Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania

On Saturday, U.S. District Court Judge Matthew Brann dismissed the challenge filed by the Trump campaign to stop the certification of the vote in Pennsylvania. The court acknowledged that vote negation may have occurred due to different “curing” rules, but balked at the legal and logical basis for blocking certification of the state electoral votes to remedy to such claims. The scathing order described the argument of Trump counsel Rudy Giuliani as a “Frankenstein monster” composed of disparate parts of different legal claims. Notably, the court did find that the “Individual Plaintiffs have adequately pled that their votes were denied.” However, that island of support is lost in a vast ocean of countervailing and caustic findings by the court.

The court started its decision with a haymaker:

“This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.”

The court slammed the Trump campaign over standing and countervailing precedent.  It described the filing as a “Frankenstein’s Monster… haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”

The Trump campaign is likely to argue on appeal that, while citing the absence of more systemic problems, the court was also denying the campaign access to information held by the state and election officials.

As the court acknowledged, the Trump campaign expressly accepted that aspects of its argument on standing were precluded by existing precedent but wanted to preserve the issue for appeal. On other issues, however, the court repeatedly slammed the campaign for “trying to mix-and-match claims to bypass contrary precedent.” It said that the effort was “not lost on the Court.”

Much of the most biting language was directed at the campaign standing claims. Yet, while the court hits the Trump campaign on its “competitive standing” theory, it also notes:

“To be clear, this Court is not holding that a political campaign can never establish standing to challenge the outcome of an election; rather, it merely finds that in this case, the Trump Campaign has not pled a cognizable theory.”

There are aspects of the opinion that could be challenged on appeal, the Court repeatedly comes back to the primary difficulty facing the campaign: the remedy. This is another “sticker shock” decision with a judge balking at the relief. The court emphasized the disconnect that it found between any violation and the requested relief. It rejects the notion that it should protect the votes of these individual votes by effectively disenfranchising millions of other voters by blocking certification. It is a “leveling down” approach that the Court find counterintuitive and unsupportable:

“When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right, or a court may level down by withdrawing the benefit from those who currently possess it. Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up. In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution. Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed.”

Despite the strong language of the opinion, it would be a mistake for Giuliani to continue to attack what he claims to be the bias of “Democratic judges.”  I have previously criticized President Trump for such attacks (though Democrats regularly level the same attacks at Republican appointees on the Supreme Court).  While he was appointed by President Barack Obama, Judge Brann is a well-regarded jurist who happens to be a Republican (and long-standing member of the Federalist Society). One can disagree with elements in this decision but it is an overall view, particularly of the relief, that would be shared by many jurists and lawyers.  We need to move away from these personal attacks and focus on the law. Indeed, the attacks by Giuliani on the integrity of such judges undermines his own credibility and that of his client.

The decision will now permit the Trump to appeal to the Third Circuit (and potentially to the United States Supreme Court).

Here is the opinion: Trump v. Boockvar

155 thoughts on “Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania”

  1. Question: As the Biden transition team proceeds apace selecting a cabinet, etc, has Senator Kamala Harris resigned her seat in the senate yet? If not, what is she waiting for?

  2. I’ve read Judge Brann’s decision dismissing Trump et al.’s case w/ prejudice. Professor Turley and anyone who wishes, educate me where or how I am missing something (and when I say “educate me” I do mean help me understand rather than beat me up – you can beat me up, but I won’t take much stock in that, but I suppose deservedly so b/c, conversely, I’m not offering to pay tuition for any education I might receive). The decision’s is based on a fundamentally flawed misframing of plaintiffs’ claim and relief wherein the court couches it as, “. . . seek[ing] to discard millions of votes legally cast by Pennsylvanians. . . ” The complaint, theory of the case and relief sought alleges hundreds of thousands of ILLEGALLY cast votes rendered the election invalid and ring time and measures to right that wrong. While temporarily staying the enfranchisement of all votes, legally and illegally cast, necessarily and logically holds the effect of legally cast votes for a period of time (as it does w/ illegally cast votes) it discards neither. Taking the plaintiffs’ allegations and all reasonabe inferences therefrom as true, which FRCP 12(b)(6) requires, and given the evidence presented (scant in comparison to the amount plaintiffs claim to have) as well as the offers of proof plaintiffs must have presented to the court – (here’s where ya want to either “educate” or “attack” me since these are assumptions on my part) – the court’s reasoning is circular in so far as it holds that the plaintiff’s case fails to state a claim upon which relief can be granted b/c plaintiffs, without having an opportunity to present evidence to support their claims have not presented any evidence to support their claims and relief sought. Aside from its angry, borderline vitriolic tone (which serves only to further undermine or give a clearer window through which to see its circular and ultimately flawed reasoning, the court’s circular reasoning and it fundamental misframing of the claims and issue presented that cause the effect (see – “cause -> effect?!) denying plaintiffs the procedure of allowing them to present the factual evidence to the fact finder which is due to them – hence, a denial of due process. In sum, by denying the plaintiffs the opportunity to present evidence to support a claim, which if proven true by a preponderance of evidence, would entitle plaintiffs the relief sought, the invalidation of all illegally cast ballots and validation of legally cast ballots. Where am I going wrong here? Educate me, please. Heck, attack me if you must. Either way, thank you for your time and consideration of my request for a free education (or attack),

