[link:https://www2.ca3.uscourts.gov/opinarch/203371np.pdf|]
I think I can excerpt liberally because it is a public government document.
Rather, the Campaign appeals on a very narrow ground: whether the District Court abused its discretion in not letting the Campaign amend its complaint a second time. It did not.
The Campaign tries to repackage these state-law claims as unconstitutional discrimina- tion. Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes.
Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.
The Campaign’s delay was undue, given its stress on needing to resolve the case by November 23
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Having repeatedly stressed the certification deadline, the Campaign cannot now pivot and object that the District Court abused its discretion by holding the Campaign to that very deadline. It did not.
The next excerpts are from the part that says:
Amending the Complaint again would have been futile
The Campaign had to plead plausible facts, not just conclusory allegations.
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To start, note what it does not allege: fraud. Indeed, in oral argument before the District Court, 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.
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The Campaign has already litigated and lost most of these issues.
The Campaign never pleads that any defendant treated the Trump and Biden cam- paigns or votes differently. A violation of the Equal Protection Clause requires more than variation from county to county. It requires unequal treatment of similarly situated parties. But the Campaign never pleads or alleges that anyone treated it differently from the Biden campaign.
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These county-to-county variations do not show discrimination. “[C]ounties may, con- sistent with equal protection, employ entirely different election procedures and voting sys- tems within a single state.”
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Nor does Bush v. Gore help the Campaign. 531 U.S. 98 (2000) (per curiam). There, the Florida Supreme Court had ratified treating ballots unequally.
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Reasonable county-to-county variation is not discrim- ination. Bush v. Gore does not federalize every jot and tittle of state election law.
The relief sought—throwing out millions of votes—is unprecedented. Finally, the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Penn- sylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors. It cites no authority for this drastic remedy.
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Here, however, there is no clear evidence of massive absentee-ballot fraud or forgery. On the contrary, at oral argument in the District Court, the Campaign specifically disa- vowed any claim of fraud. And the margin of victory here is not nearly as close: not 461 votes, but roughly 81,000.
They could have ended there, but they kept piling on:
We could stop here. Once we affirm the denial of leave to amend, this case is over. Still, for completeness, we address the Campaign’s emergency motion to stay the effect of cer- tification. 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 relitigate 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.
The Campaign has not shown that denying relief will injure it. “Upon information and belief,” it suspects that many of the 1.5 million mail-in ballots in the challenged counties were improperly counted. Second Am. Compl. ¶¶168, 194, 223, 253. But it challenges no specific ballots. The Campaign alleges only that at most three specific voters cast ballots that were not counted.
Nor would granting relief be equitable. The Campaign has already litigated and lost most of these issues as garden-variety state-law claims. It now tries to turn them into federal constitutional claims but cannot.
Granting relief would harm millions of Pennsylvania voters too. The Campaign would have us set aside 1.5 million ballots without even alleging fraud. As the deadline to certify votes has already passed, granting relief would disenfranchise those voters or sidestep the expressed will of the people. Tossing out those ballots could disrupt every down-ballot race as well. There is no allegation of fraud (let alone proof) to justify harming those millions of voters as well as other candidates.
Probably way too long and anyone wanting specifics would have read it, but the previous dismissal and this one seem to take great care in expressing just just how bad the cases were. I guess next stop is the Supreme Court. They should not agree to hear it.
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