Thread by @apark2453

Why yes it *is* 60 pages. And it starts as it means to go on:

"We're not challenging the outcome of the presidential election, we're challenging the outcome of the election of the 117th Congress".

My dudes, it's the same election.

Cocaine is a hell of a drug.

1/

https://twitter.com/questauthority/status/1364243507297341445

I'm going to try to take this seriously-ish, so let's discuss "what it takes to prove a conspiracy" for a quick second. A conspiracy doesn't just mean "did some stuff I don't like" or "acted in ways which support the same outcome and the outcome is bad".

2/

Conspiracy requires an agreement (not the inference of an agreement) to commit an illegal act and at least one affirmative step towards doing it. Just keep those elements in your back pocket and we'll see how close Gondor gets.

3/

Which laws? The footnote cites one case from 1891 and one from 1966, so I'm willing to bet they're not both about the *same* law.

And... They're not, hoo boy. Duncan v. McCall is about the federal courts overturning state legislative decisions based on procedural defects.

4/

Duncan v. McCall (screenshot below) is the kind of case I would cite to argue by analogy why the procedural defect argument fails.

In fairness, Davis claims his claim doesn't rely on actual defects in state voting, but... Man, this is rough and I'm less than a page in.

5/

This sentence doesn't make sense. Taking out the subordinate clauses about how bad wealthy people are (and ignoring the irony), the sentence reads "When the very laws put in place to prevent the theft of... federal elections... no proof of fraud is necessary."

6/

My guess is that there's supposed to be something like "are violated" (perhaps with more purple prose because if you're going to be the Gondor lawyer you might as well own it) in it, but it got too lost in a cul-de-sac of internal self-righteousness to finish the thought.

7/

Laypeople are much more familiar with standing now, and will probably notice why "99% of Americans were harmed by this" doesn't fill me with confidence.

Attempting to create a *class* of "basically everyone in the country" doesn't actually make it particularized.

8/

Two additional things:

1. You can tell you have a strong legal argument when you're pointing out no similar arguments have *ever* been made (much less successfully).

2. When you need to spend this much time in masturbatory reflection on the founders, it's not a good sign.

9/

To Davis' credit, he does cite an article which uses the terms "well-funded cabal" and "conspiracy".

time.com/5936036/secret…

10/

To his' shame, he misrepresents the article he's citing which (a) does not mention any current federal elected officials, and (b) notes the conspiracy was "dedicated... to ensuring [the vote] would be free and fair, credible and uncorrupted"

11/

Relying on an article which explicitly argues that the "conspiracy" being alleged was a "conspiracy to save the 2020 election" which "[was] not rigging the election; they were fortifying it"?

Bold strategy.

12/

Again, the "cabal" (shouldn't be capitalized) in question is according to Davis' own citation a group of people who were dedicated to ensuring the election was free and fair.

But I sure do like to hear how the constitution not only allows for, but demands, the end of class.

13/

Is it really "ironic"? It sure sounds more "intentional" given that you could have filed in New York, Washington, or elsewhere in Texas based on who the plaintiffs are and where they reside.

14/

I, too, often speak of the court's "destiny" rather than "what is required under precedent."

15/

Also, once you've cited a case you can use an abbreviated citation for it afterwards.

What's even funnier is that he's now cited the same case in both footnote *and* in-line citation. Which is just [chef's kiss].

16/

Oh hell yes, a citation to Black's Law Dictionary (which is how you know this was seriously researched; two court cases, a Time article, and Black's Law Dictionary) *and* "it's a republic not a democracy".

17/

And the hits keep on coming.

Apparently there's a problem in a President elected with a "razor-thin" popular vote margin because a "mere majority" could accomplish things.

Curious why this wasn't a problem for a President who won without a majority to begin with...

18/

Remember that article from a dozen tweets ago about how there was a cabal to "keep the peace" and oppose an "assault on democracy" which was "dedicated not to winning the vote but to ensuring it would be free and fair, credible and uncorrupted"?

19/

"Trying to actually prove the claims I'm alleging is very difficult, especially since it'll make me sound like a crackpot" is an... interesting argument.

20/

"This source we're citing to is correct about the things that support us, but is lying about the things that don't" is also a novel approach.

21/

Did Davis get confused and think his own allegation of "whitewashing" was actually a quotation from the article?

Though, yes, it's often very easy to use a citation to support your argument while "omitting" the portions that completely destroy it.

22/

This is a straight-up lie. The article's first paragraph actually reads "people thronged cities across the U.S. to celebrate the democratic process that resulted in Trump’s ouster"

If the people celebrating are part of "the Cabal", your class is not "99%" of "the People"

23/

Aside from embracing the idea (pretty fatal to his argument) that attempts to influence can be valid), let's look at the "stick" that horrifies Davis so much.

An op-ed. Disturbing.

24/

And this is *really* fatal to his argument.

If both "the Cabal" and Trump played the same "game", either both attempts to influence the election harmed him (in which case his alleged harm is solely in not liking the outcome), or neither did.

25/

"The author whose reporting I rely on is actually part of the Cabal" is... Jesus, dude.