  3. The 3rd Circuit has granted the Trump Campaign’s motion for emergency expedited review in this PA case and ordered the Trump Campaign to submit its brief by 4pm today, with appellees responding by 4pm tomorrow.

    Will this Trump Campaign brief be as weak as the previous one?

    Meanwhile, in WI, “The attorney leading President Donald Trump’s recount effort in Wisconsin voted illegally according to his own legal argument that in-person absentee ballots should be thrown out. So did his wife.” (https://www.jsonline.com/story/news/politics/elections/2020/11/22/attorney-heading-up-trump-recount-wants-throw-out-his-own-vote/6382647002/)

    1. The destructive behavior by the Dem Party for the last five years, is deeply troubling.
      Just as troubling is a judiciary that consistently seems deeply unwilling to help correct the large scale, criminal behavior by the Dem Party, and is openly hostile to legal efforts to do so.
      Chief Justice Roberts had the opportunity to prevent the chaos of unsolicited mail-in ballots based on inaccurate voter rolls, at least in Pennsylvania, but chose not to do so. This is not about the supposed weakness of a legal brief. It is about the intentional circumvention of the US Constitution and federal voting laws.

    2. Have you read ANY of the Trump campaign briefs ?

      This far you seem to be clueless bout the actual facts of this election.

      After a disappointing night for democrats you woke up in the morning and discovered that millions of mailin votes appeared to produce a result more to your liking.

      Had the reverse occured – you would be rioting in the streets and burning things down.

      The whole world has seen how you get when you do not get your way.

      For the past 4 years – almost certainly far longer, you have had blinders on – and the media has helped you.

      Do you honestly know for yourself anything – about Trump, about Biden, about the election – about anything ?

      You have bought 4 years of the left, the media, democrats lying about this absolutely idiotic collusion delusion nonsense – and you are still not really ready to let go.

      I am hard pressed to think of an issue that you have been right about.

      If YOU said the son would rise tomorow – I would have doubts – because so little of what you say is correct.

      When I read the article you linked – after lots of assertions by the reported regarding Troupis, when you get down to what is actually argued by Troupis it is far narrower than your claim.

      Troupis wants absentee ballots where someone other than the voter entered the address on the outer envelope.

      If Troupis did that – then his ballot should be rejected. But contra your claim – there is no evidence Troupis did that.

      Regardless, Troupis’s point – which is incredibly important is that the responsibility for voting properly rests with the VOTER.

      The only means that election officials have of telling fraudulent ballots from legitimate ones is voter errors in the voting process.

      Rejecting ballots that were not filled out correctly by the voter with certainty rejects valid votes where the voter erred.
      But allowing election officials to “cure” a ballot with certainty make election officials complicit in election fraud.

      Further “Curing” ballots encourages future fraud.

  4. “…But in choosing the President, the votes shall be taken by states, the representation from each state having one vote;…”

      1. I expect that the EC will vote for Biden – though they can not do so if the States do not certify and the legislators do not direct the electors.

        Of course people will live with the outcome – that does not mean they will accept it.

        One of the differences between 2016 and 2020, is that in 2016 the left alleged false claims of Russian interference and held the country hostage for 4 years. In 2020 there was without any doubt election fraud. The left may “get away with it” but that will not change the fact that the smell will stick with the entire democratic party for years.

        This is not merely an problem on Biden’s part. The corruption in 2020 engulfs the entire democratic party.

        1. The Russians interfered in the 2016 election, for example, via the Russian troll farms. You can deny the reports about this from the DNI, from the SSCI, and more, but that only makes you a denier.

          1. The name calling of “you a denier” is treasured by Dems. Talking points are more important to them than the actual, statistical significance of the Russian interference. The integrity of the election systems is not important to them, only seizing power and wealth.

          2. Regarding GNI, SSCI – these would be the same people who told us the USSR was stable in 1988. That Sadam would not invade Kuwait, that Sadam posessed nuclear weapons, need I go on ?

            Are you still trying to sell this nonsense.

            The Internet Research Agency spent $10M in 2016 running FB adds that were ridiculously stupid, that would not persuade a moron – but somehow got you into a froth for 4 years. Those Add’s were approximately equally divided between Trump, Sanders, and Clinton, and most did not run until after the election.

            The IRA is “linked” to Putin. But then Hillary Clinton is “linked” to Clinton.

            The above are FACTS.

            I do not need some expert to assess facts myself – I have a brain and no how to use it.

            I would further suggest you compare the FACTS, to your personal “spin”.

            Do I deny reports ? No – lots of reports of all kinds of things happened – myriads of people reported things that were false -but the report existed.

            Do you “deny” the FACTS ?

      2. Maybe; maybe not. Much has happened in the 5 days since your post, “Anonymous.” W/ more and more evidence of voter fraud, election rigging and election manipulation is coming to light through STATE LEGISLATIVE hearings on the FACTUAL issue, the more and more the claims are gaining credibility. The factual evidence supporting claims are being denied this opportunity in judicial fora. Such denial of due process by the supposedly least political branch is subversive and dangerous, not simply unfair and unjust. But Truth has its own inertia and momentum – like water running down hill – it runs into obstacles like rocks and fallen trees, but t finds its way around them one way or another. If the claims are in fact true, they’ll find their way into the known – into the light – and it appears they are the facts supporting the claims voter fraud, election rigging and mass manipulation, having run into a few/several rock in the judiciary’s stream are finding their way around them by being forced into the legislative stream/forum, a perfectly constitutionally, legally, appropriate, and now, necessary path for such evidence to be shown, And under the Constitution as well as the various State Constitutions (the “Constitutional scheme”), while unprecedented and surely subject to shouts of state politicians disenfranchising the Will of the People, such a process is nevertheless Constitutional, and Biden very well may not win the Electoral College vote. It’s precarious path, but when the judiciary functionally fails in its Constitutional obligations, it is the judiciary to blame for forcing us into this Constitutionally precarious path. This is what intellectual dishonesty and overblown egos get ya – dangerous waters – to continue with water running down hill metaphor – class 5 rapids instead of placid flowing streams.

  5. Powell issued the following statement to CBS News:

    ‘”I understand today’s press release,” she said. “I will continue to represent #WeThePeople who had their votes for Trump and other Republicans stolen by massive fraud through Dominion and Smartmatic, and we will be filing suit soon. The chips will fall where they may, and we will defend the foundations of this great Republic. #KrakenOnSteroids”‘

    https://twitter.com/kathrynw5/status/1330672355178266624

      1. Powells claims are dramatic and seem unlikely because of the high penalty for and the high likelyhood of getting caught.
        And the GA recount – while finding DVS problems did not find anything like Powell is alleging.

        If this were anyone else but Powell I would be dubious.

        I would further note that Powells out of court statements are defamatory if false.

        Yet there is no defamation claim filed so far, nor any threat of defamation claims.

        That is very troubling. That strongly suggests that DVS beleives Powell has the goods.

        1. The GA recount didn’t “find DVS problems”, it found some human error.

          That DVS hasn’t filed a defamation suit already doesn’t strongly suggest that DVS believes Powell has the goods, it only strongly suggests that DVS believes that the suit is a net negative for them, perhaps because their is legal info they want to protect from discovery.

          1. “The GA recount didn’t “find DVS problems”, it found some human error.”

            You are clueless. The “Human Errors” that DVS claimed were not human errors – they were software failures.
            And they were not in Georgia. Can you get any facts correct ?

            “That DVS hasn’t filed a defamation suit already doesn’t strongly suggest that DVS believes Powell has the goods, it only strongly suggests that DVS believes that the suit is a net negative for them, perhaps because their is legal info they want to protect from discovery.”

            That is correct – DVS does not want to file a lawsuit in which they would be subject to discovery.

            And you do not seem to grasp – What Powell is claiming is HUGE. The mere claim will cost DVS millions – possibly hundreds of millions.
            What is it that DVS would prefer not to expose in discovery that is worth hundreds of millions ?

            Further, it is not normal to jump straight to a defamation lawsuit.
            The norm would be to demand correction or retraction or a cease and desist.

            DVS has done none of these so far – that is very troubling. What company allows false statements that could destroy or atleast severely damage the company and not atleast threaten a lawsuit, atleast publicly threaten defamation ?

            There is no discovery cost associated with a threatened lawsuit.

            I do not honestly think Powell has proof of serious DVS malfeasance.
            But the pact that Powell is making the claim, that DVS has not strongly responded, and that they will lose alot if they don’t is strong evidence I could be wrong and Powell may have something.

            I would also note – there are likely to be suits and littigation involving DVS for a long time.
            Discovery is inevitable.

        2. The Dem incentives for committing ballot counting fraud likely were very high throughout 2020. The Zuckerberg couple alone reportedly gave $350 million to election operators but will not release lists of the recipients.

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