Judge: plaintiff's amendment deleted some claims. All that's left is equal protection & the elections/electors clause, right?

Trump attorney: yes

Judge: you agree there's no standing on electors /elections, right?

Rudy: we'll preserve for appeal but yes

The Rudy clown show begins - after amending their complaint to delete the "due process" claims based on poll watchers, Rudy says "that was a mistake, we're going to put it back"

Rudy: this is part of a widespread national fraud. Railing against main in balloting. "never let a crisis go to waste"

Note: PA went to all mail in balloting before the pandemic

Rudy: there's a practice to "hold back votes" and "produce new votes after the election"

Rudy: "there's way more absentee ballots this year than in 2016" lol

Rudy:now there are allegations of voter fraud in Milwaukee, detroit, Philly. He's arguing the observers case - which was amended out of the complaint

"this is not an accident. You'd have to be a fool to think this an accident"

He's now arguing a nationwide conspiracy. "They must have had a contract with a company to build these corrals across the country"

FINALLY getting to the actual claims. Plaintiff forgot to use a secrecy envelope (what they call a naked ballot). His county "quite properly disregarded it"

But other counties informed voters so they could cure "

The line has gone dead

Back in via a friend who conferenced me. Giuliani now arguing that every ballot counted when observers were "too far" away is an "illegal ballot"

The Judge hasn't asked him a SINGLE question. In my experience that isn't a good sign for Giuliani. But I don't know this judge

Still railing about observers being kept at a distance.

"The net result is ... 338K in pittsburgh, something over 340K in Philly, 1.5M votes total from all the counties we're challenging" - arguing none of them should count.

"They didn't even let democrats see it because they were afraid someone would speak. They made sure it was their little mafia [comprised of thousands of individual poll workers, lol]

"If this is allowed without cancelling these ballots this will become an epidemic" says Rudy, without a hint of irony

"If you just disenfranchise 1.5M votes across 7 counties, we win the election, so clearly we have standing"

"We have 100s of affidavits, how do we present that evidence without burdening the court. We have 300 affidavits, declarations, or statements we've written down"

Judge: You deleted these causes of action from your complaint, though

Rudy: but we left in the factual allegations

Now submitting evidence - *in opposition to a motion to dismiss* - of poll watchers kept at a distance.

(Note for non-lawyers: The court cannot legally consider factual matter outside the Complaint on a motion to dismiss)

Rudy wrapping up: let us show our evidence!

(The irony of Trump pleading to be allowed an evidentiary hearing after the farce of a party line vote to not hold an evidentiary hearing on impeachment)

Judge: Kerns, I'll have questions for you later

Counsel for the state now up.

"I think Rudy spent his time focusing on allegations not in the case. Look at the redline - they deleted the poll watcher counts"

"At this point we have a single count" - equal protection: (1) Allowed to cure before EDAY. (2) Voters advised ballots were defective and they voted provisionally. (3) Certain envelopes were not done correctly but were counted anyway.

All of these are state law claims. What's not in the complaint? Claims of double counting. Claims anyone voted illegally. No claim of improperly rejected ballots. No claim of voter fraud.

No inequality in ability to cast a vote.

Claim is that votes were counted when they shouldn't have been. And they're asking to resolve that by invalidating the entire election. That's not an equal protection claim

Starting with standing: No standing under various cases. The allegations that other people's votes were counted doesn't work. No standing.

Bognet [phonetic]: If injury does no specific harm to you, you have no standing.

Here, no concrete injury

They're arguing vote dilution. But that's not a concrete or particularized injury. Bognet: Counting ballots in violation of state law isn't an equal protection issue. Just a generalized grievance that doesn't give standing.

That's gonna be dispositive

"No single voter is disadvantaged; it applies to all voters equally. So no standing"

The equal protection claim is "some counties allowed cure, others didn't" so there's no standing. Just a claim that the election code isn't followed.

