Issue 2: Provision of Remedies

Other cases demonstrate how bad actors can sow disinformation via frivolous claims meant to cast doubt on the integrity of the election process itself. Much like the facts around the United States’ Dominion case, for instance, Kenya’s presidential election was highly contested and was conducted in an environment of widespread disinformation attacks. When presenting lessons learned from Kenya at a global election event in July 2023, for instance, Justice Daniel Isokolo Musinga, President of the Court of Appeal in Kenya, mentioned disinformation as the main issue in the 2022 elections. Justice Musinga noted that judges experienced strong political pressure, fake allegations of bribery on social media, and the creation of fake accounts on X (formerly known as Twitter). The Kenyan case discussed below is a significant example of how courts dealt rapidly with a campaign on information integrity that made its way into the courtroom to underpin wider societal trust in the election results and likely help avert wider conflict.

Willam Ruto was declared the winner of Kenya’s presidential election by a margin of less than 2 percent of the vote. Shortly before the Chairperson of the Independent Electoral and Boundaries Commission (IEBC) officially announced the result, four IEBC commissioners held a press conference and called into question the credibility of the entire election. Based on the press conference, the losing candidates and other petitioners then filed numerous lawsuits challenging the results. The cases claimed that “irregularities” and “interference,” including technology failures and “opaque” verification processes, caused an inaccurate vote count, and called for cancellation of the election.  The Supreme Court joined these petitions into a single case, Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated).
In its judgment, the Court systematically dismissed the petitions, citing lack of evidence for the various claims and noting in particular that illegalities and irregularities in the vote count must be of such magnitude as to affect the final result of the presidential election: “[T]he four Commissioners had not placed before the Court, any information or document showing that the elections were either compromised or that the result would have substantially differed from that declared by the chairperson of IEBC.”  Given petitioners’ reliance on the public declarations of the four commissioners for their cases, the Court’s observation represented an insurmountable obstacle for the petitions. Issuing a point-by-point refutation of the petitioners’ arguments built a case for strong, well-reasoned judgments dismantling the narratives that fueled the post-election results process (see text box for similar case in Nigeria ).

Significantly, the Court delivered its judgment less than one month after the results of the election, and within the legal deadline of 14 days from the filing. This swift resolution of the dispute was a crucial element in countering the attacks on the integrity of the elections and bolstering citizens’ trust in the democratic process – but it required a well-resourced court to meet the short deadline. In its judgment, the Court specifically cited the “inappropriate and insulting language” that counsel and parties used against the Court and that “… insults or vitriolic attacks” were not helpful. After citing previous Kenyan case law, the Court summarized its robust response to these insults, noting:

“To the Oath of Office we shall remain faithful and defend the Constitution with a view to upholding the dignity and the respect for the Judiciary and the judicial system of Kenya. We shall dispense justice without any fear. We do this to protect the Institution not only for the present but also for the future: Judges serve their term and leave, but the institution of the Judiciary is there to serve today and for posterity.”

While the Kenyan judgment shows the benefit of swift and robust post-election judgments, courts must often rule quickly on these issues in the run-up to an election. Various states have developed summary proceedings that provide a framework for courts to adjudicate rapidly on issues that come before them during the election period. However, such swift adjudication processes should not come at the expense of fair administration of justice, complete with a thorough investigation and adequate due process guarantees. 

Under France’s 2018 false information laws,  a summary judge can stop the spread of false information being disseminated online in a “deliberate, artificial or automated and massive manner” during the three-month election campaign period for certain national general elections if the information is “likely to alter … the sincerity of the upcoming election.”  In the interest of combatting false information, the oversight body for media content, the French Audiovisual Council (Conseil Supérieur de l’Audiovisuel), also has investigative and administrative sanction powers and can temporarily suspend broadcasting in France (or broadcasting by a television channel controlled or placed under the influence of a foreign State) for the duration of the electoral period. However, these proceedings taking place under extreme deadlines will require adequate resources to ensure the laws can be enforced.

In its 2019 decision VIEU et OUZOULIAS v. Twitter International relating to European Parliament elections, the High Instance Tribunal ruled that it could not order Twitter to remove a misleading tweet under France’s false information laws. A government minister tweeted about demonstrators violently assaulting personnel in a public hospital, although it was established that the demonstrators had not engaged in any violence on the premises. The Tribunal found that the minister’s message, although exaggerated, related to actual events; thus, it was not manifestly inaccurate or false. Moreover, there was no proof of artificial or automatic dissemination of the tweet, and news outlets quickly published statements and interviews refuting the violence alleged by the tweet, enabling voters to remain informed.  The summary judge ruled on the need for an urgent measure to stop the dissemination of a tweet, but this was not a specialized election judge and they did not act as an arbiter of the fairness of the electoral campaign. While this new civil summary judicial procedure can provide for an effective and quick remedy during a campaign or close to Election Day, critics also questioned its potential misuse, its implementation and enforcement, and whether a summary judge would have time to make such a determination within 48 hours.

