Saturday, November 28, 2020

Exhibiting legal incompetence, Trump campaign keeps losing

Quote of the Day: Marc E. Elias has been keeping score: “Trump and his allies are 1–38 in post election litigation.” - AZ Blue Meanie.

You would think (or maybe not) that the Trump campaign would get the message and give it up.

But no, the more the Trump campaign tries, the more they lose. That’s a variation on the well-known deefinition of insanity. Following are a couple of examples.

Third Circuit Rejects Trump’s Pennsylvania Appeal In A Scathing Opinion reports the AZ Blue Meanie at Blog for Arizona. Here are some snippets.

A Republican panel of the Third Circuit Court of Appeals, in an opinion written by a Trump appointee, unanimously rejected Trump’s election appeal from Pennsylvania in a scathing opinion.

In a 21-page unanimous and scathing unpublished opinion, the Third Circuit has rejected the appeal of the Trump campaign in the Pennsylvania federal case challenging the election results. Judge Bibas, a Trump appointee, begins the opinion: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."

This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges. It shows the absurdity of the litigation: besides the fact that the case was poorly lawyered—Rudy Giuliani’s oral argument was the worst I have heard in 25 years of following election law cases–the case was as weak and conclusory in its allegations of wrongdoing as it was spectacularly anti-democratic in seeking to disenfranchise all of Pennsylvania’s voters by putting the matter after the fact into the hands of the state legislature. It was an awful lawsuit, and it was right to be rejected by the court, but it is still good to see the courts hold and not allow for a lawsuit that would have overturned the results of a legitimate election on the flimsiest of pretexts.

The Trump campaign can try to take this to the Supreme Court—if it is indeed true as reported in the NY Times that Giuliani is being paid $20,000 a day for his work, why wouldn’t he?–but it will get no better reception there. As divided as the Supreme Court is ideologically, this kind of absurd and dangerous litigation will not get a friendly reception there.

Quoting the court’s opinion:

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

Also at Blog for Arizona, Larry Bodine reports that the Legal Community Calls for an End to Baseless Claims of Election Fraud.

More than 1,200 prominent lawyers from across the country have signed an open letter calling for an end to baseless claims that by the Trump campaign that the 2020 presidential election was fraudulent as part of Trump’s desperate attempt to overturn the decisive vote of the American people.

The letter, organized by the nonpartisan Lawyers Defending American Democracy, also calls on courts to hold the lawyers making the false claims accountable to the oath they swear to uphold the Constitution and honestly discharge their duties.

"A lawyer’s oath is a sacred vow,” the letter states. “Americans have a right to expect, and courts must require, that those who undermine the Constitution by perpetuating false allegations to prevent citizens from having their vote counted – effectively denying them the right to vote – be held to account.”

“Knowingly making false claims in court submissions as part of a scheme to delay vote certifications and enable GOP-controlled legislatures to seat pro-Trump electors against the will of the voters is profoundly unethical and poses a direct threat to our democracy,” Pearson said.

“Every candidate has a right to ensure that an election is conducted lawfully. However, court challenges, if any, must be based on facts, on evidence. These principles are fundamental to securing every citizen’s right to vote and to our democracy,” the letter states.

“If ever there were a time for the nation’s bar associations to speak out for the rule of law, it is now,” writes Lauren Stiller Rikleen in The National Law Journal. “This is neither about politics nor partisanship. It is about the ability to keep our republic, as Benjamin Franklin challenged following the Constitutional Convention of 1787.”

The full letter is available here with signatures.

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