13 March 2017

Why the doomed #revote2017 campaign matters.

This is a post about a failure that will be announced to the world early next week. 

A group of individuals launched a legal challenge to the 2016 presidential election before the inauguration. I'm calling it a legal challenge and not a "lawsuit" for reasons that I'll get to in a bit. For now, let's just say that the case was legally hopeless from the very start - and that was before the people who filed it invented new ways to get legal procedure wrong. On Friday, the Supreme Court of the United States will vote to put the final nail in the coffin of this case, and early next week the results of that vote will be officially announced. 

Despite the inevitability of the failure, this is something that we should be paying attention to. The pattern of promotion and fundraising we've seen with this case, which has been branded as #Revote2017 by its proponents, is one that I'm confident we will see again. 

For those of you who are unfamiliar with the Revote2017 campaign, here's a very brief rundown: 

A group of individuals, proceeding pro se (without a lawyer), asked the1st Circuit Court of Appeals for a Writ of Mandamus barring Trump's inauguration and asking that the court declare that "persons who exercised election related powers" in 2016 "failed to fulfill the spirit and intent" of the law. The 1st Circuit, in a one-paragraph order, rejected the request within a day. The individuals then appealed to the US Supreme Court. That was on January 18th.

The Supreme Court's wheels grind slowly, so the case has been slowly moving through the system ever since. The people who filed the case have used that time to engage in constant promotion of their efforts via social media, particularly on Twitter. They are pitching their case as something that might get a new election, stirring up hope among some of the more credulous on the left. 

The more credulous, in this case, include at least one celebrity. Rosie O'Donnell has been supporting the Twitter campaign built around this hopeless exercise. The proponents of the campaign, meanwhile, have been using the Twitter campaign to sell this false hope for real money. They have a GoFundMe campaign running, with over $25,000 raised. $10K of that is apparently from Rosie; other donors have included people who say they are on a fixed income. It is unclear how this money is being spent, or what will happen to it after the Supreme Court kills the case in a few days. 

So what does this teach us?

If nothing else, this confirms something we already know (or at least should) - that we should not be looking at the tendency toward bubble-driven thinking as a sin of the right, but as a broader problem. What we see with the Twitter campaign around Revote2017 is classic groupthink. The true believers reinforce each other both positively and through rejection of anyone who tries to inject an alternative perspective. 

This, in turn, is something that people can leverage as a source of income. At this point, I have no idea whether or not the people who filed the case are soliciting funds in good faith. I'd like to believe that they are, but they are making it difficult. Their actual expenses are likely to be very low - the Supreme Court requires a set number of filings printed to very exacting standards, which isn't cheap, but actual evidence of additional expenses is absent. They've claimed to have filed additional requests with the Supreme Court, but those requests don't appear on the docket. They have said that expenses involve lawyer fees, but the Supreme Court docket lists no lawyer. Good faith or not, the ultimate effect is the same - people have been given hope, they are investing in that hope, and they will feel very let down in a few days. 

That's bad because we need people to become more involved, not less. Yanking people around and letting them down is a surefire recipe for discouraging future involvement. Taking people's money in exchange for a false hope is not a viable way of building a strong, organized, motivated electorate. 

So what can we do about efforts like this?

This is another of those areas where no one person can possibly do enough, but there are lots of little things that different people and institutions can do. I'll start with the things that specialized institutions can do, and work on through the list to the things all of us should be doing.

The legal profession:

I'll start with the courts, in the unlikely event that a clerk or judge reads this, because there is something the courts can do. The 1st Circuit dealt with this case very preemptively. The entire denial was less than one page long, and included the sentence, "Petitioner cites no precedent legitimately supporting her novel constitutional claim, and we see no basis for concluding that there is a clear entitlement to relief."

A lawyer's immediate reaction to the phrase "novel constitutional claim" is ingrained early in the legal education process:

Pro se litigants aren't necessarily going to pick up on the burn of that statement the way that lawyers do. We get that courts run on precedent, and "novel" or "unprecedented" aren't words that usually signal success. Normal people can easily see "novel argument" and read it as a sign that they're blazing new ground, that they're revolutionary trail breakers. 

