Rudy And The Gang Making Fake Judge's Orders Now, As A *Courtesy*
Rudy Giuliani is back, baby! He dropped another three batshit filings on US District Judge Matthew Brann's docket this morning in a patently ridiculous attempt to overturn the expressed will of the voters in the Commonwealth of Pennsylvania.
This sumbitch is trying to kill us!
Pole watcher? Really? REALLY?
They're throwing all kinds of crazy shit up against the wall hoping something will stick, and their understanding of the Federal Rules of Civil Procedure is ... perhaps a little shaky. But at bottom, the Trump campaign is making two claims. We shall explain them to you!
The first allegation is that Pennsylvania Secretary of Commonwealth Kathy Boockvar improperly told county election officials that they could contact voters who'd submitted defective mail-in ballots and allow them to vote provisionally in person. To be scrupulously fair to the Trump campaign (not that they'd return the favor), there's a plausible argument that this wasn't allowed under Pennsylvania law, which says you can't vote in person if you've already voted by mail.
But it's not a great argument, and it's one they haven't had a lot of success with before. There's no specific provision of the law that outlaws it, and Pennsylvania has allowed for ballot cure in the past. Which is why the Trump campaign has resorted to distorting language from a related case to make it sound like a federal judge sided with them on the law, when he was simply making an observation about the practical effect of the statute.
How to get yourself sanctioned in Federal Court, a 3 part story. Law students: Don't do this. Never, ever do this.… https://t.co/RKmFvBdlUz— Akiva Cohen (@Akiva Cohen)1605529193.0
Additionally, there are two other glaring problems with this theory of the case. The first is that they've never put forward an iota of proof that the number of ballots "cured" in this way would be enough to affect the outcome of the race. And the second is that Secretary Boockvar issued the guidance to all county elections officials. The fact that only a few of them actually did it, most notably Philadelphia and Allegheny Counties, isn't evidence of a conspiracy to violate the Equal Protection rights of voters in other counties.
The second "pole" the Trump campaign is watching is an allegation that Republicans were systematically excluded from the canvass in Philadelphia and Pittsburgh as part of the same conspiracy to throw Pennsylvania's electors to Joe Biden.
Defendants treated millions of mail-in voters differently depending on their geographic location and whom the voters were likely to support, and counted untold thousands of ballots that unambiguously fail to meet the mail ballot-security requirements set forth by the Pennsylvania legislature. In addition, Defendants purposefully excluded Plaintiffs from meaningfully observing significant portions of this election, hindering Plaintiffs' ability to independently quantify how many thousands of invalid ballots were counted.
Which is nonsense on its face, because Republicans were not excluded from the canvass or given insufficient access, as the Pennsylvania Supreme Court held yesterday. There's zero evidence that large numbers of defective ballots were pushed through by nefarious Democratic officials. Rudy can make noise all he wants about "thousands of invalid ballots," but so far they haven't produced a single one.
And not to get too legalistic on this Mommyblog, but the argument that Republicans were simultaneously denied due process under a Pennsylvania law guaranteeing ballot access, and also that the same law is unconstitutional and must be overturned by the federal court is ... well, it's a lot.
Which brings us to those pleadings. Which are also A LOT.
As we've mentioned, Rudy and the rightwing talkshow host are the third set of lawyers on this case since it was filed on November 9. Which is not the defendants' problem, and it's certainly not the court's problem. Nonetheless, the Trump campaign would like a delay to allow its new team to get up to speed on the case.
"Plaintiffs do not seek leave to amend for the purpose of undue delay," they assure the court, adding that "Plaintiffs have no bad faith or dilatory motive for requesting leave to amend. As noted above, Plaintiffs have no interest in any dilatory tactic, and every reason to avoid any such tactic. Similarly, Plaintiffs have no bad-faith motive for seeking leave to amend."
No bad faith at all in this request by the Trump campaign to push this off with certification of the count scheduled for November 23 going into a holiday weekend! And you can tell it's true by the number of times they repeated it.
Pay no attention to the report by the Washington Post that "Giuliani has also told Trump and associates that his ambition is to pressure GOP lawmakers and officials across the political map to stall the vote certification in an effort to have Republican lawmakers pick electors and disrupt the electoral college when it convenes next month — and Trump is encouraging of that plan, according to two senior Republicans who have conferred with Giuliani and spoke on the condition of anonymity to discuss the matter candidly."
Under the Federal Rules of Civil Procedure, a plaintiff is entitled to file one amendment to their complaint, but further changes require acquiescence by the defendant or leave of the court. The Trump campaign already had its bite at the apple, using it to delete all the stuff about lack of access for "pole" watchers after the Third Circuit said there was no standing for a candidate to sue the state for failing to apply its own law.
Now they'd like the court to give them a mulligan on the bizarre claim that 20 pages of arglebargle disappeared from their second try accidentally: "Plaintiffs seek leave to file a Second Amended Complaint to restore claims which were inadvertently deleted from their Amended Complaint."
But wait, there's more!
Contemporaneously with this Opposition, Plaintiffs are filing a Second Motion for Expedited Discovery to obtain, inter alia, access to the outside and inside envelopes for the approximately 1.5 million mail ballots at issue – all public records – in the Defendant Counties, or, alternatively, a significant random sample from each county. In accord with Marks v. Stinson, Plaintiffs will examine these envelopes to determine the percentage of mail ballots which were illegally counted – of which Biden won approximately 75% and Trump 25%, a 50% margin for Biden. Plaintiffs, through statistical expert analysis will then extrapolate this percent to the 1.5 million mail ballots. This simple exercise will determine whether Plaintiffs can prove their case – that sufficient illegal ballots were counted that changed the result of the election. If so, the Court should set aside these votes and declare Trump the winner.
Wait, WUT? Did Rudy just suggest that Philadelphia and Pittsburgh hand over their absentee ballots so the campaign can apply its Trump Math Formula and tell the judge who won the election? They can't possibly be serious!
For example, if 10% of the 1.5 million mail ballots were improperly counted because they lacked signatures, dates, or inside security envelopes, 75% x 150,000 votes should be deducted from Biden, and 25% x 150,000 votes should be deducted from Trump, a margin of 75,000 votes for Biden which would be sufficient to overturn reported results.
OH MY GOD, they're serious. They really want to deprive voters of the franchise based on statistical analysis, then have a judge call the election for Trump.
Like we said, it's A LOT. So we won't go into all the ways these filings are pile of hacky crap from a technical, lawyering perspective. But just to give you a taste ...
Why, no, it is not standard practice to sign the judge's name on the order when you file it on the docket. No matter what Jenna Ellis would have you believe.
Ok Mr. Practicing Attorney. This is an EXHIBIT to a motion for leave to file. Not the actual amended complaint. It’… https://t.co/AZg5a4gbjy— Jenna Ellis (@Jenna Ellis)1605751165.0
Neat. Well, that's all the time we have lawsplaining today. Time to go breathe into a paper bag until the world comes back into focus.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.