"The people have spoken": Federal judge tosses "Kraken" lawsuit in Michigan; Update: Dismissed in Georgia too

A federal judge swatted down Sidney Powell’s so-called “Kraken” lawsuit in Michigan this morning, ruling that her team never provided evidence of fraud or legal errors. Claims that the 2020 election got stolen from Donald Trump amount to nothing more than “an amalgamation of theories, conjecture, and speculation,” ruled Judge Linda Parker. The judge wondered whether this was ever intended as a serious election challenge, or rather just a dishonest attempt to undermine confidence in the election system:

A Michigan federal judge has ruled against a sweeping legal bid to overturn election results in the state, determining the lawsuit brought by an ally of President Donald Trump was riddle with “theories, conjecture and speculation” but little evidence of wrongdoing.

U.S. District Judge Linda V. Parker ruled against a request from Sidney Powell — an attorney disavowed by the Trump campaign who still champions its causes — to force the state to award its electoral votes to Trump despite President-elect Joe Biden winning the state. …

“In fact, this lawsuit seems to be less about achieving the relief Plaintiffs seek — as much of that relief is beyond the power of this Court — and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government,” reads a portion of the 36-page opinion.

“Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This the Court cannot, and will not, do. The people have spoken.”

Up to now, Powell (and Team Trump lawyers in their separate complaints) have long argued that they expect to lose at the district court level. The strategy, they have consistently claimed, is to take the cases to the Supreme Court for a comprehensive victory that will restore Trump to office. This morning, however, Powell’s lieutenant Gregory Rohl didn’t sound as though they had the next step set in cement:

“Again I believe that our projected path to resolution of this issue for Michigan and national voters always contemplated ultimate review by (the U.S. Supreme Court),” Rohl said in an email Monday morning.

“Since so many successful inroads have been made through the various filings on this voter fraud issue across the country, I need to meet with my team and decide whether our case needs to move forward on appeal. I’m prepared to do so and believe all voters deserve our continued commitment to the integrity of our Democratic Process.”

Er what “successful inroads” would those be? Election challenges have lost at every level, and the one successful ruling Team Trump or its allies got was reversed on appeal later — and only involved ballots in Pennsylvania that didn’t get counted. They haven’t succeeded at all, especially Powell’s efforts.

Judge Parker (an Obama appointee for those keeping score) denied the injunctive relief sought by Powell because the plaintiffs never provided evidence of fraud, nor that laws had been broken or that the Equal Protection Clause had been violated. In fact, Parker ruled, Powell never did establish that this suit belonged in federal court, nor is there anything to enjoin:

Unlike Russell, which Plaintiffs cite in their reply brief, this is not a case where a plaintiff is seeking to enjoin the continuing enforcement of a statute that is allegedly unconstitutional. See id. at 1044, 1047 (plaintiff claimed that Kentucky law creating a 300-foot nopolitical-speech buffer zone around polling location violated his free-speech rights). Instead, Plaintiffs are seeking to undo what has already occurred, as their requested relief reflects.2 (See ECF No. 7 at Pg ID 1847; see also ECF No. 6 at Pg 955-56.)

Before this lawsuit was filed, the Michigan Board of State Canvassers had already certified the election results and Governor Whitmer had transmitted the State’s slate of electors to the United States Archivist. (ECF Nos. 31-4, 31-5.) There is no continuing violation to enjoin.

As such, the case is entirely moot anyway:

In their prayer for relief, Plaintiffs ask the Court to: (a) order Defendants to decertify the results of the election; (b) enjoin Secretary Benson and Governor Whitmer from transmitting the certified election results to the Electoral College; (c) order Defendants “to transmit certified election results that state that President Donald Trump is the winner of the election”; (d) impound all voting machines and software in Michigan for expert inspection; (e) order that no votes received or tabulated by machines not certified as required by federal and state law be counted; and, (f) enter a declaratory judgment that mail-in and absentee ballot fraud must be remedied with a manual recount or statistically valid sampling.3 (ECF No. 6 at Pg ID 955-56, ¶ 233.) What relief the Court could grant Plaintiffs is no longer available.

Before this lawsuit was filed, all 83 counties in Michigan had finished canvassing their results for all elections and reported their results for state office races to the Secretary of State and the Michigan Board of State Canvassers in accordance with Michigan law. See Mich. Comp. Laws § 168.843. The State Board had certified the results of the 2020 General Election and Governor Whitmer had submitted the slate of Presidential Electors to the Archivists. … The time for requesting a special election based on mechanical errors or malfunctions in voting machines had expired. See Mich. Comp. Laws §§ 168.831, 168.832 (petitions for special election based on a defect or mechanical malfunction must be filed “no later than 10 days after the date of the election”). And so had the time for requesting a recount for the office of President. …

In short, Plaintiffs’ requested relief concerning the 2020 General Election is moot.