Rapid and summary judgment can be effective to remove harmful content or sanction responsible actors and ultimately protect the integrity of elections. But these proceedings require preparation and adequate financial and human resources to provide such remedies expeditiously. 
 

In some jurisdictions, courts have been so concerned about the potential impact of disinformation campaigns that, in cases brought before them, they have imposed significant sanctions against the individuals behind those campaigns. For instance, the controversial 2022 Brazilian presidential election gave rise to several legal challenges on the results. Even before the election period began, former President Jair Bolsonaro claimed, without evidence, that Brazil’s electronic voting machines were vulnerable to hackers and fraud. After losing his campaign for re-election, Bolsonaro began claiming publicly that the system was “rigged”, and the election had been stolen from him. 

The Superior Electoral Court ruled in Civil Petition No. 0601958-94.2022.6.00.0000 that Bolsonaro’s claims lacked sufficient evidence and therefore held that they had been made in “bad faith.” The Court also pointed to Bolsonaro’s conduct, stating that it was “extremely serious, with wide repercussions, including … several narratives … that questioned the fairness of the electoral process before this Superior Court, which irresponsibly boosted criminal and anti-democratic movements.” The Court enforced a fine of R $22.9 million (about USD $4.3 million) against Bolsonaro’s political party coalition for litigation in bad faith. Additionally, the Court held that “the challenge to the vote appeared aimed at incentivizing anti-democratic protest movements and creating tumult”  and ordered an investigation of the party’s president.  

After continued claims of a rigged, stolen election and attacks by Bolsonaro’s supporters in Brazil’s National Congress, Supreme Court, and Presidential Palace on January 8, 2023, the Superior Electoral Court barred Bolsonaro from running for office for eight years. Referring to Bolsonaro’s claims, President of the Court Alexandre de Moraes stated in Electoral Judicial Investigation Action 0600814-85.2022.6.00.0000, “These are not possible opinions, they are fraudulent lies.” Minister Benedito Gonçalves was the first to vote against Bolsonaro; he noted that the former president was directly and personally responsible for practicing “illegal conduct for the benefit of his candidacy for re-election.”

Lawyers have brought a significant number of cases before the courts without any supporting evidence; some have involved insulting language and attacks by courts and lawyers against each other. In the United States, this proved particularly problematic in a series of cases following the 2020 presidential elections. Much like the Kenyan Supreme Court, U.S. courts have pushed back against such attacks on them. The cases discussed below illustrate how courts sanction attorneys who bring frivolous lawsuits in hopes of deterring similar cases in the future.
Influential lawyer and former New York City Mayor Rudolph Giuliani made numerous false and misleading statements to courts, lawmakers, and the public regarding the legitimacy of the 2020 election results after his client, Donald Trump, lost to Joseph Biden. In light of those statements, the Attorney Grievance Committee for the First Judicial Department in New York State opened an investigation into Giuliani’s conduct. During the investigation, the Grievance Committee made a motion for Giuliani’s interim suspension from the practice of law – a “serious remedy” available only when it is “immediately necessary to protect the public from the respondent’s violation of the [New York] Rules [of Professional Conduct].”  Giuliani argued that there was no immediate threat to the public because he would no longer discuss the subject in public or make statements about the election as an attorney. 

The Supreme Court of New York, Appellate Division, agreed with the petitioner in Matter of Giuliani, holding that Giuliani made the false statements to “improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.” Pointing to Giuliani’s “persistent and pervasive” dissemination of false claims, the Court stated that “[t]he seriousness of respondent's uncontroverted misconduct cannot be overstated.” The Court held that an interim suspension of Giuliani from the practice of law was warranted, given that his conduct was ongoing and posed an “immediate threat of harm” to the public by “corroding public trust in democracy.” The holding did not implicate Giuliani’s freedom of speech because attorney speech is subject to regulation to protect the public from potential reliance on a legal professional engaging in knowing misconduct.  

