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MDPA conference line is vibing extremely hard rn, everyone come hang https://twitter.com/AnthonyMKreis/status/1328760990205243392
I'm dangerously close to live tweeting this thing even though I know nothing about election law or district court practice generally and my commentary would add zero (0) value to anyone
Ok it's 1:30 let's get this show on the road
aaand we're off, everyone hang onto ur butts
3,999 participants on the call, you love to see it
Plaintiff's counsel: GIULIANI (has been admitted pro hac vice), Linda Hurns, Mark Scaringi, Brian Caffrey
A little aside about mask-wearing. Judge is ok with counsel speaking with the mask off
Defense counsel identifying themselves now, mix of government attorneys and law firm folks
Judge: we're here to have an oral argument on Defendants' (the State's) motion to dismiss. The Court prefers that one attorney from the Defendants argue first, then other Defendants' attorneys will chime in about factual matters afterwards if necessary
Defendants are fine with that
Judge, doing some housekeeping before Defendants start to argue: Plaintiffs have axed several counts in the complaint, leaving only the EPC allegations
Judge: only claim before this court is the Equal Protection claim. Pennsylvania agrees. Everyone's on the same page. Plaintiffs bear burden of proof, so they start. Giuliani is UP
Giuliani: thanks court for allowing him to be admitted. Characterizes allegations as "widespread, nationwide voter fraud, of which this is a part"
"Repeated in at least ten other jurisdictions." Argues that the state used the pandemic as an excuse to establish a state-wide mail-in ballot infrastructure
Characterizes mail-in ballots as "extremely dangerous" and says they can be used to "effectuate voter fraud." Claims that the Trump campaign will prove that "the new mail-in ballot system" was infected by widespread fraud
I'm no election law professor but this does NOT sound like an Equal Protection claim!!
Giuliani claiming that "corrupt big cities" have a "widespread practice" of "holding back votes" or "producing votes" to "make up a deficit. My god.
As to PA, Giuliani points to Philadelphia and Allegheny, "both of them Democrat machines controlled by Democrats," "well known for voter fraud"
"Relevant to this case, Philadelphia, Pittsburgh, Detroit, Milwaukee, similar allegations." (Detroit? Milwaukee?)
Now he's claiming that ballot observers were not allowed to supervise the counting of the ballots. "Once the ballot goes off, anonymous, it's lost forever." "Things can be wrong with it." "That's why so much emphasis is put on the inspection process."
Giuliani characterizes the voting process as "trashed." "In the places where it happened, it's big cities, controlled by Democrats, where they've decided that you don't have the right to observe a ballot."
"The point is, your honor, you'd have to be a fool to think this is an accident." He's rattling off a dozen or so names of cities that went blue in swing states
"The witnesses will describe fences as corrals or cages" (?), an accusation of government contracting fraud to build these fences (?)
Giuliani: "I used to vote by absentee ballot a lot, I traveled a lot" o rly
A discussion of the mechanics of mail-in ballots being placed in envelopes, this is somehow related to an individual plaintiff referred to as "Mr. Henry," I'm deeply lost
Giuliani claiming that people in Philadelphia improperly cured ballots
"In the case of Mr. Henry and Mr. Roberts, they made mistakes, but were given no opportunity to cure their ballots" OH OK got it, the allegation is that the opportunities to cure ballots weren't evenly distributed, hence EPC violation
Giuliani citing Bush v Gore: "in one part of the state you can cure the ballot, in the other part of the state you cant." Ok, we got there, that's the EPC claim.
Giuliani distinguishing a standing precedent about anticipated harm, saying that the alleged injury has already been suffered, so they have standing (on first glance, this seems right to me)
We're back to smearing Democratic precedents as having a "long history of voter fraud," nice
Giuiani on an apparently irrelevant riff about Clark County in Las Vegas
The Judge must be losing his mind
Giuliani: "Federal courts protect voters who've had their votes stolen from him, and a candidate who had an election stolen in the state of Pennsylvania"
"The illegal ballots which were not inspected at all have been entered and counted." Giuliani lists a bonkers high number (hundreds of thousands?) of allegedly fraudulent votes, I missed the precise statistic
"Absentee ballots that were entered without a single Republican having the opportunity to examine them." Another discussion of barricades
Giuliani is now imitating an imagined Democratic election official, complete with devious laughter. "You want ballot curing? You'll get ballot curing!"
Giuliani discussing the court order requiring GOP observers to be within six feet of the ballot counting process, claiming that the order wasn't complied with
I am in shock that the Judge hasn't stepped in. Giuliani is off the rails. There is very little pretense of a legal argument here
"338,000 ballots in Pittsburg, something over 340k in Philadelphia, for a total of [about 670k] votes" then added to other votes in the state "about 1.5 million votes were entered illegally"
Giuliani seems to be losing steam, basically circling back to his previous statements here. I think he's exhausted his material
Everyone is waiting eagerly for the judge to jump in here!!
"Your Honor, I ask the Court to deny the motion to dismiss, so we can move to putting before you the proof that we have." Giuliani claims the campaign has "hundreds of affidavits"
Judge asks Giuliani to supply the affidavits in question to the state's lawyers, then tells him to continue his argument. Giuliani says he's almost done.
Now discussing pictures (I think in the complaint? My beloved fiance was talking on a conference call)
Exhibit A: a picture illustrating that poll watchers were far away
Exhibit B: the same, I think
Exhibits C and D: "a young woman having to use a binocular to try to see"
ok I have better headphones now to drown out the actual working lawyer in this household
Giuliani wraps up, asks Judge to deny the motion to dismiss so they can prove their allegations
Lawyer for PA Secretary of State is up. "November 23 deadline to certify the votes is approaching, government is working hard to meet it"
PA lawyer will focus on the first amended complaint. "Much of counsel's presentation focused on allegations not in the complaint" (no kidding)
PA lawyer: we have a single EPC count, plaintiffs' factual predicate is three-pronged: (1) certain voters allowed to cure mail-in ballot deficiencies pre-election day; (2) certain voters apprised that their mail-in ballots were deficient so they voted in person;
(3) plaintiffs allege that certain mail-in ballots' envelopes were not in compliance with state law
In short: basis in complaint for EPC claim is inconsistent application of the Pennsylvania election code. Complaint does NOT include allegations of voter fraud.
"As relief, plaintiffs ask this Court to enjoin the state's certification of *every* ballot," even though the complaints' allegations implicate very few ballots throughout the state
State will address several issues: (1) standing; (2) plaintiffs EPC claims fail under 12(b)(6) because they're only challenging state law practices; (3) abstention (fun!!)
Standing: state argues that plaintiffs lack standing to assert the EPC claim. Cites several district court cases from MDPA and WDPA, including one by this judge (I do not know anything about these cases)
PA lawyer is marching through the relevant standing precedent, arguing that plaintiffs' vote dilution theory isn't a concrete and particularized injury
I'm taking a little brain break while the PA lawyer is going over district court standing precedents I don't know anything about, glad you're all here with me friends
PA lawyer is wrapping up standing. Bottom line: individual plaintiffs allege vote dilution, don't allege that anything bad happened to their specific ballots; the campaign doesn't bring allegations sufficient to establish a competitive disadvantage under the relevant precedents
EPC claim time. WOAH, JUDGE QUESTION!
huh, line went dead, maybe? I heard "let me interrupt your flow of argument" from the judge and then static
Nuts.
I think the line is donezo. Rats. I wanted to hear what the Judge thought about all this.
I mean, we'll know soon enough, of course, but instant gratification and all
