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Trump Lawyers Plot Pennsylvania Last Stand as Michigan Certifies

Bloomberg logo Bloomberg 11/24/2020 Erik Larson
a group of people sitting at a desk in front of a store: Workers count ballots for the 2020 Presidential election at the Philadelphia Convention Center in Philadelphia, Pennsylvania, U.S., on Tuesday, Nov. 3, 2020. Philadelphia officials said Monday it "will easily take several days" to count the city's large number of mail-in ballots, potentially delaying statewide election results from Pennsylvania that could decide a close presidential race. © Bloomberg Workers count ballots for the 2020 Presidential election at the Philadelphia Convention Center in Philadelphia, Pennsylvania, U.S., on Tuesday, Nov. 3, 2020. Philadelphia officials said Monday it "will easily take several days" to count the city's large number of mail-in ballots, potentially delaying statewide election results from Pennsylvania that could decide a close presidential race.

(Bloomberg) -- With battleground states certifying their election results at a quickening pace, President Donald Trump’s campaign legal team is increasingly focused on the notion that it can roll back certifications by taking a disastrous Pennsylvania ruling to the U.S. Supreme Court.

Michigan certified a victory for President-elect Joe Biden on Monday, following Georgia on Friday and with Pennsylvania set to do so soon as well. A federal judge on Saturday issued a scathing dismissal of a Trump campaign lawsuit seeking to block Pennsylvania’s certification, leading the campaign on Monday to urgently seek relief from the Third Circuit U.S. Court of Appeals in Philadelphia, from which cases can be appealed to the U.S. Supreme Court and its 6-3 conservative majority.

Following Michigan’s certification, the Trump campaign issued a statement saying it was “simply a procedural step.” In its Pennsylvania appeal brief filed Monday, the campaign likewise suggested that the “real deadline” for the state’s election results was Dec. 8, the date by which states must choose electors to guarantee they will be accepted by Congress.

“It would be unconscionable to allow Pennsylvania to certify electors for Biden and then have it turn out that Trump won the race,” the campaign said in a filing Monday evening.

But legal experts say courts that have already regarded the campaign’s claims with skepticism, if not outright scorn, are likely to treat election certifications as inviolate. And the more results certified in favor of Biden, the less likely it is that the Supreme Court, which has discretion over which cases it hears, will step into a controversy that cannot change the outcome of the vote.

‘No Chance’

“To say ‘there’s no chance’ is overestimating the likelihood of success,” Justin Levitt, a law professor at Loyola Law School in Los Angeles, said of the campaign’s Third Circuit gambits.

In its filings, the campaign seemed to understand that it stood little chance of blocking Pennsylvania’s certification. It asked for an emergency order blocking “the effects” of a “likely certification.” It also filed an expedited appeal of U.S. District Judge Matthew Brann’s Saturday ruling, specifically his denial of its request to file a second revised complaint in its lawsuit trying to invalidate mail-in ballots.

Pennsylvania’s 67 counties are required by law to certify their results by Monday evening, though some have historically been tardy. Secretary of State Kathy Boockvar, a Democrat who is a defendant in the suit, could affirm statewide results swiftly after the counties certify their results.

Brann rejected the idea of blocking certification unless tens of thousands of disputed mail-in ballots were discarded, saying the campaign had made “strained legal arguments without merit and speculative accusations.” The Trump campaign asked the Third Circuit to revive its revised complaint and force Brann to hold hearings and rule on its additional claims. The appeals court agreed to accept a brief from the campaign on Monday afternoon.

Read More: Trump Campaign Loses Pennsylvania Suit Called ‘Monster’ By Judge

A new hearing should take place quickly “in order to prevent awarding Pennsylvania’s electors in the Presidential election based on defective mail ballots,” the campaign said in its brief. “Only the winner of the legal ballots -- be it President Donald J. Trump or Joseph Biden -- should receive Pennsylvania’s electors.”

But Biden, who won Pennsylvania by more than 80,000 votes, would still win the presidency handily if Trump managed to flip the state. Trump would need to flip several more, but his campaign doesn’t even have pending lawsuits in many of the states that have yet to certify.

And Pennsylvania delivered more bad news to the Trump campaign on Monday, with the state supreme court ruling that some 8,000 mail-in ballots that had been challenged as defective were allowed to stand. The campaign had argued the ballots should be tossed because they weren’t properly filled out -- voters signed them but did not further hand-write their names, addresses or dates on the outside of the return envelopes.

A Philadelphia court previously denied the campaign’s request, noting voters’ names and addresses were already pre-printed on the envelopes and that state election law was ambiguous on what it means to “fill out” ballots.

The Pennsylvania Supreme Court said the voters appeared to have made minor errors but there was no “weighty interest” served by invalidating their ballots.

“Here we conclude that while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters,” the court said in its decision.

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