26/

How it started: "Missing... is any apparent concern for the actual will of the American voters"

How it's going: "I mean, sure she does bring it up but that's obviously just part of the con and her *pretending* to care about the will of the voters."

27/

Again Davis apparently confuses his own phrasing ("concern for democracy") for a quotation from his source.

Actual quotation from his source:

"The scenario the shadow campaigners were desperate to stop was not a Trump victory"

28/

I missed this footnote

I'm hoping this conclusory statement is not the only thing that Davis relies on supporting the individual defendants being part of the "conspiracy".

But based on the fact that he claims Secret History by itself supports the entirety of his claims...

29/

"Planned for" and "in line with his modeling" aren't *quite* the same thing.

30/

I'm not sure Bernie supporters would view the two situations as similar.

*I* could draw parallels in that both were examples of benign and explicable behavior cast as conspiracies to ruin a candidate because no other explanation for "losing" was acceptable. They wouldn't.

31/

I'm skipping the rest of the Bernie stuff in here because it's wholly irrelevant.

32/

It sure would be cool if instead of citing the entirety of 52 U.S.C. §§ 20901–21145 and part of the Civil Rights Act which governs record retention (somehow violated by mail-in voting, I guess?), he cited particular provisions he saw as being violated.

33/

As someone who lives in a state which has had universal voting by mail for much of my adult life, I'm pretty curious how "prior to 2020, Mail-In Voting [shouldn't be capitalized] had been almost universally condemned".

34/

Much less how an article covering how much of the country was moving *towards* absentee voting in 2012 indicates that it had been "universally condemned" by 2020.

35/

Someone cue up the X-Files music.

Because it's way more likely that the Cabal made AU remove the link (despite it being widely available elsewhere) than that the university no longer houses reports directly.

"Eerily" the book is still available *through AU*.

36/

What is "id" referring to here? The citation immediately prior to footnote 31 is to Building Confidence in U.S. Elections, prior to that was Marks v Stinson, and before that the Liptak article.

Or is it "Id. to the last *footnote* citation?

37/

But that can't be right, the previous *footnote* citation before a string of Id.'s is to an online Times article which obviously doesn't have pages. But footnotes 27, 28, and 30 are all just "id." or "id. at".

38/

Also, apparently the Washington Post is also part of the Cabal because it (and most news sources referring to voting) use the term "democratic" or "democracy" rather than "republic".

🤷‍♂️

39/

Which "defendants"? So far all the factual allegations are about the people in the article and one purely conclusory "and the other defendants did it too".

40/

Did he mean a 1983 claim against both state and federal defendants? A 1983 claim is limited to those acting "under color of any statute", i.e "government officials, the only people obliged to respect the "rights, privileges, or immunities secured by the Constitution"

42/

There's a lot to unpack here, which is surprising since it should be a block-quotation straight from the article. But I'll go in order. In general, when there are more words in brackets than exist in the original, you're not *really* quoting it.

43/

1. [the Cabal, which includes Defendants] assumes facts not in evidence, most defendants have not been shown to be in "the cabal".

2. [acting in concert with state officials] only confers conspiracy liability for the parts of the conspiracy the state officials were aware of

44/

3. [in violation of the Election Integrity Safeguards] is a conclusory statement that given that we're a third of the way into this should probably be supported at *some point*.

4. [including funding from Congress] this one's true.

45/

5. [many of which lawsuits were intended to prevent violations of the Election Integrity Safeguards] is an odd statement since those lawsuits failed thus giving strong evidence the actions complained of didn't violate shit.

46/

6. [which constitutes interference with Plaintiffs’
First Amendment rights to free speech] works only to the extent there is a state actor involved. Given that the state actors were not involved in that, there's no first amendment right to social media access.

47/

6 [cont.] there's a *separate* issue that the courts have never held that advocacy (without threat or promise of government action) by a government official that a third-party exercise its *own* first amendment rights not to allow content violates the first amendment.

48/

7. [which was additional suppression of
Plaintiffs’ First Amendment rights] same issue as 6.

8. [thus demonstrating the concert of
action between both Democrats and Republicans to carry out the conspiracy] facts not in evidence.

49/

Aside from nothing being able to "prevent the media from attacking" a court decision, one wonders if Davis is capable of recognizing the irony of claiming simultaneously that his claims are "coming from" the Time article, but also the Time article is lying.

50/

More simply, when you have that much additional added in brackets, and you're explicitly stating that the article itself is false, your claims aren't coming straight from anywhere but your ass.

51/

Because when I bring a lawsuit I know the best way to frame it is as a bitch-fest about how I disagree with another judge's decision".

Especially when the actual grounds for dismissal were "Twiqbal, my dude, you can't just say random shit and get past a motion to dismiss".

50/

Even *if* (and that's a big if) one grants the claim that the money was used to violate HAVA and the CRA, and that there was a conspiracy among the private actors and state officials to do it, this *still* doesn't get you to any federal officials.

