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November 12, 2021 Feature

Observations from the Frontlines

By Mark Aronchick

Thank you for saving democracy.

I received that message, in one form or another, in scores of communications after my oral argument before the Honorable Matthew W. Brann in the U.S. District Court for the Middle District of Pennsylvania in Williamsport, Pennsylvania, on November 17, 2020.

I had just dissected and rebutted Rudy Giuliani’s efforts to undo the election in Pennsylvania for president of the United States, in litigation filed by the Trump campaign.

In reality, however, it was not me or our litigation team at Hangley Aronchick Segal Pudlin & Schiller that saved democracy. Certainly, we had important roles in defending the Commonwealth, or various counties, in perhaps two dozen or so lawsuits concerning the primary and general elections in 2020. We were representing the government officials who were working tirelessly to make sure that the elections in Pennsylvania were run with integrity and according to the law. They were doing that at the same time they were dealing with three significant challenges: a new statute concerning expanded mail-in voting, enormous attention focused on Pennsylvania as a battleground state in the presidential election, and the pandemic. With one exception, our litigation team prevailed in all of those cases.

I had a front-row seat through all of that historic litigation. So, I know full well that it was not our litigation team that “saved democracy.” It really was the numerous federal and state court judges, often operating under time pressure, public anxiety, and anticipation, who resolved those challenges by applying the rule of law. These included federal judges appointed by Republican and Democratic presidents and state court judges who were elected by the citizens of Pennsylvania. They did their work efficiently and expertly. They were the heroes and the heroines who saved democracy.

Much has already been written about the numerous Pennsylvania court cases and decisions in 2020. I am offering these observations, not to once again discuss the legal issues and outcomes, but rather to bear witness to our remarkable legal system, based so centrally on an independent judiciary and the rule of law.

Let’s start with the case where Giuliani appeared for the Trump campaign. That case was filed shortly after the November election and several days after Giuliani’s now infamous press conference at the Four Seasons Total Landscaping driveway, where he and his team offered the public broad, rhetorical statements about how the election in Pennsylvania was “stolen” from former President Donald Trump. Soon after, federal litigation was filed and assigned to Judge Brann. From that point forward, Judge Brann was firmly in control of the schedule and promptly set up an argument date and briefing, all the while managing scores of lawyers for the parties and the intervenors.

On November 17, 2020, Judge Brann presided over almost five hours of argument, “attended” by thousands of people on telephone links, video feed, and livestream. In retrospect, one notable takeaway was how Judge Brann and court officials were able to make sure that the public generally was able to “attend” this argument. How they did that should serve as a template for litigation generally, particularly in cases commanding significant public attention.

The public was able to witness the scattered presentation from Giuliani, some of which ended up as the basis for Giuliani’s interim suspension from the practice of law in New York. Just a few days after the argument, Judge Brann issued a bell-ringing opinion calling the legal presentation advanced by Giuliani, “. . . strained legal arguments without merit” and “(the equal protection claim) like Frankenstein’s Monster, had been haphazardly stitched together . . . ” and dismissed the case altogether. Shortly thereafter, the U.S. Court of Appeals for the Third Circuit, in an opinion written by Judge Stephanos Bibas for a unanimous panel, affirmed with the since often quoted statement that “voters, not lawyers, elect the President,” and “Calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

There were other cases last year that were just as important but did not receive the same attention that Giuliani brought to his appearance in the case before Judge Brann.

The previous summer, Judge Nicholas Ranjan, in the U.S. District Court for the Western District of Pennsylvania, in Pittsburgh, during the heart of the pandemic, presided over a sprawling case brought by the Trump campaign against the Commonwealth and all 67 counties, challenging a number of the procedures and rules that would govern the November election. Judge Ranjan set a schedule that involved a significant number of depositions, substantial document production, and eventually summary judgment motions numbering hundreds of pages. He issued several lengthy well-reasoned opinions rejecting most of the Trump campaign’s challenges. Consequently, and well before the November election date, the federal court denied challenges to the use of drop boxes, rejected claims concerning out-of-county poll watchers, and upheld the Commonwealth’s guidance on the processing of mail-in ballots, among other rulings. Because of the continued attacks on the Pennsylvania election, it is worth noting that both Judge Ranjan and Judge Bibas were appointed to their respective positions by former President Trump.

