The Situation is Not Hopeless In Pennsylvania After Dismissal of the Case Filed There

 
By Shipwreckedcrew

This particular case involved claims that seven Pennsylvania counties and the Secretary of the Commonwealth inappropriately allowed voters who submitted defective mail-in ballots to “cure” the defect by voting a provisional ballot on election day.

The issues in the case involve whether such a “curing” process is allowable under Pennsylvania law, and whether the actions by the counties and the Secretary of the Commonwealth caused an “injury” to the Plaintiffs by expanding the opportunity for registered voters to cast their ballots.

This case was always going to end up in a dismissal based on a lack of standing on the part of the Plaintiffs to assert the type of claims they were bringing. The controlling case law at the appellate court level dictated the outcome.  The purpose of bringing the case was to initiate a process that allows the Trump Campaign’s claims to move through the trial court, appeals court, and on to the Supreme Court, which has the authority to overrule lower court “standing” cases and give the Trump Campaign the ability to pursue its claims.  You can’t get to the Supreme Court without starting in the district court, and the Trump Campaign could only get to the Supreme Court by LOSING.

The initial complaint had seven causes of action.  It was filled by two individual plaintiffs and the Trump campaign.  The individual plaintiffs were voters from counties OTHER than the seven counties that were named as defendants, and each had their mail-in ballot rejected for technical defects. Their counties did not contact them to advise them of the rejection, and they were not given a chance to cure the defect by submitting a provisional ballot.

The legal claim was that because the seven counties allowed voters with rejected mail-in ballots to “cure” their defect, the equal protection rights of the individual plaintiffs were violated when their counties did not do the same.  As the Judge appropriately noted, the complaint of the two individual voters is with their own counties — the seven named defendant counties didn’t do anything to them.

If the Trump Campaign wanted individuals to be co-Plaintiffs it should have found Trump voters in the seven counties who had their votes rejected and were not notified in the manner that Biden voters were notified. THEN you would have disparate treatment of voters in one county — Trump voters v. Biden voters — where the Plaintiffs could allege that the County treated them differently under identical circumstances.

While this case was pending, the Third Circuit Court of Appeals handed down a decision in another election-related lawsuit which affected this case by establishing that the Plaintiffs in this case lacked standing to bring the kinds of claims they were alleging.

But, in what looks like a panicked and poorly thought out move — while attorneys representing the Trump Campaign were being changed — one of the attorneys filed a First Amended Complaint that dismissed five of the seven claims due to the new Third Circuit decision.  Not only did they drop five of the seven claims, they struck from the complaint several factual allegations because they were related to the five claims that were dropped.

That was a mistake.  A plaintiff can amend a complaint one time as a matter of right — but once the Amended Complaint is filed, the original complaint ceases to exist.  Everything that was dropped was no longer before the Court when the motions to dismiss were heard. What they should have done was leave the complaint alone, acknowledge the new decision of the Third Circuit, let the district court judge do what he was going to do anyway — then appeal.

After that attorney changes were complete, during the hearing Rudy Giuliani advised the Court that the Plaintiffs were going to amend their complaint again.  But a Plaintiff does not have right to a second amended complaint — you can only amend a second time with permission of the Court.  In his order dismissing the case, the Judge Brann denied permission to amend a second time.

But, in doing so he actually did the Trump Campaign a favor.  Another amended complaint would have sparked another round of motions to dismiss, another hearing, and more days wasted rather than pushing the case through the appeals court.  The outcome in the district court was going to be the same whether there was another amended complaint or not – he was going to dismiss the case on standing grounds.

The problem for the Trump Campaign is that by filing an amended complaint that eliminated five of seven claims, and by making a mess of things when opposing the motions to dismiss, they created a horrible record with which to work when going up on appeal to the Third Circuit.  This is where Judge Brann did the Campaign ANOTHER favor.  In his memorandum explaining his decision to dismiss the case he stitched together a relatively comprehensible theory for standing on the part of the Trump Campaign.  He did so from a mish-mash of claims and arguments presented by an ever-changing cast of attorneys for the Campaign.  What he assembled on their behalf was much more comprehensible than anything the Campaign’s lawyers offered to him in their papers or Rudy’s oral argument.  But his ability to do so was limited by the fact that they had dismissed claims and excised factual allegations that were in the original complaint, so those weren’t before him any longer.  You can read between the lines in the following passage from his memorandum:

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