Election Integrity Suit Headed to Ninth Circuit Court of Appeals
By Terry Noonkester
The Thielman v Fagan lawsuit ‘Motion to Dismiss’ was heard on June 26th at the Mark O. Hatfield United States Courthouse
in Portland, Oregon. The presiding Magistrate Judge was Stacie Beckerman. Attorney Bryan Marshall represented the Office of the Secretary of State (SOS) and the Oregon Counties and Attorney Stephen Joncus represented the Plaintiffs.
The Thielman v Fagan lawsuit asks for a declaration that Oregon’s mail-in voting and computer tabulation of votes are unconstitutional and asks for an injunction against use of those systems in elections. The lawsuit does not seek money damages, only relief from laws and policies that inflate voter rolls, use hackable tabulators, mandate mail-in ballots and stymie efforts of “We the People” to discover the many nefarious ways an election can be compromised.
The lawsuit states that; “…the very agents of the state and county governments that swear an oath to uphold the United States Constitution have encumbered, disrupted, obstructed, and out-right denied access of the people to public records, refused to investigate findings from election canvassers, and impuned the reputation of election integrity minded citizens.“
The suit details about 50 pages worth of election anomalies both in and out of Oregon. The suit does assert a fraud claim, and some anomalies reach to that level.
Defendant Shemia Fagan was appointed as Secretary of State (SOS) after Stephen Trout was fired/resigned during the 2020 election when he insisted the election was not secure. On May 8th, 2023 Fagan was forced to resign due to the scandal over her acceptance of $10,000 a month as a cannabis consultant. For the June 26th hearing, it was mandatory that the participants agreed that Fagan’s successor, Cheryl Myers, was accepted as replacement as the SOS Defendant in the lawsuit. Fagan’s ethical breaches regarding her position as SOS were not discussed at the hearing.
The Motion to Dismiss asserts that Plaintiffs do not have standing because they are asserting a generalized grievance applicable to all citizens. Defendants’ Attorney, Bryan Marshall, argued that the Plaintiffs do not have standing in subject matter and Plaintiffs cannot establish ‘an injury in fact’ that is ‘concrete, particularized, and actual or imminent, that the injury was likely caused by the defendants and that the injury would likely be redressed by judicial relief’.
Plaintiffs’ Attorney, Stephen Joncus, explained that Defendants’ argument does not address the situation where the government has taken complete control of the election system, uses it to re-elect themselves, and prevents the public from discovering the fraud. Defendants’ rule cannot be right because it means that there is no way for a free people to escape a tyrannical government. Joncus relied on authority stating that “elections enable self-governance only when they include processes that give citizens confidence in the fairness of elections.” In other words, when the public does not have confidence in elections, they are no longer governing themselves.
The subjectiveness of a feeling of lack of confidence is not a bar to a constitutional remedy because in Brown v Board of Education, the Supreme Court found that separate but equal schools for black children was unconstitutional because of a feeling of inferiority. The injury can be emotional rather than concrete and does not have to be particularized. Joncus explained that the voters have lost the civil right of fair and free elections due to the election anomalies presented by Plaintiffs. The voters have lost confidence in the election system.
Joncus stated that Oregon touts risk-limiting audits as one of the pillars of Oregon’s purported transparent and robust security measures. In fact, no county is capable of doing risk limiting audits and no county has ever done a risk limiting audit.
Joncus argued that in cases where the very rules regarding elections are broken, it is that broken system that incumbent officials have to thank for their incumbency. Such officials will not be motivated to reform the system that put them in power; instead, they will tend to defend the system that keeps them in power.
Magistrate Judge Stacie Beckerman summarily rejected Plaintiffs’ arguments. She sided with the Defendants when her opinion relied on the post 2020 election caselaw that refuses to acknowledge that election fraud exists. For her opinion, Beckerman cited the case Lake v. Hobbs, (D. Ariz. 2022) that finds Plaintiffs lacked standing as their alleged injury of potential voter fraud was too speculative because “a long chain of hypothetical contingencies must take place for any harm to occur” and concluding “that speculative allegations that voting machines may be hackable are insufficient to establish an injury in fact under Article III”.
Judge Beckerman also cited the case Donald J. Trump for President, Inc. v. Boockvar, (W.D. Pa. 2020). This case dismissed claims related to the state’s mail-in voting system as “too speculative to be concrete” where the plaintiffs claimed a “fear that absent implementation of the security measures that they seek; guards by drop boxes, signature comparison of mail-in ballots, and poll watchers, there was a risk of voter fraud by other voters”.
Other post 2020 election cases cited are; Bowyer v. Ducey, (D. Ariz. 2020), O’Rourke v. Dominion Voting Sys., Inc. (10th Cir. May 27, 2022), Wood v. Raffensperger, (11th Cir. 2020), and, Republican Party of Penn. v. Degraffenreid, (141 S. Ct. 732 (2021).
Judge Beckerman stated in her opinion that Plaintiffs seek entry of a judgment declaring that Oregon’s voting systems are unconstitutional, Plaintiffs allege that Oregon’s computerized vote tabulation and mail-in voting systems violate their constitutional rights including violations of the Due Process Clause, the Equal Protection Clause, and their fundamental right to vote.
The Judge continued with, “Plaintiffs allege that organized criminals are manipulating Oregon’s elections, and they base their claims on a documentary about voting irregularities in other states and reports of voting irregularities in Oregon.”
Judge Beckerman’s opinion concludes; “The Court agrees that Plaintiffs have failed to plea a cognizable injury-in-fact and therefore grants Defendants’ Rule 12(b)(1) motion to dismiss.”“Plaintiffs lack standing here because the injury they allege is neither particularized nor concrete.”
Joncus immediately filed an appeal to the Ninth Circuit Court of Appeals on the same day of Judge Beckerman’s order. Joncus will request expedited review by the Ninth Circuit, and plans to appeal to the U.S. Supreme Court if the Ninth Circuit fails to reverse Judge Beckerman’s order.
Disclosure: The author of this article is a Plaintiff in the Thielman v Fagan lawsuit.