The lawsuit sought to halt certification of Pennsylvania’s results on the grounds that Republicans were illegally disadvantaged because some Democratic-leaning areas allowed voters to correct administrative errors on their mail ballots.
In a scathing 21-page opinion, the 3rd Circuit said the Trump campaign’s challenge of the district court’s decision had “no merit.” The opinion was written by Judge Stephanos Bibas, who was appointed to the court by Trump. Bibas was joined by two other Republican-appointed judges in a unanimous vote by the three-member panel.
“Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” Bibas wrote. “Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.”
Jenna Ellis, a legal adviser to Trump’s campaign, said after the decision that the case would be taken to the Supreme Court. “On to SCOTUS!” Ellis said on Twitter, using an acronym for the Supreme Court of the United States. Trump had no immediate response, but his personal lawyer Rudolph W. Giuliani later suggested it was not clear whether the appeals court’s action would be challenged in the Supreme Court.
Giuliani said the legal team was weighing which case would be appropriate to take to the high court.
“There are any number of cases that we can take to the Supreme Court,” he said in an interview Friday night on One America News, an appearance during which he repeated the same claims that were rejected by the 3rd Circuit panel. “We have to decide which is the right one. There may even be one that hasn’t yet started but will be started in a day or two that might be the right one.”
It is unclear when the campaign plans to make a decision or exactly what relief it might seek, as the 3rd Circuit’s decision addressed a technical matter about whether the Trump campaign could amend its lawsuit in federal court in Pennsylvania.
Legal experts have said the case has little chance of success at the Supreme Court, much like the numerous other GOP election lawsuits pending in battleground states. More than two dozen cases have been filed across six such states since Election Day to undo the results, but nearly every judgment rendered has gone against the president’s team.
Also Friday, election officials concluded a recount in Milwaukee County, one of two Wisconsin counties where the Trump campaign paid a total of $3 million for a review of the ballots. The result: Biden’s roughly 20,000-vote lead in the state grew by 132 votes. A recount in Dane County, home to Madison, continues, and the Trump campaign still could sue over challenges raised during the recount that were rejected by local election officials.
Any emergency request on the Pennsylvania case would go to Justice Samuel A. Alito Jr., who is the justice designated to handle such matters from the 3rd Circuit. On Nov. 5, Alito on his own ordered county officials in Pennsylvania to separate mail-in ballots received after Election Day. That is the subject of a separate lawsuit already at the high court, which challenges the authority of the Pennsylvania Supreme Court to extend the period for receiving ballots.
But the number of such ballots is not enough to influence the outcome of Pennsylvania’s vote. And since Alito’s order Nov. 5, when he said he was turning the matter over to the entire court, there has been no action. It has even given the state’s Democrats additional time — until Monday — to file a brief in the case.
Trump’s declaration after the death of Justice Ruth Bader Ginsburg that a replacement had to be approved hurriedly in case the Supreme Court was deadlocked in post-election litigation has put the justices in a delicate political position. Ginsburg’s replacement, Justice Amy Coney Barrett, was pushed by Democrats in her confirmation hearings to recuse herself from hearing any lawsuits generated by the election, and she declined to make a declaration either way.
The sharply worded decision by the panel of 3rd Circuit judges appointed by Republican presidents — and written by a Trump appointee — did not bode well for the Trump campaign’s chances at the Supreme Court, some legal observers said.
Edward Whelan, a conservative legal commentator at the National Review who is sympathetic to the Trump administration, repeated a tweet from after the campaign’s first loss in federal court in Pennsylvania: “It’s over.” He added: “Ditto for any filing in the Supreme Court.”
Justin Levitt, a professor at Loyola Law School in Los Angeles who tracks voting rights litigation, said there was little chance the case would be taken up by the Supreme Court.
“At this point, this is zombie litigation — but it’s not one of those zombies anybody is afraid of. It’s just slowly rotting in the corner,” Levitt said in an interview. “It’s not that the Supreme Court doesn’t take strange cases. But they only take cases where the facts or the law — and usually both — present some sort of credible legal question, and that’s not even close to true here.”
Pennsylvania Secretary of State Kathy Boockvar certified her state’s results Tuesday, making official Trump’s loss to Biden there. Biden beat Trump by more than 81,000 votes.
Since then, the president and his allies have asserted, without evidence, that fraud cost Trump a second term in office. But Bibas noted in the 3rd Circuit decision Friday that in its suit, Trump’s campaign “never claims fraud or that any votes were cast by illegal voters.” The judge pointed to a remark Giuliani made during a hearing on the lawsuit that the matter was “not a fraud case.”
The court ruled that granting Trump’s “grossly disproportionate” request to throw out the results would be “drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”
Friday’s decision by the appeals court technically dealt with the Trump campaign’s challenge of the lower court’s refusal to allow the campaign to amend its lawsuit. Giuliani wanted to refile the suit, adding allegations that official Republican observers were not allowed to watch the counting of votes. (Trump’s lawyers had previously said in court that some were allowed to observe.)
But the appeals court’s opinion went further, stating in stark terms that Trump’s legal effort had no chance of succeeding. “The campaign cannot win this lawsuit,” it said.
“No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects,” Bibas wrote.
The court’s decision came on a day that Trump began by repeatedly tweeting falsehoods about the election results and insisting anew that he had won. Official results show Biden defeating Trump by more than 6.1 million votes nationally — more than 80 million to just under 74 million — and leading in the electoral college, 306 to 232.
“Biden can only enter the White House as President if he can prove that his ridiculous ‘80,000,000 votes’ were not fraudulently or illegally obtained. When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud, he’s got a big unsolvable problem!” Trump falsely asserted Friday.
On Thanksgiving, Trump had vowed to keep fighting to overturn the election he lost, despite repeated defeats in the courts.
“It’s going to be a very hard thing to concede,” he told reporters. Aides have privately said Trump will never concede that he lost.
Asked whether he would attend Biden’s inauguration, he demurred. “I know the answer,” he said, though he declined to share it.
Even as most of his lawyers have quit and many campaign officials say the effort to overturn the election is not making headway, Trump said it was going “very well.”
The president continued Thursday to claim there had been widespread voter fraud, without offering proof. And he again falsely said Republican poll watchers were not allowed to observe the counting of votes in Pennsylvania.
“I don’t think it’s right he’s trying to pick a Cabinet,” Trump said of Biden. Trump had blocked a presidential transition for weeks but relented this week and allowed federal officials to cooperate with Biden’s team.
On Friday, Trump played golf at his club in Virginia before traveling via Marine One to Camp David in Maryland. Biden, who is spending the weekend at his home in Rehoboth Beach, Del., made no public appearances.
Josh Dawsey, Elise Viebeck and Aaron Schaffer contributed to this report.