Ballots go to all federal & state elections, so the campaign has no standing either: there are a ton of candidates on the ballot. Quoting the Texas drive-through decision on candidate standing. Still a generalized injury

No "vote denial" claims. They didn't sue the counties, and they admit they didn't cast a valid ballot. They don't have a claim, and even then relief can't be "don't count other people's votes either"

State lawyer: Rudy talked about pictures and numbers ... uh, I looked at the complaint and they're not in there. So that doesn't matter on this motion. All that matters is what they alleged

They never allege that Philly voters actually cured, that those votes counted, how it might impact the outcome ... they're toast, your Honor

There's no unequal treatment of the candidates when valid PA voters are able to cure. So no standing.

I think standing is enough. They can pursue cases in state court, but not here in Federal court

AND THE LINE WENT DEAD AGAIN! WTH

We're back. Donovan picking up again with equal protection.

Citing precedent: no vote dilution when counties have different procedures. Well established that there's no constitutional claim here

Now going through precedents in other federal circuit courts. This just isn't a claim.

"A law that makes it easier for others to vote isn't vote dilution" - quoting the Harris drive-through case.

DNV - same: Clark county making it easier to vote isn't vote dilution; it doesn't make it harder for other county's voters

So plaintiffs have no equal protection claim. Their rights weren't impacted by other counties telling other voters to cure.

Dismiss it today.

Finish where you started: One count left here. Rudy spent time on canvass, but that's deleted. Not in this case.

Oh, and the PA Supreme Court just ruled there was no violation of election law in the canvass, so that would be moot even if it was in the case.

Now handing off to co-counsel

Aronchuck: I was prepared to address abstention. But given the Supreme Court precedent might need to talk about some of this.

Wants to talk about Saylor's dissent but we're having technical difficulties again.

Ok, here we go.

Observer issue now decided. 5-2 says Rudy is wrong. Eliminates 90% of his argument. Rudy is going to come say it's an equal protection violation. He's inventive. But there's no constitutional right to be a poll watcher/observer. It's a creature of statute

PA Supreme Court just told us what the statute requires. That's it. It's over. Can't bootstrap that into an equal protection claim

Also, Saylor's dissent: There's no way that anyone could ever grant the relief that Giuliani is asking for, because you can't disenfranchise hundreds of thousands of voters based on these types of irregularities

This guy is PERSONALLY attacking Rudy and Rudy's competence. I'm sure it feels good to him. But that's a bad idea.

(Well, maybe. The odds are good Rudy's head is currently exploding and his rebuttal will be all about the personal slight)

Their complaint said 33 times there are allegations of fraud. They deleted them. Rudy is talking about some other case, not this one. Some fantasy case. Not this one.

Also, Judge Ranjan's decision is the guideline here. These allegations are crazy.

Paraphrasing: Why the hell are we talking about allegations of fraud in the 80s?

Again, county-to-county differences in election administration rules are not equal protection violations. Every county could have done the same thing. That Rudy's favorite counties chose not to ...

isn't an equal protection violation. NO case says that efforts to make voting easier is illegal. They're turning the equal protection clause upside down. Trying to say every county has to have whatever the procedures are in the most restrictive, most difficult-to-vote counties

We don't race to the bottom. It's nonsense. Total nonsense.

He's very exercised. And rightly so.

Rudy says he remembers stuff about standing from law school. But he doesn't seem to remember how it's addressed in the cases. Not even as you articulated it in your prior case. (ooooooooooooooouch)

We have a complaint. We don't have cases about election fraud from the 60s. We don't have claims that election workers are mafia. This is disgraceful that this is happening in an American court

This guy was supposed to be talking about abstention. He hasn't said word one about abstention

Now going through the complaint: there are 8 specific allegations about notice and cure.

1) Par. 129. The secretary told ALL counties they could give notice so voters could cure and vote.

I say hallelujah to Sec Boockvar and how could anyone complain about that??!

That is a problem? Hardly.

2) Par 127: They did that. Again hallelujah! That's a good thing. I feel badly for plaintiffs that their county didn't tell them. But so what.

3) Par. 130 4 counties chose not to. Nobody knows from the complaint what the other 60 counties in PA did

Rudy claims to know, he waives his hand around. But not info you can consider.

4) 115-116: yeah, they screwed up their votes. So what?

