Election Senate Runoff

A worker passes a Dominion Voting ballot scanner while setting up a polling location at an elementary school in Gwinnett County, Ga., outside of Atlanta on Monday, Jan. 4, 2021, in advance of two Senate runoff elections. 

The arguments made in a federal court in Denver Tuesday afternoon could offer a forecast of litigation to come over whether the November election was stolen and who bears responsibility if it was, or if the allegations are merely conspiracy theories and defamation.

Denver lawyer Gary Fielder argued for his class-action lawsuit against Denver-based Dominion Voting Systems, Facebook, its founder and CEO Mark Zuckerberg and his wife, as well as a nonprofit that helped local governments prepare for last November's vote.

The suit is on behalf of roughly 160 million voters who were deprived of a fair election, Fielder argued. The lawsuit doesn't seek to overturn the election but to collect $1,000 for each voter, or about $160 billion.

Based on U.S. District Court Magistrate N. Reid Neureiter's questions and comments, the case appeared likely to be dismissed, as he repeatedly challenged Fielder on how his clients can show specific rather than generalized damages, called standing to sue, that can be cured by $1,000 each awarded by the court.

The Trump campaign filed dozens of suits seeking to overturn the results in swing states, but none were successful, often with the courts harshly criticizing the lack of evidence behind the claims.

Neureiter sternly pointed out to Fielder that his suit did not reference any of dozens of previous lawsuits that have been thrown out based on standing. He said the basis of this lawsuit — that the election was stolen — might not be found to be true.

Fielder said it was because in those cases, plaintiffs were suing the government for extraordinary relief, to overturn the election. He is suing individuals, two corporations and a nonprofit for improper influence over the outcome.

"Is the next election going to involve a billionaire who comes in and drops $500 million in elections all over the country, and nobody is going to be able to say anything?" Fielder asked the judge. "What if all the allegations are proven?"

Voter's feelings about their votes not counting do not qualify as actual evidence of specific damages, the judge said.

Fielder said, "Those people can't be denied. You can't look at them and say, 'Get over it.' "

Neureiter suggested they should do something besides file a lawsuit — to press their legislature to investigate and make changes, and then try again in the next election.

"A large part of the people believe the system is rigged by third parties, by corporations, by nonprofit organizations, all these municipalities are somehow in bed with the corporations to rig the election," the judge said, "that the Republican and Democratic secretaries of state of Wisconsin, Michigan, Arizona and Georgia are all in on it, because that's what you allege.". 

He said the election was decided, "but, oh, by the way, let's spread these rumors and theories about conspiracies all across the country, and let's create unrest to the point where people would literally storm the Congress of the United States, making the same points, making the same arguments that you're making in this courtroom ... and you, in your complaint, are doing a disservice to your clients, because you're saying disregard what all the other courts said, disregard what the secretaries of state said, and we're going to file another lawsuit challenging all this with as many conspiracy theories as possible."

Neureiter wrapped up the 2½-hour hearing saying he'd return a decision on the case soon.

The class-action suit represents the country's registered voters, but Dominion's lawyer, Stan Garnett of Brownstein Hyatt Farber Schrek, said the group is too large to claim a "particularized" injury, such as a losing candidate who might challenge an election result.

"There is nothing Dominion has done that's not just clerical to the issues the plaintiffs are complaining about," Garnett, who was also Boulder District Attorney, told the the judge. "Dominion, for example, doesn't certify elections. Dominion does not step in and function as a secretary of state. Dominion is simply a private company that provides certain services in connection with elections. There's no way a clear constitutional violation could be traceable so that this court could fashion a remedy that would address the issue they're complaining about."

Joshua S. Lipshutz of the Washington, D.C., firm Gibson Dunn said it wasn't clear at all why his client, Facebook, was singled out, other than the plaintiff's dislike of social media.

Lawyers for defendants criticized the lawsuit, calling it frivolous, bogus, abusive and bizarre at different junctures Tuesday. 

"I don't think this is a serious lawsuit," Lipshutz told Neureiter, speculating that the plaintiffs were trying to use it as a soap box about the integrity of the election.

Garnett said in his filing to dismiss the case that none of the allegations stand up to scrutiny, thus "prolonging this lawsuit simply delays the inevitable."

The suit alleged Dominion and other defendants were part of 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."

Dominion is based in Denver but provides equipment in 28 states and 62 of Colorado's 64 counties.  

The company is at the center of a conspiracy theory that it was part of an international scheme to flip votes in swing states from Trump to Biden. The company has denied the claims and is seeking billions in damages from Trump lawyers Rudy Giuliani and Sidney Powell, Fox News and MyPillow founder and CEO Mike Lindell for defaming its business.

In a telling motion to dismiss Dominion's $1.3 billion suit against her last month, Powell said the stolen-election claims she made were constitutionally protected political speech that no reasonable person would have believed at face value.

"Facebook and Zuckerberg’s monopoly of the public social media square has created enormous power that it wields against any business, or political foe to censor what it deems otherwise objectionable regardless of constitutional protections on speech or the economic harm it causes to its users," the suit alleges, though it does not specify why Zuckerberg's wife, a philanthropist and former pediatrician, is named as an individual defendant.

The suit notes that the couple gave out $350 million in grants to organizations and local governments that the suit alleges influenced the presidential election, which the lawsuits characterized as bribes to work on Zuckerberg's behalf to rig the vote to elect Biden. 

The suit accused the couple of "engaging in a pattern of racketeering activity" that violated federal laws, including fraud, interstate transportation of stolen property, witness tampering and conspiracy to violate voters' civil rights.

Dominion is on both sides of the court system, as defendant and plaintiff in cases seeking billions in damages.

The plaintiffs including three Coloradans, including  Summit County Republican activist Lori Cutunilli, who tried unsuccessfully to recall Colorado Gov. Jared Polis, a Democrat, over the COVID-19 restrictions he imposed last year. The other Coloradans are Neil Yarbrough and Jessica Bell.

RELATED:

EYE OF THE STORM | Denver-based Dominion faces MAGA wrath
Dominion sues Rudy Giuliani for $1.3B over 'viral disinformation campaign'
Denver's Dominion adds Trump's My Pillow ally to a growing list of defendants
Sidney Powell files motion to dismiss or move Dominion defamation suit
My Pillow announces countersuit against Denver's Dominion Voting Systems

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