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Trump’s Embarrassingly Bad Legal Case in Pennsylvania

No wonder his campaign kept swapping out its lawyers.
November 25, 2020
Trump’s Embarrassingly Bad Legal Case in Pennsylvania
Rep. Louie Gohmert (R-TX) holds a Trump 2020 sign outside of the Philadelphia Convention Center as the counting of ballots continues in the state on November 06, 2020 in Philadelphia, Pennsylvania. Joe Biden took the lead in the vote count in Pennsylvania on Friday morning from President Trump, as mail-in ballots continue to be counted in the battleground state. (Photo by Spencer Platt/Getty Images)

On Saturday, a federal district court judge issued a blistering dismissal of Donald J. Trump for President, Inc. v. Kathy Boockvar. The opinion is a lesson in elementary lawyering—a once-in-a-career missive that I assigned to my first-year law students on Monday, because it reads like a toddler’s “What’s Wrong With This Picture” exercise for lawyers. No wonder that Chris Christie, who was a U.S. attorney before he was New Jersey’s governor, called Trump’s legal team a “national embarrassment” in the wake of its dozens of legal failures. The more sobering problem is that, like much of government touched by Donald Trump, the legal system has now been sullied by his spurious attacks—relying on tortured arguments and illusory facts—upon legitimately cast and counted votes. Too bad that—so far—no lawyers have been sanctioned for abusing the courts this way. They should be.

Let’s start with some Lawyering 101. In order to bring a valid civil lawsuit, a plaintiff needs two things in hand: a law that authorizes certain relief from a court if a set of facts is ultimately proven, and some preliminary facts that have been gathered in good faith to justify proceeding with the case. Without supporting law or facts, not only will a court dismiss the lawsuit, but the lawyer, the law firm, and the client can be sanctioned for initiating the bogus case in the first place. The Trump campaign’s Pennsylvania effort lacked these basics. Someone should be held accountable.

The plaintiffs in the lawsuit included the Trump campaign and two voters who claimed that their mail-in ballots were improperly disqualified. The Pennsylvania legislature extended vote-by-mail to all registered voters in October 2019. In March 2020, the legislature amended the law to add procedures for voting by mail, including the requirements that voters place ballots in secrecy envelopes and that ballots be received by county election boards by 8:00 p.m. on election day.

The statute doesn’t address “curing” ballots—inviting voters to address deficiencies in their ballots, such as lacking the required outer envelopes—but in practice, counties could decide to implement a process for doing so. On November 2, 2020, a defendant in the case—Secretary of the Commonwealth Kathy Boockvar—emailed counties encouraging them to “provide information to party and candidate representatives” about curing options. Some counties implemented notice-and-cure procedures. Others didn’t, including those in which the individual plaintiffs voted.

Team Trump filed its lawsuit on November 9. The defendants immediately moved the court to throw it out. In short order the plaintiffs’ original lawyers asked the court for permission to withdraw from the case. The day after the response to the dismissal motion was due, the new lawyers filed a revised complaint, essentially alleging a constitutional equal protection claim. The judge noted that “a review of the redline”—that is, the revisions made to the complaint—“shows that Plaintiffs deleted numerous allegations that were pled in the original complaint.”

New motions to dismiss followed, as did yet another round of Trump lawyers asking to withdraw from the case. Two of the three lawyers had been involved for only seventy-two hours, so the judge let them off the hook; the third was required to carry on.

With only one equal protection claim left after this comedic exchange of pleadings and legal team do-si-dos, one might expect the Trump case to be especially sound. Not so. The judge likened the allegation to “Frankenstein’s Monster”—“haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”

The Equal Protection Clause of the Fourteenth Amendment addresses discrimination by the government on the basis of immutable characteristics like race and, to a lesser extent under Supreme Court precedent, gender. Ideally, it operates to ensure that the government treats people as equally as possible. According to the judge, the Trump campaign merely alleged the “general thrust” of an equal protection claim, which amounted to an assertion “that it is unconstitutional for Pennsylvania to give states discretion to adopt a notice-and-cure policy.”

Recall that in Bush v. Gore, the Supreme Court in 2000 held that the Florida legislature’s failure to adopt a consistent mechanism for recounting votes in that presidential election posed constitutional equal protection problems. It ultimately halted the recount as a consequence. This round, the Trump campaign seized on that case to argue that “local control is unconstitutional because it creates an arbitrary system where some persons are allowed to cure procedurally defective mail-in ballots while others are not.” But, as the judge notes, the Supreme Court explicitly explained that its Bush v. Gore ruling held no such thing: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”

An added wrinkle was that, according to the judge, the Trump campaign also “apparently recogniz[ed] that such a broad claim is foreclosed under” precedent from the Third Circuit, the federal appeals court for Pennsylvania, which recently held that only the legislature had standing to bring such a lawsuit in the first place.

Undeterred, the Trump campaign tried to ride the coattails of the individual plaintiffs, arguing that because their votes were disqualified, the campaign was entitled to throw out the election results altogether. But the individual voters weren’t asking merely to have their two votes counted. They were seeking to cancel roughly seven million other voters’ votes. Of course, this “mix-and-match” made no logical or legal sense to the judge. It also arguably crossed into the realm of sanctionable conduct, because lawyers can only ask federal courts to push existing law if their arguments are “nonfrivolous.” These did not qualify.

Simply put, the plaintiffs “fail[ed] to state an equal-protection claim.” Boockvar’s email “impose[d] no burden” on the individual voters’ right to vote. “Defendant Counties, by implementing a notice-and-cure procedure, have in fact lifted a burden on the right to vote,” the judge explained. Moreover:

expanding the right to vote for some residents of a state does not burden the rights of others. And Plaintiffs’ claim cannot stand to the extent that it complains that “the state is not imposing a restriction on someone else’s right to vote.”

This is not legalese. It’s just simple logic. As the judge quipped, “it is perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots.”

Moreover, he added, “Plaintiffs fail to understand the relationship between right and remedy.” Even if they had alleged a valid equal protection claim, there exist no legal grounds to “remedy the denial of their votes by invalidating the votes of millions of others.” Utter nonsense, all the way around.

For good measure, the Trump campaign tossed into the complaint some gripes of “uneven treatment” of their poll watchers. But those claims had no factual basis whatsoever. “Without actually alleging that one group was treated differently than another,” the judge wrote, the “argument falls flat.”

When asked by the Trump campaign for permission to amend their complaint again, the judge said no. Enough is enough, he likely figured. Perhaps in recognition of how weak their arguments are, Trump’s lawyers only appealed that part of the opinion to the Third Circuit, which is likely to summarily back the trial court’s refusal to allow a new round of pleadings. The rules give the trial judge loads of discretion to stop this political shell game.

Straining their core competence even further, Trump’s lawyers—yet another set—have asked the appellate court for a temporary restraining order, which only the lower court can provide. Final grade for this ragtag band of would-be lawyers is a resounding “F.”

The chance that the Supreme Court will step in and ignore the facts, ignore the law, and ignore the governing procedural rules to snatch the election from Joe Biden and the American people and hand it to Donald Trump is zero.

I suppose that’s something to be thankful for this week.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.