2020 Election Litigation (Part 7): Status Update

Pennsylvania lawsuit dismissed, notice of appeal filed; Michigan lawsuit withdrawn

Election related litigation continues to move at a rapid pace. This makes it very difficult to analyze any particular event. Accordingly, I plan to reserve any such in-depth analysis until the conclusion of the litigation. I will continue to provide updates on what exactly is happening and what is being said about these suits, and that is what I plan to do in this letter.

Several developments have taken place over the past few days:

  • The Trump Campaign voluntarily dismissed its Michigan lawsuit on Thursday, November 19, 2020.

    • According to a statement from Rudy Giuliani, the President’s lawyer, the decision to withdraw the suit was “a direct result of achieving the relief we sought: to stop the election in Wayne County from being prematurely certified before residents can be assured that every legal vote has been counted and every illegal vote has not been counted.”

    • Giuliani is referencing the incident about which I wrote in Part 6. This entailed two Republican members on the Wayne County Board of Canvassers, who initially refused to certify the county-level results only to reverse themselves and vote to certify a few hours later, but then rescinded those votes the next day. As I noted at the time, “[i]t is unclear whether Board votes can be rescinded.”

  • In Pennsylvania, Federal District Court Judge William Brann dismissed the lawsuit brought by the Trump Campaign and two voters against the Pennsylvania Secretary of State and seven county Boards of Election.

    • In the Memorandum Opinion filed on Saturday, November 21, 2020, Judge Brann held that plaintiffs lacked standing and failed to state an Equal Protection Clause claim upon which relief could be granted.

    • The Trump Campaign and the voters filed their notice of appeal to the Third Circuit on Sunday, November 22, 2020.

    • Expect the appeal to heavily focus on the issue of standing. The Trump Campaign did a relatively poor job in trying to establish standing. The two voters, on the other hand, have a fairly good standing argument that has a better chance of prevailing on appeal.

    • Plaintiffs’ amended complaint ended up hurting them. The complaint was amended in response to the Third Circuit’s decision in Bognet, which arguably challenged the theories of standing Plaintiffs were asserting. Bognet was issued a few days after the original complaint. In the scramble to bring the suit into a precedentially better posture, Plaintiffs removed the vote dilution allegations and Due Process Clause count.

      • The former was removed because it was believed Bognet foreclosed standing on the ground of vote dilution. In my view, the vote dilution allegations were the strongest in the suit. I believe it was a mistake to remove these arguments. Bognet only has precedential effect in the Third Circuit. As such, the Supreme Court owes no deference to Bognet. Indeed, Plaintiffs’ stated goals is to get the case before the Supreme Court. Therefore, they would have done well to keep the original vote dilution allegations.

      • During the November 17, 2020, motions hearing, Giuliani said the latter was removed by mistake. This was obviously an unforced error. There is no way around it. The Due Process Clause allegations were particularly strategic, because, if proven, they would have arguably provided a stronger basis to grant Plaintiffs’ more extreme remedy of enjoining certification of the election results for the whole Commonwealth. The blunder is further compounded by the fact that, under the Federal Rules of Civil Procedure, a plaintiff is only entitled to amend their complaint once as a matter of right. If the plaintiff wishes to amend their complaint again, the plaintiff needs either the consent of the opposing party or leave of the court. Obviously, the opposing parties, here almost exclusively Democratic officials, would never give such consent; and given the time sensitive nature of the suit, it is unlikely that any judge would grant leave to file another amended complaint.

    • Ultimate victory in the Pennsylvania case is not impossible, but it become just that much more difficult.


Edit Log (reverse chronological order):

  • 2020-11-23:

    • Changed URL appearing in the sentence “The Trump Campaign and the voters filed their notice of appeal to the Third Circuit on Sunday, November 22, 2020” from <ourtlistener.com/docket/18618673/donald-j-trump-for-president-inc-v-boockvar/> to <https://web.archive.org/web/20201123224046/https://www.courtlistener.com/recap/gov.uscourts.pamd.127057/gov.uscourts.pamd.127057.207.0.pdf>.

    • Changed Post URL from <https://mda.substack.com/p/election-litigation-part-7-status-update> to <https://mda.substack.com/p/2020-election-litigation-part-7>.

    • Changed Related Coverage URL appearing in “Part 6: Nevada Electors File Contest; Wisconsin Recount; Wayne County, Michigan” from <https://mda.substack.com/p/electoral-lawfare-pt-6-nevada-electors> to <https://mda.substack.com/p/2020-election-litigation-part-6>.

    • Changed Related Coverage URL appearing in “Part 5: Rudy Rages Against “Democratic Machine” in Pennsylvania Court Battle” from <https://mda.substack.com/p/electoral-lawfare-pt-5-rudy-rages> to <https://mda.substack.com/p/2020-election-litigation-part-5>.

    • Changed Related Coverage URL appearing in “Part 4: Trump's Pennsylvania Lawsuit Heats Up” from <https://mda.substack.com/p/electoral-lawfare-pt-4-trumps-pennsylvania> to <https://mda.substack.com/p/2020-election-litigation-part-4>.

    • Changed Related Coverage URL appearing in “Part 3: The Michigan Lawsuit & Pennsylvania Update” from <https://mda.substack.com/p/electoral-lawfare-pt-3-the-michigan> to <https://mda.substack.com/p/2020-election-litigation-part-3>.

    • Changed Related Coverage URL appearing in “Part 2: The Pennsylvania Lawsuit” from <https://mda.substack.com/p/electoral-lawfare-pt-2-the-pennsylvania> to <https://mda.substack.com/p/2020-election-litigation-part-2>.

    • Changed Related Coverage URL appearing in “Part 1: In Search of a Remedy” from <https://mda.substack.com/p/open-electoral-lawfare-pt-1-in-a> to <https://mda.substack.com/p/2020-election-litigation-part-1>.