neurodivergence

Music Theory “Allowed” This Abomination and It Will Allow Yours

One of the most common questions I get from the composition-curious is “I want to do [insert melody, chord progression, etc. here], does music theory allow that?”

The short answer is always Yes.

Music theory isn’t prescriptive. It doesn’t tell you what you can and can’t do.

Music theory is descriptive. It takes existing music and tries to explain how it’s put together.

Some music is less complicated to explain. Some is more complicated to explain. Sometimes more than one explanation is available. But the music comes first; the explanation comes later.

For example, consider the worst song ever written. I’ll add a lead sheet here so we can all look at the same thing:

(This lead sheet is from Michael Kravchuk.)

By using this particular lead sheet, I don’t intend to imply this particular lead sheet/arrangement is a bad one. In fact, I chose this one because this is a good lead sheet for “Happy Birthday.”

My point is that even a good notation of “Happy Birthday” (as this one is) can’t save this abomination of a song, and music theory is powerless against it.

So. This…thing.

First things first: It doesn’t start on do (as in “donut”), aka the “tonic,” aka the “root,” aka “that one note everyone agrees should end and usually begin a song even if everyone sings like an owl trapped in a bucket.” Your ear knows what the root is even if your vocabulary doesn’t.

Here, the root is G. We know this from the key signature, which in this case is a single hashtag that has wandered away from Twitter:

Here, G is the note the song ends on, which you know if you’ve ever sung this thing in a bucket of owls. You know when the tune is over even if you know nothing else.

Sleeping through harmony class

The first chord in “Happy Birthday” is the root chord, aka “I.” The root chord, or I, is the chord whose lowest note (usually) is the root note, or “do,” or the “tonic” (it has a lot of names).

Here, we know the first chord is I because the music tells us so by putting the note name of the chord over the staff:

The G major chord is made of the notes G, B, and D. “Happy Birthday” starts on D, so that’s nice at least. But “birth” is sung on E, which isn’t even in the chord. So you’ll hear the root note but you won’t sing it, which is a terrible choice to make when writing a tune to be sung by people who usually avoid singing.

Musicology Moment: E is the relative minor of G, so your ear hears a relationship between the G in the chord and the E you’re singing even if it doesn’t appear on paper. The fact that this song invokes its own sad dark-sounding minor while pretending to be in a nice bright happy major key is called “foreshadowing.” It warns us just how painful this “music” will actually be.

The root is in the hole and the hole is in the ground and SO IS MY CORPSE

Most simple well-known tunes begin on the root. “When the Saints Go Marching In” begins on the root, for instance. So does “Mary Had a Little Lamb.” So does “Frere Jacques.” So does “Twinkle Twinkle Little Star,” aka “The Alphabet Song.”

Simple well-known tunes that don’t begin on the root usually get there pretty quickly. Also, they usually get there in a way that makes sense with the lyrics. “Hot Cross Buns” gets to the root on the third note, which is also the last word of the first phrase (“buns”). (Insert “buns” joke here.)

The chorus of “Jingle Bells” takes a little longer to get to the root. But the journey makes sense with the lyrics. “Jingle bells” and “jingle bells” are all on the same note. The third “jingle” repeats that note but adds a new one, to signal that the next word isn’t “bells.” The next word, “all,” is a brand new word – and it’s also the one sung on the root note. So the tune gets more interesting as the words do. That’s what makes “Jingle Bells” both easy to sing and easy to remember. (Sorry, parents of five year olds.)

In both “Hot Cross Buns” and “Jingle Bells,” the root is also the lowest note in terms of pitch. This is good. The ear likes the root to be the lowest note. This is why we call it the root.

When you’re writing a tune to go with words, your audience will like the result better if the tune makes sense with the lyrics in some way. So of course “Happy Birthday” does not.

Great expectations…disappointing results

“Happy Birthday” starts on sol, aka the “dominant,” aka the “5th.” (In the lead sheet above, the root is G, so the dominant is D. If the root was C, the dominant would be G. Google “tetrachords” if you want to understand why.)

Starting on sol isn’t so bad by itself. After the root, the dominant is the easiest for the human ear to pick out. The ear loves it some movement between the 5th and the root, especially at the end of a song. (More on this later.)

