Federal Judge’s Threat May Chill Future Election Lawsuits

Many big law firms dropped their representation of President Donald Trump and Trump advocates in the face of blatant intimidation after the election.

Now, it seems federal judges are getting into the act.

U.S. District Judge James E. Boasberg of the District of Columbia this week threatened sanctions against a prominent attorney representing Republican voters and legislators in a lawsuit filed on Dec. 22 that raises a U.S. Constitutional challenge to the election results in the swing states of Pennsylvania, Michigan, Wisconsin, Georgia and Arizona.

Judge Boasberg , who was appointed to the court in 2011 by Democratic President Barack Obama, on Monday rejected the plaintiffs’ request for a preliminary injunction to prevent the U.S. Congress from counting the electoral votes in the defendant states.

The plaintiffs’ claim the U.S. Constitution gives state legislatures the non-delegable power to conduct post-election certification of votes and electors. They argue state and local officials usurped this authority by blocking legislators requests for special legislative sessions to review voter fraud allegations in Pennsylvania, Michigan, Wisconsin, Georgia and Arizona.

Citing one of America’s founders, Alexander Hamilton, the plaintiffs argued the “wholesale delegation of legislative authority” to state officials “operates contrary to the Constitution by inviting ‘cabal, intrigue and corruption’ rather than operating to prevent the same.”

Warning Shot

The 116-page lawsuit alleges Facebook CEO Mark Zuckerberg’s gave $400 million to local and state executives through a private charity “that dictated how the recipient local government officials would manage the election.” Urban election officials used the money to promote the Democratic vote while deterring Republican oversight, the lawsuit alleges.

The lawsuit complains that GOP efforts to address alleged election improprieties have been met with intimidation. They note, for example, that Michigan Attorney General Dana Nessel, a Democrat, announced she is criminally investigating GOP legislators who voiced election concerns.

Judge Boasberg was anything but sympathetic…

Judge Boasberg not only was not sympathetic to the plaintiffs’ claims of intimidation but added fuel to the fire by concluding his opinion with an ominous warning to plaintiff’s counsel:  

“[A]t the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.”

Despite the lack of a hearing, Judge Boasberg rejected the plaintiff’s claims out of hand.

He interpreted Article II of the Constitution as permitting states to  adopt election laws for the certification of votes and appointment of electors. “Plaintiffs’ theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy,” he said.

He also rejected the plaintiffs’ claim that a preliminary injunction would avert a constitutional crisis in the form of a post-inauguration civil action to oust the president and vice president.

Crosshairs

The specific target of Judge Boasberg’s ire is apparently Erick G. Kaardal, special counsel for the Amistad Project of the Thomas More Society and a partner in Mohrman, Kaardl & Erickson of Minneapolis, MN. The Chicago-based Thomas More Society is a not-for-profit public interest law firm that says it is dedicated to “restoring respect in law for life, family and religious liberty.”

Kaardal is hardly a rookie, though one would think otherwise when reading Judge Boasberg’s opinion. A seasoned appellate attorney, Kaardal in 2018 won a U.S. Supreme Court case upholding the constitutionality of political speech at polling places. He holds an economics degree from Harvard College, where he graduated magna cum laude, and a law degree from the University of Chicago law school.

Judge Boasberg seemed particularly irked by what he said were procedural failings in the case, including issues of standing and jurisdiction. He cited the plaintiffs’ failure “to make any effort to serve or formally notify any Defendant” of the existence of the lawsuit, adding it was “difficult to believe that the suit is meant seriously.”

Did a top appellate lawyer like Kardaal really make no effort to serve the defendants? Or is the situation more complicated? Kardaal declined an email request for comment.

The case is Wisconsin Voters Alliance v. Pence, 1:20-cv-03791 (Jan. 4, 2021).

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