King v. Whitmer

556 F. Supp. 3d 680 (2021)

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Nature of the Case

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Facts

A record 5.5 million Michigan residents voted in the 2020 presidential election. President Biden had been declared the winner in the State. Even though Michigan law establishes an extensive procedure for challenging elections, Ps did not avail themselves of those procedures, as they conceded at the July 12, 2021 motion hearing before this Court. Ps (registered Michigan voters and nominees of the Republican Party to be presidential electors on behalf of the State) filed the current lawsuit against Michigan Governor Gretchen Whitmer, Michigan Secretary of State Jocelyn Benson, and the Michigan Board of State Canvassers (Ds). The following lawyers electronically signed the pleading: Sidney Powell, Scott Hagerstrom, and Gregory J. Rohl. The Complaint listed the following attorneys as 'Of Counsel': Emily P. Newman, Julia Z. Haller, L. Lin Wood, and Howard Kleinhendler. In their Amended Complaint, Ps alleged three claims pursuant to 42 U.S.C. § 1983: violations of (Count I) the Elections and Electors Clauses; (Count II) the Fourteenth Amendment Equal Protection Clause; and (Count III) the Fourteenth Amendment Due Process Clause. Under Count IV, Ps asserted violations of the Michigan Election Code. Ps claimed that Ds (i) 'failed to administer the November 3, 2020 election in compliance with the manner prescribed by the Michigan Legislature in the Michigan Election Code, [and (ii) 'committed a scheme and artifice to fraudulently and illegally manipulate the vote count to make certain the election of Joe Biden as President of the United States.' P asserted that their claims were supported by 'the affidavits of dozens of eyewitnesses and the statistical anomalies and mathematical impossibilities detailed in the affidavits of expert witnesses.' Ps asked the Court to decertify the election results and order Ds 'to transmit certified election results that state that President Donald Trump is the winner of the election . . . .' Ps maintained that this Court had to issue this relief by December 8, 2020, because, on that date, the results of the election would be considered conclusive. On December 7, the Court denied Ps' declined to grant Ps the relief they wanted, which the Court noted was 'stunning in its scope and breathtaking in its reach' as it sought to 'disenfranchise the votes of the more than 5.5 million Michigan citizens who . . . participated in the 2020 General Election.' Ps' lawsuit was subject to dismissal based on any one of several legal theories: (i) their claims were barred by Eleventh Amendment immunity; (ii) their claims were barred under the doctrine of laches; (iii) they lacked standing; (iv) their claims were moot; and (v) abstention was appropriate. The Court concluded that Ps were not likely to succeed on the merits of their claims. The Court found Ps' Elections and Electors Clauses claim was 'in fact [a] state law claim disguised as [a] federal claim.' On their equal protection claim based on the theory that Ds engaged in tactics to, among other things, switch votes for Former President Trump to votes for President Biden, the Court found the allegations to be based on nothing more than belief, conjecture, and speculation rather than fact. Ps abandoned their due process claim. On December 15, 2020, Ds served a letter and motion on Ps' attorneys, threatening sanctions pursuant to Rule 11. At the same time, Ps filed a Notice of Appeal. On December 11, 2020, Ps’ attorneys filed a petition for a writ of certiorari in the United States Supreme Court. The Supreme Court did not rule on Ps' petition for the writ of certiorari by December 14. On December 22, D filed a motion seeking sanctions against Ps and their counsel pursuant to the Court's inherent authority and 28 U.S.C. § 1927. Ds also filed motions to dismiss. On January 14, Ps filed notices voluntarily dismissing this case. On January 5, the City (D) filed a Rule 11 'Motion for Sanctions, for Disciplinary Action, for Disbarment Referral and for Referral to State Bar Disciplinary Bodies.' On January 28, Governor Whitmer and Secretary of State Benson (hereafter 'the State Defendants') filed a 'Motion for Sanctions Under 28 U.S.C. § 1927.' Ds contend that sanctions are appropriate pursuant to § 1927 for two reasons. 'First, Plaintiffs' counsel unreasonably and vexatiously multiplied the proceedings in this litigation by failing to dismiss the case when their claims became moot, which plainly occurred upon the vote of Michigan's electors on December 14, if not earlier.' Ds contend that Ps' counsel knew or should have known that their legal claims were frivolous, but counsel pursued them nonetheless, even after the Court's opinion concluding that Ps were unlikely to succeed on the merits of their claims for multiple reasons,' which included 'the weakness of their legal claims and the lack of factual support.' Ds identified three specific allegations that they contend were not well-grounded in fact: 1. ''The absentee voting counts in some counties in Michigan have likely been manipulated by a computer algorithm,' and at some time after the 2016 election, software was installed that programmed tabulating machines to 'shift a percentage of absentee ballot votes from Trump to Biden.'' 2. 'Smartmatic and Dominion were founded by foreign oligarchs and dictators to ensure computerized ballot-stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chavez never lost another election.' 3. 'The several spikes cast solely for Biden could easily be produced in the Dominion system by preloading batches of blank ballots in files such as Write-Ins, then casting them all for Biden using the Override Procedure (to cast Write-In ballots) that is available to the operator of the system.'