So, Judge Brann’s decision has been appealed and within days, the Third Circuit rejected the Trump campaign’s appeal. I wrote about the lower court decision here. In the Third Circuit opinion, Judge Bibas, a Trump appointee, wrote that voters choose the President, not lawyers. “Ballots, not briefs, decide elections.” The entire three-judge panel rejected the appeal. Judge Bibas wrote the opinion. He noted that outside the courtroom, Trump’s lawyers raised claims of fraud. But, inside the court room, they alleged no fraud. The court was also disturbed by the fact the campaign was contesting too few votes to actually make a difference. Mr. Biden won the Pennsylvania election by 81,000 votes.
Tip for laypersons: courts are very annoyed when a party seeks relief that makes no difference to the lawsuit. That is a very fundamental requirement. That the Tump campaign ignored such a basic requirement for any lawsuit suggests either the lawyers did not share reality with the client, or the Trump campaign just did not care if they annoyed the judge with a pointless lawsuit. See Politico report here. Like the lower court, the court of appeals was flabbergasted that the Trump campaign sought to reject millions of votes when no fraud has been alleged.
See Judge Bibas’ opinion here under “Not Precedential.” Trump for President v. Secretary Commonwealth, No. 20-3371 (3rd Cir. 11/27/2020).
Litigation 101: never go to court with a lawsuit that says even if you win the lawsuit, you do not achieve your desired outcome. Regardless of politics, every judge will ask “why bother?”
The appeal was confined to one narrow issue, did the trial court err when it did not allow the Trump campaign to amend its lawsuit a third time. Judge Bibas was troubled by the fact that the amendment did not allege the Biden campaign was treated differently than the Trump campaign. Yet, the Trump campaign was trying to allege discrimination. Simply calling something “discrimination” did not make it discrimination, said the judge. In other words, the amendment sought to allege discrimination, but it offered no facts in support of that claim.
So, other than the lawsuit was poorly prosecuted and based on no evidence, the Trump campaign did a great job!
The standard for review is “abuse of discretion.” That means the appellate courts are asking if Judge Brann abused his discretion in denying the third amendment. That standard affords the greatest latitude to the trial judge. The chances that the U.S. Supreme Court will accept an appeal of this decision is very low. The Supreme Court accepts each year less than 1% of the appeals requested. Any decision based on “abuse of discretion” is exceedingly unlikely to be accepted for review.