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Monday, January 04, 2021

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


What happens if Congress does not count electors on January 6? It seems like a relevant question, given what's happening right now...

Posted by: anon3 | Jan 6, 2021 3:06:28 PM

"disenfranchisement" is just the latest entry in the list that includes "activist judges", "political correctness" (which itself has been rebranded as "cancel culture"), "Antifa", "socialism", "communism", "unfairness", "fraud", "radical", and "Marxism", etc. The precise meaning isn't so important--not that these terms really have any meaning. It's all just a convenient shorthand for a thing, person, or outcome that Rs don't like. There's no reason to dwell on it further.

On that note, I heard "disenfranchisement" used the same way but in a different context some years ago. This was when McCullen v. Coakley was up at SCOTUS. Public radio aired a debate between one of the antichoice shills and a local lefty prawf over the merits of the MA buffer zone law at issue. The shill was complaining that the law somehow "disenfranchised" folks like her who are antichoice. Just like nowadays, I thought at the time it was a very silly argument to make. A bit unfortunately though, the prawf didn't really come up with a good rejoinder.

Posted by: hardreaders | Jan 6, 2021 12:28:27 PM

my understanding was that many of the plaintiff disenfranchisement claims (I will note, I only read the complaints in the PA and WI cases) were based not on votes un/counted (or simply "my candidate lost") but that if the mail in voting procedures were illegal, then they permitted an influx of invalidly cast votes that diluted validly cast votes- and that the right to an undiluted vote is pretty established.

similarly, since the comments refer to standing and injury, a voter whose candidate won or vote was NOT injured by vote dilution would NOT have standing to bring suit. therefore castigating losers for bringing claims is...unfair.

Posted by: the disenfranchisement theory | Jan 6, 2021 10:35:40 AM

So, in accordance, the number of persons injured has nothing to do here in fact(see: class action) but rather, the nature and legal context, of the injury claimed.

Posted by: El roam | Jan 5, 2021 5:45:47 PM

LawProf John Banzhaf,

Thanks for your comment.

I was citing the judge. This is not about my opinion personally of course. The judge itself, has implied correctly the jurisprudence, dictated by the Supreme court.

In the US, injury per se is not sufficient. Life is full of injuries in the eyes of courts. Yet, That doesn't grant standing in every case. Surly, if you have read my citation, when challenging the law itself.

Best expressed, in the concurring opinion of Justice Gorsuch in the case of "American Legion"( see link hereby). I quote first, what is all about:

" The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing."

Now, what he claims, is very simply and cruel, I quote:

This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”

And most important, why in fact, I quote:

" Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing?"

And further:

" It’s not hard to see why this Court has refused suits like these. If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves."

End of quotation:

So, there are possible solutions for such mess. But, I was trying only, to explain the concrete reasoning of the judge, simply had been missed by the author of the post.

Here to the ruling:



Posted by: El roam | Jan 5, 2021 5:17:22 PM

The comment suggests that standing was denied because “such injury is too general . . . not particularized one.”

But in the famous environmental standing case of UNITED STATES ET AL. v. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) ET AL., 412 U.S. 669 (1973), my law students filed a law suit in which their alleged environmental injury was one which, the Court said, could be alleged by “all who breathe its air” since it had an “adverse environmental impact on all the natural resources of the country.”

While opining that “pleadings must be something more than an ingenious academic exercise in the conceivable” [since the law suit was brought as part of a class project], the Court nevertheless upheld their standing, stating: “To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.”

In another case in which I persuaded a federal judge to order the attorney general to seek the appointment of an independent counsel, I was also held to have standing.

In short, in many of the cases about which I teach in my class in Administrative Law in which standing was denied, my students are able - by being creative, and thinking outside the box - to find ways more likely to convince courts to grant standing.

