This is another long one so I split it in two: the state case and the federal case. This is the federal case :

See the previous posts here for prior analysis of PA’s litigation and where you can find the actual court documents to review:

https://thedonald.win/p/11QS2z2lzk/overview-of-3rd-circuit-litigati/

https://thedonald.win/p/11QRyJVvSJ/overview-of-case-statuses-in-pen/

And the new update for the state case is here:

https://thedonald.win/p/11Ql1ec6bv/

This time we’re just looking at our two big updates: The PA Supremes ruling on Rep. Kelly’s case and the 3rd Circuit ducking.

The Third Circuit

We also have an order from the 3rd Circuit! Predictably, at least to those following all the posts, they dodged this issue and ruled against the Trump Campaign. Let’s quickly recap:

At the trial level, the Trump Campaign is stuck with just Linda Kerns representing them after Porter Wright withdraws. Linda Kerns accidentally deletes half or more of the claims in the lawsuit and refiles it mistakenly. The trial court rules that the Trump Campaign isn’t allowed to amend the lawsuit to fix the accident and then dismisses the lawsuit for failing to state claim.

On appeal, the Trump Campaign does not really argue the dismissal of its two remaining claims was in error (there’s a prior 3rd Circuit case that shuts them out, they need SCOTUS to review that 3rd Circuit case and scrap it if possible, see previous posts) but do argue that they should have been allowed to amend their complaint since it was attorney error.

So what does the Third Circuit do? It issues a bit of a biased opinion of course!

The order begins by expounding the importance of elections and lamenting the lack of proof of fraud from the Trump Campaign (which is pants on head ridiculous from a legal standpoint, remember, the entire argument on appeal is that the Trump Campaign was denied an evidentiary hearing because Linda Kerns accidentally deleted those claims, so of course there’s no evidence in the record). Then it settles in to answering the actual question: did the trial court abuse its discretion in not granting leave to amend?

And that’s the crux. Abuse of discretion is a legal standard like reasonable doubt. It’s a really, really high one. An abuse of discretion occurs when the trial court rests on clearly erroneous facts, an errant conclusion of law or an improper application of law to fact. It’s something more than ‘the trial judge got it wrong’. You can’t just second guess an opinion. You need something more.

The Third Circuit says the Trump Campaign doesn’t meet that burden and show abuse. Instead, they decry what they see as the Trump Campaign “repackaging” its state law claims and note that the state courts have already ruled against it on them (again though, this wasn’t the issue on appeal so this is just the Third Circuit having a screed).

The actual meat doesn’t actually start till page 9. The Third Circuit notes that, under the rules of procedure for Federal courts leave to amend should be granted “freely…when justice so requires”. The Third Circuit’s own words: “In civil-rights cases, that means granting leave unless ‘amendment would be futile or inequitable’”. If you can guess the ruling from here you’ve got it: they decide amendment would be both futile and inequitable.

Amendment is Futile

According to the Third Circuit, they focused on a drafting issue in the complaint filed by the Trump Campaign. Namely, the complaint repeatedly states that it needs relief before November 23. The complaint even goes so far as to say that it has “no meaningful remedy” after that date. This was likely a tactical decision by Porter Wright and Linda Kerns. While you could box yourself in and get burned, as happened here, if you’re arguing for a huge injunction you need huge stakes to justify it. So saying there is no other remedy is one way to make the stakes large enough. Bad idea to speak in absolutes like that in my opinion though (and I’ve been guilty of it too) because things like this Third Circuit decision can happen as a result.

Anyway, I’m a bit in the weeds here. The Third Circuit notes that, when the request to amend the complaint a second time arrived, it was only 3 days before certification. Allowing amendment would delay the case (but even the Third Circuit notes that isn’t a reason to deny the Trump Campaign an amendment: “delay alone is not enough to bar amendment”). Instead, they complain that allowing amendment would’ve made the trial court have to work too hard: “But ‘at some point, the delay will become ‘undue,’ placing an unwarranted burden on the court’”. “The Campaign’s motion would have done just that. It would have mooted the existing motions to dismiss and required new briefing, possibly new oral argument, and a reasoned judicial opinion within seventy-two hours over a weekend. That is too much to ask”.

So, basically, you can’t ask a judge to work too hard. What the Third Circuit doesn’t address is that an injunction could’ve also been entered delaying certification and thus expanding the window well beyond 72-hours (this is exactly what Judge McCullough did in the state case so it’s not exactly crazy).

The Third Circuit also attacks the amendment on the grounds that the third complaint, if allowed, would almost be the same as the first complaint. The Third Circuit cites this as a bad thing and a reason to deny the appeal (claiming that the Trump Campaign “abandoned” the first complaint’s claims) but that mistakes what both the Trump Campaign and Linda Kerns acknowledge as an accident for intentional abandonment. I do not believe Third Circuit judges would actually make this kind of mistake unintentionally.

