Government

Big Lie Election Lawyers Still Sanctioned, Still Full Of Sh*t, Tenth Circuit Confirms

How the hell did we make it through 2020?

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Ballot Box with Beer Election day drinkingThere were a lot of batshit crazy election challenges filed in 2020 after Donald Trump refused to concede his 8 million vote loss. But a few cases stand out for being especially unhinged. One of those lunatic standouts was a proposed class action filed in federal court in Colorado on behalf of all American voters.

Originally, the suit named elected officials in Michigan, Wisconsin, Pennsylvania and Georgia, as well as Dominion Voting Systems, Facebook, Mark Zuckerberg, his wife Priscilla Chan, and their non-profit Center for Tech and Civic Life, of conspiring to change the rules around voting so as to fraudulently elect Joe Biden. But that wasn’t crazy enough, so later they amended the complaint to add 152 new defendants and the obligatory RICO count and a damage claim for $1,000 per American voter, or $160 billion.

Unsurprisingly, the court took a dim view of this reasoning.

“The Complaint, viewed as whole, is a generalized grievance about the operation of government, or about the actions of the Defendants on the operation of government, resulting in abstract harm to all registered voting Americans. It is not the kind of controversy that is justiciable in a federal court,” wrote Magistrate Judge N. Reid Neuriter in an April 2021 order dismissing the case, adding that there had already been a whole slew of election challenges dismissed for lack of standing because the plaintiffs failed to demonstrate individual harm.

“It should be no surprise to Plaintiffs or their counsel that their generalized grievances about their votes being diluted or other votes being improperly counted would be insufficient to grant them the standing required under Article III of the Constitution,” he went on. “Numerous other cases challenging the 2020 election and its surrounding circumstances have been dismissed for precisely this reason (among many other reasons).”

And not for nothing, but how do you get through law school and think a court in Colorado has jurisdiction over state actors in Michigan, Wisconsin, Pennsylvania, and Georgia? In response to this, the plaintiffs argued that the sovereign state defendants could have consented to personal jurisdiction in Colorado, and if you don’t ask, you don’t get. Which is ballsy, you gotta give ’em that, although, as the court points out, the plaintiffs knew before filing the amended complaint that the state defendants were not, in fact, going to consent to jurisdiction.

After yeeting the case into the sun, the trial court sanctioned Gary Fielder and Ernie Walker, the attorneys who filed this POS suit, imposing $186,922.50 in legal fees under Rule 11 and 28 U.S.C. § 1927. That would be $62,930 for Dominion, $50,000 for Facebook, $62,930 for CTCL, $4,900 to Michigan, and $6,162.50 to Pennsylvania.

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Fielder and Walker appealed to the Tenth Circuit, arguing, among other things, that the sanctions violated their First Amendment right to speak and their Fifth Amendment right of due process. These arguments failed to impress the appellate panel, which issued a withering smackdown yesterday, agreeing with the trial judge that “Plaintiffs’ arguments regarding standing were so inadequate that it was not an abuse of discretion for the district court to conclude that the claims were made in bad faith, vexatiously, wantonly, or for oppressive reasons, such as to support inherent-powers sanctions.”

But speaking of weird arguments about standing, the lawyers argued on appeal that the states lacked standing to seek fees since Governors Gretchen Whitmer and Tom Wolf were sued in their personal capacities, and thus the states of Michigan and Pennsylvania cannot be compensated for the time spent telling Fielder and Walker to get lost.

No, really, that actually happened.

The Attorneys assert that the Michigan and Pennsylvania defendants improperly appeared in their official capacities, rather than in the individual capacities in which they were named in the suit. As best we can tell, they thus contend that Michigan and Pennsylvania lacked standing to seek sanctions under § 1927 because their officials were not named in their official capacities, and therefore the states themselves were not parties to the suit.

We see no merit to this argument

No merit? YA THINK?

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“For these reasons, the sanctions awards were not an abuse of discretion,” the Tenth Circuit wrote yesterday, concluding that “We affirm the district court’s sanctions order.”

The AND MAY GOD HAVE MERCY ON YOUR SOUL part is implied.

O’Rourke v. Dominion Voting Systems [Docket via Court Listener]
Tenth Circuit Holding

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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