Posted by: LawProf John Banzhaf | Jan 5, 2021 4:17:53 PM

Although FRCP 11 is no longer available to parties after a case concludes, state bar disciplinary systems are. However, a lot of state bars refuse to hear "in-litigation" complaints — especially when made by opponents — that were not referred by the judge. The excuse I've heard offered is that if the judges (who in too many states are elected officials, in state court) don't see anything, and they've had the opportunity to see problems up close, why should the state bar authorities waste their effort on really, really tough legal ethics issues when they can spend their time and money tweaking bar-exam pass rates?

So I call on the judges who've been stuck listening to these... alternate-facts alternate-law presentations... to be a bit more proactive than "They lost, that's enough; the reputational marketplace will limit the damage lawyers who do this sort of thing can do in the futures."

Posted by: C.E. Petit | Jan 5, 2021 11:44:41 AM

The safe harbor does not apply to court initiated Rule 11 sanctions. Nor does a safe harbor apply to sanctions under the inherent powers of the court. The court may want to be done with these cases, but the decision not to sanction the lawyers undermines the legitimacy of ever imposing sanctions and undermines professional duties.

Posted by: J. Bogart | Jan 5, 2021 2:04:59 AM

U.S. District Judge Jeremy D. Kernodle has tossed a law suit seeking to establish that a vice president has the power, under the Constitution, to reject the electoral votes submitted to Congress, with the ultimate goal in this case of establishing Donald Trump as the next president.

But since - as I predicted - the judge dismissed the suit because neither Rep. Louie Gohmert of Texas nor the other plaintiffs had legal standing, the court did not address the underlying issue of the scope of a vice president's power, if any, regarding electoral votes which are challenged.

In an earlier statement I had noted that Gohmert had no legal standing to initiate the law suit since he had not suffered the required "injury in fact" required by the Constitution.

I also pointed out the Pence's lawyers had argued that "Ironically, Representative Gohmert's position [regarding standing], if adopted by the Court, would actually deprive him of his opportunity as a Member of the House under the Electoral Count Act to raise objections to the counting of electoral votes, and then to debate and vote on them."

As Judge Kernodle explained, Gohmert "does not claim that he has deprived of something to which [he] personally [is] entitled,” and does not allege a “loss of any private right, which would make the injury more concrete.” Also, he cannot claim as an injury in fact something "which necessarily damages all Members of Congress.”

With regard to naming the current Vice President as the defendant, the court noted that the injury alleged by the other plaintiffs, "is not fairly traceable to any act of the Vice President. Nor is it an injury likely to be redressed by a favorable decision here."

Thus these other plaintiffs likewise have no standing and, it would seem, it was improper and ineffective to try to sue Pence himself in order to increase his own powers.

Indeed, as I noted in a tongue-in-cheek suggestion, if a person's powers could be enlarged by naming him as a defendant in a law suit, he would be delighted if his law school colleagues named him as a defendant in a law suit to establish that he has the authority to raise his own salary, give himself a larger law school office, or to schedule all of his classes at a time most convenient for him.

Posted by: LawProf John Banzhaf | Jan 4, 2021 10:56:01 PM

Really amazing one. It is not so clear, they have really bothered here for preparing that lawsuit. So, why not serving it properly? I quote:

" To say that Plaintiffs’ 116-page Complaint, replete with 310 footnotes, is prolix would be a gross understatement. After explicitly disclaiming any theory of fraud, see ECF No. 1 (Complaint), ¶ 44 (“This lawsuit is not about voter fraud.”), Plaintiffs spend scores of pages cataloguing every conceivable discrepancy or irregularity in the 2020 vote in the five relevant states, already debunked or not, most of which they nonetheless describe as a species of fraud."

So, after all this, not serving it?

Concerning standing, and disenfranchisement, the judge has his reasoning for it. And it is that such injury is too general, not concrete, not particularized one. I quote:

"..... they merely assert a “generalized grievance” stemming from an attempt to have the Government act in accordance with their view of the law. Hollingsworth v. Perry, 570 U.S. 693, 706 (2013). This does not satisfy Article III’s demand for a “concrete and particularized” injury, id. at 704, as other courts have recently noted in rejecting comparable election challenges."


Posted by: El roam | Jan 4, 2021 4:32:33 PM

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