In a brief seeking an expedited review, the campaign attacked U.S. District Judge Matthew Brann's decision not to allow an amended complaint that would reinstate the campaign's claims that it hadn't gotten to meaningfully observe the counting of ballots in Democratic-leaning counties, alleging without evidence that it let those counties count otherwise defective ballots in favor of President-elect Joe Biden.
"The district court abused its discretion in denying the motion to amend for numerous reasons," Monday's brief said. "This prevents the campaign from litigating its serious and well founded claims that defendants — Secretary [Kathy] Boockvar, and seven county boards of elections controlled by Democrats — engaged in a partisan scheme to favor Biden over Trump by counting potentially tens of thousands of defective mail ballots."
The campaign claimed its new complaint would fix the defects that got its previous suit thrown out for lack of standing — this time asserting violations of the campaign's due process and equal protection rights during the vote counting — and suggested the lower court could still "decertify" Pennsylvania's election results if it sided with Trump and threw out enough votes to erase Biden's 81,000-vote margin in the state. It also sought an emergency restraining order to halt Pennsylvania from certifying its election results or prevent its "legal effect" of giving the state's electoral votes to Biden.
Trump's initial lawsuit had made broad allegations of wrongdoing in the Democratic-leaning counties surrounding Philadelphia and Pittsburgh. But the campaign cut the claims tied to those allegations from its first amended complaint so it could focus on claims that the state violated voters' equal protection rights when Secretary of the Commonwealth Kathy Boockvar gave counties the ability to let voters fix or replace mail-in ballots that had technical disqualifications — a remedy that was allegedly offered by more Democratic-leaning counties than Republican ones.
The campaign went through several changes in representation within a few days, which Monday's brief said was the cause of the count-watching claims being "inadvertently" cut from the complaint. Judge Brann rejected the amended suit on Saturday, ruling that the remedy for some voters having their votes tossed in counties that didn't allow them to be "cured" was to count those tossed votes, not to throw out votes that had been cured in other counties or to hold up the election results for all 6.8 million voters in the state. Rather than address Judge Brann's ruling to dismiss the case, the appeal focused on his denial of a second amended complaint.
Monday's brief argued that the deadline for the lawsuit wasn't Monday, which Judge Brann cited in ruling that an amended complaint would cause "undue delay," but rather Dec. 8, the "safe harbor" date for states to certify their electors.
"If the court could have held a hearing on Thursday, November 19 in order to determine whether to enjoin certification before Monday, November 23 — a four day gap — it could have easily decided the motion to amend and held a hearing before December 4, four days before the December 8 safe harbor, to determine whether any certification should be revoked," the campaign's brief said.
The campaign said the lower court had also prematurely denied its request for discovery, which proposed having an expert examine a sampling of ballots from the disputed counties, determine how many they thought were improperly counted and how much of the overall mail-in vote broke for Biden, then extrapolate how many Biden votes the campaign wanted to throw out from the 1.5 million cast in the seven defendant counties.
Trump's brief disputed Judge Brann's argument that it hadn't shown enough harm to justify throwing out millions of Pennsylvania votes, saying it was only seeking to toss a portion of those votes based on its proposed discovery, though it had also proposed an alternative relief that would let Pennsylvania's Republican-majority legislature choose the state's electors.
"Alternatively, plaintiffs seek an order that the results of the 2020 presidential general election are defective, which would allow the Pennsylvania General Assembly to choose Pennsylvania's electors," the brief said. "Plaintiffs seek a temporary restraining order and preliminary injunction granting appropriate relief during the pendency of this action."
"We will be addressing this all decisively in our briefs," said Mark A. Aronchick of Hangley Aronchick Segal Pudlin & Schiller, representing some of the counties on the case.
Representatives of the campaign and Pennsylvania's commonwealth secretary did not immediately respond to requests for comment Monday.
The Trump campaign is represented by Marc A. Scaringi and Brian Caffrey of Scaringi Law.
The counties are represented by Elizabeth A. Dupuis and Molly E. Meacham of Babst Calland Clements & Zomnir PC, Terence M. Grugan, Timothy D. Katsiff, Edward D. Rogers and Elizabeth V. Wingfield of Ballard Spahr LLP, Ilana H. Eisenstein, Brian H. Benjet, Jayne A. Risk, Brenna D. Kelly, Rachel A.H. Horton, Ben Fabens-Lassen, Danielle T. Morrison, Timothy P. Pfenninger, Sarah E. Kalman and Stephen H. Barrett of DLA Piper and Mark A. Aronchick, Michele D. Hangley and Robert A. Wiygul of Hangley Aronchick Segal Pudlin & Schiller.
Boockvar is represented by Daniel T. Brier, John B. Dempsey and Donna A. Walsh of Myers Brier & Kelly LLP and Karen M. Romano, Stephen Moniak and Nicole J. Boland of the Pennsylvania attorney general's office.
The case is Donald J. Trump for President et al. v. Boockvar et al., case number 20-3371, in the U.S. Court of Appeals for the Third Circuit.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