Courts need to recognize that, particularly in the crowdfunding era, there may be people beyond the named litigants with a stake in a pro se case. Courts should be at least alert to the possibility that a hopeless pro se case might be used as a vehicle for financial gain. Taking a small amount of extra time to re-craft language used in boilerplate denials of pro se cases to make things more clear to people without a legal background may make it easier to fight efforts to use the cases for financial gain. 

State Bar Associations and regulatory bodies also have a role to play in combatting efforts to raise money from hopeless pro se cases. Collecting money from other people to advance a pro se case may implicate unlicensed practice of law concerns, particularly if money is being collected far in excess of likely actual expenses. It may be necessary for licensing authorities to pay more attention to these efforts, particularly given the possibility that many donors may fall victim to these efforts. In addition, the authorities in individual states need to be prepared to collaborate more closely on these issues; online fundraising efforts will generally not respect state or national boundaries.

Local authorities should keep cumulative effects in mind when they consider these problems. Individual fundraising campaigns may be relatively minor. Individual losses may be restricted to $10 or $20 per person. But the number of individuals affected could cumulatively result in a loss of respect for the law and the legal profession. The corrosive effects of many small incidents spread across the country should not be underestimated.

Bar Associations should also be alert to the possibility that individual lawyers may lend their names to pro se efforts without formally entering an appearance in the case, or placing their name or signature on any filing. Licensing authorities should take steps to ensure that any lawyer assisting pro se litigants is meeting professional responsibility standards, particularly when money is being raised to advance the pro se case. 

Individual lawyers, and particularly those of us who are active on social media, should stay alert for efforts to raise money for hopeless pro se cases. We should not remain silent in the face of such efforts. We should not be afraid to bring concerns to appropriate authorities. Whenever possible, we should take the time to explain the issues as simply and clearly as possible. 

All of us:
The efforts to advance hopeless pro se cases are just another form of challenge to reality-based living, and we should treat them as such. When someone asks you to contibute to a lawsuit that has no lawyer, look at the situation very closely before you proceed. If a friend is becoming invested in such a cause, talk to them. Individually, none of us might be able to do much; collectively, we can do a lot. 

We also should not be afraid to call out celebrities who lend their megaphones to cases like this without taking the time to conduct even minimal due dilligence. As far as I'm concerned, Rosie O'Donnell is a major villain in this particular situation. Had she called her lawyer and asked, she would have been told that this case has no chance. Instead, she donated to the campaign and has been promoting it. 

At this point, I've said my piece. What I haven't done (yet) is provide an explanation of why the case is hopeless. If you're good with taking me at my word on that, you can stop reading here. For everyone else, here's a short rundown on some of the more glaring legal problems that utterly doom the case, as well as an explanation of why serious court watchers already know what will happen to this case at the Supreme Court's conference on Friday.

The first step in bringing a case to a court is to file a case before a trial court - in the federal system, that's the US District Court. The Revote2017 people skipped this step and went right to the Circuit Court of Appeal with their demand that the court stop the inauguration. That's a fatal omission.

What these litigants did was file an appeal of nothing - not only was there was no lower court decision, there was no lower court case. The legal process simply doesn't work that way. Appeals courts don't issue sweeping mandates to public officials in the absence of a lower court case. And the Supreme Court doesn't overturn appeals courts that reject cases that have skipped the entire first critical step in a legal case.

Nor do courts make decisions like that without some form of formal factual record. Right now, the petition is demanding a new election because everyone knows that the Russians interfered. But the courts don't operate based on what everyone knows; they require things to be proven. (Even at the preliminary injunction stage, you typically have to provide more than just a naked assertion.) No court has formally determined that the Russians interfered, the extent of the interference, or that the interference was clearly illegal. Without findings on any of those things in the record, the Supreme Court will not step in. And without a trial court case there's no way to properly put those things in the record.

And all of that is before we get to the question of whether the Constitution permits the Supreme Court to invalidate a presidential election and order a new one. 

That's a sampling of a few of the legal problems. Here's the procedural clue that demonstrates that the case is dead. The docket for the case shows that the government (the defendant) waived their right to respond to the Supreme Court filing, and that the case was then distributed for conference. That's the sign of death. Had any Justice been interested in having the case heard by the Supreme Court, the court would have requested a response. That didn't happen, which means that the case is on the "dead list" and will be disposed of with a couple of lines in an order that will be issued early next week.

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