Amendment is Inequitable

This section focuses on ‘pleading facts’ vs. ‘pleading conclusory allegations’. These are legal jargon. What’s the difference? Not much. A conclusory allegation is basically anything a judge wants it to be. Ideally, it’s the difference between listing factual events in your case vs. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements”. The Third Circuit insists that the third complaint, if allowed, would be “light on facts” and gives this example:

“Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination…by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements”.

According to the Third Circuit, this isn’t a factual allegations like “Bob shot Cheryl with a gun and killed her” but is merely a ‘conclusory allegation’. I’ve read this twice now and I just don’t see how they reach that conclusion other than they just wanted to reach that conclusion. The complaint is alleging that Party A (Bob in my example) used a scheme (shot Cheryl in my example) by excluding observers (with a gun in my example) in order to conceal their decision (and killed her in my example). It’s a complete allegation in my view.

The Third Circuits also rips the Campaign for phrasing some of its allegations as “upon information and belief”. This is also legal jargon. “Information and belief” is generally used when you, the party filing a lawsuit, do not personally know if something is true (you did not witness it) but you have a witness who says it is true. It is acceptable pleading: you just then have an obligation to produce that witness later. The Third Circuit casts this in a more sinister light saying it represents the Campaign saying they “suspects it or has heard it” and claims these are not factual allegations.

The Third Circuit’s next example of why amendment is inequitable is because the Trump Campaign lost many issues at state court. This isn’t exactly right. The Trump Campaign is raising questions of federal law while the state claims raised issues of state law. The Third Circuit dismisses this as a pointless ‘repackaging’ but only really looks at a handful of claims for this (and relies on a PA Supreme decisions, which would be persuasive, not binding, on the Third Circuit and the Federal trial court). That said, this is probably the strongest argument the Third Circuit makes (but isn’t, alone, enough to justify their decision in my opinion).

The Third Circuit’s third example is kind of hilarious. They make a big deal about the fact that the complaints, in all forms, do not allege that Biden campaign staff and Biden votes were treated differently than Trump campaign staff and Trump votes. Let me give a direct example:

“Count One alleges that the counties refused to credential the Campaign’s poll watchers or kept them behind metal barricades, away from the ballots. It never alleges that other campaigns’ poll watchers or representatives were treated differently”.

Just let that sink in for a second. The Third Circuit is saying it’s fine under the equal protection clause for a county to exclude poll watchers and do what it wants, as long as it excludes everybody. Nevermind that the entire complaint is alleging Democrats were rigging things for Democrats. The Third Circuit adds that the complaint doesn’t allege that Trump votes were treated different than Biden votes, but again, the specific complaint is that the Trump campaign couldn’t see what was happening to the votes. Again the Third Circuit, in all seriousness, writes:

“The Campaign cites no authority suggesting that an actor discriminates by treating people equally while harboring a partisan motive, and we know of none”.

Except wouldn’t the partisan motive itself be discrimination, guys? This is the weakest argument the Third Circuit puts forward.

The Third Circuit’s final reason is that the relief requested is unprecedented. Which, yeah, it is, but it’s also making an unprecedented claim in a court of this level. That’s not a bar to anything in and of itself. That said, despite the misnomer, the Third Circuit harps again on how this isn’t a fraud case and even Giuliani, at oral argument, said it’s not a fraud case. So let’s address that head on for a second because it’s another catch-22:

Did Giuliani say this wasn’t a fraud case?

Yes.

Was it a fraud case?

No.

So isn’t the Third Circuit right?

No.

Huh?

I believe it wasn’t a fraud case because Linda Kerns accidentally deleted all but a handful of the claims. Giuliani couldn’t argue fraud because fraud had been deleted out. The Third Circuit is doing a bit of a circle here: ‘You don’t make the right allegations for what you’re asking for’. ‘Okay, let us amend to make the right allegations’. ‘No’. ‘Why not?’ ‘Because you’re not making the right allegations for what you’re asking for’. Basically, Linda Kerns accidentally screwed this entire case.

Can it go to SCOTUS?

Yes! It absolutely can. The problem is it’s a bad vehicle. SCOTUS cannot hear evidence because it’s an appellate court. Only trial courts can. All SCOTUS could do is potentially block certification pending a hearing and send this all the way back down to the district court with instructions to allow the Trump Campaign to amend its complaint. At this point that will make things take quite a long time and they may be unwilling to enjoin PA from sending electors, potentially well past the Constitutionally mandated day, for an evidentiary hearing to be held. The left-wing of the court will almost certainly be against it.

That said, they absolutely could. SCOTUS fully has the power to remand it back down AND block certification pending hearing (this effectively throws PA to its legislature or removes them from the electoral college entirely for this election cycle). It's in their authority to do this.

Ask questions below and I'll try to get answers!