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‘Voters, not lawyers, choose the president’: Federal appeals court rejects Trump’s last significant challenge to Pa. election

“Calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” the court wrote.

President Donald Trump on Thursday at the White House in Washington.
President Donald Trump on Thursday at the White House in Washington.Read morePatrick Semansky / AP

A federal appeals court on Friday roundly rejected President Donald Trump’s last remaining legal challenge to Pennsylvania’s election results, calling it ”light on facts” and ”breathtaking” in the presumptuousness of its request to disenfranchise millions of voters in the state.

And yet, once again, Trump’s lawyers tried to spin a victory out of another loss in court, saying the ruling sets up the case for the forum at which they’ve always wanted it to be heard: the U.S. Supreme Court.

Circuit Judge Stephanos Bibas, a Trump appointee who authored the decision for the three-judge panel of the U.S. Court of Appeals for the Third Circuit, was less enthusiastic about the merits of their case, starkly noting at one point in his 21-page opinion: “The campaign cannot win this lawsuit.”

Bibas pointed out that despite the campaign’s speculative claims and fiery rhetoric, it never alleged — let alone offered any evidence to suggest — that any vote had been deliberately cast illegally.

“Calling an election unfair does not make it so,” he wrote. “Charges require specific allegations and then proof. We have neither here.”

Joining him on the appeal were Chief Circuit Judge D. Brooks Smith and Judge Michael A. Chagares, both named to the bench by President George W. Bush. Despite having the case heard before a panel of Republican presidential appointees, Trump lawyers Rudy Giuliani and Jenna Ellis dismissed the trio as part of “the activist judicial machinery in Pennsylvania.”

“On to SCOTUS!” Ellis tweeted Friday afternoon.

Trump helped cement a 6-3 conservative majority on the Supreme Court, but it is not certain that the justices will even consider the case. And if they opt to do so, there is limited time to do anything before the Dec. 8 federal deadline for states to appoint their Electoral College delegates.

Even if the court were to interfere with Pennsylvania’s election results — an outcome legal experts described Friday as dubious — Trump still would not have enough Electoral College votes to overturn President-elect Joe Biden’s victory.

Still, elections administrators and their lawyers said they were more than prepared to take on the president’s team, if necessary, before the nation’s top court.

“There’s no there there,” said Mark Aronchick, an attorney who is representing several Pennsylvania counties, including Philadelphia, that the Trump campaign has accused of fraud. “There was nothing meritorious about the case that the Trump campaign was bringing. … Absolutely nothing.”

The Third Circuit ruling affirmed a decision from a federal district judge in Williamsport who described the campaign’s effort to block the state from certifying its election results as a “Frankenstein’s monster” of legal claims lacking any supporting evidence. Since then, elections administrators finalized that certification, cementing Biden as the state’s victor by some 81,000 votes.

But the specific question before the appellate court Friday was a narrow one: Whether the lower court erred in refusing to allow the Trump campaign to amend its lawsuit after that dismissal to beef up its existing case. The Third Circuit judges said no, but in the opinion, Bibas went further, addressing many of the claims the campaign wished to add to their suit and finding all of them lacking.

Though Trump and his lawyers have made numerous public but unfounded allegations of widespread voter fraud, their federal case — the linchpin of a legal strategy that has seen them lose more than a dozen other court challenges in the past month — focused entirely on the state’s process for the casting and counting of mail ballots.

Specifically, Trump lawyers complained about the level of access GOP monitors had to the tallying of votes and that some Democratic-leaning counties, under guidance from state officials, had allowed voters to correct mistakes on their ballots including missing signatures or secrecy envelopes. They argued that those practices unfairly diluted Republican votes in Pennsylvania while favoring those for Biden.

State courts have previously rejected both of those claims. And, as Bibas noted in the ruling Friday, the Trump campaign has yet to show that it was treated differently in any way from its opponent. The appellate court even rejected Giuliani’s request to hear oral arguments on the matter.

The president’s lawyers had also asked the court to throw out roughly 1.5 million mail ballots of voters in counties — including Philadelphia and its suburbs — or, alternatively, to declare the entire election “defective” and appoint the GOP-controlled state legislature to select the state’s 20 delegates to the Electoral College vote.

Bibas scoffed at the idea, calling it “drastic and unprecedented.”

“Voters, not lawyers, choose the president,” he wrote. “Ballots, not briefs, decide elections. … Alchemy cannot transmute lead into gold.”

Despite the resounding loss in court, Trump and his allies continued to press their cause in other venues.

U.S. Rep. Mike Kelly, a Butler County Republican and one of the president’s top boosters in Congress, urged the Pennsylvania Supreme Court in new filings Friday to declare unconstitutional the law that allowed widespread mail voting in the state. Without alleging any fraud, his long-shot case asks the court to throw out every mail ballot cast or to disregard the election entirely and appoint the General Assembly to choose the state’s electors.

It is not clear that — with the results already certified, the electors already chosen, and their appointments logged by the National Archive — the state’s high court could do anything to disrupt Biden’s victory on the off chance it was inclined to do so. Meanwhile, a group of 21 GOP state legislators signaled their intention Friday to file a House resolution urging Gov. Tom Wolf, a Democrat, to withdraw the elector selections and declare Pennsylvania’s election results “in dispute.”

“It is absolutely imperative that we take these steps if we are to ensure public trust in our electoral system. Faith in government begins with faith in the elections which select that government,” the group, led by Reps. Russ Diamond (R., Lebanon) and Eric R. Nelson (R., Westmoreland), said in a statement.

Notably, House Speaker Bryan Cutler (R., Lancaster) and Majority Leader Kerry Benninghoff (R., Centre) were not among the lawmakers to sign on.

That came even as state Sen. Doug Mastriano (R., Franklin) — who just days earlier had hosted Giuliani and, via speakerphone, the president at a raucous GOP-sponsored event in Gettysburg — vowed on a podcast that he would seek to file legislation aimed at “grabbing back” the legislature’s role in appointing Pennsylvania’s presidential electors for future election years.

Despite those moves, Republican Party leadership in both chambers of the General Assembly have said on numerous occasions that the legislature will have no role in deciding the outcome of the 2020 presidential race.

And Pennsylvania Attorney General Josh Shapiro, a Democrat whose office has represented state elections officials in court, dismissed the ongoing machinations Friday with a tweet.

“The sitting president and his enablers can lie without penalty in tweets, ‘hearings,’ [and] press events,” he said. “Where they can’t get away with it is in court. That’s why they keep losing — there’s no evidence to back up their claims.”

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