Make it make sense

But even though the human ear loves it some do-sol slash 1-5 relationships, it also wants them to make sense. As you know if you’ve ever heard a toddler bang on a piano, the difference between music and noise is order.

In “Happy Birthday,” is the root easy to find? Is it somewhere below the beginning note? Is it placed on a word where it makes sense, like the first or last word of a new phrase? Is it, in other words, in some order?

Of course not.

ell oh ell, as the youths say

The first instance of the root note, G, is on “to.”

In the middle of a phrase. A phrase where the concepts “happy,” “birthday,” and “you” are all more important than the preposition “to.” In fact, if you were to say “happy birthday you,” the birthday person would still understand what you meant!

Does your ear even realize this is the root? Maybe, but let’s be honest, probably not, because it’s floating around in the air a whole perfect 4th above that D we all started on.

Well, not everyone comes out of the corner swinging. Let’s try this again. In fact, let’s sing the exact same phrase a second time, just so we’re all on the same pa-

oh.

wait.

never mind.

Repetition makes sense, and we can’t have that

The second “Happy Birthday to you” has the same words, sure. But it doesn’t have the same melody. And just because birthdays are for crying, it’s not on the same chord, either.

Electrocuted with a frayed chord

The root chord, or the one with the root note at its bottom, is also known as I (that’s Roman Numeral I to you). The dominant chord, or the one with the fifth at its bottom, is also known as V (pronounced “five”).

I-V (“one-five”) is a pretty common chord progression. It’s the start of a I-V-vii-IV (“one-five-six minor-four”) progression, which is ridiculously popular in US music, across several genres.

Our ears dig that groovy vibe. More importantly for a song everyone is forced to sing several times a year, our ears know that groovy vibe.

I knew you were trouble when you plonked in

So does “Happy Birthday” give us that groovy vibe we dig so well?

NOT QUITE, BIRTHDAY MOPS.

Because this isn’t, strictly speaking, a V chord. It’s V7.

“So, what, like V-8 without the tomato juice?” I imagine you’re asking, even though you’re probably asking something much less silly.

A standard good old-fashioned chord is built by starting on whatever note the chord is named for and skipping every other letter (give or take) until you have three notes.

In the case of D, we start on D, skip E, add F (actually here it’s F# because this is D major but let’s just keep moving, this song isn’t going to trash itself), skip G, and add A.

If we numbered all this, we’d start on 1, skip 2, add 3, skip 4, and add 5.

A seventh chord takes one more skip and adds the seventh note up. For D major, that’s adding E.

Seventh chords are very popular, but for an unpopular reason. They’re popular because they add dissonance, or that sense that something isn’t quite right.

Musicology Moment: A regular chord is a good old friend you always invite to sleepovers. A seventh chord is that friend’s wild and untrustworthy cousin who is probably going to get you all into trouble, but at least you’ll have a wild middle-grade novel adventure along the way.

In any other standard folk song intended to be easy to remember and sing, I-V would make total sense. But this is “Happy Birthday,” a song everyone needs to sing at least once a year. So let’s just slap in that troublemaker 7th chord. It’s fine, the birthday child is not actually on fire.

Yet.

And then things get weird

Here’s the thing about 7th chords: They’re actually kind of a pain to play.

That’s because a proper 7th chord requires four notes, and four notes can be hard to squeeze out on some instruments.

Whether they’re easy for you on a piano depends entirely on the size of your hands. I have wee pixie fingers that haven’t grown since I was in fifth grade. The proper 7th chord on piano is my mortal enemy.

Why you little….

Fortunately for us digit-length-impaired individuals, there are many ways to fake a 7th chord. One of the easiest, when you’re going from I to V7, is to play I again but move the middle note from 3 to 4.

In this case, I’d play that G chord: G-B-D.

Then I’d move my middle finger a bit and play G-C-D.

It’s a lot faster and easier than moving my baby fingers of fury from G-B-D to D-F#-A-C. Trust me.

There is an impostor among us

In this hot mess of a “song,” however, there’s just one problem: G-C-D isn’t officially a D7 chord.

In fact, it’s not a D chord at all. It’s what we call a “sustained” chord. This one starts on G, so it’s G sustained, or Gsus (sometimes Gsus4).

