Addressing Baseless Election Related Lawsuits

Problem Statement

How can FRAUD (frivolous and reckless actions undermining democracy) lawsuits be disposed of efficiently and economically and their filers held accountable and deterred from filing similar baseless actions in the future?

Possible Proposed Solution

 The Task Force should propose model state legislation providing mechanisms for the swift dismissal of baseless election claims and imposing sanctions on the plaintiff. The proposed model legislation is attached as Addendum Ian addendum.

More than 30 states have enacted similarexpedited motion-to-dismiss statutes that apply toagainst strategic lawsuits against public participation (SLAPPs). SLAPPS are lawsuits intended to intimidate and silence critics by burdening them with the cost and hassle of litigation. Anti-SLAPP statutes are laws that protect the rights of free speech and petition by providing mechanisms for the quick dismissal of meritless claims and by shifting the legal fees to the plaintiff.

Adopting some of the same mechanisms, the proposed model state anti-FRAUD statute is intended to protect the rights of those who are sued for their participation in fair and honest elections by providing mechanisms for the swift dismissal of baseless claims and imposing sanctions on the plaintiff.

The proposed model state anti-FRAUD statute:

• applies to any proceeding that seeks to challenge the conduct, administration or oversight of an election or the validity or outcome of an election.
• establishes a procedure for a special motion to dismiss such a proceeding, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. The special motion must be filed within 60 days of the service of the complaint, and the court must hold a hearing on the special motion within 20 days after the special motion is served and rule on the special motion within 10 days after the hearing. The special motion stays all discovery proceedings until the court rules on the special motion.
• provides that the court shall award a party who prevails on their special motion reasonable attorney fees and costs. If the court finds that the election claim is frivolous or brought in bad faith, the court shall also award the prevailing party sanctions sufficient to deter repetition of such conduct. If the court finds that the special motion was brought in bad faith or solely with the intent to cause unnecessary delay, the court shall award the plaintiff its attorney fees and costs incurred in responding to the special motion.
• provides that the non-prevailing party may immediately appeal the court’s order to the appropriate appellate court. The appeal must be filed within 10 days of the entry of the order, and the appellate court must hear and determine the appeal within 45 days of the filing.
• provides that the statute does not apply to any proceeding brought by the state or a political subdivision of the state in the exercise of its police power, regulatory power, or sovereign authority.
• requires the plaintiff to state with particularity the factual and legal basis for each claim, and to attach any affidavits, declarations, exhibits, or other evidence that support the claim.
• requires the plaintiff to show that the claim has a substantial likelihood of affecting the outcome of the election or the rights of the voters, and that the claim is not moot, barred, or otherwise precluded by law.
• requires the plaintiff to post a bond or security in an amount determined by the court to cover the costs and damages that may be incurred by the defendant or the public because of the claim if the claim is found to be frivolous or brought in bad faith. 

Next Steps

The proposed next steps could include are:

1. Including a discussion of the proposed model legislation in the upcoming Task Force Listening Tours to raise public awareness and support.
2. Following the Listening Tours, engage the Task Force members, appropriate state bar contacts and/or lobbyists to help identify legislative members in the remaining states and the District of Columbia to sponsor the model legislation in their state and to garner additional support.

About the Author

Mr. N. David Bleisch has beenwas the Executive Vice President, Chief Legal & Administrative Officer and Corporate Secretary at of The ODP Corporation/Office Depot, Inc. since from September 20, 2017. Mr. Bleisch has been Vice President and General Counsel of Tyco's ADT North American Residential business segment since 2005. Mr. Bleisch served as the  until July 2022. Prior to joining ODP, David was the Senior Vice President, Chief Legal Officer and Senior Vice President of The ADT Corporation since September 1, 2012 until May 2, 2016 and served as its General Counsel until May 2, 2016. He served as Corporate Secretary of The ADT Corporation since September 1, 2012. He manages/ADT Security from the time of its spin-off from Tyco International into a publicly traded S&P 500 company until it was sold to Apollo Global Management. Prior to ADT, David held subsidiary General Counsel positions with Tyco International, with operations in over 50 countries, and managed the intellectual property legal group for all of Tyco'sTyco’s operating segments worldwide. He joined Tyco in 2005 as Deputy General Counsel of Tyco Fire & Security. Mr. Bleisch was Senior Vice President, General Counsel and Secretary of The LTV Corporation in Cleveland, Ohio. Prior to joining LTV, Mr. Bleisch was a partner in the law firm of Jackson Walker LLP, where he served as a corporate transactional attorney before transitioning to commercial trial work. He served as Director of The ADT Corporation until September 28, 2012 and The LTV Corporation since December 13, 2001. Mr. Bleisch has a Bachelor of Arts from Carleton College and a Juris Doctor degree from Boston College Law SchoolIn addition to other interests, David is a hobbyist developer who works with microprocessors, python coding, 3D-design, and artificial intelligence tools.

Addendum

Model State Legislation Providing Procedural Remedies inAgainst Claims Asserting Election Fraud or Otherwise Challenging Elections Without Concrete or Convincing Evidence

Section 1. Purpose

The integrity and legitimacy of the electoral process are essential to the functioning of a democratic society and the preservation of the rule of law. The purpose of this law is to protect the fundamental and inalienable rights of the people guaranteed by the Constitution of the United States and the Constitution of this state, to vote, to run for office, to support or oppose a candidate or a ballot measure, and to participate in the administration or oversight of an election, against the filing of false, frivolous or otherwise insupportable election claims that undermine the integrity and legitimacy of the electoral process. This law provides mechanisms for the swift dismissal of baseless or otherwise insupportable election claims and for imposing sanctions on the perpetrators of such election claims.

