‘Voters, not lawyers, choose the president’: Appeals court shoots down Trump suit in Pennsylvania

By Kyle Cheney and Josh Gerstein

A federal appeals court panel forcefully rejected the Trump campaign’s effort to throw out millions of Pennsylvania ballots, declaring its allegations of misconduct meritless and its suggested remedies as “breathtaking” and undercut by a lack of 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 3rd Circuit Court of Appeals panel composed entirely of GOP appointees. Bibas’ opinion, delivered just after noon Friday, 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. And campaign attorney Jenna Ellis confirmed this is their intention in a Twitter post Friday.

“The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud,” Ellis said, in a perplexing reference to the three Republican-appointed judges. “We are very thankful to have had the opportunity to present proof and the facts to the PA state legislature.”

Still, the unceremonious, unanimous rejection of the case by a panel of GOP appointees suggests the case may get a chilly reception from the Supreme Court, since justices often look to dissenting opinions from their ideological peers as fodder for interest at the high court.

Much of the appeals court panel’s ruling read like a rebuke of Giuliani for the Trump campaign’s legal tactics. Bibas repeatedly emphasized that Giuliani and the campaign never actually alleged voter fraud in this suit, despite their heated public rhetoric.

Though Trump and his allies have been claiming sweeping fraud across the country, they’ve presented no evidence of widespread issues. And Bibas noted that the campaign took issue with so few ballots in Pennsylvania that it would barely dent President-elect 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,” Bibas wrote, joined by two George W. Bush appointees, D. Brooks Smith and Michael Chagares. “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 a third 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.”

The Trump campaign rested its best legal hopes in Pennsylvania on a 3rd Circuit ruling from 1994 in a disputed State senate contest that determined not just a single seat but control of the chamber.

The district court judge in that case found widespread fraud and ordered that the Republican candidate, Bruce Marks, be seated instead of the Democrat, William Stinson, who was the beneficiary of what the court found was a concerted, flagrant effort to submit hundreds of fraudulent absentee ballots.

Bibas said there was no comparison between the two-and-a-half decade old state legislative race and the just-completed presidential contest.

“Those facts were a far cry from the ones here,” the judge wrote. “Here...there is no clear evidence of massive absentee-ballot fraud or forgery….And the margin of victory here is not nearly as close: not 461 votes, but roughly 81,000.”

The appeals court panel rebuffed the Trump campaign’s request for oral argument to present its case. And, in one final indignity, the judges designated the 21-page ruling as “non-precedential,” suggesting the campaign’s claims had so little weight that the case isn’t worthy of being cited in the future cases.