Musicology Moment: Sus chords are so named because they are impostors – they are a type of I chord masquerading as a type of V chord. This is not true, but now you will never forget it.

So the options here are trainwreck the fingers or fake a task and hope no one notices. (You’ll notice I chose to vent.) Happy birthday to you indeed.

Oh, and why do we need that D-related chord at all? Because the first “you” ends on F# and the second “to” jumps to A, so that the second “you” can find the root note like we’ve been begging this song to do since it began.

If you’re even more confused now, you’re doing it right

“But wait,” I hear you say. “If that D7 chord is there to accommodate the F# and the A, why is it a D7 chord? There is no C? Which is the thing the D7 chord has that the D chord didn’t? In fact I don’t see a C in the first two lines at all? What is going on?”

Congratulations! You are now better at music than this song is.

The third “happy” lets us stay on that nice solid I chord. It feels like a victory. It is in fact a false sense of security intended to lull us into complaisance – sure, I’ll finish the song, how bad can it be? – before presenting us with the worst thing that can possibly happen to non-singers:

The leap between “happy” and “birth” is an entire octave.

I hope you didn’t come here to sing

Octave jumps are easy to hear but hard to sing. “Over the Rainbow” was an instant hit the moment Judy Garland went for that octave leap between “some” and “where” and absolutely nailed it.

And “Over the Rainbow” had the decency to start on the root note. “Happy Birthday” thinks you should just jump between sol and sol. Go on, it’s fine. It’s not like you’ll ever need to sing this twice, right?

All music theory can do is watch this happen

We switch chords again on the hapless birthday person’s name. But not back to D, even though there’s a big fat happy F# just sitting there waiting for us. Nope, we’re going to C, which in this case is the IV chord.

Do you see an F# in there? No, you don’t. Because there isn’t one.

I, V, and IV are in basically every song Western music has produced since the days of rugged manly wigs, heels, and silk stockings. But not like this. Dear God, not like this.

Somehow you’re also supposed to squeeze that IV out above I, even though your fingers are also trying to hold that E for as long as the piano’s sustain pedal will allow. Don’t ask me. I didn’t write it.

Maybe it sounds better upside-down

The next super exciting chord change is marked “G/D.”

Anyone want to guess? No? Isn’t music fun?

Lead sheets, aka “fake books,” often use the / to indicate an inversion.

Musicology Moment: Despite what those nice circus recruiters told you in high school, chord inversions are not actually easier to play upside-down.

Remember our nice solid ordinary chord, which is made up of the note the chord is named for, the third, and the fifth?

G major

An inversion is the same three notes, but it moves one or both of the bottom two up an octave to sit above the others.

Here, G is where we’re going to start: G-B-D. D is the note that wants to be on the bottom. So we’ll spread the fingers out a bit and grab D-G-B instead. (This is a second inversion, for those of you with dreams of appearing on Jeopardy! one day.)

Is this easy to get to from C? Eh. It’s not rocket surgery.

The worst part is that D-G-B tends to emphasize D, while the whole thing is sitting over a B. At least that B is in the melody.

Also, that G in the middle of the chord? You’re going to need that for the second note. While you’re already plonking it for the chord.

Unless you’re not, because you’re already getting ready to hit that next chord, which is D-F#-A-C if you’re feeling proper and you probably are because you’re pretty much already right there.

…Wait, did this song almost do something right?

No. No, it did not. Enjoy your one beat of D7 before you scramble back down to An Actual G Chord. I’d skip the whole thing if I were you.

Finally, the root note, “do,” the one note we’ve been looking for the whole time thank you it is finally over thank you.

There is a God.

Musicians do not get paid enough.

What was the point of all this?

Music theory did not prevent this abomination from becoming possibly the best-known, and certainly the most-often-sung, song of all time.

Music theory could not prevent this.

Believe me, music theory wanted to.

Music theory dreams of the day it can yeet this abomination into the ocean and produce a birthday song that is actually singable – maybe something that sticks neatly to do-re-mi-fa-sol and only uses real live I and V chords, in a neat pattern even the most deeply embucketed owl can sing.

Alas, that day will never come, for music theory can do nothing. Music theory can only describe what it sees. Even when what it sees is…this.

Now go compose something.

