Notes from Above Ground
Yesterday, November 27, 2020, the 3rd Circuit Court of Appeals for Pennsylvania issued their judgement about an important court case in our current Electoral controversy. This Court decision was a legal landmark in our Citizens’ battle to prevent Trump from stealing this election.
Trump’s lawyers lost this Appeal.
Because this legal development is very important, I felt compelled to elucidate for you some of the principles by which this three-judge panel issued their decision. This is not easy to do with a 20-page legal document, especially since I am not a lawyer, and you probably aren’t either.
So I thought I’d just clarify some of their techo-legal language by highlighting some important phrases and sentences.
And I thought I could reasonably call this report “Notes,” which made me think of Fyodor Dostoevsky’s 1864 Russian novel, “Notes from the Underground,” which Jordan Peterson likes to talk about.
So this is going to be my little exercise in snipped folk-court-reporting. If you want to see the entire document you can download it from the Washington Post, as I did, or from some other source.
I think of it as a kind of paralegal poetry — lifting some important phrases and sentences, and because it is a high Federal Court . . . Notes from Above Ground, to whit:
“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.”
. . . calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.
The (Trump) Campaign . . . allegations are vague and conclusory. Nor does the Campaign deserve an injunction to undo Pennsylvania’s certification of its votes.
The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory.
So we deny the motion for an injunction pending appeal.
Pennsylvania expanded mail-in voting. . . Now, any Pennsylvania voter can vote by mail for any reason.
In all, nearly seven million Pennsylvanians voted, more than a third of them by mail.
Pennsylvania’s counties certified their election results by the November 23 certification deadline. 25 Pa. Stat. §2642(k). The next morning, the Secretary of State certified the vote totals, and the Governor signed the Certificate
We commend the District Court for its fast, fair, patient handling of this demanding litigation.
We are issuing this opinion nonprecedentially so we can rule by November 27.
. . . the (Trump) Campaign’s request fails as both inequitable and futile.
Plaintiffs must do more than allege conclusions. Rather, “a complaint must contain sufficient factual matter, accepted as true”. . .
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” . . .
Campaign lawyer Rudolph Giuliani conceded that the Campaign “doesn’t plead fraud.”
Though it alleges many conclusions, the Second Amended Complaint is light on facts.
While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Yet the Campaign offers no specific facts to back up these claims.
. . . nothing in the Due Process Clause requires having poll watchers or representatives, let alone watchers from outside a county or less than eighteen feet away from the nearest table. The Campaign cites no authority for those propositions, and we know of none.
. . . the Campaign litigated and lost that claim under state law too. The Pennsylvania Supreme Court held that the Election Code requires only that poll watchers be in the room, not that they be within any specific distance of the ballots.
None of these counts alleges facts showing improper vote counting. And none alleges facts showing that the Trump campaign was singled out for adverse treatment.
These county-to-county variations do not show discrimination.
Nor does Bush v. Gore help the Campaign. . . Bush v. Gore does not federalize every jot and tittle of state election law.
The relief sought — throwing out millions of votes — is unprecedented. . . It cites no authority for this drastic remedy.
. . . there is no clear evidence of massive absentee-ballot fraud or forgery.
No stay or injunction is called for.
As discussed, the Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot re-litigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.
. . . it challenges no specific ballots. The Campaign alleges only that at most three specific voters cast ballots that were not counted.
And it never alleges that anyone except a lawful voter cast a vote.
Without more facts, we will not extrapolate from these modest numbers to postulate that the number of affected ballots comes close to the certified margin of victory of 80,555 votes. Denying relief will not move the needle.
Without compelling evidence of massive fraud, not even alleged here, we can hardly grant such lopsided relief.
Granting relief would harm millions of Pennsylvania voters too.
“Technicalities should not be used to make the right of the voter insecure.”
Thus, unless there is evidence of fraud, Pennsylvania law overlooks small ballot glitches and respects the expressed intent of every lawful voter.
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.
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.
We will thus affirm the District Court’s denial of leave to amend, and we deny an injunction pending appeal.
And that’s the way it is, November 28, 2020.