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Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


With respect to the Rule 11 comment, there was an article in the Times this weekend with the subtitle that lawyers for Trump are being "forced" to be sloppy and make extremely weak arguments. I found this problematic because no one is forcing them. They are taking the cases of their own free will. They should at a minimum be embarrassed. At the maximum, they should be sanctioned. That is, if Rule 11 or the obligations we all swear to uphold as officers of the court have any meaning at all.

Posted by: Ellen Wertheimer | Nov 23, 2020 9:26:42 AM

And yet no Rule 11 sanctions.

Posted by: J. Bogart | Nov 23, 2020 12:45:59 AM

FN 80: Excellent!

Posted by: thegreatdisappointment | Nov 22, 2020 6:07:44 PM

I understand "standing is really merits" in public law cases, but in Spokeo-type cases where people lack standing to sue for what everyone agrees are violations of their stautory rights that entitle them to statutory damages, standing is doing something entirely separate from the merits. Whether that something makes any sense is, of course, another matter; I'm inclined to think not.

Putting citations in footnotes visually deemphasizes the role of precedent in legal reasoning and makes many of the opinions where it's done look like blithe op-ed columns. Really bad idea.

Posted by: Asher Steinberg | Nov 22, 2020 3:57:41 PM

Howard, as a layperson, I thought Judge Brann's written decision was excellent, only because it allowed me to see his thought pattern.

Posted by: Paul Sonnenfeld | Nov 22, 2020 2:15:50 PM

(Oh wait, I missed your point about standing---they seriously didn't even assert third-party standing? That's special and adorable.)

Posted by: Paul Gowder | Nov 22, 2020 11:58:42 AM

Re fn. 80: NICE!

Substance-wise: the remedies point seems far more convincing to me than the standing point. Perhaps that's just my general skepticism about standing doctrine speaking, but, it doesn't seem crazy that a campaign would have standing generally speaking to seek a remedy for the unfair treatment of people who plausible would have voted for the candidate. By contrast, the remedy point that the court makes is utterly convincing: of *course* the only conceivable remedy for a person who claims their vote wasn't counted because of some kind of unequal treatment is to... count their vote, as opposed to un-count everyone else's vote.

Posted by: Paul Gowder | Nov 22, 2020 11:57:42 AM

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