If this mess can become the world’s best-known song, imagine what your music can do.


Buy a musician a coffee or share this post on social media.

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How to Exist on Faith Alone

Like the cake, the post title is a lie. I have no idea how to do this, even though I’m currently doing it.

Last night, I Facebook’d the following:

In Richard Rohr’s The Universal Christ, p. 147: “In so doing, Jesus demonstrated that Reality is not meaningless and absurd, even if it isn’t always perfectly logical or consistent.”

One of the hardest, and yet most urgent, things I have tried to explain throughout this process is that I find myself, more than at any other time in my life, existing on faith alone. Specifically, faith that if I just keep going I will get someplace where I can make meaning again. Or as Allie Brosh put it, “Sometimes all you can really do is keep going and hope you end up somewhere that makes sense.”

It’s not the maudlin sunset-and-curly-script faith of sympathy cards or the cheery lip service faith of people who think waiting 25 minutes for restaurant service is a violation of their Constitutional rights. The faith required to exist inside this grief is not uplifting. It’s harrowing. My instinct is to warn people not to find it inspiring. I don’t want to be here, and I don’t want to mislead anyone into thinking this is a nice place to be.

I have no reason or evidence to suggest that “someplace that makes sense” on the other side of grief even exists. I only know that whatever has made getting there my imperative is itself inexorable. I call it faith because I don’t know what else to call it. If this is faith, it’s the first one I’ve ever had.

Allow me to expand.

(Image: Blog post title and URL with a road stretching into the distance.)

For most of my life, I’ve told people I don’t have a “faith.” For most of my life, I didn’t, at least as far as I and those asking understood the term.

As a child, the only time I heard about “faith” was when the word was used as shorthand for a demand that I accept some set of myths and doctrines as factually and literally accurate, regardless of any evidence in support of this stance. In fact, some people exhorting me to “faith” seemed to think that the less evidence supported their premises, the better – insisting some myth or doctrine was “true” without any basis was a virtue.

(In this context, I find the claim that “facts don’t care about your feelings” deeply ironic. The demand for faith as an adherence to alternative facts certainly cares about no one’s feelings, only about emotions as performance. But I digress.)

At some point in my late teens or early 20s, I started telling those who asked that I had no faith, because I had no use for gods I had not personally encountered (in hindsight, it was perhaps more accurate to say that such gods had no use for me). Plenty of people, “of faith” and otherwise, interpreted this stance as atheism, and I let them. It scraped off both the doctrine LARPers and the atheists who defined their lack of faith as rejection of doctrine LARPing.

It wasn’t atheism. But I didn’t know what it was. When the only definition of “faith” I had was “swallow this particular line of nonsense for no reason because doing it for no reason is what makes it virtuous,” what I did not have was a word for the deep and abiding imperative I felt to find meaning. Somewhere. Somehow.

I did a lot of “spiritual seeking” at this point in my life, and the two groups I found that seemed most driven by that deep imperative – that thing I couldn’t call “faith” because that word had been taken – were atheist Jews and Satanists. The former tended to have a close commitment to community and culture, while the latter overtly held that suffering sucks so we should try to help one another out or at the very least not make it worse.

Outside of these two groups, I saw over and over, in all kinds of religious settings, that to be “people of faith” meant to swallow a particular set of premises and then to go on living exactly as one had before, except with a new zeal for one’s personal prejudices and a new, deity-approved vocabulary with which to express them. The more zealous the use of the vocabulary, the “stronger” one’s “faith.”

In hindsight, I’m not surprised I had no faith.

I have always loved myth, metaphor and the language of storytelling, particularly the lyrical. I have never been able to accept any set of myths, metaphors, stories or lyrics as literally true, and certainly not with enough zeal to proclaim them the basis of doctrine. Like millions of people worldwide, I can recite the entire Apostles’ Creed without taking a breath, but it never changed my behavior, let alone my deep self. To this day I wonder how it could. What in any set of doctrinal premises is transformative?

I had no faith for a great deal of my life. That’s not to say I didn’t have a drive toward the spiritual. I did, and do, and it’s relentless. As long as I can remember, something in me has known that the transformative exists and has pursued it.

But while the drive toward the transformative is relentless, my willingness to give it its head has not been. I kept it on a back burner for many years. I’d love to apologize for that in both senses of the term – I had school, I had work, I got sick, etc. – but all those were incidental. Work, school and the rest were excuses and tools to manage deep-rooted fear, anxiety, and unprocessed trauma, both in myself and in others who made their issues my responsibility.

For years, I lived in a headspace where the survival imperative to protect the trauma that protected me competed with an equally strong imperative to find that which would transform my suffering, not end it or give me an escape from it.

I don’t consider it audacious to call that hell.

That I sought the transformative and not a means of escape is crucial here, because going through the suffering rather than running away from it was the opposite of the “faith” I was offered during this time. That faith promised an escape: will yourself into believing these particular premises hard enough, and all your problems will simply…vanish.

Yet even from the outside, I could see that the promise wasn’t only empty; it was a trap. That sort of faith, in which you tell yourself the opposite of what you’re experiencing is true, only “works” as long as you can perform being problem-less. The support of those who sold it to you is only there as long as you can perform being problem-less. When the problems return – and they will, because pretending you don’t have fear or pain or trauma never works for long no matter how you do it – those who sold you the “cure” will blame you for its failure and abandon you.

It happened to me. I saw it happen to several dear friends. There is no room for transformation in that kind of “faith.”

In the weeks and months immediately following the crash, I became even more hesitant than usual to talk about my religious or spiritual work with others, because so many people were there to sell me the quick fix – usually the Bible-flavored version. If I swallowed the premises hard enough – if I chewed on the doctrine and really meant it this time – my grief and its attendant pain would simply vanish. God would fix it. I’d be totally comforted by the idea that my husband is hanging out in some non-corporeal waiting room floating somewhere above the sky (the ISS, maybe?).

Or at least I’d stop being in visible pain where they could see. And for anyone offering a quick fix to deep-rooted pain, that’s the real problem.

I am increasingly disquieted by the ways in which the language of deep transformation that pervades the Gospels (in particular) has been co-opted as the vocabulary of the quick fix. The ability to do things like trust deeply in the divine follows the experience and transformation of suffering, it does not precede it. This, to me, seems like one of the most elementary lessons of Jesus’s death and resurrection, yet it’s largely missing – and those who use the words the loudest often seem to have experienced them the least.

I was not, and am not, interested in anything that simply erases my pain. Both the pain of my early trauma and the pain of losing my husband are rooted in love – in the deepest parts of me, in the source of the best person I know how to be. I haven’t always been that person, certainly, but to deny that pain on the pretense of escaping it is to deny myself. I’m not leaving without me.

My marriage was outwardly the least spiritual period of my life and inwardly the most spiritual. Also in The Universal Christ, Rohr talks about how all human relationships are, at their best, an experience that leads us deeper into an understanding of divine love. None of them are perfect, but all the best ones give us a glimpse of the love on the other side of the transformative.

That was what our marriage did for me. Though we didn’t discuss it in religious terms, we did discuss it: What we shared was a commitment to partnering with one another to sort out our own respective baggage, help one another sort theirs, and nurture the deep love in ourselves and one another. We saw in that deep love the best of who the other person could be, and our purpose toward ourselves and each other was to help that best thrive.

I never took it for granted, but I got used to it. To loving deeply; to transforming suffering; to seeing someone who embraced my ability to see them and whose natural, joyous response was to reciprocate that seeing.

And then I lost him.

None of the grief literature I’ve read or advice I’ve received so far talks about how to deal with that. The cheap “faith” advice is the worst of all, because it expects me to abandon that to lip service about an otherwise largely absent deity making me not feel its impact. But to do that is to abandon precisely that which endures about my husband, precisely that which matters most. I find the word “sin” even more loaded than the word “faith,” but abandoning the best of my marriage now would be a sin.

Of course, since I refuse to walk away from the sorrow, my only alternative is to live with and in it. And that’s hard. Having gotten used to loving someone that deeply, I don’t know how to turn it off – but I’m also at a loss where to put it. That kind of connection, romantic or otherwise, takes years to build.

And the loss of the person I had it with is precisely what prevents me, right now, from trying to build that kind of connection with anyone else. Right now, the grief prevents me from being present with others in the way I’d need to be in order to fully see them, as well as the way they would need in order to fully see me.

There are, of course, people who will happily soak up the incidents of that love – the behaviors and outward manifestations of it. I’ve had more than one buzzing around like a parched mosquito. There’s blood here somewhere, give it to me! But a one-sided, draining relationship was not what my marriage was. I didn’t discover deep joy in draining myself until there was nothing left (in fact it nearly killed me twice before I turned 30). I discovered it in suffering and transforming together with someone, where we were as committed to our own transformation as we were to one another’s – and we saw those as partnered endeavors in themselves, not as competing ones.

Disposing of love is easy. Building relationships that fire love into a transformative force is hard.

The reciprocity and deep love of our marriage gave my life meaning for a decade. Now I’m adrift. Nothing seems to have much meaning at all, and after more than five months I am only starting to be able to see a world in which I am able to make some kind of meaning at all.

What keeps me going, and has kept me going, is that same deep certainty that meaning exists. Somewhere. That if I can get through the pain of the moment rather than away from it, I can get to meaning. I can get “somewhere that makes sense,” as Allie Brosh puts it.

I have no evidence that this is the case. When I ask myself why I think that’s true, I can’t answer. When I wonder why I should do this and not any of the other highly limited options available (like, idk, lying down and dying), I don’t have an answer either.

If faith is a driving need to find a place to put all this love before I forget how, I found it.

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I Read King v. Whitmer and…Yikes

I’m reading the opinion in King v. Whitmer, and it’s a ride. If I’d been assigned this in law school, I would have refused to believe it was a real case.

Some of my favorite parts so far:

Image: blog post title and URL over notebook and textbook.

“Plaintiffs’ lawyers argue that no attorney can be sanctioned whose name appeared only in typewritten form.”

This is some sovereign citizen nonsense flavored horse paste, right here. Can they also not be sanctioned because they typed their names in all caps?

(Ask me to yell about the “sovereign citizen” movement sometime if you really want some entertainment.)

L. Lin Wood tries to claim he shouldn’t be sanctioned because he had no idea Sidney Powell put his name on the paperwork until he read about it in the newspaper. Yet “at no time between [January 5] and the July 12 hearing did Wood ever notify the Court that he had been impermissibly included as counsel for Plaintiffs in this action.”

Oh, and Wood tweeted on January 5, the day the motion for sanctions was filed, that it was unfair the City of Detroit was seeking sanctions against him. Fastest paper ever.

“[T]he Court finds it exceedingly difficult to believe that Rohl read an 830-page complaint in just “well over an hour” on the day he filed it.”

Even if Rohl is some kind of badass speed reader, the Court concludes, reading 830 pages the day of filing is not making a “reasonable inquiry” into the contents of what you’re filing. Especially when there are 830 pages of them.

(Would that we could get this kind of reasoning on 28 U.S.C. 2254(d)(1) IAC claims, but I digress.)

Heads up: Only spending “five hours” on a matter while working from home, or doing nothing at all but letting someone else put your name on a filing because they need someone with a Michigan law license and a pulse, won’t get you out of being sanctioned either, kids.

It’s like every lawyer on this thing thinks the best possible argument against “you filed an utterly frivolous claim” is “I’m too bad at lawyering to know better.”

Variation on a theme: Plaintiffs’ lawyers try various claims that a certain motion (the safe harbor motion) wasn’t sent to them properly – wrong address, wrong ZIP code, and so on. Yet the addresses used were the exact same ones the lawyers listed on their own filings.

“I’m so bad at lawyering I don’t even know my own address” is not the slam dunk these folks seem to think it is.

The test for when a district court can issue sanctions sua sponte is called the “Big Yank” test, after Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308 (6th Cir. 1997). I love this.

…Plaintiffs try to argue that Rule 11 prohibits courts from issuing sua sponte sanctions…by citing the part that says courts retain that power under Rule 11 (as long as they issue a show cause order).

YOUR LAWYERING IS BAD AND YOU SHOULD FEEL BAD

“In other words, Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector.”

I’m DYING

brb, going to stop paying taxes and go to space because I now subjectively believe I am a billionaire, and no court can stop me*

“Plaintiffs’ attorneys fail to provide a rational explanation”

This is basically the entire 110 pages.

“The fact that it was never shared suggests that counsel’s argument as to why the case had to be pursued after December 14 is contrived.”