5) 124: How can they possibly claim standing with this? They say "a huge public service campaign that you have to be careful"

about how you fill out your ballot. The things you need to do to vote clearly.

How do these plaintiffs know whether the people who spoiled their ballots didn't just listen to these warnings, or to Trump saying vote in person. No way to trace this to the complained of conduct

Par 97: Vote dilution? No specifics. No numbers. Can't tell what's in play. But this still isn't standing.

WHY is he spending all this time on standing when he was supposed to cover abstention?

They're speculating that this cost Trump votes. But how do they know who people who cured their ballots voted for? This isn't redressable, except for Giuliani's position "let's just throw out hundreds of thousands of votes"

Which the PA Sup Ct just said you can't do.

But also, common sense. The idea that we are being asked to do that, I don't say this easily, it's disgraceful.

Counsel actually loses his words he's so pissed. Stops himself with "whatever"

This complaint is, at its core, a small ball complaint about a procedure everyone

could have had. How did that come about? Going through the state law and nitty gritty of election details

"I'm not Mr. Giuliani. I'm not going outside this complaint"

There are state law remedies to challenge at the county level whether particular votes get counted

There are about 8,000 such challenges. That's it.

Finally onto abstention: Ranjan on the drop-box case: You have state remedies. Go do what you want in state court. Don't come to federal court.

Same thing here. Leave this to the state courts

503 ballots being challenged in one of these cases. Dem campaign intervened. Trump didn't, instead they're bringing it here, asking you to act as an appellate court over the state courts.

I urge you your Honor, tell them what Judge Ranjan did: Go do what you need to do in state court.

This is a case for abstention on steroids. Rudy Giuliani is just Jill Stein all over again. Stein filed a contest petition but didn't want to pay the required bond so she filed in Federal court. In 2016, the Trump campaign said "no, abstain, not an equal protection issue"

Now the campaign flipped its position and is asking for what Stein wanted.

Judge interrupts: Counsel you're moving around too much. Please stop it impacts the audio

Aronchuk - do you need me to repeat anything

Judge: Dear God no.

I'm back. Now another lawyer arguing for the defendants. No reason for this, but ok.

Especially because she's addressing the poll watcher issue that the PA SCT just ethered

This is the lawyer for Center county. Basically "there are no allegations against us, why are we here?"

Another lawyer, now for the DNC. "Gonna try to not report"

Their complaint says "this isn't a vote dilution case, it's a vote denial case" - but they didn't sue *their* counties. And their counties would be the only ones who they could have a vote denial claim against

Repeating the standing arguments. No allegation that the election law claims would impact the outcomes.

Equal protection: their main source of authority rejects their claim. Bush v. Gore never said every county had to have identical procedures. NO state would satisfy that

No case has ever said that differences in administrating election procedure would be an EP violation.

Also, re Rudy's insane claims about widespread national voter fraud: The Trump Campaign's attorneys SPECIFICALLY said in multiple courts that they were not alleging fraud

He's just quoting from other Trump attorneys now, including Rudy's co-counsel, Linda Kerns, all of whom disagree with Rudy that these cases have anything to do with fraud. "That's just not the position the campaign is taking in state court." Brutal.

All of this impacted Dems and Republicans equally. Nobody was able to stand close to the canvassers. Ballots went for Dems and Republicans, including in statewide races where Republicans are in the lead; what type of crazy fraud scheme would this be?

Rudy, soon:

Another defendant's attorney: LACHES! They needed to raise these issues ahead of the election. Can't wait until after the election to make this claim. Could have had a remedy that didn't involve disenfranchising voters, that would never have been on the table

"It may depend on where you live" - that's something they knew before the election. Why did they wait. They say because they had to wait for the election for the harm to occur. But we know that's not true, from the cases that the Trump campaign brought before the election!

No chance they get to have a second amended complaint. Way too prejudicial to let them do a new complaint given the certification deadlines.

They keep saying "count the legal votes, don't count the illegal ones" - but nobody is alleging any ILLEGAL votes. A cured ballot is, by definition, a legal vote. Even if you think the notice from the county was wrong, you can't prejudice the voters.

