Class-action lawsuit in Colorado targets Dominion, Facebook and officials in four states

One of the organizers of the most recent failed recall effort against Gov. Jared Polis has a new project: a federal class-action lawsuit against Denver-based Dominion Voting Systems, Facebook and its founder, Mark Zuckerberg, and the governors of four states and their election officials, seeking $160 billion in damages and to declare Section 230 of the Communications Decency Act unconstitutional.

The election lawsuit was filed Dec. 22 in the U.S. District Court of Colorado by attorney Gary Fielder of Denver, who is on two years probation tied to financial misconduct.

The lawsuit claims the defendants burdened the voting rights of 160 million people.

The plaintiffs include Lori Cutunilli of Breckenridge, who was one of the organizers of the Recall Polis campaign that did not turn in any signatures by its Nov. 13 deadline. The group filed for an extension for turning in signatures in Denver District Court.

Section 230, which protects social media companies like Twitter and Facebook from liability for the content its users post, has become a favorite target of President Donald Trump, who recently tried to get Congress to toss the provision.

Trump followed through on a threat to veto the National Defense Authorization Act if Congress did not take action on Section 230. Both the House and Senate later voted to override Trump’s veto of the NDAA, which funds the Defense Department.

The other defendants, the governors and election officials in Michigan, Wisconsin, Pennsylvania and Georgia, “engaged in concerted action to interfere with the 2020 presidential election through a coordinated effort to, among other things, change voting laws without legislative approval, use unreliable voting machines, alter votes through an illegitimate adjudication process, provide illegal methods of voting, count illegal votes, suppress the speech of opposing voices, disproportionally and privately fund only certain municipalities and counties, and other methods, all prohibited by the Constitution.”

The section of the lawsuit against Facebook claims the company, under Zuckerberg’s direction, suppressed the First Amendment rights of those who have a different political and cultural ideology. 

Denver attorney Chris Jackson of Holland and Hart called the lawsuit "a bit of a mess."

"The complaint does not seem to have a great understanding of doctrines like standing and how constitutional litigation tends to work," he said, also noting that the First Amendment applies to Congress and by extension, states, not to private companies. Facebook, as a private actor, can do what it wants on free speech, Jackson told Colorado Politics.

He did say that the lawsuit seems to be aware of that fact, in claiming that Zuckerberg is intertwined with state actions to the point that he becomes a state actor. "But the legal claim has no merit," Jackson said. 

The lawsuit’s claims against Dominion is that experts have claimed its software is “vulnerable to data manipulation by unauthorized means, and permits data to be altered in states across the country.”

The lawsuit's claims are based on assertions from Navid Keshavarez-Nia of California, who submitted an affidavit in a lawsuit filed against the state of Michigan by attorney Sidney Powell. That affidavit claimed unnamed “adversaries” conducted a cyber attack on an election office using Dominion software that altered election results in Michigan.

The Open Source Election Technology Institute, which was referenced in the affidavit, said that Keshavarez-Nia lacks any direct evidence, his views are based on speculation and that they demonstrate a lack of understanding of cybersecurity, cryptography and election administration procedures. OSET included in a position paper a letter from 59 cybersecurity and engineering experts that said “anyone asserting that a U.S. election was ‘rigged’ is making an extraordinary claim, one that must be supported by persuasive and verifiable evidence. Merely citing the existence of technical flaws does not establish that an attack occurred; much less that it altered an election outcome. It is simply speculation.”

Keshavarez-Nia also listed as his credential a doctorate in management of engineering and technology from the “correspondence school” CalSouthern, which does not offer a doctorate in that area, according to OSET.

That same Michigan lawsuit claimed President-elect Joe Biden received 99.61% of the votes in one county, which it called a cause for concern and an indication of fraud. The county cited in that part of the lawsuit, Edison, doesn’t exist in Michigan or any other state in the United States. On Dec. 7, U.S. District Court Judge Linda V. Parker tossed the lawsuit, calling Powell’s claims about Dominion “nothing but speculation and conjecture.”

Fielder is currently on two years probation from the Colorado Supreme Court for misconduct, including comingling client trust funds with his firm's money. His law license was suspended for one year, beginning Dec. 12, 2019, stayed on condition of him completing the two years probation. The conditions of his probation include taking an ethics course, attending a trust account school and adhering to practice monitoring conditions.

Dominion's Eric Coomer has filed a defamation lawsuit against Powell, the Trump campaign, attorney Rudy Giuliani and conservative news outlets. Dominion has also threatened to sue Powell and conservative media outlets that have published false claims about the company. 

Related: Dominion worker sues Trump campaign and conservative media

Related: Polis recall effort files for extension in Denver District Court

The next hearing on the Polis recall petition extension is scheduled for February 16. Dominion CEO John Poulos announced Monday the company is filing a defamation lawsuit against Powell.