Parker also ruled on the merits of Powell’s claim, which might make this a bit uncomfortable on appeal. Only one affidavit presented in the case provides any testimony to Powell’s overarching theory of the case, which is that votes were switched from Trump to Biden. And that affidavit, Parker notes pointedly, isn’t actually testimony at all about specific activity but just a “belief” by the plaintiff’s witness:

But, to be perfectly clear, Plaintiffs’ equal protection claim is not supported by any allegation that Defendants’ alleged schemes caused votes for President Trump to be changed to votes for Vice President Biden. For example, the closest Plaintiffs get to alleging that physical ballots were altered in such a way is the following statement in an election challenger’s sworn affidavit: “I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates.”9 (ECF No. 6 at Pg ID 902 ¶ 91 (citing Aff. Articia Bomer, ECF No. 6-3 at Pg ID 1008-1010).) But of course, “[a] belief is not evidence” and falls far short of what is required to obtain any relief, much less the extraordinary relief Plaintiffs request. United States v. O’Connor, No. 96-2992, 1997 WL 413594, at *1 (7th Cir. 1997); see Brown v. City of Franklin, 430 F. App’x 382, 387 (6th Cir. 2011) (“Brown just submits his belief that Fox’s ‘protection’ statement actually meant “protection from retaliation. . . . An unsubstantiated belief is not evidence of pretext.”); Booker v. City of St. Louis, 309 F.3d 464, 467 (8th Cir. 2002) (“Booker’s “belief” that he was singled out for testing is not evidence that he was.”).10 The closest Plaintiffs get to alleging that election machines and software changed votes for President Trump to Vice President Biden in Wayne County is an amalgamation of theories, conjecture, and speculation that such alterations were possible. (See e.g., ECF No. 6 at ¶¶ 7-11, 17, 125, 129, 138-43, 147-48, 155-58, 160-63, 167, 171.) And Plaintiffs do not at all explain how the question of whether the treatment of election challengers complied with state law bears on the validity of votes, or otherwise establishes an equal protection claim.

With nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden, Plaintiffs’ equal protection claim fails.1

As for machine problems, Parker uses the laches doctrine to address those:

If Plaintiffs had legitimate claims regarding the manner by which ballots were processed and tabulated on or after Election Day, they could have brought the instant action on Election Day or during the weeks of canvassing that followed—yet they did not. Plaintiffs base the claims related to election machines and software on “expert and fact witness” reports discussing “glitches” and other alleged vulnerabilities that occurred as far back as 2010. (See e.g., ECF No. 6 at Pg ID 927-933, ¶¶ 157(C)-(E), (G), 158, 160, 167.) If Plaintiffs had legitimate concerns about the election machines and software, they could have filed this lawsuit well before the 2020 General Election—yet they sat back and did nothing.

Plaintiffs proffer no persuasive explanation as to why they waited so long to file this suit. Plaintiffs concede that they “would have preferred to file sooner, but [] needed some time to gather statements from dozens of fact witnesses, retain and engage expert witnesses, and gather other data supporting their Complaint.” (ECF No. 49 at Pg ID 3081.) But according to Plaintiffs themselves, “[m]anipulation of votes was apparent shortly after the polls closed on November 3, 2020.” (ECF No. 7 at Pg ID 1837 (emphasis added).) Indeed, where there is no reasonable explanation, there can be no true justification. See Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (identifying the “first and most essential” reason to issue a stay of an election-related injunction is plaintiff offering “no reasonable explanation for waiting so long to file this action”). Defendants satisfy the first element of their laches defense. …

Plaintiffs could have lodged their constitutional challenges much sooner than they did, and certainly not three weeks after Election Day and one week after certification of almost three million votes. The Court concludes that Plaintiffs’ delay results in their claims being barred by laches.

Parker opted for a very comprehensive rejection of injunctive relief in this decision. Clearly Parker also anticipated an appeal and wanted to address all possible avenues for challenges. That doesn’t mean an appellate court wouldn’t take a look at it, but there are multiple obstacles and findings now for Powell and her team to overcome for any kind of a favorable ruling. Based on her sloppy record so far, it seems unlikely that her team will fare much better at the next level.

Update: A federal judge in Georgia has dismissed Powell’s Kraken lawsuit there as well. Batten was a George W. Bush appointee for those keeping score. Read through this whole thread to get an idea of how the hearing went for Powell, but this sums it up: