Good morning, electoral lunacy followers. Welcome to what I suspect will be the 2020 equivalent of the Orly Taitz litigation: Sidney Powell Sues Everoyen For LAL Of Teh ThInGs

This is the first of what will (hopefully) be a limited number of #Kraken-related threads.

That said, I doubt the number will be limited. I think Sidney Powell is the Orly Taitz of the Biden Administration.

And I doubt I've acquired enough maturity since my younger birther-watching days to ignore these. So, yes, at least for cases with public dockets, I'm here.
We've got two filings so far - a Michigan one (King v Whitmer) that has been filed, and a Georgia one (Pearson v Kemp) that cannot presently be located on PACER.

This may be because there are parallel Quorts not in the system but maybe it just didn't get filed.
Here's how I'm going to deal with that - I'll start livetweeting King (the filed one) in a little bit, after I do some turkey prep. I'll do that in this thread, but probably even slower and more interrupted than usual - so you might just want to bookmark and come back later.
Tonight, if there's interest, I might be both willing and able to stream a read of the (maybe unfiled) GA case on Twitch tonight.
(Seriously, my choice won't necessarily be based on the majority outcome of the poll - if there's enough interest I'll stream regardless.)
I'll pick up with this shortly. At the start, I'll note that it's not clear from the caption whether she's suing Benson in her capacity as both Sec'y of State and Michigan Board Ofstate Canvassers or if Benson and the Board are different entities, because what are Oxford commas?
Be back in a bit - the bird needs attention.
OK - the bird is in and the first family Zoom of the day is concluded, so I can pick back up.

When last we left the heroic #Kraken, we were looking at a cover page that spelled "district" two different ways and sues the Board Ofstate Canvassers. Let's see where we go from here.
(By the way - we've got some in-house social isolation going here, so it's a strange Thanksgiving. So thanks to those who asked, but it's actually pretty easy to do this today.)
Right - so we start by saying that we're definitely pleading fraud, so that will make for some interesting issues when the defendants, if ever properly served, mention Rule 9.
For the nonlawyers - Federal Rule of Civil Procedure 9 says that your complaint needs to meet certain requirements above and beyond what's normally required in a complaint.
Honestly, this first paragraph is distinguishable from something Orly Taitz would have filed only in that the spelling and grammar are marginally better. Right down to the references to eye witnesses and expert witnesses.
So if you see me, in the course of these threads, start referring to "witlesses" and "daffydavits," don't credit me with originality. These are terms used in the birther watching community back in the day.
Based on this footnote, we're gonna be lucky if we only see two Krakenings. Sounds like we could see up to four - and possibly more as desperation mounts.

Oh joy.
And she's reinforcing this as a fraud case in the next paragraph, too, so, yeah, it'll be fun to see her respond to the Rule 9 issue in her response to the inevitable motions to dismiss.
BRB - gonna fire up Westlaw and see if I can figure out what this is about, because based on Cornell LII it's a statutory section that doesn't exist.
OK, I found it. It's 52 USC §20701. I was confused, because Title 50 is "War and National Defense" and only goes up to like §4852.
This footnote is also very much in line with Orly Taitz's filings. This is FN 2. The reader has no idea what "Dominion" is, let alone why they have logs, and the final "incorruptible audit log" thing is also unexplained.

She's assuming that the reader lives on her planet.
Alleging that the state government is engaged in an extensive and deliberate criminal conspiracy will go over well. It's also Taitzian.

Also, I wonder what makes Detroit "especially egregious."
Making it clear that these are definitely frauding and ballot-stuffing claims.

So it looks like they finally found a lawyer unethical enough to sign a pleading with this stuff.
So she's claiming sufficient specificity based on her "testimony incorporated within" - so this could be interesting. By which I mean entertaining.
I think Dominion probably will need to find a way to respond to all this - the nutball right are making them toxic in ways that will undoubtedly harm their business.
For clarity: by "all this" I mean the full set of outrage peddling and scapegoating, not simply this filing.
Wait, the "MichiganBoard of State Canvassers"? I thought she was suing the "Michigan Board Ofstate Canvassers."
So we've got a "Redacted Declaration" as Exhibit 1, with no indication that an unredacted version will be forthcoming. That's clearly the sign of a very serious lawyer with great familiarity with law and other lawyerings.
We're also seeing allegations that vote fraud in Michigan in 2020 is connected with a dictator who died in 2013.

I will be *delighted* if defense lawyers snarkily request that the court take judicial notice that Hugo Chavez has been dead for 7 years.
I mean I'm not 100% sure that it's a fact that can be the subject of judicial notice really, but it's also the kind of thing that's so worth a try.
Also, did she spill something on her keyboard that destroyed her space bar? And if so, was it whatever substance she was consuming that fueled this "pleading"?
OK, so now we're quoting from the "DominionWhistleblower Report." Which indicates that the person who drafted the report was a "direct witness."

I'll be right back - I've got to go look at Exhibit 1 and see who this is, because if there's a deposition it's gonna be lit.



is this even?????

I just checked the docket - there's no indication anything was filed under seal. There's no indication there's any intent to file anything under seal.

Her leadoff document, which documents an alleged international conspiracy, doesn't disclose who the affiant IS?
OK. For the nonlawyers, let me explain.

The American justice system is adversarial. That is a fundamental thing. It's like trial by combat but with less blood and more snark.