51/

I accidentally split the thread, continued here:

https://twitter.com/apark2453/status/1364287736044118018

"Funded something bad" does not make someone part of a conspiracy unless they *were aware* of the illegal purpose of it. Y'all don't become co-conspirators if someone lies about a go fund me and uses the proceeds to buy blow.

52/

Oookay. Except your defendants are "ALL MEMBERS OF THE 117TH U.S. CONGRESS" and unless there's something new in inchoate law in the last month or so "was member of an organization which also had co-conspirators" does not make one a conspirator.

53/

Yes, very difficult to imagine. Except one in which the federal elected officials actually conspired.

And one where there is a conspiracy.

And where you can actually show violation of state or federal law.

But good hustle, champ.

54/

Maybe it's just me, but here's where I might cite evidence for the proposition that the defendants' actions *reduced* people being able to vote, and a case for the proposition that even without fraud the alleged *potential* of ballot stuffing violates the 14th amendment.

55/

Because, remember, this dude claims his argument does not rely on *any actual fraud* having occurred. Evidence of fraud is "not necessary for plaintiffs to prevail".

56/

So... How was the right to vote violated without being denied the ability to vote?

And how was the right against vote dilution by invalid/illegal/fraudulent votes violated without any evidence of fraud?

Good question!

57/

22 pages in sounds like a *great* time to introduce new causes of action without identifying how he's getting from "government official said a private company ought to use its own free speech in X way and it did" to "constitutional violation" without money involved.

58/

How it started: "Separation of powers exists to stop the abuse of a slim majority."

How it's going: "One branch of government must kick out the entirety of the other two branches and also revoke actions taken under their authority"

59/

Aside from the wankery of "they're totally afraid for their lives", it's kind of funny to note that Jeremy Bravo's own lawsuit is arguing that if he had won he should (a) be stripped of office, and (b) prohibited from ever holding office again.

60/

Well edited.

Also I can't find much to support Vanderbol is an expert (nor an export), but I can find where he brought a RICO lawsuit against State Farm.

So I'm sure this is completely credible.

61/

And now we're to the "voting down a bill is a constitutional violation the courts should remedy" part of this rolling disaster.

62/

I'm sure that the National Institute of Trial Attorneys also suggests repeating the core "they done wrong me" claim after every. single. paragraph.

63/

1. It's the "Chan Zuckerberg Initiative".

2. "Zuckerberg-chan" definitely sounds like Davis wants sempai to notice him.

64/

"When all you have is a hammer", the "it's actually all part of this massive conspiracy against me" edition.

At some point this transitions from merely bad lawyering into paranoid delusions.

65/

Except 52 USC § 20701 is pretty specific about what "papers" it's referring to. Those are papers "relating to any application, registration, payment of poll tax, or other act requisite to voting".

66/

Required by whom? Where?

This would be a great place to cite something.

34 pages in and I count three cases, a whole bunch of news articles, and vaguely gesturing at two statutes.

67/

There's a lot of repetition of "by failing to follow a record-keeping requirement I'm not citing to there can't be an audit (for some reason), which somehow violates the right to vote and not have it be diluted by fraud even if there was no fraud"

68/

1. "DCCC" is actually shorter than "D-Triple-C".

2. Filings made as part of a court case generally can't be subject to liability in a private action. The proper remedy would be "sanctions" and "perjury" both of which Davis would lose.

69/

Do you notice how "civil rights leaders" aren't "government agents"?

70/

And we finally got to the "modern day public square" argument.

In for a penny, in for a pound, might as well try to argue their way out of the state action doctrine at the same time.

71/

This appears to be the closest he gets to citing actual specific requirements in HAVA which were violated. Claiming it has requirements, and the defendants failed to comply.

This is how I would have written a brief at 2 a.m the day it was due if I'd done none of the reading

72/

Good to see that even 44 pages in, Davis continues to surprise and delight.

Brand new people are part of the conspiracy (but not defendants), alleged to have violated the first amendment by exercising the first amendment.

73/

"The words I use should be read this way unless it makes me sound stupid or would make me lose" is not a footnote I would want to include.

74/

If these claims are correct, the injury was committed against and suffered by every single person eligible to vote in the U.S. That's a problem for the issue of standing.

How does he not realize that?

75/

Aside from the ridiculousness of "being criticized in the media" forming the basis of any claim to first amendment infringement, Bivens has (to my knowledge) only ever been applied to private actors acting under color of state law.

Facebook ain't it, chief.

76/

"Dear Judge,

We don't have a particularized injury, our claimed damages happened to all American citizens. But we'd really like for you to toss standing doctrine ass over teakettle because like... oh those bad people were so bad".

77/

Because, of course, "people don't like Congress" and "the court would be justified in removing every federal elected official" are basically the same thing.

78/

"Broad economic harm from policies I think are bad" is an interesting argument for an injunction.

79/

The use of the phrase "new expert report" implies the expert who quit was going to testify to "they need an injunction because bad policies will make us all die to terrorism because of oil prices".

And their explanation for him quitting is "the Cabal".

80/

Okay, last one, because I want to end on a high-note.

"Plaintiffs’ probably right to relief is probable clearly
demonstrated"

Perfect.

[end]