Trump’s Pennsylvania Appeal Rejected in Scathing Decision by His Own Appointee

·3 min read
Erin Schaff/Getty
Erin Schaff/Getty

A federal appeals court has shot down the Trump campaign’s attempt to overturn the election result in Pennsylvania—with a judge appointed by the president writing the scathing decision.

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” 3rd U.S. Circuit Court of Appeals Justice Stephanos Bibas wrote in a 21-page opinion issued Friday.

The three-judge panel noted that the campaign’s grievances amounted to “nothing more” than allegations that Pennsylvania restricted poll watchers and let voters fix technical defects in their mail-in ballots.

“The Campaign tries to repackage these state-law claims as unconstitutional discrimination. Yet its allegations are vague and conclusory,” the opinion says.

“It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes.”

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The decision comes after Pennsylvania already certified that President-elect Joe Biden was the winner but makes clear that Trump does not have a legal leg to stand on in contesting the outcome.

The court said it would not issue an injunction to undo the certification because “the 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,” the court found.

“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. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.”

In a tweet after the ruling, Trump lawyer Jenna Ellis indicated the team thinks the U.S. Supreme Court will take up the arguments that have now been thoroughly trashed by two lower courts.

“The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud,” she tweeted.

But the 3rd Circuit judges who rejected the appeal were all appointed by Republicans: Bibas, who was nominated by Trump in 2017, Chief Justice Brooks Smith, who was nominated in 2001 by President Bush; and Judge Michael Chagares, who was nominated by Bush in 2006.

The opinion goes point by point through the hodgepodge of claims put forward by Trump lawyer Rudy Giuliani and other campaign attorneys, dismantling each one. In closing, the court seemed to find it necessary to spell out some legal basics for the president’s team.

“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections,” they wrote.

“The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects.

“Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims. Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold.”

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The decision is the latest in a pile of losses that Trump has racked up in courts across the country since the election. Yet as recently as Friday morning, Trump tweeted that the matter was not yet settled.

“Biden can only enter the White House as President if he can prove that his ridiculous ‘80,000,000 votes’ were not fraudulently or illegally obtained,” he posted. The tweet, which has no basis in fact, was flagged by Twitter.

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