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Trump Pennsylvania suit now suggests legislature pick winner

Erik Larson
Bloomberg

President Donald Trump’s campaign revised a pivotal Pennsylvania lawsuit seeking to block certification of the state’s election results, adding a proposal that the Republican-controlled state legislature choose the winner instead of voters.

“This court should enter an order, declaration, and/or injunction that the results of the 2020 presidential general election are defective and providing for the Pennsylvania General Assembly to choose Pennsylvania’s electors,” the campaign said in the 86-page amended complaint it filed Wednesday evening.

Former Mayor of New York Rudy Giuliani, a lawyer for President Donald Trump, speaks during a news conference at the Republican National Committee headquarters, Thursday Nov. 19, 2020, in Washington.

Trump and many of his allies have previously raised the possibility of GOP lawmakers ignoring election results based on unsubstantiated fraud claims and directly appointing electors who will support the president. But Wednesday’s filing is the first time the campaign has asked a court to order such a move. Pennsylvania Republican leaders have already said it’s not an option.

The campaign proposed overturning the vote as an alternative to the court ordering the invalidation of tens of thousands of ballots it claims were illegally cast for President-elect Joe Biden. The Campaign said in the revised complaint that “statistical analysis” will show that around 70,000 ballots favoring Biden were improperly counted and calling it “sufficient to turn the election.”

That math has been overtaken by the continuing vote count though. Biden’s lead in Pennsylvania was more than 80,000 votes on Wednesday evening. The campaign has previously floated the idea of forcing Pennsylvania to toss out between 680,000 and 1.5 million allegedly tainted ballots before allowing the state to certify the election result.

In a responsive filing on Thursday, Pennsylvania Secretary of State Kathy Boockvar said the campaign clearly recognized it was unable to win the state by popular vote and were plainly asking the court to declare Trump the winner.

“Enough is enough,” Boockvar said. “The court should not countenance this bald-faced attempt to overturn the will of the Pennsylvania electorate.”

The campaign filed the new complaint after a hearing Tuesday in federal court in Williamsport, Pennsylvania, on the state’s motion to dismiss the suit. Rudy Giuliani, the lawyer picked by Trump to lead his post-election litigation, said at the hearing that he intended to file a new complaint to add claims that he thought had been erroneously abandoned before he joined the case.

At a Thursday press conference the president tweeted earlier would show his “very clear and viable path to victory,” Giuliani double-downed on claims he made in court Tuesday of national conspiracy by Democratic officials to steal the election from Trump through the use of fraudulent mail-in ballots.

“They elected Donald Trump, they didn’t elect Joe Biden,” Giuliani said of voters. “Joe Biden is in the lead because of the fraudulent ballots, the illegal ballots that were produced and were allowed to be used after the election was over. Give us an opportunity to prove it in court, and we will.”

Pennsylvania Attorney General Josh Shapiro, a Democrat, had downplayed Giuliani’s arguments in an earlier tweet.

The Trump campaign’s suit alleges Biden won the Pennsylvania vote because Democratic-led counties accepted mail-in ballots that should have been rejected and allowed voters to “cure” fatal ballot errors. The campaign claims Republican-controlled counties were stricter, leading to disparate treatment between voters in violation of constitutional due process and equal protection guarantees. It asked the court to expedite its request to seek evidence from the counties, including copies of ballot envelopes.

State officials argue the Trump campaign lacks standing to sue and its allegations that counties had minor variations in election procedures do not the form the basis for a federal equal protection case. Boockvar said the remedy for voters who feel their ballots were improperly rejected was to sue their own county, not to claim other counties violated the U.S. Constitution.

The new suit also revives claims jettisoned in an earlier revised complaint filed Sunday based on the campaign’s allegation that a half-dozen counties violated state law by failing to let campaign observers get close enough to the ballot-counting process.

Observer Rights

But the Pennsylvania Supreme Court ruled Tuesday that observers did not have a right to stand within a certain distance. The revised complaint called that ruling “patently inconsistent” and suggested the state high court was violating international norms.

The complaint still doesn’t allege the kind of vast voter-fraud conspiracy that Giuliani made in court on Tuesday and Trump has also pushed in public statements. Democrats argue that’s because no such evidence exists. Election experts say the litigation is being used to undermine Biden rather than win in court.

The amended suit makes several references to the importance of preventing fraud and points to a few examples of mail-in ballot fraud in Pennsylvania from 1999 and 2014. But, despite Giuliani’s claims about a vast Democratic conspiracy, even the third iteration of the campaign’s complaint in the case fails to include a single allegation of fraud by any voter in the 2020 election.

In a filing in the case on Thursday, the Democratic National Committee slammed the campaign for its lack of proof.

“It has been more than two weeks since election day, and Plaintiffs have yet to offer a scintilla of evidence of any fraudulent conduct or systemic breakdowns that would be required to undo an entire election for every office on the ballot, let alone to reverse President Trump’s 83,000-plus vote deficit in Pennsylvania,” the DNC said.