Blitzkrieg Ballots

The 3rd U.S. Circuit Court of Appeals on Friday ruled against the Trump campaign. President Trump’s legal team had appealed a federal district court ruling in Pennsylvania on the narrow grounds that the Trump campaign should be permitted to amend its original complaint a second time.

Ordinarily, courts liberally permit parties to amend their complaints. And in that light the court here noted “[c]ourts should grant leave to amend ‘freely . . .  when justice so requires.’ [Citation omitted.] In civil rights cases, that means granting leave unless ‘amendment would be futile or inequitable.’”

The court held, however, that the proposed amendment by the campaign indeed would be futile and inequitable. Case closed. Game over.

It would be futile, the court noted—no less than eight times—because the Trump campaign did not allege fraud. The court pointed out that campaign counsel Rudy Giuliani in open court admitted that the campaign was not pleading fraud. 

The proposed second amended complaint did allege “a deliberate scheme of intentional and purposeful discrimination.” The court, however, said that this and the other allegations in the proposed second amended complaint were conclusory rather than supported by fact and that the campaign had already litigated many of these issues and lost.

The court further opined, citing the Pennsylvania Supreme Court in In re Canvassing Observation Appeal of: city of Phila. Bd. Of Electors, that the Pennsylvania law requiring poll watchers and representatives, requires only that poll watchers be in the room, “not that they be there within any specific distance of the ballots.” The Trump campaign, the court added, had cited no case, and the court was unaware of any, suggesting that such a construction (watchers who cannot watch) of Pennsylvania law presented a question of due process.

Finally, the court said that allowing the Trump campaign to amend its complaint would be inequitable because the campaign had earlier insisted on the need to resolve the issues quickly. How could the campaign then claim that the additional time needed to amend was equitable? Time’s up. I’m late. I’m late for a very important date.

I recite this litany not to criticize, by any means, the appellate court. Rather, I note this to point out the truth of something I noted earlier. The time between the election and the inauguration, especially when taking into account the mechanics of our legal system, places an incredible strain on the ability of our judicial system to address the integrity of the election.

The court of appeals clearly criticized the Trump campaign for failing adequately to plead and for the chaotic nature of its arguments. Perhaps the cause of this chaos is not the inherent weakness of its potential case but something else.

Perhaps the Trump campaign, like everything Trump, is deeply unpopular in the ranks of elites. What if the bar is not the least excited about pursuing claims on behalf of the Trump campaign because, like the elite media, most simply do not like him and many despise him altogether? As readers of To Kill A Mockingbird know, the adversary system in the United States has never worked well for unpopular clients. Imagine if Atticus Finch had withdrawn shortly before trial.

The Trump campaign’s litigation team has been beset by resignations, like that of Porter Wright Morris & Arthur. One cannot say for sure what triggered these resignations or whether the resignations disrupted the litigation. The missteps cited by the court of appeals suggest a fumble. Was it the snap? Or should we blame the quarterback?

Regardless, even with competent counsel, one must ask: is there sufficient time between November 3 and certification to allow a challenge based on the general conduct of the election affecting a very large number of votes? As the court noted, a ruling rejecting thousands or hundreds of thousands of ballots would be unprecedented. Successful election challenges in the past have been based on specific evidence of fraud with respect to specific ballots, not a complex scheme.

The resulting mess is evident enough. A very good portion of the public sees a highly anomalous election using a novel mechanism, the mail-in ballot. That portion may never recover its confidence in the electoral process because the judiciary is not in a position to address it. It’s blitzkrieg and the battle for ballots was over as soon as it had begun.

A final observation: the court of appeals noted in its ruling that “[n]ow, any Pennsylvania voter can vote by mail for any reason.

On Wednesday, a lower Pennsylvania court issued a preliminary injunction against certifying the state’s vote count. The Pennsylvania lower court did so relying on Article VII, Section 14 of the Pennsylvania constitution, which provides only two means by which a qualified elector may cast his or her vote in an election: 1) in person at a polling place on election day and 2) by submitting an absentee ballot that satisfies the specific constitutional conditions for a voter to be considered absentee.

Candidly, there is no legal reason why the 3rd Circuit in dicta has to square exactly with the law in Pennsylvania. It is clear, however, if the court’s characterization that “any Pennsylvania voter can vote by mail for any reason” is correct, then the 2.6 million mail-in ballots cast by voters in Pennsylvania are ballots that do not appear to be permitted under the Pennsylvania constitution.

This Pennsylvania case had already blitzed its way through the courts. The Pennsylvania constitution allows mail-in ballots for any reason in a pandemic in which it is perfectly fine to go to protest, rally, or Home Depot and Walmart because, you guessed it, the action was untimely.

About Jay Whig

J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.

Photo: Getty Images

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