This lawyer was SO CLOSE to the perfect argument: They say "count the legal votes, don't count the illegal ones" But they're asking you to throw out 1.5M legal votes from millions of Pennsylvanians.

Defendants are done. Judge has some questions.

For Kerns - feel free to defer to Rudy if you want. You're alleging the individual plaintiffs were denied the right to vote, but asking the court to invalidate 6.8M votes. How could this result possibly be justified?!

And the audio has cut out

Can barely hear the judge now.

Now: Rudy - "the conduct of keeping the poll watchers away was egregious. Planned. To keep republicans away from watching. The remedy is required and draconian"

"Who ever heard of 700K absentee ballots not being examined. These ballots were not examined"

Note: The Pennsylvania Supreme Court just found not only that the law was complied with but also that they WERE examined.

"As far as we're concerned those ballots could be from Mickey Mouse. The reason I point out the other states is there's a connection."

It's a massive conspiracy!

"If that ballot were a good ballot, why not invite republicans to watch"

I take exception to them saying I didn't plead it. I was accused of not reading your opinion or understanding it. I did! That's only pre-election

Those two men lost their right to vote! They were treated differently in their two counties. The law is clear you can't cure a ballot.

THIS IS NOT THE FUCKING LAW

"I would tell my client don't cure. So why would they sue their client"

They say they don't know how the cured ballots went, but we know how the counties went. This was a deliberate plan.

Rudy just refuses to deal with the fact that the PA SCT ethered the canvassers claim.

"I feel aggrieved that they say it's not in the complaint"

Judge: Stop talking, I want to move on.

Rudy: No. We alleged it! All incorporated by reference in the first count.

Linda: We believe our equal protection claim is well established and strong, we want a preliminary injunction (what the hell?)

Linda: "Defendants are flailing" (yeah, that's not going to happen)

Rudy: We're asking you for a hearing. You'll decide the remedy after a hearing. But we can't go to the state court because the PA Court says PA law is different from the other states, no right to observe

Rudy is, from a legal perspective, fucking nuts. He's now arguing that PA law has to provide the same election observer rights as other states.

Judge: In the amended complaint, you say mail in ballots are susceptible to voter fraud, but you aren't alleging specific fraud

Rudy: No, we're alleging the canvassing issue is alleging fraud

Judge: But you started the hearing acknowledging that only equal protection is left. You amended the complaint. How am I supposed to think about the other issues you keep talking about?

Judge: Also, if you're alleging fraud - and that's not how I'd characterize your complaint - but if you're doing that, you have to plead with particularity. (Note: You have to plead REAL specifics if you allege fraud). Did you do that?

Rudy: No. But it doesn't plead fraud.

Judge: If you're alleging vote denial, why are you suing everyone but the counties that didn't count your clients' votes?

Linda: State law doesn't matter. It's federal equal protection. Can't say you're going to treat different voters differently.

"Our clients didn't have the same opportunity to cure"

Rudy: Par 127 is where we allege this

Judge: How did the secretary's actions cause these voters' counties to deny their votes?

Linda: Secretary's office sent an email out at 8:38 pm the night before election day saying you can cure. Our clients didn't know.

Linda: What, should they have sued their county to count their ballot after the election?

Judge: Well, yes. Isn't that what you would do? Isn't that the remedy

Linda: That would be a state law claim. But we're here for all citizens of the commonwealth

Judge: Is the campaign's claim individual, or derivative on behalf of individual voters.

Linda: Both

Judge: What's the campaign's injury?

Linda: That votes were counted unevenly (Note: the cases, discussed earlier, are clear that's not standing)

Linda: If everyone had a chance to cure, the results in PA would have been different. Or if nobody did.

(This is insane)

Judge: How can the campaign have derivative standing?

Rudy: The campaign's right derives from the plaintiffs in one sense, and then the campaign ...

itself was denied equal protection because these plaintiffs couldn't cure.

(This is gobbledygook).

Rudy keeps saying that the state law doesn't allow cure.

That is not the fucking law.

Hey @j_remy_green can you read someone the riot act for not making the point that PA state law doesn't prohibit cure? I'm losing my mind here.

