Federal judge to consider whether to dismiss case filed by Trump campaign in Pa. - TribLIVE

A federal judge said he will take under advisement whether to grant a motion to dismiss a complaint filed by Trump for President against the Pennsylvania secretary of state and seven individual counties.

Argument before U.S. District Judge Matthew Brann lasted about four hours Tuesday and featured the newest Trump lawyer on the case, Rudy Giuliani, arguing claims that were no longer in the complaint the campaign filed.

It was unclear whether Giuliani’s misrepresentations were because of his last-minute entry into the case Tuesday.

Several attorneys who entered their appearance for the Trump campaign withdrew prior to Tuesday’s hearing. The campaign sought a continuance — or, delay — of the hearing, but Brann denied it.

Much of Giuliani’s argument did not match up to the campaign’s filings in the case.

He spent the bulk of his initial argument expressing outrage at the Philadelphia and Allegheny county election boards for allegedly failing to allow observers for the Republican Party and Trump campaign to watch the precanvass and canvassing process for mail-in ballots. He called the inspection process for the nearly 700,000 mail-in ballots in those two counties crucial because of the record number of them statewide — more than 2.6 million — in this year’s election.

Giuliani said elections officials in those counties “trashed” the ability for the campaign to observe operations.

“The best description of what we’re alleging is widespread, nationwide voter fraud,” he said. “This is not an isolated case.”

Near the end of the hearing, though, Giuliani corrected himself, saying, that the campaign is not alleging fraud in the Pennsylvania federal case.

“I have to correct myself. The charge is the conduct. It doesn’t plead fraud,” Giuliani said. “It pleads a plan or scheme.”

Trump’s attorneys presented no evidence to support their claim of widespread fraud. The defendants are seeking to have the case thrown out.

Daniel T. Donovan, the attorney representing Secretary of State Kathy Boockvar, told Brann repeatedly that claims relating to the canvass observation were removed by the Trump campaign when they filed their amended complaint Sunday. That issue, Donovan said, should not be before the court.

In addition to the canvassing issue, Giuliani argued the two individual plaintiffs named in the case — voters from Fayette and Lancaster counties — were denied equal protection because they were not given the opportunity to “cure” their mail-in ballots that contained errors.

In some counties, such as Allegheny and Philadelphia, voters who submitted ballots that had errors — like a missing date or signature — were permitted to fix the errors or submit a provisional ballot. Those decisions are made by individual county election boards.

The two plaintiffs in the case were not given the opportunity to do that, which Giuliani argued was a violation of equal protection.

Donovan, who argued the Trump campaign lacked standing to even bring a complaint, said there is no equal protection violation just because individual counties have different voting procedures.

“A law that make it easier for others to vote does not abridge anyone else’s rights,” he said.

As for the individual voters, said Democratic National Committee Attorney Uzoma Nkwonta, if they had a legitimate complaint, they would have sued their individual counties in state court for failing to allow them to cure their ballots.

That was a point Brann returned to later.

“So why are you before me in this court suing the defendants for something Lancaster and Fayette did?” Brann asked Trump’s lawyers.

Trump campaign attorney Linda Kerns responded, “They’re treating voters differently based on where you live. The issue comes back to unequal treatment.”

“Isn’t the remedy, ultimately, in the Court of Common Pleas of Fayette and Lancaster County?” Brann asked again.

“Voters were treated differently, and that’s why we’re in federal court today,” Kerns said. “If everyone equally had a chance to cure, it’s very likely the results would have been very, very different. Or on the flip side, if no one had a chance to cure, the results would have been very different.”

The ability to cure, Giuliani added, occurred in the heavily Democratic areas of the state.

“The reality is this confusion is created by inconsistent, ambiguous advice being given by the secretary,” he said.

After all the parties presented argument, Brann asked Giuliani: “You’re asking this court to invalidate more than 6.8 million votes, thereby disenfranchising every voter in Pennsylvania. Can you tell me how this result can possibly be justified?”

Giuliani responded that that was not the relief they were seeking, and instead they were looking to invalidate the mail-in ballots he claimed observers couldn’t review.

“The conduct was egregious. The conduct was premeditated,” Giuliani answered. “The scope of the remedy is because of the scope of the injury. … As far as we’re concerned, your honor, those votes could have come from Mickey Mouse.”

But Donovan, again, corrected Giuliani, noting the Trump campaign’s complaint did, in fact, ask that the entire state’s election results be thrown out.

Mark Aronchick, who represented the individual counties named in the lawsuit, told the court that the plaintiffs are trying to “sideswipe” the election. They did not choose to pursue their claims in state court where they ought to be heard, Aronchick said.

“I’m urging you, I’m pleading,” Aronchick said. “You tell them, ‘I’m not getting involved.’ ”

Brann asked the Trump campaign to file additional briefs on the matter, as well as a motion to seek to file another amended complaint.

He also canceled an evidentiary hearing scheduled for Thursday.

The election results are to be certified by the secretary of state by Nov. 23.

Paula Reed Ward is a Tribune-Review staff writer. You can contact Paula by email at pward@triblive.com or via Twitter .

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Federal judge to consider whether to dismiss case filed by Trump campaign in Pa. - TribLIVE

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