Skip to main content

The Kraken Goes to SCOTUS and Argues: Voting Is a ‘Sacrament,’ So Certification of Georgia Election Should Be Overturned


A November 19, 2020 photo shows Sidney Powell speaking during a press conference at the Republican National Committee headquarters in Washington, DC. - US President Donald Trump's personal lawyer Rudy Giuliani and campaign lawyer Jenna Ellis reportedly said that Powell is not a member of the Trump legal team. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

Attorney and alleged Kraken whisperer Sidney Powell filed a petition with the U.S. Supreme Court late Friday in a last-ditch effort to revive her repeatedly-failed legal efforts at overturning Georgia’s certification of the 2020 election results.

One of the more extreme arguments Powell makes is that U.S. citizens are not actually entitled to vote for president. Rather, in a version of the GOP’s recently failed argument (advanced by Texas Attorney General Ken Paxton) before the Supreme Court, Powell argues that this is the sole right of state legislatures and claims that right was usurped by various officials and bodies in the Peach State.

From the filing at length:

While the U.S. Constitution itself accords no right to vote for presidential electors, “[w]hen the state legislature vests the right to vote for president in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” Bush v. Gore. The evidence shows not only that respondents failed to administer the November 3, 2020 election in compliance with the manner prescribed by the Georgia legislature in the Georgia Election Code, but that [Georgia officials] through their policies, practices and procedures departed from the Georgia Election Code and thereby left the door wide open for schemes and artifices to fraudulently and illegally manipulate the vote count to make certain the election of Biden as president of the United States. This conduct violated the rights of petitioners as presidential electors to a constitutional election under the Elections and Electors, Equal Protection and Due Process clauses.

“The Georgia legislatures [sic] may yet reclaim its plenary authority to appoint presidential electors under the Elections Clause, U.S. Const. Art. I, § 4, clause 1, that was usurped by [Georgia officials] in nullifying the statutory safeguards against absentee voter fraud,” the filing says at another point. “It is the unconstitutional acts of [Georgia officials], and their counterparts in the other defendant states that have brought us to this constitutional donnybrook.”

The 97-page filing is styled as an “emergency writ of injunction” that aims to force various Georgia officials “to de-certify the results of the November 3, 2020 general election and to enjoin them from taking any further action to perfect the certification of the results of the 2020 General Election or permit Georgia’s presidential electors to cast their votes for [Joe] Biden in the Electoral College.”

Powell’s effort here likely stands no chance because the the Supreme Court is very stingy in applying the Rule 20 procedure.

The relevant section of the rule itself explains:

Issuance by the [Supreme] Court of an extraordinary writ authorized by 28 U. S. C. §1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.

In service of this application, Powell and her legal team argue that Northern District of Georgia Judge Timothy C. Batten, a George W. Bush appointee, erred when he tersely dismissed the original Kraken lawsuit from the bench earlier this month.

“The district court summarily denied petitioners’ complaint and [temporary restraining order] motion in a one-sentence order,” Powell complains. “The [district] court’s rationale, such as it is, is in the cursory, cryptic statements at the conclusion of the December 7 Hearing, when it dismissed this case from the bench.”

The filing also seeks to directly shore up the (fatal for Texas) standing claims by directly asserting that standing requirements have been met.

“The standing of presidential electors to challenge fraud, illegality and disenfranchisement in a presidential election rests on a constitutional and statutory foundation—as if they are candidates—not voters,” the brief argues. “Theirs is not a generalized grievance, one shared by all other voters; they are particularly aggrieved by being wrongly denied the responsibility, emoluments and honor of serving as members of the Electoral College, as provided by Georgia law.”

Throughout the sprawling complaint, the would-be Kraken petitioners repeat and allege serially-debunked claims of conspiracy, fraud and corruption.

“The respondents’ official policies caused a substantial and unlawful erosion of statutory election integrity safeguards and permitted fraudulent schemes and artifices to flourish, resulting tens to hundreds of thousands of illegal ballots being counted,” Powell argues. “The same pattern writ large occurred in all the swing states with only minor variations in Michigan, Pennsylvania, Arizona and Wisconsin.”

To hear Powell, et, al. tell it, GOP officials led by Georgia Secretary of State Brad Raffensperger, a Republican whose family voted for Trump, violated the Electors Clause of the U.S. Constitution by increasing access to mail-in voting through administrative rule-making and court processes instead of feeding any such changes through the GOP-dominated legislature.

To wit, the filing argues that the moving parties “submitted expert witness testimony establishing wide-spread voting fraud that changed the outcome of the election.” The first part is true, Powell and her coterie of conservative attorneys did claim to have some expert witnesses on tap, but those witnesses petered out and withered under the harsh light of a brief inquiry by the press, and none of their claims panned out whatsoever.

And, where the Georgia officials named as defendants are concerned, all of whom are Republican, Powell’s brief blithely and effectively accuses them of partaking in a feast of ghoulish delight with Hugo Chavez’s ghost once again. The petition claims that Raffensperger and others “knowingly enabled election fraud by election workers, Dominion [Voting Systems], Democratic operatives, unknown third parties, and potentially by hostile foreign actors.”

The lawsuit also contains the following collection of sentences:

The Framers famously gave us “a republic, if you can keep it.” In the United States, voting is one of the sacraments by which we do so. Without public faith and confidence therein, all is lost.

[image via MANDEL NGAN/AFP via Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: