Amicus Curiae Brief — Sidney Powell, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.

No. 23-486

In the Supreme Court of the United States

SIDNEY POWELL, BRANDON JOHNSON, HOWARD

KLEINHENDLER, JULIA HALLER, GREGORY ROHL &

SCOTT HAGERSTROM,

Petitioners,

v.

GRETCHEN WHITMER, JOCELYN BENSON, CITY OF

DETROIT, MICHIGAN, ET AL.,

Respondents.

_________

ON PETITION FOR WRIT OF CERTIORARI TO THE U.S.

COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________

AMICUS CURIAE BRIEF OF JUDICIAL

WATCH, INC. IN SUPPORT OF PETITIONERS

_________

T. RUSSELL NOBILE

Counsel of Record

Judicial Watch, Inc.

P.O. Box 6592

Gulfport, MS 39506

(202) 527-9866

rnobile@judicialwatch.org

PAUL J. ORFANEDES

JUDICIAL WATCH, INC.

425 Third Street, SW

Washington, D.C. 20024

(202) 646-5172

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

IDENTITY AND INTERESTS

OF AMICUS CURIAE ..........................................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ..............................................................5

I.

The Political Nature of Election and Voting

Litigation Make It Perhaps the Most

Contentious Class of Civil Litigation ..............5

II.

Given that Courts Will Receive More Requests

for Sanctions in Political Litigation, the Court

Should Resolve the Circuit Split Related to

Fed. R. Civ. P. 11(c)(2)’s

Safe Harbor ......................................................8

III.

The Lower Courts Incorrectly Concluded that

Several Questions Raised by Petitioners Were

Barred .............................................................11

A.

The Lower Courts Erred in Finding that

Petitioners’ Sovereign Immunity and Other

Claims Were Frivolous ............................11

B.

This Court’s Recent Ruling in Moore v.

Harper Illustrates that Petitioners’ Claims

Regarding State Election Regulations

Implemented in 2020 Were Not

ii

Frivolous ..................................................16

CONCLUSION ..........................................................17

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Celebrezze, 460 U.S. 780 (1983) ............12

Bognet v. Degraffenreid, 141 S. Ct. 2508 (2021) .....13

Bognet v. Sec’y of Pa.,

980 F.3d 336 (3d Cir. 2020) ................................13

Bost, et al. v. Ill. State. Bd. Of Elections,

No. 23-2644 .........................................................15

Bush v. Gore, 531 U.S. 98 (2000) .........................6, 12

Bush v. Palm Beach Cty. Canvassing Bd.,

531 U.S. 70 (2000) ..........................................6, 12

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020) .................. 6, 13, 17

