Tue. Mar 2nd, 2021


Mail-in ballots in Chester County, Pa., November 4, 2020. (Rachel Wisniewski/Reuters)

As we expected, the Third Circuit federal appellate court on Friday rejected the Trump campaign’s appeal of Judge Matthew Brann’s dismissal of its post-election challenge in Pennsylvania. The three-judge panel’s 21-page opinion, emphatically upholding Judge Brann’s decision last Saturday, was penned by Circuit Judge Stephanos Bibas, a Trump appointee (and occasional National Review contributor in his prior life as a University of Pennsylvania law professor).

Judge Bibas’s opinion was joined by two appointees of President George W. Bush: Judge Michael A. Chagres and the Circuit’s chief judge, D. Brooks Smith. Chief Judge Smith is the author of the recent Bognet decision, which (as I detailed here) thoroughly undermined the Trump campaign’s legal theory and led to its decision to dismiss the first complaint it filed in the case – the complaint that had alleged fraud, which the campaign then assured Brann it was not claiming, before suddenly trying to revive it after the eleventh-hour, as Pennsylvania election officials were on the verge of certifying President-elect Joe Biden’s 81,000-vote victory in the commonwealth.

It was Brann’s refusal to permit the campaign’s second attempt at amending its complaint that was the narrow target of the Trump campaign’s appeal. As the Third Circuit related, Brann’s opinion was essentially bulletproof, and there was no basis to claim that he abused his discretion in denying leave to amend the complaint. Bibas added additional conclusions about why the campaign’s conclusory and fact-light claims were meritless. “[C]alling an election unfair does not make it so,” he wrote. “Charges require specific allegations and then proof. We have neither here.”

Bibas concluded by denying the campaign’s last-ditch request for an injunction against certification of the election, faulting the effort to resuscitate in federal court claims that had been rejected by Pennsylvania’s state courts: “[T]he campaign claims discrimination. But its alchemy cannot transmute lead into gold.”

The president’s legal team has stated that it was hoping for quick resolution by the federal district and appellate courts so that it could quickly seek to appeal to the Supreme Court. But it would only be permitted to raise before the high court the narrow claims that it appealed to the Third Circuit — essentially, that a district judge allegedly abused his discretion in declining to allow a dilatory amended complaint that had no merit, that sought to disenfranchise hundreds of thousands of Pennsylvanians, and that was an effort to delay the state-law process of certifying an election. As I have previously observed, it is highly unlikely — I am tempted to say inconceivable — that the Supreme Court would agree to hear that case.





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