Is there anything significant in the words "with prejudice" or is it standard legal wording in these sorts of documents?
It is very significant. It means the Trump campaign is permanently barred from bringing these allegations again against the same defendant in that court. Now it also occurs routinely when a case is settled without going to trial. The plaintiff agrees to withdraw the complaint, which is then dismissed by the court with prejudice, in order to give legal strength to the settlement. But when an unsettled case is dismissed with prejudice -- on a defendant's motion to dismiss, and without leave to amend, no less -- that's an indication of an exceptionally defective complaint. It's a judicial sledgehammer.
And this was what Rudolph Giuliani was strenuously trying to avoid in his oral argument. He was urging the court to quickly deny the "frivolous" motion to dismiss so that the court could hear his evidence of widespread voter fraud. As in other cases, the Trump campaign's "evidence" consists of a few affadavits and a slew of conspiracy theories alleging shenanigans in Democrat-controlled precincts. Here the problem was that the complaint itself was irredeemably defective. If a claim is insufficient, the court must decide on those grounds instead of moving on to the merits. That's basic trial law. And Mr Giuliani largely ignored it.
Where would that appeal be held? Would he have to seek leave to appeal or would the appeal be automatically heard?
The appeal would be heard in the Third Circuit Court of Appeals, whose seat is in Philadelphia. The court must hear the appeal. Only the U.S. Supreme Court has broad discretion in what cases it will hear. However, most appeals are not heard
en banc. This one will be heard by a three-judge panel drawn at random. A rehearing
en banc is uncommon.
The judge says that the individual voters didn't have standing because they sued counties which allowed voters to fix mail-in ballots, when they should have sued their own counties which didn't allow voters to fix mail-in ballots. That seems a pretty fundamental mistake to make.
It does in hindsight. But as Judge Brann notes in his ruling, the argument in the amended complaint was a mashup of prior arguments. The original theory of harm wasn't quite as obviously misdirected. The complaint was that Pennsylvania Secretary of State Boockvar erred in
preventing all counties from allowing voters to cure their defective ballots. Therefore they say the counties that did so violated the Equal Protection clause by extending to voters in their counties a privilege that wasn't permitted in other counties and isn't mentioned in Pennsylvania law. Since Pennsylvania courts had already ruled that counties cannot be required to allow ballot-curing (and say nothing about forbidding it), it's not completely out of the question for the plaintiffs to have considered the lenient counties to be the ones in error.
But yes, the all-important need to connect a particularized injury to the challenged action of the named defendant is basic law. Whoever wrote the amended complaint missed it, a fact that certainly was not lost on defendants' counsel in oral argument. In fact, the rebuttal was so vigorous that Mr Giuliani commented on how defendant's counsel "got so angry at [him]." The individual voter plaintiffs were effectively denied their right to vote by the counties they lived in, not the counties they named in the complaint. Had those counties not allowed voters to cure their ballots, it still would not have affected the plaintiffs' right to vote. That's a pretty important point to miss.
Do you think perhaps they were so anti-Democratic Party that it simply didn't occur to them to sue the people actually responsible for their disenfranchisement...
No. I think it's just sloppy lawyering, and the result of the tumultuous procedural history: the churn in counsel during the crucial days before oral argument. Mr Giuliani seems like the only lawyer who wanted this case. But the result of shuffling people around during the time when you're supposed to be amending complaints, writing briefs, and preparing for oral argument is exactly this sort of Frankensteinian argument in the amended complaint. But we can't lose sight of the idea that these lawsuits are intended to get large numbers of votes thrown out. They're not intended to restore the voting rights of individuals whose votes were not counted. That's just the cover story.
It looks like they may have originally intended to argue along the lines of
Bush v. Gore and say that any difference in the criteria for accepting ballots constitutes an Equal Protection violation. The problem in
Bush was that no statewide criterion had been issued for what constituted a decisively marked ballot. Thus ballots were accepted or rejected according to nonuniform standards. As such, that was deemed an impermissible exercise of individual discretion. But more importantly -- and this becomes relevant down the page -- the ruling was that no such criterion could be implemented prior to the deadline established in statute to certify the vote, therefore only the ballots that could be certified in Florida according to their existing standards could be allowed. This gave G.W. Bush the electoral votes.
Instead, in Pennsylvania, counties exercised discretion in whether they would allow ballot-curing. And in all the states I know about, it's perfectly allowable -- even encouraged -- for county election officials to tailor balloting practices to the specific needs of their communities within the broad guidelines of state law. Specifically, managing scarce resources or accommodating peculiar challenges or reducing administrative burdens are considered well within the discretion of local authority. When the exercise of this discretionary authority to do or not do a certain thing a certain way creates differences, it does not automatically constitute an Equal Protection violation.
In legal reasoning, the ability to distinguish the instant case from its supposed controlling precedent is critical. Judge Brann's attempt to do so starting on page 34 will certainly be tested.
