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unclean hands

Donald Trump and his supporters have filed numerous meritless lawsuits challenging the 2020 election results and lost almost all of them so far. Many wonder why judges have not sanctioned the lawyers involved. Judges may be reluctant to punish lawyers for bringing frivolous claims because distinguishing a weak claim from a frivolous one is hard.

These lawsuits, however, constitute a bad faith strategy to use the courts to delay electoral results and to impugn a fair electoral process. Judges should acknowledge this litigation’s improper purpose to deter further misconduct and can do so appropriately under two legal doctrines.

First, judges may sanction lawyers or their clients under rule 11 and its state law equivalents. Rule 11 prohibits lawsuits for an “improper purpose, such as to harass [or] cause unnecessary delay.” Trump’s lawsuits aim to cause unnecessary delay in certifying the election results, in part, by harassing officials counting ballots. Because the allegations in these suits could not change the electoral result even if true, the improper purpose here is unusually obvious. Judges should sanction Trump, supporters filing lawsuits, and their lawyers for using litigation to delay official recognition of an indisputable electoral result.

Judges should sanction Trump, supporters filing lawsuits, and their lawyers for using litigation to delay official recognition of an indisputable electoral result.

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Judges reluctant to mete out sanctions, however, have another option available to them for deterring abuse of the legal system. An ancient equitable doctrine employed in numerous Supreme Court decisions allows a judge to refuse relief to plaintiffs lacking “clean hands,” regardless of their claims’ merits. The “clean hands doctrine” authorizes courts to refuse to hear claims from litigants who violate “conscience or good faith.” As the Supreme Court put it, when a litigant acts in bad faith, “the doors of the court will be shut against him.” Trump’s lies about conspiracy, fraud, and election theft provide egregious examples of bad faith justifying dismissing legal claims.

The clean hands doctrine aims to prevent courts from becoming “abettors of inequity.” Any ruling favoring Trump risks making the court complicit in Trump’s bad faith campaign to undermine a fair election. Trump will likely use a favorable ruling on the minor claims made in litigation to falsely claim judicial support for his very different political claim that a vast conspiracy stole this election from him by flipping tens of thousands of votes. That prediction sounds speculative, but Trump has already lied about a procedural Supreme Court ruling to support his campaign to discredit the electoral process. When the Supreme Court took the innocuous step of declining to stay a mere three-day deadline extension for mail-in ballots in Pennsylvania, Trump accused the High Court of “allowing rampant and unchecked cheating.” Of course, there is no reason to think that ballots turned in three days later than other ballots will be fraudulent and the lawyers challenging the deadline did not allege any such thing. Because the clean hands doctrine protects the court itself, a judge may dismiss a case under it without a party raising it.

Trump signaled his intent to make the judicial branch an abettor of inequity before the election took place. He claimed that the election would be rigged through absentee ballots, which are a legally required part of the election process and would surely be used extensively during a pandemic. He therefore announced, before a single ballot had been cast, that he planned to have the Supreme Court “take a look at the ballots.” Thus, he sought to make the courts the vehicle for substantiating his false claim about a “rigged” election. Even the suggestion that a court should look at ballots incites distrust of the bipartisan local election boards actually charged with examining ballots under state election law. 

Rulings summarily dismissing cases based on the plaintiffs’ improper purpose would protect our constitutional democracy, whether issued under rule 11 or the clean hands doctrine. Elected autocrats who have destroyed democracies regularly accuse their opponents of fraud when the opposition wins elections. Judges should show politicians and their lawyers that they cannot promote crazy false theories to undermine an election and then expect judges to take actions on minor legal claims that partisans will use to undermine the electoral process as a whole. 

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Rulings recognizing this litigation’s improper purpose would help put the current madness to rest and deter future misconduct, misconduct that poses a substantial threat to our democracy’s survival.

David M. Driesen