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