All along, the Pennsylvania Supreme Court also issued lengthy opinions setting the ground rules for how mail-in balloting would be conducted in Pennsylvania during the pandemic. In all of this litigation, many significant parts of the Pennsylvania election system were challenged and just about every one of those challenges was rejected. Consequently, those ground rules included a short extension for the counting of mail-in ballots that were submitted before the close of the polls but received a few days after (which turned out to be a relatively small number of ballots), addressed the location and procedures concerning observers of the count, provided rulings concerning immaterial defects on the outer envelopes of the mail-in ballots, and ruled that so-called naked ballots could not be counted, among other rulings. But here are some observations that were notable to me:

First, judge after judge crafted lengthy, well-reasoned opinions addressing the important issues in clear, understandable language. While many of the issues were technical, such as standing or abstention, or involved deep analysis of constitutional principles, the opinions also were written so that the public could understand what was happening. If ever there was a time for clear, straightforward judicial writing, 2020 was that time. Through those opinions, a nationwide (indeed, worldwide) public received authoritative, well-reasoned, and clear explanations about how our election was being conducted. Further, these opinions informed the public that the rules surrounding the election ensured integrity and fairness.

Second, many of these cases demonstrated the variety of tools that judges have to manage litigation involving a significant number of parties, intervenors, and amici, and wide-ranging discovery requests, in an orderly and efficient manner. For example, I commend everyone to review not only Judge Ranjan’s various opinions, but also his case management orders, to see how he was able to manage the litigation—fully, fairly, and transparently—in a very short period of time. The same was true from the appeals courts. The Pennsylvania Supreme Court, time and again, set briefing schedules and orders on an expedited basis that enabled all parties to fully develop their issues and allowed the court to issue literally hundreds of pages of opinions on a timely basis.

Third, while there were much noise, rancor, and tribalism in the public forum, no judge let him- or herself get pulled into acting like a legislator or a pundit. While the rancor and noise reached extremes at times, the courts were unfailingly patient and in command of orderly processes. In short, speeches and rhetoric from driveway press conferences would have no reception in the orderly and controlled environment of the judicial courtroom.

Fourth, our independent judiciary demonstrated another of its many important functions. Before that argument on November 17, there was an unmistakable anxiety in the air because of the talk about fraud and a stolen election. The public was waiting with anticipation for the “put up or shut up” moments in courtrooms where actual evidence about fraud or illegality and cogent arguments would be presented in a controlled environment. When Giuliani announced that he would be making his only federal court appearance in Williamsport on November 17, that anxiety and anticipation reached fevered levels. Because of what happened in court that day, there was a major mood shift in the public afterward, basically summarized by the oft-repeated question, “Is that all they have?” In other words, once again, in a courtroom environment, the truth will more often prevail. In this case, the truth could not have been more important for our democracy—namely that the elections in Pennsylvania were lawful and that the public could rely on the outcome.

Fifth, and finally, the outcome of these court cases—particularly the ones that were involved in just the few weeks following the November election—supported the important work of the people we represented—the many officials and workers who actually conducted the election in a fair and nonpartisan manner. I believe that hundreds, if not thousands, of people who served in those roles felt vindicated and supported by the way in which the judiciary handled and resolved the barrage of litigation. That will serve us well in the future.

I heard afterward, from people across the United States and from countries around the world, a common reaction, and it goes something like this: “We now understand why an independent judiciary and the rule of law in the United States are so special and so fundamental.”

That was what “saved our democracy,” and we must never forget those shining moments as we go through other battles in the future, as we surely will.

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By Mark Aronchick

Mark Aronchick is a founding shareholder of Hangley Aronchick Segal Pudlin & Schiller and has handled a wide variety of litigation for over 45 years. He served as the city solicitor for the City of Philadelphia, as the chancellor of the Philadelphia Bar Association, as the president of the Philadelphia Bar Foundation, and as the chair of the Philadelphia Board of Ethics, and is on the Board of the Defender Association of Philadelphia. He also has been a fellow of the American College of Trial Lawyers and has received many awards for excellence in the practice of law and for victories in public interest litigation.