Election Law

In first federal court appearance since 1992, Giuliani argues lack of observer access despite dropped claim

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Rudy Giuliani

Rudy Giuliani. Image from Shutterstock.com.

Updated: Lawyer Rudy Giuliani appeared before a judge to argue a Pennsylvania election case Tuesday, marking the first time since 1992 that he has appeared in federal court, according to PACER records examined by Law.com.

Giuliani argued that the results were affected by observers’ lack of meaningful access to the ballot count, even though an amended complaint filed Sunday dropped constitutional counts based on that claim, TribLive.com reports.

The amended suit focuses on claims that voters in Democratic counties were allowed to fix ballots.

The arguments Tuesday concerned whether the lawsuit should be tossed. In addition to TribLive.com, publications that covered the arguments included Reuters, the Associated Press, Law360 and Law.com (here and here).

“The best description of what we’re alleging is a widespread, nationwide voter fraud of which this is a part,” Giuliani said. “You’d be a fool to think this was an accident.”

U.S. District Judge Matthew Brann of the Middle District of Pennsylvania appeared skeptical of a request to halt certification of the entire Pennsylvania vote, according to Reuters.

“At bottom, you are asking this court to invalidate 6.8 million votes, thereby disenfranchising every single voter in the commonwealth,” Brann said. “Can you tell me how this result can possibly be justified?”

According to Law.com, Giuliani’s “rustiness showed” at times during the hearing.

When Brann said Giuliani’s fraud claims would be subjected to a higher standard, Giuliani changed course.

“I have to correct myself. The charge is the conduct. It doesn’t plead fraud,” Giuliani said. “It pleads a plan or scheme.”

When Brann asked what standard of review should be used, Giuliani replied, “On a motion to dismiss? The normal one.”

Brann had refused to delay the hearing after lawyers from Porter Wright Morris & Arthur and two other lawyers withdrew. Still pending is a motion to withdraw by Philadelphia solo practitioner Linda Kerns. Brann explained Tuesday that he didn’t allow Kerns to withdraw because she had been on the case since the beginning, and he wanted her at the arguments.

Lawyers for the state of Pennsylvania and individual counties argued that the plaintiffs in the case didn’t have standing. They cited a recent decision by the 3rd U.S. Circuit Court of Appeals at Philadelphia that held that private citizen plaintiffs didn’t have standing to challenge an extended deadline for the counting of ballots.

During the argument, the Pennsylvania Supreme Court ruled against the Trump campaign in another case. The court said Pennsylvania election law did not require observers to have closer access to the ballot count in Philadelphia County.

The state supreme court’s 5-2 decision said Pennsylvania election law contemplates an opportunity to observe the count from within the room but doesn’t set a minimum distance for observation.

In a motion filed Wednesday, Giuliani and other new lawyers for the Trump campaign said claims had been “inadvertently deleted” and “improperly omitted” from the first amended complaint.

The motion sought permission to file a second amended complaint. The campaign’s claims “are based mainly on allegations contained in their original complaint, plus factual allegations recently learned, and the recent Pennsylvania Supreme Court case,” the motion said.

Updated on Nov. 19 at 8:37 a.m. to report on motion to file second amended complaint.

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