...and do you think it might have made a difference to their case if they'd done so?
It would have made their case less obviously stupid. But they would have just had other problems. The individual plaintiffs should have sued their counties and asked that their votes be reinstated. But the Pennsylvania Supreme Court had already ruled that counties cannot be required to allow ballot curing. So while the theory of harm is sound, the court would have no mandate to apply the prayed-for relief, and the plaintiffs once again fail to establish standing.
You have to ask for a remedy that is connected to a redress of the injury, and which the court is empowered to provide. All of these lawsuits demand that ballots be thrown out. A remedy for Tom that means disenfranchising Dick and Harry of their lawfully cast votes is not a remedy a court can grant.
Also, if this was about the Equal Protection Clause, does this clause only apply within states, or does it apply between states too? That is, can people try to make a case that their state should offer X the same way another state does?
The Equal Protection clause only applies to people who are subject to the same laws. No, I cannot use the Equal Protection clause to say that Utah law should provide the same labor protections as California law. (California labor law famously -- or notoriously -- favors employees.) That said, States most definitely look to each other for ideas about good government. As I said, Utah has voted by mail for many years. I would hope that many other States looked to us this year as an example of how it could be done. But there's no legal requirement arising from Equal Protection that says Texas has to allow mail-in voting just because Utah does.
Is there any significance that the judge didn't consider the third version of the case? Or is that because it had already failed in so many ways that this wasn't necessary?
I assume you're asking why the judge denied leave to amend the complaint a second time, which would have resulted in a third hearing of the matter. Judge Brann justifies his denial with three reasons: (1) it's the second time amending, (2) it's to undo the first amendment, and (3) Pennsylvania certifies its vote count on Monday. The proposed amendment has to be submitted as part of the petition for leave to amend, so that the judge can fairly determine whether to grant it.
The expectation in federal court is that the complaint won't be filed at all until it's ready to go in all respects that could reasonably have been foreseen prior to the filing. While there's no fixed limit to how many times you can amend your complaint, it's customary to need only one amendment. And when your second amendment wants to undo the effects of the first amendment, the judge is not outside his authority to consider the whiplash effect on the adverse party and deny leave. It falls under the heading of getting it right the first time, or at least by the second time.
Importantly, the defendant counties have an official duty to certify Pennsylvania's election tomorrow. Allowing the plaintiffs to try a third time to get it right burdens that duty. It incurs a higher burden of proof that their amended complaint will further the overall interest of justice if allowed to proceed.
Could that be used as a ground for appeal?
Absolutely, on the grounds that Judge Brann abused his discretion. This would be hotly debated on appeal. However, there is guidance in existing case law.
The Federal Rules of Civil Procedure, which embody due process in federal courts, require that leave to amend be "freely given" in the interest of upholding substantive justice. Judge Brann has discretion in whether to grant leave. He abuses his discretion when he fails to give a reason, or the reasons he gives are deficient in any of a number of specific ways. Or he abuses his discretion when either permitting or denying the amendment would prejudice the non-moving party, and he does the wrong thing.
Superintendent courts want to make sure justice is served in the courts they supervise. That's generally best accomplished by letting the case play out at the trial level. A plaintiff who loses his case wants to believe he was allowed to give it his best shot. So on appeal, the rationale by which a judge prevents a plaintiff from giving it his best shot will be scrutinized and debated closely. The standard is to grant leave to amend unless a contrary reason is given, which Judge Brann has done. And the U.S. Supreme Court has outlined what those contrary reasons might look like. Judge Brann quotes from that case.
Here, Judge Brann notes that what the plaintiffs want to do is reinstate claims they previously took out, claims that Mr Giuliani ranted about at length after the plaintiffs had conceded they were irrelevant by removing them from their complaint. Generally removal of an allegation is a tacit concession that the plaintiff's emerging understanding of the evidence during hearings etc. has convinced him he cannot prevail on the claim. In any case, Mr Giuliani's performance left little doubt what evidence for those claims was going to be. The Supreme Court allows a judge to deny leave to amend if prior amendments have not substantially improved the pleading, supporting a belief that the claim is ill-formed at its core. This pleading is a hot mess
after its first amendment, so no.
The plaintiffs' reliance on
Bush v. Gore will bite them here. The Supreme Court disallowed a recount in Florida, even with appropriate ballot-inspection criteria, because it could not be done before the statutory limit on state certification of county votes. While this is roundly criticized as the wrong decision, it could be cited here to support the notion that the timely certification of votes is more in the interest of justice than allowing plaintiffs to fumble their way through an ill-conceived court case. The appeals court will certainly take note that plaintiffs knew, or should have known, that timeliness was a crucial factor to their chances, and to have obviated the need to refile their complaint so many times. The judge cannot simply ignore the duties of the defendants with respect to the laws of Pennsylvania and of the United States.
Shouldn't "states" read "counties"?
Probably.
