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Fri Nov 27, 2020, 04:51 PM

These are a few of my favorite things . . . From the 3rd Circuit decision.

Just because it is delicious:

Bush v. Gore does not federalize every jot and tittle of state election law.



Related to my role of making sure my students don't become Giuliani wanna-bes:

The Campaign cites no authority for those propositions, and we know of none. (Ditto for notice-and-cure procedures.)

I constantly tell my students not to do "ditto" analysis. No competent test-writer would craft a question that can be answered with the single word "ditto." A similar principle applies to claim drafting - it would generally be a waste of time, bordering on frivolous, to draft claims so identical that they can be disposed of by the word "ditto." Yet here is a federal court literally doing " ditto" analysis. That would be my way of saying Rudy and company are not competent. (A bit tongue-in-cheek, but I was tickled to find actual ditto analysis . . . )


Subtext: but this is so much fun, let us bash you some more:

We could stop here. Once we affirm the denial of leave to amend, this case is over.


After one amendment, the District Court denied the Campaign’s motion to amend the complaint a second time. We review that denial for abuse of discretion. Premier Comp. Sol., LLC v. UPMC, 970 F.3d 316, 318–19 (3d Cir. 2020). But on any standard of review, the court got it right



You've got to be kidding:

The Campaign never pleads that any defendant treated the Trump and Biden campaigns or votes differently. . . . None of these counts alleges facts showing improper vote counting. And none alleges facts showing that the Trump campaign was singled out for adverse treatment. The Campaign cites no authority suggesting that an actor discriminates by treating people equally while harboring a partisan motive, and we know of none.


Finally, the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Penn-sylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors. It cites no authority for this drastic remedy.



Stop trying to turn s**t into gold:

Nor would granting relief be equitable. The Campaign has already litigated and lost most of these issues as garden-variety state-law claims. It now tries to turn them into federal constitutional claims but cannot.


Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.


. . . That is conclusory. So is the claim that, “{u}pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.



Boom. States' rights. Hoisted on their own petard - and other variations of stop talking out of both sides of your mouth:

What is more, throwing out those votes would conflict with Pennsylvania election law. The Pennsylvania Supreme Court has long “liberally construed” its Election Code “to protect voters’ right to vote,” even when a ballot violates a technical requirement. Shambach v. Bickhart, 845 A.2d 793, 802 (Pa. 2004). “Technicalities should not be used to make the right of the voter insecure.” Appeal of James, 105 A.2d 64, 66 (Pa. 1954) (internal quota-tion marks omitted). That court recently reiterated: “[T]he Election Code should be liberally construed so as not to deprive, inter alia, electors of their right to elect a candidate of their choice.” Pa. Dem. Party, 238 A.3d at 356. Thus, unless there is evidence of fraud, Pennsylvania law overlooks small ballot glitches and respects the expressed intent of every lawful voter. In re: Canvass of Absentee and Mail-in Ballots, 2020 WL 6875017, at *1 (plurality opinion). In our federalist system, we must respect Pennsylvania’s approach to running elections. We will not make more of ballot technicalities than Pennsylvania itself does.


Having repeatedly stressed the certification deadline, the Campaign cannot now pivot and object that the District Court abused its discretion by holding the Campaign to that very deadline. It did not.



Bottom line (and my favorite):

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections



The decision can be found here. All emphasis is my own, not the court's.

25 replies, 2805 views

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Arrow 25 replies Author Time Post
Reply These are a few of my favorite things . . . From the 3rd Circuit decision. (Original post)
Ms. Toad Nov 27 OP
Hermit-The-Prog Nov 27 #1
Ms. Toad Nov 27 #2
Hermit-The-Prog Nov 27 #10
USALiberal Nov 27 #3
yowzayowzayowza Nov 27 #4
Ms. Toad Nov 27 #6
Iggo Nov 27 #5
Ms. Toad Nov 27 #9
Locutusofborg Nov 27 #7
spooky3 Nov 27 #8
ms liberty Nov 27 #11
Ms. Toad Nov 27 #12
SunStar Nov 27 #13
Ms. Toad Nov 27 #14
Mr.Bill Nov 27 #15
Ms. Toad Nov 27 #16
bucolic_frolic Nov 27 #17
Ms. Toad Nov 27 #19
George II Nov 27 #18
Ms. Toad Nov 27 #24
grantcart Nov 27 #20
Ms. Toad Nov 27 #21
Kaleva Nov 27 #22
Ms. Toad Nov 27 #23
Dark n Stormy Knight Nov 28 #25

Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:09 PM

1. That's beautiful! I even spotted Iqbal in there!

The court even bypassed having the Ghoul talk about "normal" standard of review. Ha!

The cherry on top would have been the court citing Clara Peller, "Where's the beef?"

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Response to Hermit-The-Prog (Reply #1)

Fri Nov 27, 2020, 05:10 PM

2. Iqbal was definitely in there!

It was fun reading.

Incidentally, I use the where's the beef clip when my students draft conclusory analysis.

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Response to Ms. Toad (Reply #2)

Fri Nov 27, 2020, 05:56 PM

10. Iqbal came too late to short-circuit SCO v [everybody in the world]

SCO v IBM started in 2003 and summary judgment in IBM's favor came in 2016.

Do you leave your students to research "where's the beef" or do you tell them where it comes from?

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:14 PM

3. Great post! Thanks for posting!! Nt

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Response to USALiberal (Reply #3)

Fri Nov 27, 2020, 05:15 PM

4. Seconded. n/t

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Response to yowzayowzayowza (Reply #4)

Fri Nov 27, 2020, 05:22 PM

6. You're both welcome.

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:18 PM

5. That was great!

Thanks for the highlights.

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Response to Iggo (Reply #5)

Fri Nov 27, 2020, 05:24 PM

9. When I saw every not and tittle, it was too good not to share. N/t

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:23 PM

7. VERY well synopsized!

You read it so that I didn't have to!

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:23 PM

8. Thank you for an uplifting post! Nt

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 05:58 PM

11. Wow. They were rather unimpressed, weren't they?

A beautiful thing. Thanks for the exerpts!

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Response to ms liberty (Reply #11)

Fri Nov 27, 2020, 06:27 PM

12. I'm enjoying a lot of these opinions.

I used to draft state appellate decisions, so I recognize a lot of the more subtle slams.

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 06:40 PM

13. This ruling strikes me as being indicative of....

the courts in and around Pennsylvania being Done with this idiocy.

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Response to SunStar (Reply #13)

Fri Nov 27, 2020, 06:43 PM

14. Yup. n/t

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 07:00 PM

15. Trumper lickers probably think the term "Second Amended Complaint"

means the right to carry a gun while voting.

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Response to Mr.Bill (Reply #15)

Fri Nov 27, 2020, 07:13 PM

16. Good point! n/t

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 07:15 PM

17. Counting is a big issue when elections are decided by a few hundred votes

Outside those close margins, the state systems would have to find large bundles of errors, tampering with ballot totals or bundles, chain of custody issues, computer totals that didn't jive. These junk lawsuits from Trump Campaign are just frivolous.

We Democrats couldn't make anything of Trump's election margin in 2016. Were those counties crooked? Could anyone prove it? With evidence I mean.

There are things that don't make sense. Half of Democrats in Kentucky not voting for example. Moscow Mitch coasting to victory with a 20% approval rating for example. Is Trump is THERE looking for fairness? No? Gee, I wonder why not.

Thanks to OP for taking time for excerpts and emphases. That takes work and makes it easier for all of us.

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Response to bucolic_frolic (Reply #17)

Fri Nov 27, 2020, 07:58 PM

19. I'm both frustrated - and having fun.

Media (and people who don't have legal background) often get legal stuff wrong - and then, of course, it gets amplified. (The Supreme Court decisionon NY rules is not even close to how it is being portrayed, for example.)

But I enjoy picking them apart and agreeing (or disagreeing) with what the court says.

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 07:44 PM

18. My favorite part was "..its alchemy cannot transmute lead into gold"! That sums up trump perfectly.

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Response to George II (Reply #18)

Fri Nov 27, 2020, 08:49 PM

24. It does, doesn't it. n/t

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 08:07 PM

20. I cannot find my "favorite thread of the year button".


Primary sources material + topical + historically significant + witty observations quoting witty judicial repartee + Guiliani reductionism and general ridicule of all things Trump.

All that is missing is a quote from sacred literature demonstrating a straight line to a 4th century BC despot.

Thanks for the privilege of letting us see the details of a delicious judicial spanking.

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Response to grantcart (Reply #20)

Fri Nov 27, 2020, 08:16 PM

21. You're welcome! n/t

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Response to Ms. Toad (Original post)

Fri Nov 27, 2020, 08:25 PM

22. Highly rec'd! Really enjoyed reading your OP.

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Response to Kaleva (Reply #22)

Fri Nov 27, 2020, 08:41 PM

23. Thanks!

It was fun to write - except that I almost gave up before I posted it, since I was working on my fire tablet . . . what pain to use a virtual keyboard to cut, paste, and rearrange.

Glad it was worth the effort!

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Response to Ms. Toad (Original post)

Sat Nov 28, 2020, 08:00 AM

25. Thanks for that!

Good to see competence and justice do exist.

On edit: This was the next OP I read. WTF?
https://www.democraticunderground.com/100214631504

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