Bascially, the lawsuit was brought by the Trump campaign and two individual Pennsylvania voters. The lawsuit focuses on two things: First, that some counties, but not others, notified mail-in voters of problems with their ballots and allowed them to “cure” those problems so their votes would could. Second, that poll-watchers were excluded from observing counts.
Then, after the original lawyers withdrew, the plaintiffs amended their complaint to remove all of the claims relating to poll watchers, leaving only two claims, both relating to the “ballot curing” issue. One claim alleged that this violated the Equal Protection Clause of the 14th Amendment, because it discriminated between voters in different counties (the individual voter plaintiffs had their ballots invalidated and were not in counties that provided notice and an opportunity to cure). The other claim alleged that counties or the Secretary of State allowing voters to cure ballots violated the Electors and Elections Clauses of Articles I and II of the Constitution because the PA state legislature did not authorize such a procedure.
The district court judge dismissed the ballot curing claims under Rule 12(b)(6) for failure to state a claim, finding that neither the voters nor the campaign had standing. A recent 3rd Circuit case held that only a state legislature has standing to assert a violation of the Electors and Elections Clauses, and the plaintiffs conceded that its claims under these clauses were precluded under that 3rd Circuit case (but want to preserve the right to argue to SCOTUS that the 3rd Circuit is wrong). The judge also held that neither the voters nor the campaign alleged facts showing they had suffered a legal injury granting them standing to bring the Equal Protection claim.
The campaign had also moved for leave to amend their complaints again to add some of the poll watcher claims back in. The judge denied that motion when he dismissed the ballot curing claims.
In this appeal, the Campaign did NOT appeal the dismissal of the ballot curing claims for lack of standing. It only appealed the denial of leave to amend its complaint. The 3rd Circuit just affirmed Judge Brann’s rulings. It held that Judge Brann did not abuse his discretion in denying leave to amend its complaint to add the poll watcher claims because the campaign unduly delayed in doing so and because adding them in would be futile because the proposed second amended complaint failed to plead facts showing a plausible claim.
I don’t think it’s fair to single out Giuliani, because he was never lead counsel in this case, but it certainly does look like there was incompetence involved. Basically, they sued based on Claim A and Claim B, then voluntarily dropped Claim A, then tried to add Claim A in when it was clear Claim B was going to be dismissed. Then they didn’t appeal the dismissal of Claim B, just the denial of leave to add Claim A in—which is reviewed on appeal by a much more deferential standard. I think the legal term for the conduct of the Campaign’s lawyers in this case is “a shit show.”
Oh, I blame Giuliani.
As early as August, DJT was warning us about the dangers of mail ballots. As DJT’s personal attorney, Giuliani should have started work on this months BEFORE the election.
All political pressure should have been brought against state legislatures (particularly swing states) seeking to relax vote by mail.
Any state legislation that passed should have been challenged in Fed and state court.
The repulsive RINO Repug McConnell should have been pressured to pass uniform, Federal election fraud legislation.
A month before the election, teams of skilled lawyers should have been assembled in each contested state.
Despite DJT’s unambiguous warnings, Giuliani was caught totally off guard. At one point, DJT’s attorney in PA Fed Court was a solo-practice attorney whose specialty was custody and alimony cases. God bless her, she was clearly in over her head.
A lead attorney has to be not just a seasoned litigator, but a brilliant manager and strategist.
Giuliani ... well ... he comes up short. Way short.
Isn't this the strongest claim? Without poll watchers being able to watch both the counting and the addition of ballots at normal document reading distances, how can anyone be certain that there is no funny business going on? This famous photo would seem to show the closeness of the scrutiny required:
