BC LAW
Saved by @Alex1Powell

Good morning, all. There's a little bit of news out of Michigan already this morning - it looks like Judge Parker wanted to start the work week this week with unnecessary and stupid distractions cleared away.

So she dismissed the MI Kraken tentacle sometime after midnight.

 It a 36-page opinion.

And it starts out strong.
ACK - my bad -

Sorry. I'm tweeting without caffeine and it shows. The order rejects the injunction, but it doesn't dismiss the case (yet). Skimming ahead, that appears a foregone conclusion, but technically the case isn't dismissed.
Seriously, though - this is yet another judge who is responding to these request to overturn the election with the judicial version of "you want me to *what*? Hard pass."
The judge is being kind to the plaintiffs here and doesn't mention the epiceyeburningdisasterthatwastheoriginalcomplaint. But you'll note that the judge also doesn't mention what claims were in that complaint or whether they are the same as the ones in the 1st Amended Complaint.
(I'm jumping past some material that's not all that noteworthy or important - busy day today on many levels, so not a lot of time.)
This is stated mildly, but it's a bit of a benchslap. It's very much "you really didn't do anything right and I had to remind you about things you should have done days earlier."
For the nonlawyers:
"Benchslap" is an official term of art, and is defined in Black's Law Dictionary. See below.
And noting that the rapid pace of these proceedings is the result of plaintiff's requests, so Sidney is getting what she asked for here.
It looks like this is - no real surprise - going to be another one of those "you lose for all of the reasons" opinions.
I didn't look too closely at the sovereign immunity issues in this case, but I did see they were briefed by MI. It appears that they were briefed very well.
The exception that allows prospective injunctive relief to end a continuing violation is, as the court points out, narrow.

On this court's reading, all the Kraken suits should be done and dismissed on these grounds, I think.
This passage also goes to why the SCOTUS petition in the Pennsylvania case is on very shaky ground, to put it mildly. That case is trying to disguise a request that SCOTUS instruct a state court on how to conform to state law as a constitutional claim. It's not well-disguised.
As the court points out, the defense is arguing that all the federal claims that Sidney raised are really just state law claims in a cheap disguise.
Not only does the court agree, it somewhat gratuitously quotes a bit of the Defense's snark about the insane nature of these claims when it does it.
Footnote 2 is interesting. No reason is given, but I don't think one is really necessary.
This makes it clear that dismissal is inevitable. That will be handled separately, but if the claims are barred by the 11th Amendment, they must be dismissed.
The first paragraph of the mootness section is succinct.
The court points out that plaintiffs failed to use the MI law procedures for challenging an election, which locks them out of most of the relief they wanted, and that there's no point to letting them look at machines if they have no case.
And, quoting both the 11th Circuit in Wood v Raffensperger and Justice Wecht's concurrence in the PA Supreme Court's ruling in Kelly, finds that there's no basis in law for a court to undo an election by telling the legislature to appoint electors. So the case is also moot.
But wait! There's more!

Let's talk about laches, because laches is another reason Sidney loses.
You'll notice that one of the things the court points to is Sidney's lengthy delay in bothering to serve the defendants. That kind of thing really does matter. (Of course, all the other delays didn't help either.)
Nice use of scare quotes here.
The court finds that there was unreasonable delay - based in part on the Plaintiffs' own concessions.

And that there is prejudice to the defendants. So the plaintiffs also lose on laches.
For the nonlawyers:
Abstention is a doctrine where federal courts decline to rule in a case even if they otherwise could to give the state courts a chance to weigh in on the matter. There are a few variants. It's technical; I'm going to skip past most of it.
But the court finds that abstention is warranted.
And we're still not done! We haven't talked about standing yet. So let's talk about standing.

There's no standing for the equal protection claim. There's also no standing for the Elections Clause and Electors Clause claims.
(I skipped a bunch of material there.)

So - for those keeping score:
The defendants lose because: 11th Amendment, mootness, laches, abstention, and standing.

With that out of the way, it's time to look at the merits of the request for injunctive relief.
The court goes on to find that even if none of those reasons to lose the whole case applied, the plaintiffs would still lose the Elections & Electors Clause claims.
And it looks like the Court read the affidavits carefully enough to see that they didn't actually allege anything real.
So there's no likelihood of success on the merits for Equal Protection either.

And, as most of the lawyers weighing in on these cases have pointed out, federal courts Do Not Like theories that would make every violation of the law a federal matter.
And even the court was done at this point - it's just "oh, and none of the other factors for injunctive relief work for you either."
Oh, and it looks like Judge Parker was very aware of the real purpose of the lawsuit, and wasn't a fan. At all.
Summary:
Seriously, that was brutal. It won't deter Sidney, of course, because Sidney is all the nuts. But it should.

This was a "you lose for all the reasons" ruling. The case may technically not be buried, but it's a zombie at this point - all that's left is to finish it off.
So that's one tentacle down. Several to go.

/fin
PS - but if you want more, it looks like Akiva is just getting started with his take.
https://t.co/gMyu2IyODj

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Happy New Year, y'all -
And let's start with an election litigation update for the Gohmertian Goofiness.

As of 3 minutes ago no reply brief from Gohmert but some other updates have appeared.

(No, the judge won't ignore his filing if it's a little late.)

AND IT GETS BETTER -
I just looked for an update. Found one. They're asking for another hour because the dog ate their homework.


Seriously, they've been using Google Docs for their serious work and are having problems making that work with Word to produce the final version of this filing.

That filing, by the way, can be up to 50 pages long but, given the strong hint in the motion granting permission for the overlength filing, should address everything not just in Pence's brief but also in the House Amicus and the proposed intervenor's motion to dismiss.


Meanwhile, the treasonweasel cosplayers from Michigan want to intervene as plaintiffs.

Not only do they want to intervene, they want to do so in their "official capacities as Presidential Electors for the State of Michigan."

Note: They are not Presidential Electors. Anywhere.
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I went over the dismissal on my stream, but a few thoughts on where things are at:

1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.


3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.

5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.

7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.

So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
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@questauthority
Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.

As Akiva notes, the legal question is going to boil down to something known as "actual malice."

That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.


What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.

So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.

For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.

A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
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Mike Dunford
Mike Dunford
@questauthority
Yes, I have seen the thing about Texas suing other states over the election. Yes, the US Supreme Court has original and exclusive jurisdiction over cases between states.

No, this is not a thing that will change the election. At all.

If this is real - and I do emphasize the if - it is posturing by the elected Republican "leadership" of Texas in an attempt to pander to a base that has degraded from merely deplorable to utterly despicable.

Apparently, it is real. For a given definition of real, anyway. As Steve notes, the Texas Solicitor General - that's the lawyer who is supposed to represent the state in cases like this - has noped out and the AG is counsel of


Although - again - I'm curious as to the source. I'm seeing no press release on the Texas AG's site; I'm wondering if this might not be a document released by whoever the "special counsel" to the AG is - strange situation.

Doesn't matter. The Supreme Court is Supremely Unlikely to take this case - their jurisdiction is exclusive, but it's also discretionary.

Meaning, for nonlawyers:
SCOTUS is the only place where one state can sue another, but SCOTUS can and often does decline to take the case.
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Mike Dunford
Mike Dunford
@questauthority
Good morning, post-election frivolous performative litigation followers - we've got another new filing in Seditionists v 117th Congress et al.

It's yet another motion for a Temporary Restraining Order - making it the 3rd in 3 days.

And it's a

Now, you'd think that if you kept throwing 'emergency' paperwork at the court and the court kept saying nothing in reply that you might want to take some time and figure out what you're doing wrong, but nope. Not these buffoons.

They're still not within 50 miles of complying with Fed R Civ P 65 - and my guess is that this judge might view that as entirely a "them" problem which the court has no obligation to explain.

So they're still stuck at Step 1.

But that's honestly the least of their issues.

They have, apparently in lieu of attempting to comply with Rule 65, put "ORAL HEARING REQUESTED" in all caps right after the heading.

I'm not a litigator but I don't think that's a recognized alternative to attempting to provide notice to the adverse party.


They want to "preserve the status quo" by placing two of the three branches of government in a state of "stewardship." That's...

...unique.
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