King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
Voter List and Other Voting Records, ”
Subsection
1
-
“Election
Workers
Fraudulently Added ‘Tens of Thousands' of
New Ballots and New Voters in the Early
Morning and Evening of November 4, ”
ECF No. 6 at Pg ID 899-900 I 84 (quoting
Carone Affidavit, ECF No. 6-5 at Pg ID
1306 I 8).)
But nothing described by Carone connects the
vans to any ballots; nothing connects the illusory
ballots to President Biden; and nothing connects
the illusory votes for President Biden to the 100,
000 ballots “coincidently” announced on the news
as “discovered” in Michigan.57 Yet not a single
member of Plaintiffs' legal team spoke with
Carone to fill in these speculation-filled gaps
before using her affidavit to support the allegation
that tens of thousands of votes for President Biden
were fraudulently added.58, 59 (See ECF No. 157 at
Pg ID 5426-28.)
57 And nothing in the affidavit enlightens its
reader as to what is meant by “discovered.”
58 Without engaging in such an inquiry-much
less a reasonable one-counsel's affirmative
decision to label the 100, 000 ballots
discussed on the news-or the illusory
ballots theoretically removed from two
vans-an “illegal vote dump” serves as a
quintessential example of guesswork laced
with bad faith.
59 Kleinhendler
emphasized
during
the
hearing that Carone “publicly testified . . .
in Michigan about her findings.” (ECF No.
157 at Pg ID 5427.) It is nonsensensical to
suggest that supporting a key factual
allegation
speculation
with
is
nothing
justified
more
than
because
that
speculation was repeated publicly.
It is also notable that, when the Court asked
Plaintiffs' counsel whether an affiant's observation
of a self-described “coincidence” serves as
evidentiary support for the allegation that an
“illegal vote dump” occurred, Plaintiffs' counsel
appeared to say that it was okay in this case
because Ramsland “relied on [the Carone
Affidavit] for . . . his statistical analysis” and “an
expert can rely on hearsay.” (Id. at Pg ID 5429.)
But the problem with the Carone Affidavit does
not concern hearsay-it concerns conjecture. And
surely Plaintiffs' attorneys cannot fail to
reasonably inquire into an affiant's speculative
statements and thereafter escape their duty to
“stop-and-think” before making factual allegations
based on the statements, simply because their
expert did the same. See Fed.R.Civ.P. 11 Advisory
Committee Notes (1993 Amendment) (“The rule
continues to require litigants to ‘stop-and-think'
before initially making legal or factual
contentions.”).
Plaintiffs' counsel further emphasized that if
Carone “[said] things that don't turn out to be
entirely accurate, that can be discovered through
the processes that this Court is very familiar with.”
(ECF No. 157 at Pg ID 5429.) The Court assumes
the attorneys were referring to the discovery
process. But here's the snag: Plaintiffs are not
entitled to rely on the discovery process to mine
for evidence that never existed in the first
instance. See Goldman v. Barrett, 825 Fed.Appx.
35, 38 (2d Cir. 2020) (explaining that a plaintiff
“may not rely on discovery to manufacture a claim
that lacks factual support in the first instance” but
“may use discovery to bolster evidence”).
And speculation, coincidence, and innuendo could
never amount to evidence of an “illegal vote
dump”-much less, anything else.60
60 The Supreme Court has made clear that
where
there
are
perfectly
plausible
alternative explanations for an event-here,
for example, legally cast ballots simply
being delivered and counted-a plaintiff's
allegations are not to be accepted as true.
See Twombly, 550 U.S. at 557 (explaining
the “need at the pleading stage for
allegations
plausibly
suggesting
(not
merely consistent with)” liability). And of
course, the mere fact that the affiant and/or
Plaintiffs' counsel opted to use seemingly
32
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents