The Trump campaign has filed an emergency motion for expedited review with the United States Court of Appeals for the Third Circuit over Pennsylvania district judge Matthew Brann’s dismissal on Saturday of the team’s post-election lawsuit.
Trump campaign attorney Jenna Ellis tweeted the news with an image of the court record Monday morning.
🚨NEW: Third Circuit Court of Appeals grants expedited review for Team Trump’s appeal from Pennsylvania. pic.twitter.com/LKJDnPGRSn
— Jenna Ellis (@JennaEllisEsq) November 23, 2020
In the original complaint, filed on Nov. 9 in Pennsylvania’s federal district court, the Trump campaign alleged that Secretary of State Kathy Boockvar, and election boards in dense Democrat counties, had created and implemented an illegal “two-tiered” voting system for the 2020 General Election. The campaign stated they believed this two-tracked system resulted in two constitutional violations: 1. Equal Protection Clause violation, and 2. Elections and Electors Clauses violation. Matt Morgan, Trump 2020 campaign general counsel, said:
“Voters in Pennsylvania were held to different standards simply based on how they chose to cast their ballot, and we believe this two-tiered election system resulted in potentially fraudulent votes being counted without proper verification or oversight, as well as many voters being disenfranchised simply for casting their votes in person. We will not stop fighting for transparency and integrity in our electoral process and ensuring all Americans can trust in the results of a free and fair election.”
On Nov. 15, because of a ruling by the Third Circuit Court of Appeals in an unrelated case two days earlier, the Trump legal team filed an amended complaint to restructure its lawsuit to rely on claims of violations of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Still very much a part of the suit is the allegation that 682,479 ballots were improperly processed and counted. Tim Murtaugh, Trump 2020 communications director, said:
“We are still arguing that 682,479 ballots were counted illegally, in secret. Our poll watchers were denied meaningful access to watch the vote counting and we still incorporate that claim in our complaint. Unfortunately, fake news activists rushed to print their clickbait headlines, apparently without even reading the lawsuit. That’s lazy journalism at best, but more likely intentionally misleading.”
On Nov. 17, in a move that would influence the Trump campaign’s case, the Pennsylvania state Supreme Court ruled that poll watchers have a legal right to be present but have no right to be situated within a designated distance from the canvassing activity. The right to have poll watchers present in the first place is a decision made by state law. This fact made it highly doubtful that federal courts would interfere with a ruling by the state’s highest court defining the outlines of that right.
After the state Supreme Court’s ruling, the Trump campaign sought to amend their complaint a second time. To do so, they needed the court’s permission or the consent of the defendants, which Pennsylvania officials refused to give.
United States District Judge Matthew Brann ultimately denied the Trump campaign’s request, concluding:
Defendants’ motions to dismiss the First Amended Complaint are granted with prejudice. Leave to amend is denied. “Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.”140 Given that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims; and (3) the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020, amendment would unduly delay resolution of the issues. This is especially true because the Court would need to implement a new briefing schedule, conduct a second oral argument, and then decide the issues.
On Monday, the Third Circuit Court of Appeals granted the Trump campaign’s request for an expedited review, giving the Trump campaign until 4 p.m. local time to file a brief supporting its argument for overturning Brann’s decision. Boockvar has until the same time Tuesday to file theirs.