Despite barrage of losses in court, Trump camp plans more long-shot election appeals

Nearly a month after Election Day, President Donald Trump’s campaign is still engaged in bitter litigation over several lawsuits contesting Pennsylvania’s results.

Philadelphia police create a buffer between dueling rallies outside the Pennsylvania Convention Center. (Emma Lee/WHYY)

Philadelphia police create a buffer between dueling rallies outside the Pennsylvania Convention Center. (Emma Lee/WHYY)

It has been nearly a month since the presidential election, and a week since President-Elect Joe Biden was certified as the winner of Pennsylvania. But President Donald Trump’s campaign is still pursuing its foundering effort to contest the commonwealth’s electoral results.

The campaign filed dozens of suits around the country during and after the election. Many of those were in the commonwealth, which Biden officially won by more than 80,000 votes, or 1.2%.

The suits have contested state and county voting procedures, tabulation methods and the validity of certain ballots. So far, nearly all have been knocked down in court or abandoned, but appeals are expected in at least two.

Vic Walczak, legal director at the Pennsylvania chapter of the American Civil Liberties Union, which has intervened in a number of the lawsuits against the Trump campaign, says initially, the campaign’s goal seemed to be to invalidate enough votes to hit a 0.5% margin between Trump and Biden, which would have triggered an automatic recount.

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Now, it looks near-impossible.

“I just don’t see how they do it,” he said. “I just don’t see any path they have to get enough votes to get within that 0.5%.”

Below is a cheat sheet on the three pathways the Trump campaign and its surrogates hope will reduce Biden’s vote tally via the courts.

The attempt to cancel every ballot

The Trump campaign suffered perhaps its biggest defeats in Donald J. Trump for President v. Boockvar, in which it sought to block Pennsylvania from certifying its election results.

After a harsh rejection on Nov. 21 from a U.S. district judge, who wrote that the campaign’s legal arguments were “strained … without merit and … unsupported by evidence,” the president’s attorneys appealed the case to the Third Circuit Court of Appeals.

A similarly scathing rejection from that court came on Nov. 27.

“Free, fair elections are the lifeblood of our democracy,” Judge Stefanos Bibas wrote, in the first sentence of his opinion. “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.”

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Walczak, who is serving as an intervenor defendant on the case, notes that four Republican-appointed judges have now looked at Trump’s case, and none have found any evidence of fraud.

“Every time we’d look at the papers they filed, we’d be scratching our heads,” he said. “There was never anything there.”

Despite the repeated losses, and the third circuit calling the Trump campaign’s requests “unprecedented” and its legal arguments “repetitive,” Jenna Ellis, a lawyer for Trump, tweeted that the team would appeal the case to the U.S. Supreme Court.

She alleged an “activist judicial machinery in Pennsylvania,” despite the fact that all the judges on the Third Circuit case were appointed by Republicans.

Any appeal would likely be on narrow grounds. The actual request the Trump campaign was making in the case that it appealed to the Third Circuit was that it be allowed to file a new version of its complaint to a lower federal district court judge, Matthew Brann, who previously rejected their case.

A congressman’s effort to throw out all mail ballots

Republican Congressman Mike Kelly, of Butler County, made a late-in-the-game attempt to invalidate all the ballots that had been cast by mail in Pennsylvania: he alleged that the law allowing mail ballots was unconstitutional.

Kelly was joined in his suit, which was filed on Nov. 21, by Sean Parnell — who lost a congressional bid against Allegheny County Democrat Conor Lamb — in addition to a group of other GOP plaintiffs.

They argued that the 2019 Pennsylvania law that established no-excuse mail voting — which nearly every Republican lawmaker voted for — constituted an overreach by the legislature and should have been passed as a constitutional amendment.

But the decision on the case from the Pennsylvania Supreme Court was unequivocal. Kelly, the justices said, waited far too long to file his case. He can’t suddenly challenge a law passed in 2019 just because his preferred candidate lost.

“At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent,” they wrote. “Petitioners failed to act with due diligence.”

It’s not clear what Kelly’s odds will be if he and his attorneys bring the case to federal court, since it has so far been largely based on state law.

However, they say they intend to. An attorney for Kelly told the Legal Intelligencer Monday that the congressman is currently working on his appeal to the U.S. Supreme Court.

The attempt to cancel mail ballots that arrived a few days late

For weeks, a suit concerning a very specific group of Pennsylvania ballots has been sitting, untouched, before the U.S. Supreme Court.

It contests a three-day extension that Pennsylvania’s high court granted for counties to accept mail ballots that were postmarked by Election Day, but were received by Nov. 6.

The state court directive was due to widespread mail delays, which officials had feared could disenfranchise voters who would have otherwise made the Election Day delivery deadline. But state lawmakers and the Pennsylvania Republican Party believed the state court had overreached, and appealed the ruling to the U.S. Supreme Court in Republican Party of Pennsylvania v. Boockvar.

That court has now upheld the state ruling on two separate occasions. The case is now sitting before it is the third appeal.

When the court declined to overturn the extension the second time, three conservative justices released a statement explicitly saying they could revisit the issue after the election. Justice Samuel Alito also issued guidance, at the request of Republicans, instructing counties to segregate any late-arriving ballots, in case they were later invalidated.

State officials say the number of ballots that arrived during this three-day extension are so few that invalidating them would not change the result of the election.

It’s unclear if, or when, the court plans to move on the case.

Outside of court, efforts to contest results are similarly ill-fated

As the Trump campaign has unsuccessfully tried to make the president’s fraud allegations stick in court, supporters have launched a number of efforts to support him elsewhere.

A handful of conservative state lawmakers have been among his most ardent backers.

On Friday, 21 House Republicans and four Senate Republicans signed on to resolutions that would have declared the results of the election “in dispute.” Other similar efforts have been circulated through the chambers.

However, Trump’s supporters in Harrisburg are up against two big barriers: the end of the legislative session, and ambivalence from their own party leaders.

The two-year session officially ended at midnight on Nov. 30. Both chambers essentially dissolved, before being reconstituted in January. Even before that happened, House Speaker Bryan Cutler told members he wouldn’t back their last-minute efforts.

“We are physically unable to consider any new legislation before the end of session,” he said in a pointed statement.

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