A federal appeals court panel forcefully rejected the Trump campaign’s effort to throw out millions of Pennsylvania ballots, declaring the campaign’s allegations of misconduct meritless and its suggested remedies as disproportionate and lacking evidence.
“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections,” Judge Stephanos Bibas — an appointee of President Donald Trump — wrote for the three-judge Third Circuit Court of Appeals panel. Bibas’ 21-page opinion rejected the campaign’s appeal of a district court ruling that similarly shredded the suit.
Trump’s personal lawyer Rudy Giuliani has previously indicated he intends to bring this suit to the Supreme Court.
The panel emphasized that Giuliani and the campaign never actually allege voter fraud, despite their public rhetoric. And they take issue with so few ballots that it would barely dent Joe Biden’s 81,000-vote lead in the state, even if the claims were founded.
“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 judges wrote. “That remedy would be grossly disproportionate to the procedural challenges raised.”
The question before the Third Circuit was actually a narrow one: Whether the district court judge, Matthew Brann, erred by denying the campaign a chance to file an amended version of its lawsuit. Brann, using similarly pointed language about lack of evidence, picked apart the Trump campaign’s claims and rejected its effort, denying its suit in the process.
The court also rejected a request from the campaign for an injunction to block Pennsylvania’s certification of Biden’s victory, which Secretary of State Kathy Boockvar did earlier this week. Bibas wrote that many of the campaign’s claims had already been heard and rejected in state court, and simply rewording them for a federal court and branding them as “discrimination” doesn’t pass muster.
“[I]ts alchemy cannot transmute lead into gold,” Bibas writes. “The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so.”
The latest defeat for the Trump campaign’s effort to subvert the results of the presidential election marks an extraordinary string of legal failures that began after the election.
In the Pennsylvania suit, Trump’s campaign claimed that its observers were improperly denied access to ballot counting and that Democrat-heavy counties allowed voters who made errors in their mail-in ballots to “cure” them, while other counties didn’t allow for the procedure.
But Bibas emphasized that the campaign never, even in its amended filings, alleged that the Trump campaign was treated differently than the Biden campaign. Nor does it allege fraud of any kind. And it seeks only to invalidate ballots in Democrat-dominated counties without basis.
“[T]he Campaign’s charges are selective. Though Pennsylvanians cast 2.6 million
mail-in ballots, the Campaign challenges 1.5 million of them,” Bibas wrote. “It cherry-picks votes cast in ‘Democratic-heavy counties’ but not ‘those in Republican-heavy counties.’ Without compelling evidence of massive fraud, not even alleged here, we can hardly grant such lopsided relief.”
There is also no evidence that vote counting was conducted improperly, he notes.
“The Campaign cites no authority suggesting that an actor discriminates by treating people equally while harboring a partisan motive,” he concludes, “and we know of none.”