Judge: None of the cases from the third circuit give candidates standing, do they?

Rudy: One of my colleagues had that in EDPA when he was the candidate. Marks v. Stinson. 3d Cir affirmed in part.

Long discussion here. "Government can't put its thumb on the scale in favor of one candidate"

Rudy: We were treated differently. "Cure provisions. Backdating provisions. All the allegations are we were treated differently. The allegations about the watchers are incorporated in the equal protection claim, and we are not alleging fraud, we're alleging equal protection"

Rudy just making shit up right now: "In the Biden counties there was no inspection."

Election confusion over whether you can cure is an equal protection violation.

Judge: Donovan you want to say anything?

Donovan: Marks/Stinson doesn't say anything about standing

Donovan: The secretary's guidance went to all counties.

Judge: Turning to the merits - what standard to review?

Rudy: Normal one - deem allegations correct, is there a cause of action?

Judge: Strict scrutiny?

Rudy: No, normal scrutiny

Rudy DOES NOT UNDERSTAND THE QUESTION

The judge is asking "how closely do I need to scrutinize the alleged equal protection violation"

Judge: If it's not strict scrutiny, doesn't PA win?

Rudy: I don't understand the question

Judge: How does making it easier for other people to vote burden the plaintiffs?

Rudy: Mr. Henry made a mistake

Judge: So how was that burdened by the secretary?

Rudy: Does not answer the question

Judge: How were they denied the right to vote? They filled out their ballots incorrectly and their counties didn't count them. You're not saying uncounted ballots mean denial of right to vote?

Linda: The state actor didn't give them opportunity to cure, but other counties did

Judge: Is that a denial of the right to vote?
Linda: Everyone should have the same procedure
Rudy: Either they should have had the right to cure or nobody should have
Linda: They'd have had the opportunity if they lived in a better county

Judge: Violating state law isn't an equal protection violation. So why are we here?

Rudy: They set up different rights in different parts of the state.

Question for defendants.

First Donovan responding: No strict scrutiny, because they had the right to vote. This is rational basis.

Rudy keeps referring to standards. Bush v. Gore had a different issue, you don't need identical procedures

Judge: Why isn't Bognet distinguishable given that this was in the past?

Donovan: Because timing is irrelevant. The question is whether the harm is general or specific.

Judge: Tell me again why the campaign doesn't have standing

Donovan: There's no such thing as derivative standing. They also have no competitive standing.

Rudy: Vote denial is in play if my vote isn't counted

Judge: How about Pullman abstention? ("the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them.")

Aronchick: It applies.

Judge: How about Rooker-Feldman (Federal courts can't review state court decisions). Did the state courts rule on the notice and cure issues?

Aronchick: That's the Ham case. Don't think Rooker-Feldman applies yet, because that's pending. Applies to the observer issue.

This is a terrific answer

Aronchick: Notice and cure in Philly was primarily people who spoiled their ballots and voted provisionally because they were told "we don't have your vote"

BTW, I have nothing personal against Rudy. It's professional. His arguments are terrible. LOLOLOL

Aronchick: This is not Marks/Stinson. Not at all. That case had nothing to do with competitive standing. Bognet is on point

Judge: I'm done with questions. Let's deal with ministerial stuff. Plaintiff can file a brief in opposition to the motion to dismiss by 5pm tomorrow

Setting a briefing schedule for various things. He will NOT be ruling from the bench

Now on to the Trump campaign wanting to amend again. Judge: I'm guessing the defendants will oppose that.

Judge: You need to go through the procedures.

Rudy: We can file quickly

This stuff isn't substantive and my toddler is now on my lap screaming "hi, hi" at the speakerphone

Judge now on Kerns' voicemail sanctions motion. Judge: you gotta tell your associate not to be an ass. I'm sure you have

tell your associate that he just wasted a federal judge's time.

Ms kerns, I'm sorry that happened but that's not sanctionable. this is silly

kerns: i want to be heard

nooooooooooooooooooooooooooo

she's getting swamped, she's pissed. how could they take so long to respond. K&E not taking it seriously. this shouldn't happen

i want apologies!

judge: so noted.