Coleman v. Ritchie,

762 N.W.2d 218 (Minn. 2009) .............................6

Donald J. Trump for President, Inc. v. Way,

492 F. Supp. 3d 354 (D.N.J. 2020) ....................12

Foster v. Love, 522 US 67 (1997) .............................12

Grinols v. Electoral Coll.,

2013 U.S. Dist. LEXIS 6843

(E.D. Cal. Jan. 16, 2013) ......................................6

iv

Harris v. Fla. Elections Comm'n,

235 F.3d 578 (11th Cir. 2000) ..............................6

Hotze v. Hudspeth,

16 F.4th 1121 (5th Cir. 2021) .............................12

Ill. Conservative Union v. Illinois,

No. 20 C 5542 (N.D. Ill. Sept. 28, 2021) .............14

In re Primus, 436 U.S. 412 (1978) ..........................3,8

Issa v. Newsom, et al.,

No. 2:20-cv-01044 (E.D. Cal. May 21, 2020) ......16

King v. Whitmer,

71 F.4th 511 (6th Cir. 2023) .......................2, 4, 17

King v. Whitmer,

505 F. Supp. 3d 720 (E.D. Mich. 2020) ........13, 17

King v. Whitmer,

556 F. Supp. 3d 680 (E.D. Mich. 2021) ..............16

McPherson v. Blacker, 146 U.S. 1 (1892) .................12

Moore v. Harper, 600 U.S. 1 (2023) .........................17

Moore v. Ogilvie, 394 U.S. 814 (1969).......................12

Moss v. Bush, 820 N.E.2d 934 (Ohio 2005) ................6

N.Y. State Bd. of Elections v. Lopez Torres,

552 U.S. 196 (2008) ............................................12

v

PennEast Pipeline Co. v. New Jersey,

141 S. Ct. 2244 (2021) ........................................14

Republican Party v. Degraffenreid,

141 S. Ct. 732 (2021) ............................................7

Stein v. Cortés,

223 F. Supp. 3d 423 (E.D. Pa. 2016) ...................6

Stein v. Thomas,

222 F. Supp. 3d 539 (E.D. Mich. 2016) ...............6

Thomas v. Bryant, 938 F.3d 134 (5th Cir. 2019)......16

Trump v. Wis. Elections Comm'n,

983 F.3d 919 (7th Cir. 2020) .............................13

TWM Mfg. Co. v. Dura Corp.,

722 F.2d 1261 (6th Cir. 1983) ............................15

Uptown Grill, L.L.C. v. Camellia Grill Holdings, Inc.,

46 F.4th 374 (5th Cir. 2022) .................................9

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ............................................14

Williamson v. Recovery Ltd. P’shp,

2009 U.S. Dist. LEXIS 99670

(S.D. Ohio Sep. 30, 2009) ...................................15

vi

Constitutional Provisions

U.S. Const. art. I, § 4, cl. 1 ........................................16

U.S. Const. art. II, § 1, cl. 2 ......................................16

Federal Rules

Fed. R. Civ. P. 11 ................................3, 4, 8-11, 13, 15

Other Authorities

1A. de Tocqueville, Democracy in America, Ch. VII (H.

Reeve transl., 1899) ....................................................6

5 C.A. Wright & A.R. Miller, Federal Practice &

Procedure § 1277 (1969) .............................................6

Lachlan Markey & Jonathan Swan, Scoop: HighPowered Group Targets Trump Lawyers’ Livelihoods,

Axios, Mar. 7, 2022 .....................................................8

Lila Hassan and Dan Glaun, COVID-19 and the Most

Litigated Presidential Election in Recent U.S.

History: How the Lawsuits Break Down,

FRONTLINE, Oct. 28, 2020 .......................................7

1

IDENTITY AND INTERESTS OF AMICUS

CURIAE 1

Judicial Watch, Inc. (“Judicial Watch”) is a

non-partisan,

public

interest

organization

headquartered in Washington, DC. Founded in 1994,

Judicial Watch seeks to promote accountability,

transparency, and integrity in government, and

fidelity to the rule of law. In furtherance of these

goals, Judicial Watch committed substantial

resources to organizing an election and voting

litigation team. Attorneys with Judicial Watch’s

election integrity team have substantial experience

investigating and litigating election and voting cases

on behalf of private and government clients, including

serving in leadership roles at the U.S. Department of

Justice enforcing the Voting Rights Act of 1965.

Judicial Watch regularly files amicus curiae briefs

and lawsuits related to election and voting issues.

Judicial Watch has a substantial interest in

promoting

the

proper

enforcement

and

interpretation of election and voting laws. Judicial

Watch has participated in cases involving such issues

both as counsel for parties and as amicus before this

and other courts. See Parrott v. Lamone, No. 16-588;

Parrott v. Lamone, No. C-02-CV-21-001773 (Circuit

Court Anne Arundel Cnty., Md. 2021); Rucho v.

Amicus Judicial Watch states that no counsel for a

party to this case authored this brief in whole or in part; and no

person or entity, other than amicus and their counsel, made a

monetary contribution intended to fund the preparation and

submission of this brief. SUP. CT. R. 37.6. Counsel of record for

all parties received notice of Judicial Watch’s intent to file this

amicus brief.

1

2

Common Cause, No. 18-422; Benisek v. Lamone, No.

17-333; Evenwel v. Abbott, No. 14-940; Brnovich v.

Democratic National Committee, No. 19-1257; North

Carolina v. N.C. State Conf. of the NAACP, No. 16833.

Judicial Watch respectfully request this Court

grant Petitioners’ Petition for Certiorari to the U.S.

