters in heavily Democratic counties were allowed to cure defective mail-in ballots while voters in more GOP-friendly counties were not given that opportunity — a procedure said to violate state campaign law and the Republican voters’ equal-protection rights.
Just four days later, on November 13, the Third Circuit decided the Bognet case, which (as I explained here), substantially undercut the Trump campaign’s case. During the hectic weekend that ensued, with the Trump legal team being overhauled, the campaign hastily reacted to the Bognet decision by amending its complaint. Again, this first amendment is permitted by right. The amended complaint drastically stripped down the Trump campaign’s case, abandoning the counts that charged a fraud conspiracy, and leaving only two counts targeting the procedure for curing defective mail-in ballots.
As we’ve detailed, this was a dubious move because, even if the cured ballots were disqualified, that would not come close to overcoming Biden’s 83,000-vote lead. Although the fraud counts were weak (especially after Bognet), the campaign needed them because those counts alleged the invalidity of hundreds of thousands of votes. Courts will only entertain election claims if they could potentially reverse the result.
In the interim, the campaign suffered another legal blow: On November 17, the Pennsylvania state supreme court ruled that poll-watchers have a statutory right to be present but no right to be situated within a fixed short distance from the canvassing activity. Since the right to have poll-watchers at all is a creation of state law, it was highly unlikely that a ruling by the state’s highest court defining the contours of that right was going to be disturbed by federal courts. Yet that is what the Trump campaign was essentially asking Judge Brann to do.
Not surprisingly in light of all these problems, the oral-argument hearing Judge Brann convened that same day (Tuesday, November 17) did not go well for the campaign. In its immediate aftermath, Trump’s lawyers decided they’d better amend the complaint again. Since this would be a second amended complaint, however, they would need either the consent of the defendants, which Pennsylvania officials refused to give, or the permission of the court.
In his Saturday ruling, Judge Brann refused to grant permission, stating:
Leave to amend is denied. Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility. 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. This is especially true because the Court would need to implement a new briefing schedule, conduct a second oral argument, and then decide the issues. [Footnote and internal quotations omitted.]
I don’t see how the Third Circuit could find that this was an abuse of discretion. By abandoning its original fraud claims and then trying to reinstate them, the Trump campaign frustrated the district court’s original scheduling order. In that order, Judge Brann contemplated hearing argument on the full case last Tuesday (as he did), and then convening any necessary evidentiary hearing on Thursday, November 19, in order to decide the case in advance of the certification date. Because of the campaign’s abandonment, the court canceled the Thursday hearing, only to have the campaign then change course.
Furthermore, the campaign’s abandonment of the claims it now wants to reinstate occurred because, after the Third Circuit’s own Bognet decision, there was little chance of succeeding on the fraud claims. Then, after the campaign’s abandonment, the state supreme court issued its ruling on the limited rights of poll-watchers, which further weakens the campaign’s case.
Given all that, the Third Circuit is virtually certain to conclude that Judge Brann did not abuse his discretion: The campaign is at fault for failing to have its fraud claims adjudicated; those claims have scant chance of prevailing; and there is thus no plausible reason to delay the state’s certification. Plus, a swift rejection of the appeal will give the campaign an opportunity to seek expedited review from the Supreme Court, which the Trump lawyers have publicly said is their objective.
Of course, the Supreme Court is not required to grant review of the case. As we’ve repeatedly observed, the justices have not agreed to consider a related case that presents an important constitutional question about the authority of state courts to change state election law during a campaign. Given the high court’s reluctance to grant review of a case it should have taken, it seems most unlikely that the justices would grant review to consider a mundane question of whether a district judge abused his discretion in refusing to entertain a delayed amended complaint.