Trump appeals big loss in Pennsylvania vote case that seeks to block Biden win

Key Points
  • The Trump campaign's appeal of its devastating loss in federal court in Pennsylvania misspells the word "president," and butchers grammar.
  • The campaign, which is seeking to reverse a projected win for Joe Biden, asks the federal 3rd Circuit Court of Appeals to consider a revised lawsuit.
  • President Trump's legal team booted the lawyer Sidney Powell from their effort after she made bizarre claims alleging a conspiracy to rig the election for Biden.
Mail-in ballots are counted in Chester County, Pennsylvania, November 4, 2020.
Rachel Wisniewski | Reuters

The Trump campaign's appeal of its devastating loss in federal court in Pennsylvania misspells the word "president" and butchers grammar.

The appeal filed Monday also did not ask an appeals court to reverse its defeat or temporarily block Pennsylvania counties' certification of votes, which are due later in the day.

Instead, the appeal at the U.S. Circuit Court of Appeals for the 3rd Circuit effectively asks for a do-over of its so-far-botched legal effort to invalidate enough votes in Pennsylvania to overturn a projected victory for President-elect Joe Biden, and a loss for President Donald Trump.

The campaign wants the appeals court to allow it to pursue a second amended lawsuit, which the lower court judge effectively barred them from doing with his ruling Saturday.

Trump should accept the election results, says GOP Pennsylvania Sen. Toomey
Trump should accept the election results, says GOP Pennsylvania Sen. Toomey

The appeal appears to be as much of a long shot as the case on which it is based. But it could speed up what the Trump campaign says is its plan to get the case heard by the U.S. Supreme Court.

The court quickly granted the Trump campaign's request for an emergency expedited review, and ordered the campaign to submit its legal brief laying out its arguments for the appeal by 4 p.m. ET Monday. Briefs by defendants in the case, whol include Secretary of State Kathy Boockvar, are due by the same time Tuesday.

"The Court will advise if oral argument desired," a notice in the case's docket says.

The campaign later said in another filing that will be filing a request for an emergency temporary restraining order and preliminary injunction to block the effect of the state's likely certification of a win for Biden.

The filings came a day after Trump's two leading campaign lawyers, Rudy Giuliani and Jenna Ellis, effectively fired a third member of the team, Sidney Powell, after she made bizarre claims that included suggesting that Georgia's Republican governor and secretary of state were part of a conspiracy to rig the election there for Biden.

"Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity," Giuliani and Ellis said, a week after Trump boasted on Twitter about Powell being part of the campaign legal team.

Giuliani last week made a court appearance in U.S. District Court in Williamsport, Pennsylvania, where he argued that Trump was the victim of fraudulent votes. He also said the campaign's lawsuit trying to block the certification of votes in the state was not alleging fraud.

Giuliani said a claim in the original lawsuit was mistakenly removed by other lawyers, and said it would be added back in a revised lawsuit.

On Saturday, the judge in that case, Matthew Brann, dismissed Giuliani's argument in a scathing decision that compared the Trump's campaign's allegations to "Frankenstein's monster."

Brann, a Republican appointed by President Barack Obama, said the campaign gave him "strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by the evidence."

In the appeal of Brann's decision filed Monday, the campaign refers to Trump as "Presidential Donald J. Trump," instead of as "President Donald J. Trump" as one normally would in a legal case.

That apparent slip is contained in the line alleging that Democratic officials in Pennsylvania "engaged in an intentional scheme to count defective mail ballots which they knew would favor Joseph Biden over Presidential Donald J. Trump."

Elsewhere in the filing, the campaign's lawyers underscore the significance of their claim while undermining the rules of grammar: "This action is of nationwide importance because of the consequences of flawed election processes on the election for the President of the United States in the Commonwealth could turn the election in favor of either candidate."

Appeals typically ask appellate judges to overturn a lower-court decision or, at minimum, request a so-called stay that would block the ruling from taking effect.

In this case, Brann's decision would allow Pennsylvania's counties to certify its election results by Monday's deadline. Those results are set to confirm Democratic former vice president Biden's win in the state.

But the Trump campaign does not ask the 3rd Circuit to stay Brann's ruling, or even overturn it.

Instead, the campaign asked the appeals court to consider a second revision of the original lawsuit in the case, which raises additional allegations about the voting processes in the state.

"Plaintiffs believe that the Second Amended Complaint cures any deficiencies noted by the District Court regarding, [among others things], standing, equal protection, and remedy because its allegations are very different than those" in the campaign's first amended complaint, which Brann dismissed.

The appeal noted that the campaign is not waiving any claim that Brann's decision was wrongly decided, and offered to provide the appeals court any briefs to make such a claim if asked to do so.

The Trump campaign and its allies have lost or voluntarily withdrawn more than 30 state and federal court cases around the nation as part of an effort to invalidate enough ballots, in enough locales to effectively reverse Biden's projected win in the Electoral College.

Saturday's loss in Pennsylvania and the withdrawal two days earlier of a federal lawsuit in Michigan made that effort even more unlikely to succeed than it already was.

Biden is projected to win 306 electoral votes, 36 more than is needed to win the White House.

In another pending long-shot case, Pennsylvania Republicans, including Rep. Mike Kelly, filed a complaint in Commonwealth Court seeking to stop certain kinds of mail-in ballots from being included in the state's final tally.

The plaintiffs seek to block the certification of the election in the state, claiming that mail-in ballots cast under an allegedly "unconstitutional" law signed last year by Pennsylvania Gov. Tom Wolf, a Democrat, cannot be counted.

The law, Act 77, expanded access for Pennsylvania voters to cast mail-in ballots without an excuse.

After the lawsuit was filed, observers quickly pointed out that Act 77 passed a GOP-controlled Pennsylvania state legislature in 2019 with overwhelming support.

"It's kind of a hail Mary when there's no time left on the clock," Pennsylvania Lt. Gov. Jon Fetterman told the KDKA, the Pittsburgh radio station.

"They are actively suing a Republican bill that would dismantle Republican control in our entire statehouse," Democrat Fetterman said.

On Sunday, former New Jersey Gov. Chris Christie, a Trump ally, called the campaign's legal team a "national embarrassment," saying the attorneys have failed to present evidence of the widespread fraud they claim denied Trump reelection.

Christie is one of a growing number of Republicans who say Trump should concede the election.

But the president has refused to do so.