Court of Appeals for the Sixth Circuit to review its

decision affirming in part and reversing in part the

sanctions award entered by United States District

Court for the Eastern District of Michigan. King v.

Whitmer, 71 F.4th 511 (6th Cir. 2023).

3

SUMMARY OF ARGUMENT

Presidential elections have a long history of

causing a “glow[ing] feverish excitement” in the

public. This was true in 2020 when the presidential

election coincided with a worldwide pandemic,

splintered electorate, and countless new state

electoral regulations, many implemented without

legislative approval through executive or judicial

decree. The political litigation before and following

the 2020 election is some of the most contentious

political litigation ever. But political litigation, even

cases with controversial claims, is part of the electoral

process for validating elections.

Despite this, there is a public effort to ruin

litigants, personally and professionally, for

participating in political litigation. The publicly

stated purpose of those leading these efforts is to

discourage future litigation. It will, to be sure, but

without any regard to the merits and collateral

damage to core First Amendment rights of the

targeted individuals. See In re Primus, 436 U.S. 412,

431 (1978) (parties and their attorneys are free to use

litigation “as a vehicle for effective political

expression and association[.]”). Going forward,

litigants supporting the losing candidate are on

notice: dark money may be used to brand them as

“toxic.”

These efforts to target litigants largely depend on

whether one side can persuade a court to sanction

their opponents under Fed. R. Civ. P. 11(c). Rule

11(c)(2) provides an important safe harbor for

4

targeted litigants. It requires the moving party to

prepare its motion for sanctions “describe[ing] the

specific conduct that allegedly violates Rule 11(b).”

Because it must be served on the target twenty-one

days before filing, it provides the targeted litigant

time to “withdraw or appropriately correct” the

specific conduct that is allegedly sanctionable.

This petition involves a case where targeted

litigants were not served a complete, specific notice as

required under Rule 11(c). The incompleteness is

especially problematic in cases where, as here, “only

part of the complaint [was] sanctionable.” King v.

Whitmer, 71 F.4th at 517. Without a complete, specific

notice, a targeted litigant may not know which

“paper, claim, defense, contention, or denial” to

“withdraw or appropriately correct” during the

twenty-one-day period before the motion is filed. If

Rule 11 is going to be used as a means to ruin

ideologically adverse opponents in political litigation,

it is incumbent that the Court provide clear guidance

so that targeted litigants can properly evaluate their

risk. The Court should grant certiorari and resolve

the circuit split regarding identicality requirement

with respect to Fed. R. Civ. P. 11(c)(2).

5

ARGUMENT

I.

The Political Nature of Election and

Voting Litigation Make It Perhaps the

Most

Contentious

Class

Of

Civil

Litigation.

Over 175 years ago, Alexis de Tocqueville

described America’s presidential election in this way:

For a long while before the appointed

time has come, the election becomes the

important and, so to speak, the allengrossing topic of discussion. Factional

ardor is redoubled, and all the artificial

passions which the imagination can

create in a happy and peaceful land are

agitated and brought to light. The

President, moreover, is absorbed by the

cares of self-defense. He no longer

governs for the interest of the state, but

for that of his re-election; he does

homage to the majority, and instead of

checking its passions, as his duty

commands, he frequently courts its

worst caprices. As the election draws

near, the activity of intrigue and the

agitation of the populace increase; the

citizens are divided into hostile camps,

each of which assumes the name of its

favorite candidate; the whole nation

glows with feverish excitement, the

election is the daily theme of the press,

the subject of private conversation, the

6

end of every thought and every action,

the sole interest of the present. It is true

that as soon as the choice is determined,

this ardor is dispelled, calm returns, and

the river, which had nearly broken its

banks, sinks to its usual level; but who

can refrain from astonishment that such

a storm should have arisen?

1A. de Tocqueville, Democracy in America, Ch. VII (H.

Reeve transl., 1899).

On several occasions, this national tradition of

“glow[ing] feverish excitement” has led to postelection litigation. This was true in 2000. See, e.g.,

Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach

County Canvassing Board, 531 U.S. 70 (2000); Harris

v. Fla. Elections Comm'n, 235 F.3d 578 (11th Cir.

2000). And it has been true in numerous close federal

elections since. See, e.g., Moss v. Bush, 820 N.E.2d 934

(Ohio 2005); Coleman v. Ritchie, 762 N.W.2d 218

(Minn. 2009); Grinols v. Electoral Coll., No. 12-cv02997-MCE-DAD, 2013 U.S. Dist. LEXIS 6843 (E.D.

Cal. Jan. 16, 2013); Stein v. Thomas, 222 F. Supp. 3d

539 (E.D. Mich. 2016); Stein v. Cortés, 223 F. Supp. 3d

423 (E.D. Pa. 2016).

The feverish excitement was especially high in

2020, when the presidential election, coincided with a

worldwide pandemic, splintered electorate, and

countless new state electoral practices, many enacted

without legislative approval. See e.g., Carson v.

Simon, 978 F.3d 1051 (8th Cir. 2020) (changes to state

election law by the Minnesota Secretary of State).

7

Indeed, there were over 400 pre-election lawsuits all

over the country prior to the 2020 election. 2 Over 185

years later, Tocqueville’s “feverish excitement”

observation remains true.

Post-election litigation is unique. The

contentious nature of election and voting litigation is

even more acute because political stakes are often

higher and prosecuting litigants must make decisions

with limited time and shifting facts. Compounding

this problem are unrealistic litigation schedules that

are compressed by near-immovable post-election

statutory deadlines. See Republican Party v.

Degraffenreid, 141 S. Ct. 732, 735 (Thomas, J.,

dissenting) (noting post-election litigation in elections

is often “truncated by firm timelines” particularly in

the context of “Presidential elections, which are

governed by the Electoral Count Act” and the express

deadlines set forth therein). These deadlines operate

as de facto statutes of limitations that are measured

in days, if not hours. Too much delay in making prelitigation decisions may foreclose the already remote

chance that a court will ever consider otherwise

legitimate claims.

But the prosecution (and defense) of postelection cases play an important role in our electoral

and political process. As a conservative advocacy

group that often brings election and voting lawsuits

Judicial Watch has a particular interest in the issues

Lila Hassan and Dan Glaun, COVID-19 and the Most

Litigated Presidential Election in Recent U.S. History: How the

Lawsuits Break Down, FRONTLINE, Oct. 28, 2020, available at

https://to.pbs.org/3oLHcqu (last visited February 13, 2022).

2

8

at stake here. Judicial Watch reasonably believes the

precedent will be weaponized to threaten legitimate

parties prosecuting legitimate election integrity

claims and other permissible First Amendment

activities. See In re Primus, 436 U.S. at 431 (parties

and their attorneys are free to use litigation “as a

vehicle for effective political expression and

association[.]”).

II.

Given that Courts Will Receive More

Requests for Sanctions in Political

Litigation, the Court Should Resolve the

Circuit Split Related to Fed. R. Civ. P.

11(c)(2)’s Safe Harbor.

Election and voting litigation is unlikely to get

any less contentious in the near term. While

Tocqueville observed that once the “choice is

determined” the national “ardor is dispelled” and

“calm returns,” that is no longer the case. The 2020

election is still being litigated in courts thanks to

millions of dollars that are being directed toward

disbarring “right wing” lawyers for representing

candidates and voters in 2020. Lachlan Markey &

Jonathan Swan, Scoop: High-Powered Group Targets

Trump Lawyers’ Livelihoods, Axios (Mar. 7, 2022).

Beyond bar grievances, these funds are intended to

“shame” these lawyers and “make them toxic in their

communities and their firms.” Id. Stated differently,

dark money is being directed to ruining individuals,

personally and professionally. These efforts are not

intended just to penalize individuals who represented

clients in post-election litigation in 2020, but also to

discourage future litigation without any regard to the

9

merits. Id. Thus, these efforts are designed to

threaten core First Amendment rights of the targeted

litigants.

To be sure, activists also have First Amendment

right, including the right to publicly criticize litigants.

However, those rights do not include a right to censor

their opponents through sanctions motions.