This means that the opposing party gets to - and this is important - challenge your testimony.
When you put forward a witness, the other side gets to challenge their testimony. That can't effectively be done when you don't know who they are. (This is above and beyond the more fundamental issue that you can't judge credibility without knowing who is making the allegation.)
If your witness needs to remain hidden due to legitimate concerns for safety and so on, there are ways that can happen. But those ways do not include hiding their identity from the court and the other side's lawyers. There are procedures. None of them seem to be happening here.
The submission of this document is, to be blunt, sanctionable. It'll probably slide in the interests of a speedy GTFOOMCR* but it should be sanctioned.

* the final half of that stands for "of my court room." You should be able to get the rest.
But it gets even better - because, apparently, her witless is "of sound mine."
John 11:35
Back to the main document. I'll look at the rest of that drek later.

So we've got a nameless affiant - actually, that should be 'affiant,' the scare quotes are virtually mandatory - alleging that Smartmatic engaged in a conspiracy with Chavez.

Did she submit a declaration?
Sorry for the delay - basting
Right. So I went looking to see if Powell (or any other attorney) submitted a declaration to accompany the exhibits. I don't see one.

I do note that the exhibit numbering seems to go "8, 9, 10, 101, 102" which might be a numbering system somewhere but if so I don't know where.
So as far as we know, this Exhibit 1 is just something she found on the Internet (I fear this may be literally true) and not actually something she can submit as testimony without just utterly shattering her Rule 11 obligations to the court.
Truly we live in the dumbest of timelines.
This is off-the-rails nuts. Now we're jumping from Smartmatic to Dominion - with a single, lonely, inexplicably italicized "of" as a bonus - with no explanation of the link. And we're turning to the "Declaration of HarriHursti" (Who may or may not actually be "Harri Hursti").
There is, of course, no explanation of who Harri Hursti is, whether this purports to be expert or fact testimony, what the basis is for either, and if I had printed this I would have just thrown the file physically across the room and ohgod it's only page 4.
Seriously, what the hell is this other case even? What's its relevance? Why was this declaration submitted? This is purported expert testimony. Has this person been accepted as an expert and if so in what and for what purpose?
You cannot - I feel like this should go without saying - just slap an exhibit label on random crap and dump it into the docket and expect to be taken seriously, let alone have something accepted as evidence. This. Is. Not. How. Anything. Works.
Also, these are statements that appear to allege that bad things can happen, they are not even offered as evidence that bad things did happen.
Paragraph 9 is special. Just loads and loads of factual assertions without citations to anything, including her less-than-52-card-deck of daffydavits.
Seriously, this is a paragraph jam-packed with what we refer to in the trade as "conclusory allegations," which is a lawyerly way of saying, "yeah, you're just pulling this stuff right out of your ass."
Making insinuating statements like this to suggest wrongdoing or malfeasance that you cannot prove does not play well in court. At all.
Either they disregarded those concerns or they decided that they had been sufficiently addressed between the time the "Texas Board of elections" [sic] rejected the system and Michigan accepted it.

Neither scenario gives rise to a claim of any kind.
Also, the rejection by Texas needs a cite, the "disregarded all the concerns" is a conclusory allegation and just sweet lord what am I reading here?
So she's submitted an unauthenticated paper of some kind from somewhere without submitting the CV of the alleged "expert" (who she hasn't apparently retained)?
How -- just how -- just what the hell - HOW DO YOU EVEN?
Exhibit 2 is a paper from somewhere. That is all we can say about it. There is no indication of source on it anywhere, so it's impossible to tell whether it's a preprint or peer reviewed, or even whether it's from a book or a journal.

And it's printed in landscape. Badly.
This is absolutely bloody disgraceful legal work.
Oh yeah - and there's no PINCITE for the quote, so if I want to find the context I have to crawl through the whole landscape-printed with cut-off footers paper to find it.

Courts just love that.
And - just putting the cherry on top of the nuts on top of the whipped cream on top of this stale turd sundae - the paper hasn't been OCRed.
I can't find it. Not only can't I find it, I can't find anywhere in there that discuses rewriting a program or physically hacking. And the authors - there are more than one - seem to refer to themselves in the first-person plural; the alleged quote is first-person singular.
That's not to say that the quote isn't in the paper, of course. It might be in the parts that were cut off when the landscape thing happened, but I'm really starting to doubt it's in there.
Oh good. Now we've got an "expert" who is at least being claimed as someone who knows they are providing evidence for the plaintiffs.

More from Mike Dunford

This is an excellent question, and it's something that I've thought about some over the last couple of months.

Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.

The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.

That happened this year, and the majority of those challenges were heard on the merits.

The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.

The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.

The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.

Those are cases where laches is clear - particularly the prejudice element.
I've been trying to think that through - not just legally, but judicially.

The more thinking I do the less serious - and more ludicrous - the entire thing looks. And the more obvious it becomes that this is the proposal of deeply unwell individuals who are not thinking clearly.

On the legal side, I read through the list of emergency powers - the whole list - that was assembled by the Brennan Center. Nothing on that list fits. Nothing comes even

It seems extraordinarily unlikely that any executive order along the lines of what has been discussed would be legal. In this case, it can be taken as a given that one or more targeted jurisdictions would dash right off to the courthouse.

Standing would not, it should go without saying, be likely to be an issue. I doubt redressability would either. I think it's very likely that restraining orders and injunctions would be swiftly issued.

That's the legal side, to the extent it's possible to speculate on that at all at this point. Basically, there's no readily apparent legal basis for such a thing, so it probably wouldn't be legal.

That's the easy part. Now for the nuttier side - the logistics.

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