Relatedly, in July 2023, a District of Columbia Bar Association disciplinary committee recommended Giuliani’s disbarment because of his efforts to overturn the 2020 election results. The Bar Association relied heavily on the Matter of Giuliani case when filing this disciplinary charge. The committee decided unanimously that Giuliani’s misconduct “sadly transcends all his past accomplishments” and that it was “unparalleled in its destructive purpose and effect.”  

Similarly, lawyers representing a Michigan voter in the 2020 U.S. presidential election made false and misleading statements in King v. Whitmer, a case challenging the election results in Michigan. Petitioners claimed that the defendant, Governor Gretchen Whitmer (among others), “fraudulently and illegally manipulate[d] the vote count to make certain the election of Joe Biden as President of the United States.” The United States District Court for the Eastern District of Michigan held that the suit represented a “historic and profound abuse of the judicial process” and the claims were “intended to deceive” without regard to law or evidence. The Court determined that sanctions were warranted for advancing those claims, failing to conduct proper inquiry or investigation, and improperly delaying proceedings even after acknowledging that it was too late to attain the relief sought.  The Sixth Circuit Court of Appeals later overturned the sanctions for improper purpose, ruling that contesting election results is not an improper reason to bring suit, but it upheld the sanctions for false and misleading statements.  

In a purported class action lawsuit on behalf of 160 million registered voters, lawyers representing a Virginia voter (among others) in the 2020 presidential election promoted claims of a “vast conspiracy” between state governors, secretaries of state, other election officials, Facebook, non-profit organizations, and Dominion Voting Systems to “interfere” with the election. The U.S. District Court for the District of Colorado, in O’Rourke v. Dominion Voting Systems, dismissed the suit for lack of standing and later enforced sanctions against the plaintiffs’ attorneys. The Tenth Circuit Court of Appeals upheld sanctions totaling USD $186,922.50, citing “intentional or reckless disregard of the attorney’s duties” where the attorney(s) “continu[ed] to pursue claims after a reasonable attorney would realize they lacked merit.” The Court of Appeals further stated that the attorneys “unreasonably and vexatiously multiplied the proceedings … without showing that the Plaintiffs had standing to bring their claims.”  

At the July 2023 Electoral Integrity Project Summer Conference, when asked about the type of sanctions imposed for frivolous claims in the United States, one judge explained that:

“Disciplinary actions against lawyers is a good thing … If you don’t have evidence, don’t bring it to the courts …  Lawyers need to have facts behind them before bringing a lawsuit … We are not going to encourage the state to respond to frivolous case[s].” 

Those words echoed throughout the rulings in the four cases mentioned above and strengthened the argument for sanctioning lawyers who have continued to advance attacks on the integrity of information in election cases. 
Sadly, lawyers and other officers of the court have also been central to many disinformation campaigns directed at the judiciary. This means outreach and coordination by judiciaries with bar councils and other ethics bodies will be increasingly needed. As noted by Jennifer Rubin, a lawyer and Washington Post columnist, in a webinar on disinformation for the National Center for State Courts (NCSC), actors attempt to weaken trust in the judiciary in many ways, often by spreading disinformation, and:

“It really requires a very robust response, not only in the context of some kind of prosecution or civil lawsuit but in terms of the professions themselves that have to insist upon a level of accuracy, of honesty, and really need to impress upon people who are part of their profession that their role in leading the public discourage is absolutely vital to our national health, to our democratic health, and without it, we really devolve into chaos.” 

Rubin added that, to combat disinformation in court, “every profession has to police their own.” Courts should hold litigants and lawyers accountable for initiating cases involving baseless and frivolous claims by imposing sanctions and, therefore, deterring future violations while simultaneously guaranteeing the proportionality of remedies. Additionally, bar associations should remind their lawyer members of the legal code of ethics and consequences in cases of misconduct. 

In England, the Bar Standards Board (BSB) in September 2023  revised its 2017 guidance for barristers using social media. The guidance updates the types of behavior that would be breaches of barristers’ professional ethics, specifically citing comments on social media that would be of “… indecent, obscene, or menacing character or which are gratuitously abusive [emphasis added]”  and further “[c]omments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a sound factual basis. [emphasis added].” 

As the case law discussion demonstrates, courts are moving to impose serious fines and other sanctions on lawyers who bring frivolous cases to court. If justice is to function smoothly, good relations between lawyers and judges are absolutely vital. While professional bodies will continue to revise and update professional codes of conduct, judges likely will have to continue delivering stern sanctions to lawyers who act outside the bounds of professionally expected conduct, particularly when supported by powerful political actors.