Nevertheless, Fed. R. Civ. P. 11(c) is one of the

primary tools being invoked by these activist as they

seek to ruin their opponents. It is, therefore,

incumbent upon the Court to provide lower courts and

litigants a national standard for handling requests for

sanctions in post-election litigation. That includes

resolving the existing circuit split identified by

Petitioners related to Fed. R. Civ. P. 11(c)(2)’s safe

harbor provision. Pet. 9-13. Resolving this split will

provide important clarity so litigants can evaluate

their risk and receive necessary due process should

they be targeted by activists. A national standard

promotes

uniform

enforcement

and

limits

inconsistent outcomes. If left unresolved, the split will

result in disparate outcomes that will undermine

public confidence that electoral grievances are being

impartially resolved. If the Court grants certiorari, it

should adopt the strict identicality requirement

adopted by the Fifth Circuit. See Uptown Grill, L.L.C.

v. Camellia Grill Holdings, Inc., 46 F.4th 374, 389

(5th Cir. 2022).

Below, it was undisputed that the City of Detroit’s

filed motion for sanctions materially differed from the

served motion. The served motion lacked legal

arguments, claims, and claims for relief and failed to

10

identify all the specific issues that needed to be

“withdrawn or appropriately corrected.” Fed. R. Civ.

P. 11(c). The failure of the City to satisfy identicality

is an even bigger problem here where the Sixth

Circuit later rejected the district court’s finding that

the whole complaint was sanctionable. King, 71 F.4th

at 517. How can a party be provided a safe harbor

without specific notice about the claims at issue?

Identicality ensures the targeted party is fully on

notice and limits the opportunity for the moving party

to prematurely serve such notice while still

developing and drafting the motion it intends to file

at the end of the twenty-one day period.

A vague, incomplete motion for sanctions can be

served on an opposing party at little costs. Yet, it

creates a devastating risk to targeted litigants long

before the motion is actually filed under Rule 11(c)(2).

As it stands now, there is informational asymmetry.

The moving party can simply serve a pro forma notice

under Rule 11(c)(2) that exposes the noticed party to

devastating sanctions without actually describing the

“specific conduct” that needs to be “withdrawn or

appropriately sanctionable.” Fed. R. Civ. P. 11(c)(2).

Requiring identically prevents the moving party from

spending the next twenty-one days formulating its

sanction claims while it completes the motion for

filing. It ensures that both parties have full notice

during the safe harbor period about specific conduct

that is allegedly sanctionable.

Moreover, identicality requires both parties to

exercise proper due diligence. Here, Petitioners were

sanctioned, in part, because they failed to complete

11

adequate pre-suit inquiry in truncated proceedings.

Yet Defendants were excused from serving a complete

motion and providing full notice under Rule 11(c)(2)

of the “specific conduct” that was allegedly

sanctionable. In effect, Defendants were awarded

sanctions even though they served a premature,

incomplete motion.

III.

The Lower Courts Incorrectly Concluded

that Several Questions Raised by

Petitioners Were Barred.

Judicial Watch respectfully submits that both

lower courts underestimated the degree of

disagreement amongst the courts over some of the

legal issues raised in these proceedings, especially

those related to the Elections and Electors Clauses.

Many of those issues are still working their way

through the courts or were only partly resolved by

recent rulings from this Court. Sanctioning litigants

for raising unsettled legal questions in highlytruncated proceedings will deter meritorious claims

and undermine the electoral process. The democratic

process depends, in part, on courts hearing and

resolving disputes, no matter how unpalatable the

claim.

A. The Lower Courts Erred in Finding that

Petitioners’ Sovereign Immunity and

Other Claims Were Frivolous.

Judicial Watch respectfully disagrees that it was

frivolous for Petitioners to argue that their clients’

claims were not barred by the doctrines of mootness,

12

laches, and standing, as well as Eleventh Amendment

immunity.

With respect to candidate standing, for at least

130 years this Court has allowed aggrieved federal

candidates to bring claims regarding state

regulations affecting their elections. See, e.g.,

McPherson v. Blacker, 146 U.S. 1, 23-24 (1892); Moore

v. Ogilvie, 394 U.S. 814 (1969); Anderson v.

Celebrezze, 460 U.S. 780 (1983); Bush, 531 U.S. 98;

Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70;

and N.Y. State Bd. of Elections v. Lopez Torres, 552

U.S. 196 (2008). Indeed, prior to the 2020 election, it

was accepted that even voters sometimes have

standing under the Elections and Electors Clause.

See, e.g., Foster v. Love, 522 US 67 (1997) (involving a

voter initiated suit to enforce federal Election Day

statutes).

Federal candidate standing was extensively

litigated in 2020. Some trial courts adopted a

radically narrow view on candidate standing,

including holding that presidential candidates lacked

standing in several pre-election suits. See, e.g.,

Donald J. Trump for President, Inc. v. Way, 492 F.

Supp. 3d 354 (D.N.J. 2020). Prior to 2020, no federal

candidate had ever been held to lack standing related

to his or her election. See generally Hotze v. Hudspeth,

16 F.4th 1121, 1126 (5th Cir. 2021) (Oldham, J.,

dissenting) (“[I]t’s hard to imagine anyone who has a

more particularized injury than the candidate has.”).

Yet despite several district courts ruling otherwise, at

the conclusion of the 2020 election cycle, there was a

net increase in the number of Circuits that recognized

13

presidential and elector candidate standing to

challenge state election regulations related to their

elections. See Carson, 978 F.3d at 1054; and Trump v.

Wis. Elections Comm'n, 983 F.3d 919 (7th Cir. 2020).

Federal candidate injuries allegedly arising from a

state manner regulation are concrete and

particularized affecting candidates “in a personal and

individual way.” 983 F.3d at 924 (citation omitted).

Claims that candidates have standing to

challenge state regulations related to their elections

are anything but frivolous. Indeed, the district court’s

ruling in the instant case is particularly vexing when

considering that its ruling required it to address a

then-existing circuit split on the very issue. See King,

505 F. Supp. 3d at 736-37 (discussing Bognet v. Sec’y

of Pa., 980 F.3d 336 (3d Cir. 2020) and Carson, 978

F.3d 1051). While the district court was within its

authority to adopt the Third Circuit’s approach in

Bognet, it certainly was not frivolous for Petitioners

to argue for it to adopt the Eighth Circuit’s approach

in Carson. 4 The district court never explained why it

believes the Eighth Circuit’s approach was

unreasonable or frivolous under Rule 11. 5

Regardless, Petitioner-candidates’ claims should not

have been dismissed for lack of standing.

This split no longer exists after this Court later vacated

Bognet. See Bognet v. Degraffenreid, 141 S. Ct. 2508 (2021).

Carson remains good law. As it stands today, Petitioners were

sanctioned for adopting the long-standing, majority view on

candidate standing.

5

Resolving the conflict between the vacated Third

Circuit’s and the Eighth Circuit’s approach to standing is an

issue with which federal courts are still struggling. See Hotze, 16

F.4th at 1124.

4

14

With regard to sovereign immunity under the

Eleventh Amendment, it was not frivolous for

Petitioners to contend that state agencies were not

immune from federal suit. There are unique

immunity issues that apply to the Elections and

Electors Clauses cases, which many courts (and

practitioners) are not familiar with. Cf. U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 804–05 (1995)

and PennEast Pipeline Co. v. New Jersey, 141 S. Ct.

2244, 2258–59 (2021). The Northern District of

Illinois recently discussed this issue and found that

states waived immunity in this arena under the “plan

of the Convention” doctrine. Ill. Conservative Union v.

Illinois, No. 20 C 5542, ECF No. 29 (N.D. Ill. Sept. 28,

2021). “Constitution divested the States of any

original power over elections and gave that power to

the federal government” and thus “the States

consented to suit for claims related to the time, place,

and manner of federal elections.” Id. (applying the

plan of the Convention doctrine as set forth under

U.S. Term Limits and PennEast). Stated differently,

states never had any power over federal elections

prior to the constitution and, thus, never had any

immunity in federal elections to preserve following

the ratification of the Eleventh Amendment.

