Donald J. Trump for President, Inc. v. Secretary, Commonwealth of Pennsylvania, ___ Fed. Appx. ___ (3d Cir. 2020). This blog does not often cover non-precedential decisions of appellate courts. But today’s opinion by Judge Bibas (a Trump appointee), in which Chief Judge Smith and Judge Chagares joined, is an important exception.
The opinion was non-precedential because plaintiff (“the Campaign”) appealed the District court’s rejection of the Campaign’s attack on the vote in Pennsylvania only “on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not.”
The Campaign did not allege fraud. Judge Bibas quoted lead Campaign lawyer Rudolph Giuliani, twice, as having told the District Court that the Campaign “doesn’t plead fraud…. [T]his is not a fraud case.” Instead, the Campaign claimed only that “Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. [The Campaign] offers nothing more.”
The issues presented, the panel said, were largely “issues of state law,” many of which the Campaign has already litigated and lost in state courts.” Thought the Campaign tried to repackage the state law claims as unconstitutional discrimination, its “vague and conclusory” allegations failed. The campaign “never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes. And federal law does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots. Each of these defects is fatal, and the proposed Second Amended Complaint does not fix them. So the District Court properly denied leave to amend again.”
That is the summary. The balance of the opinion provides full detail.
The Campaign also sought “an injunction to undo Pennsylvania’s certification of its votes.” Judge Bibas responded that “[t]he 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. The remedy would be grossly disproportionate to the procedural challenges raised.”
As to the injunction, the panel carefully evaluated all four parts of the Third Circuit’s test for an injunction– likelihood of success, irreparable harm, a balance of the equities, and the public interest– and found that the Campaign satisfied none of those criteria. As to the first prong, Judge Bibas stated that “the Campaign cannot win this lawsuit.” It did not allege fraud and “has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination” and even conceded that it lacked standing.
As to the other criteria, Judge Bibas offered headings that (supported by further discussion) concisely say it all: “The campaign faces no irreparable harm”; “The balance of equities opposes disenfranchising voters”; and “The public interest favors all lawful voters’ votes.”
The workmanlike, 21-page opinion of Judge Bibas demolishes all of the Campaign’ s arguments in exquisite detail and at multiple levels. The likelihood that the Supreme Court would grant review of today’s decision, involving only an alleged abuse of discretion in disallowing a Second Amended Complaint on unique (and, as Judge Bibas demonstrated, utterly insufficient) facts is virtually nil. And if review were granted, the deferential abuse of discretion standard would likely doom the Campaign in the Supreme Court as it did in the Third Circuit.