Election Law

'Calling an election unfair does not make it so,' 3rd Circuit says

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A federal appeals court on Friday rejected a bid to decertify Pennsylvania’s election results by President Donald Trump’s campaign.

The author of the opinion was Judge Stephanos Bibas of the 3rd U.S. Circuit Court of Appeals at Philadelphia, an appointee of Trump, report the Legal Intelligencer, the Washington Post, BuzzFeed News and the New York Times.

“Charges of unfairness are serious,” Bibas wrote in the nonprecedential opinion. “But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

Bibas is a former clerk for U.S. Supreme Court Justice Anthony M. Kennedy, a former federal prosecutor, and a former law and criminology professor at the University of Pennsylvania Law School. The two other judges on the panel, Chief Judge D. Brooks Smith and Judge Michael Chagares, are appointees of President George W. Bush.

The appeals court refused to allow the Trump campaign to file an amended complaint that would have resurrected earlier claims that the Pennsylvania results were affected by observers’ lack of meaningful access to the ballot count. The campaign had claimed that the access issues amounted to unconstitutional discrimination.

Bibas said those allegations are “vague and conclusory,” and there is no claim that the Trump campaign was treated worse than the Biden campaign.

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

“Seeking to turn those state-law claims into federal ones, the campaign claims discrimination. But its alchemy cannot transmute lead into gold. The campaign never alleges that any ballot was fraudulent or cast by an illegal voter,” he added.

One campaign lawyer, Jenna Ellis, tweeted, “On to SCOTUS!” after the decision. But lawyer Rudy Giuliani indicated Friday night that any number of cases could go to the Supreme Court, and the lawyers have to decide on the right one, the Washington Post reports.

Justin Levitt, a professor at the Loyola Law School in Los Angeles, told the Washington Post that it was unlikely the Supreme Court would agree to hear the case.

“At this point, this is zombie litigation—but it’s not one of those zombies anybody is afraid of. It’s just slowly rotting in the corner,” Levitt said. “It’s not that the Supreme Court doesn’t take strange cases. But they only take cases where the facts or the law—and usually both—present some sort of credible legal question, and that’s not even close to true here.”

The case is Donald J. Trump for President v. Secretary Commonwealth of Pennsylvania.

See also:

ABAJournal.com: “Trump campaign appeals after federal judge tosses suit, calls one claim ‘Frankenstein’s monster’”

ABAJournal.com: “Afternoon Briefs: Judiciary committee will get new top Dem; top Pennsylvania court rejects 5 election suits”

ABAJournal.com: “Trump campaign’s legal strategy has faltered partly because of legal ethics, law prof says”

ABAJournal.com: “3rd Circuit won’t interfere with Pennsylvania ballot count, while Trump campaign trims another suit”

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