Section 2. Definitions

As used herein, the following terms have the following meanings:

1. “Candidate” means an individual who is seeking nomination or election to a federal, state, legislative, judicial, or local office.
2. "Election" means any primary, general, special, or runoff election for federal, state, or local office, or any initiative, referendum, recall, or other ballot measure.
3. "Election claim" means any civil lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief that (1) challenges the legality or constitutionality of state laws, regulations, or procedures regarding mail-in ballots, signature verification, ballot curing, observer access, deadline extensions, or other election procedures; (2) requests injunctive relief with regard to an election, such as halting the certification of the election results, decertifying the election results, or excluding certain categories of ballots from the vote count; (3) relates to the registration, nomination, qualification, or certification of voters, candidates, or election officials (4) alleges widespread fraud or irregularities in an election; or (5) otherwise seeks to challenge the conduct, administration or oversight of an election or the validity or outcome of an election.
4. “Election official” means an individual who is authorized by law, regulation, or by appointment by a competent authority to perform functions related to the preparation, conduct, and oversight of elections and electoral processes.  This includes, but is not limited to, individuals with statewide or local election oversight responsibilities, individuals engaged in the registration of voters and the maintenance of voter rolls, staff responsible for the certification, testing, deployment and security of voting equipment, poll workers, precinct officials and election judges who assist in the operation of voting centers during early voting and on election days, and individuals involved in the tallying, reporting, auditing and certification of election results.
5. “Frivolous” means:         
   1. without merit in law and not supported by a reasonable argument for a modification of existing law;
   2. undertaken primarily to delay or prolong an election outcome or process, or to harass, intimidate or maliciously injure another person, including any candidate or election official; or
   3. unsupported by credible evidence or based on material factual statements that are false.
6. "Person" means any individual, corporation, association, organization, partnership, or other legal entity.
7. "Prevailing party" means the party that obtains a dismissal of an election claim pursuant to this act.

Section 3. Special requirements for election claims

Except as provided in Section 7, the plaintiff in any election claim shall:

1. state with particularity the factual and legal basis for each election claim, including how they affected or would affect the outcome of an election or violate the rights of the voters, and shall attach any affidavits, declarations, exhibits, or other evidence that support the election claim; 
2. show that the election claim has a substantial likelihood of affecting the outcome of the election or the rights of the voters, and that the election claim is not moot, barred, or otherwise precluded by law; and 
3. post a bond or security in an amount determined by the court to cover the costs and damages that may be incurred by the defendant or the public as a result of the election claim if the election claim is found to be frivolous or brought in bad faith. 

Section 4. Special Motion to Dismiss

Except as provided in Section 7:

1. A person against whom an election claim is asserted may file a special motion to dismiss the election claim.
2. The special motion must be filed within 60 days of the service of the election claim complaint, unless the court extends the time for filing for good cause shown.
3. The special motion must be accompanied by a memorandum of points and authorities, and may be supported by affidavits or declarations of persons having knowledge of the facts, or by other admissible evidence.
4. The court shall hold a hearing on the special motion not more than 20 days after the motion is served.
5. The court shall rule on the special motion not more than 10 days after the hearing.
6. The court shall grant the special motion and dismiss the election claim with prejudice unless the plaintiff establishes that it has satisfied all the special requirements in Section 3 and that there is a probability that the plaintiff will prevail on the election claim.
7. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits or declarations of persons having knowledge of the facts, or other admissible evidence.
8. If the court determines that the plaintiff has established that it has satisfied all of the special requirements in Section 3 and that there is a probability that the plaintiff will prevail on the election claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
9. If the court grants the special motion, the court shall enter a judgment of dismissal with prejudice and award the prevailing party its reasonable attorney fees and costs. If the court finds that the election claim motion is frivolous, unsupported by credible evidence, or brought in bad faith or for purposes of publicity, the court shall also award the prevailing party sanctions sufficient to deter repetition of such conduct.
10. If the court denies the special motion, the court shall state the reasons for the denial in writing.
11. If the court finds that a special motion to dismiss was filedbrought in bad faith and solely intendedwith the intent to cause unnecessary delay, the court shall award the plaintiff its reasonable attorneys’attorney fees and costs incurred for responding to the special motion.
12. The court may not order the parties, counsel, or witnesses to mediate or otherwise seek an alternative resolution of the election claim.

Section 5. Stay of Proceedings Pending Ruling on Special Motion

Unless the court orders otherwise for good cause shown, all other proceedings in the action related to the election claim shall be stayed upon the timely filing of the special motion to dismiss, including discovery proceedings and any pending hearing or motions, until notice of entry of an order ruling on the special motion.

Section 6. Appeal

1. The non-prevailing party on the special motion to dismiss may immediately appeal the court's order to the appropriate appellate court.
2. If a court fails to hold the hearing on a special motion to dismiss under Section 74 in the time prescribed in Section 74(d) or does not rule on the special motion in the time prescribed in Section 74(e), the motion is considered to have been denied by operation of law and the moving party may appeal.
3. The appeal must be filed within 10 days of the entry of the order.
4. The appeal shall be heard and determined not more than 45 days after the appeal is filed, unless the appellate court extends the time for good cause shown.

Section 7. Exemptions

1. This act does not apply to any election claim, action, or proceeding brought by the state or a political subdivision of the state in the exercise of its police power, regulatory power, or sovereign authority.
2. This act does not apply to any election claim, action, or proceeding that is based on a clear and convincing showing of actual fraud, perjury, forgery, or other falsification of evidence.

Section 8. Severability

The provisions of this law are severable. If any provision of this law or its application to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Section 9. Enactment

This law takes effect on [XXXXXXX], 202[X], and applies to election claims on and after that date. 

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.