By Ivan Pentchoukov
President Donald Trump’s campaign on Nov. 22 appealed the dismissal of its election lawsuit in Pennsylvania, according to a notice filed in federal court, bringing the campaign one step closer to its stated goal of getting an election challenge to the Supreme Court.
District Court Judge Matthew Brann dismissed the campaign’s lawsuit on Nov. 21, saying the plaintiffs lacked standing to bring the claim, among other issues. The campaign said it has appealed the ruling to the U.S. Court of Appeals for the 3rd Circuit.
Rudy Giuliani, the lead attorney representing Trump’s post-election legal effort, said on Nov. 21 that Brann’s dismissal would help expedite the lawsuit’s progression to the Supreme Court.
President Donald Trump on Nov. 21 foreshadowed the appeal.
“It’s all a continuation of the never ending Witch Hunt,” the president wrote on Twitter. “Judge Brann, who would not even allow us to present our case or evidence, is a product of Senator Pat ‘No Tariffs’ Toomey of Pennsylvania, no friend of mine, & Obama – No wonder. 900,000 Fraudulent Votes!” Trump was referring to Sen. Pat Toomey (R-Pa.).
In the lawsuit, brought against Pennsylvania Secretary of State Kathy Boockvar and seven Keystone State counties, the Trump campaign asked the court to block the certification of the election results in Pennsylvania, arguing that voters in Republican-controlled counties were treated unequally to those in Democrat-controlled counties. The voters in Democrat-controlled counties were given the chance to fix issues with their absentee ballots in contravention of state law, while officials in Republican counties followed the law and didn’t offer such an opportunity, the lawsuit claimed.
The plaintiffs in the lawsuit included the Trump campaign and two individual voters whose mail ballots were rejected without an opportunity to cure the defects.
In his memorandum opinion, Brann argued that the individual plaintiffs failed “to establish that it was defendants who caused these injuries and that their purported injury of vote-denial is adequately redressed by invalidating the votes of others.” The judge pointed out that the plaintiffs sued the counties that extended the opportunity to voters to cure their ballots and not those that didn’t. He also found that the lawsuit failed to substantiate how Boockvar was responsible for the rejected ballots.
“First, defendant counties, by plaintiffs’ own pleadings, had nothing to do with the denial of individual plaintiffs’ ability to vote. Individual plaintiffs’ ballots were rejected by Lancaster and Fayette Counties, neither of which is a party to this case,” Brann wrote.
“None of defendant counties received, reviewed, or discarded Individual Plaintiffs’ ballots. Even assuming that defendant counties unconstitutionally allowed other voters to cure their ballots, that alone cannot confer standing on plaintiffs who seek to challenge the denial of their votes.”
Brann’s dismissal of the lawsuit came before the stage of the proceedings where the Trump campaign would be able to present evidence. Since being filed on Nov. 9, the case featured a withdrawal by the attorneys representing Trump, a harassing voicemail left on a Trump campaign attorney’s phone by a lawyer from a firm representing the defendants, and a major revision to the Trump campaign’s original complaint.
The campaign’s amended complaint narrowed its claims from seven to two. A significant circuit court ruling issued shortly after the campaign filed the amended complaint forced it to further concede that it is only retaining one of the two claims for the purposes of an appeal. The remaining claim alleged a violation of the Constitution’s equal protection clause.
Giuliani said he “fully” disagreed with the ruling.
“Today’s decision turns out to help us in our strategy to get expeditiously to the U.S. Supreme Court. Although we fully disagree with this opinion, we’re thankful to the Obama-appointed judge for making this anticipated decision quickly, rather than simply trying to run out the clock,” Giuliani said in a statement.
“We hope that the Third Circuit will be as gracious as Judge Brann in deciding our appeal one way or the other as expeditiously as possible. This is another case that appears to be moving quickly to the United States Supreme Court.”
Conservative Supreme Court Justice Samuel Alito was assigned earlier this week to oversee emergency appeals from the 3rd Circuit.
The Supreme Court is already considering a separate appeal challenging Pennsylvania’s three-day extension of the vote-by-mail deadline. The court ordered the state to segregate the ballots it receives after Election Day pending a ruling on the matter. The number of ballots at stake in the case—estimated to be roughly 10,000—is not enough to change the outcome of the presidential election in the state.
As part of the lawsuit, the Trump campaign alleged that more than 682,000 absentee ballots were processed without Republican observers present, among other issues.
More than 20,000 absentee ballots in Pennsylvania were marked with receipt dates prior to the date they were allegedly sent, according to a researcher’s analysis of the state’s voter database. Roughly 58,000 other ballots have improbable return dates considering the U.S. postal delivery times.
Legal challenges in Pennsylvania piled up even as Brann dismissed the campaign’s flagship case in the commonwealth. A group of Republican politicians sued Pennsylvania on Nov. 21 seeking to block the certification of the election results in the commonwealth by arguing that its vote-by-mail statute violates the state’s constitution. The lawsuit argues that Act 77, a law that made voting by mail without an excuse legal in Pennsylvania, violates the Keystone State’s constitution.
Jack Philips contributed to this report.