The unique immunity issues that arise in the

Elections and Electors Clauses contexts are often

overlooked by trial courts. That is to be expected

especially where, like here, the trial court is having to

evaluate these questions in a truncated, emergency

post-election proceeding. Nevertheless, it was not

frivolous or unreasonable under Rule 11(b)(2) for

15

Petitioners to argue that Michigan state Defendants

were not immune under the Elections and Electors

Clause. 6

The district court’s sanction relating to the

equitable doctrine of laches has the most potential to

prejudice future advocacy and deter civil rights

litigants. Because laches is so fact-specific, it is

virtually impossible for plaintiffs to know whether it

bars their claims prior to being served with a

dispositive motion. See Williamson v. Recovery Ltd.

P’shp, No. C2-06-292, 2009 U.S. Dist. LEXIS 99670,

at *14 (S.D. Ohio Sep. 30, 2009) (“matters related to

… the equitable doctrine of laches are inherently fact

specific and thus not amenable to dismissal at the

pleading stage.”); see also 5 C.A. Wright & A.R. Miller,

Federal Practice & Procedure § 1277, at 338-339

(1969) (explaining that laches defense should never be

grounds for dismissal because of fact-specific inquiry

required into circumstances of delay). “The [laches]

doctrine’s provenance is the conscience of the

Chancellor, and its application is not governed by the

rules of the common law.” TWM Mfg. Co. v. Dura

Corp., 722 F.2d 1261, 1268 (6th Cir. 1983).

The district court correctly noted that federal

courts have used the doctrine in the voting context.

King, 505 F. Supp. 3d at 731-32. But, as the Fifth

Circuit noted, the doctrine has limited uses in the

election context. Thomas v. Bryant, 938 F.3d 134, 150

(5th Cir. 2019). Converting a fact-specific, equitable

The Seventh Circuit is currently considering sovereign

immunity under the Elections and Electors Clauses. Bost, et al.

v. Ill. State. Bd. Of Elections, No. 23-2644.

6

16

doctrine into grounds for pre-discovery sanctions

raises serious due process issues. The possibility of

sanctions over the issue of laches creates a risk for all

civil rights litigants who often challenge longstanding

government practices and laws. Many of our country’s

most celebrated civil rights cases could have been

subject to laches when filed since they challenged

longstanding government practices and laws.

B. This Court’s Recent Ruling in Moore v.

Harper Illustrates that Petitioners’

Claims

Regarding

State

Election

Regulations Implemented in 2020 Were

Not Frivolous.

Many states, including Michigan, saw new time,

place, and manner regulations implemented during

the 2020 election. Some of those new procedures were

adopted by state executives and others were

implemented by judicial decree, rather than the state

legislatures as the text provides under the Election

and Electors Clauses. U.S. Const. art. I, § 4, cl. 1 and

U.S. Const. art. II, § 1, cl. 2. This issue was widely

litigated during the 2020 federal election. See, e.g.,

Issa et al v. Newsom et al., No. 2:20-cv-01044-MCECKD (E.D. Cal. May 21, 2020). Plaintiffs in several of

these cases were successful, including the plaintiffs in

Carson. 978 F.3d at 1060 (“[T]he Secretary has no

power to override the Minnesota Legislature.”)

The

question

regarding

whether

state

legislatures retain the exclusive authority to regulate

federal elections was only recently resolved, in part,

in Moore v. Harper, 600 U.S. 1 (2023) (“The Elections

17

Clause does not insulate state legislatures from the

ordinary exercise of state judicial review.”). While

Moore provided clarity on the question of the

authority of state judiciary to set the rules regarding

federal elections, it did not resolve the question with

respect to when state executives or executive agencies

can implement election regulations. Yet, the district

found frivolous, and the Sixth Circuit affirmed,

Petitioners’ claims that Michigan state executives

improperly changed state election rules in violation of

the Elections and Electors Clause. King, 556 F. Supp.

3d at 716; King, 71 F.4th at 528.

CONCLUSION

For the foregoing reasons, Judicial Watch

respectfully request the Court grant the petition for

certiorari.

Respectfully submitted,

T. RUSSELL NOBILE

Counsel of Record

JUDICIAL WATCH, INC.

P.O. Box 6592

Gulfport, MS 39506

(202) 527-9866

rnobile@judicialwatch.org

Attorneys for Amicus

PAUL J. ORFANEDES

425 Third Street, SW

Suite 800

Washington, DC 20024

(202) 646-5172