The Volokh Conspiracy

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Election 2020

Federal Judge Imposes Sanctions on Lawyers Who Filed Frivolous Election Suit

The attorneys failed to make reasonable efforts to verify their allegations. Will the Kraken lawyers be next?


A federal magistrate judge in Colorado granted defendants' motion for sanctions against lawyers who filed a frivolous class-action lawsuit seeking to challenge the 2020 election results. The court's 68-page opinion in O'Rourke v. Dominion voting Systems does not hold back,

The court granted the motion for sanctions based upon the following conclusions:

(1) That this lawsuit was filed in bad faith;

(2) That Plaintiffs' counsel's legal contention that the Plaintiffs had Article III standing to bring this suit was not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. To the contrary, I find that Plaintiffs' counsel's arguments on the issue of standing frivolous;

(3) That Plaintiffs' counsel's act of filing a lawsuit in Colorado against state officials from Georgia, Michigan, Pennsylvania, and Wisconsin was not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. To the contrary, it was obvious that there was no personal jurisdiction in Colorado over these defendants and suit against these state officials should never have been filed in Colorado;

(4) That, in light of the unusual and highly volatile circumstances of this case and the surrounding political environment, Plaintiffs' counsel did not conduct a reasonable inquiry into whether the factual contentions had evidentiary support. Without doing any independent confirmation via, for example, the hiring of experts, or speaking to lawyers who had filed other failed lawsuits, they improperly accepted allegations from those suits and from media reports at face value and cut and pasted them into their Complaint and Amended Complaint;

(5) That because of its inherent legal flaws and the inadequate inquiry into the factual allegations by Plaintiffs' counsel, this lawsuit should never have been filed in the first place or, using the Tenth Circuit's test, no "reasonable attorney admitted to practice before the district court would file such a document." Predator Int'l, Inc., 793 F.3d at 1182 (quoting Adamson, 855 F.2d at 673);

(6) That Plaintiffs' counsel's filing of a motion for leave to amend, without addressing the obvious fatal problems with standing and lack of personal jurisdiction, while attempting to add RICO claims based on a TIME magazine article that provided no support for such claims, was a violation of 28 U.S.C. § 1927 in that the attempt to amend unreasonably and vexatiously multiplied the proceedings;

(7) That Plaintiffs' counsel improperly included in a federal complaint highly disputed and inflammatory statements by the former President stating categorically that ""DOMINION DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE" without doing anything to independently verify the truth of that statement;

(8) That sanctions are merited under Rule 11 (except with respect to Pennsylvania) and 28 U.S.C. § 1927.

(9) That sanctions are further merited under this Court's inherent authority because of the bad faith nature of the filing of the suit that Plaintiffs' counsel knew or should have known was doomed to failure from the very beginning; and

(10) That sanctions are required to deter the filing of frivolous, politically motivated lawsuits such as this in the future and to compensate the Defendants for the unnecessary expenditure of private and public money in defense of a frivolous lawsuit filed without reasonable legal basis and without a reasonable inquiry into the facts.

As the U.S. Supreme Court has noted, "the filing of complaints, papers, or other motions without taking the necessary care in their preparation" constitutes an "abuse of the judicial system, subject to separate sanction." Such abuses were certainly committed in many of the suits filed to challenge the 2020 election results, and they are worthy of sanction. Parties rarely seek sanctions, and courts rarely grant them (which is too bad), but the relevant standards appear to be met here. And now that one judge has ordered sanctions, I suspect it is likely others will follow suit. Perhaps the Kraken attorneys are next.