I mean this not as a disparagement of the judge but as a big disparagement of these arguments: I’m beginning to think any parent of teenagers could have decided this case.

“The Court said it before and will say it again: At the inception of this lawsuit, all of Plaintiffs’ claims were barred by the doctrines of mootness, laches, and standing, as well as Eleventh Amendment immunity.”

For the non-lawyers, briefly:

  • Mootness: Whatever your issue was, it’s over in a way that means no court can do anything to fix it. If a court can’t do anything, it’s moot. (There are exceptions “capable of repetition but avoiding review” – pregnancy, for example.)
  • Laches: You waited so long to assert this claim that (even if it was a good claim once) you unfairly screwed over the other party. (And you probably did it on purpose, or at least you could have filed it at a time that did not unfairly screw over the other party.) Laches is a rarer argument than it once was because most equity claims are subject to statutes of limitations.
  • Standing: You’re the wrong person to bring this claim, usually because you’re not the one who has been harmed by whatever you claim the other party did.
  • Eleventh Amendment immunity: States cannot be sued by citizens in federal courts unless the state consents to the federal court’s jurisdiction. (There are tactical reasons a state might consent in some instances.)

I bet the arguments against each of these are hilariously inept.

…And their “strongest” precedent is Bush v. Gore, in which SCOTUS intervened to stop a recount and certify existing results, not to impound voting machines and disenfranchise 5.5 million voters in order to hand the election to someone who lost the count by 150,000 some votes. I’d ask “r u f’in srs rn” but I know the answer.

(That this comes after a lengthy argument from Plaintiffs about how certain other, unfavorable precedent cases are not “on point” because of some random detail in the facts is even more facepalm-y.)

“Plaintiffs’ counsel’s citation to Throckmorton is puzzling, both because the case relates to a nineteenth-century land grant and has nothing to do with election law and because the Supreme Court held that the grant could not be collaterally attacked on the basis that the judgment was procured by fraud.”

I’m actually dead. I have died. Of irony. And death.

Plaintiffs tried to argue that the election results could be challenged here because they’re fraudulent, and of course they are fraudulent because the Plaintiffs yelled it lots of times. But don’t take my word for it:

“Yet counsel’s citation to Throckmorton is enlightening in that it reflects, as the City puts it, “that this suit has been driven by partisan political posturing, entirely disconnected from the law” and “is the dangerous product of an online feedback loop, with these attorneys citing ‘legal precedent’ derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chambers.”

Apparently no court has accepted these claims so far. That’s a relief.

“Plaintiffs alleged that certain acts or events violated the Michigan Election Code when, in fact, they did not.”

When I worked at the law firm, I often got complaints that had already been marked up by one of the partners – my job, usually, was to draft an answer and/or what we called an “R&R” letter (stood for “review and recommendation”) we’d send to the insurer.

One partner was fond of writing “So?” beside every claim that did not drive toward the plaintiff getting what they wanted. My job was to translate that into a legal argument – but the basis was always So? (To this day, when I listen to any argument, I’m ticking off “So?” points in my head. Good arguments leave no “So?” hanging – great arguments never make a “So?” at all.)

This is the ultimate “So?” claim.

“The Amended Complaint further claims that Michigan election laws were violated because ballots that lacked postmarks were counted. But when the Court asked Plaintiffs’ attorneys whether Michigan absentee ballots must be received through U.S. mail—and therefore postmarked—to be counted, counsel went on about not being able to “rely on the Secretary of State’s guidance.” Noticeably absent from that response, however, was an answer to the Court’s question.”

YEAH, I’LL BET.

(Full disclosure: My 2020 Michigan presidential ballot did not have a postmark, because I shoved it through the slot in the wall at my township clerk’s office expressly marked by three separate signs that it was the absentee ballot dropoff slot.)

“At the July 12 hearing, Kleinhendler told the Court that it was “completely irrelevant” whether the conduct Plaintiffs claimed was violative of Michigan law was actually unlawful.”

i’m sorry what

“This is because, counsel argued, the conduct “raise[d] a suspicion” and what was significant was the mere chance for misfeasance to occur.”

These lawyers are literally advocating that a United Stated federal court acknowledge thoughtcrime.

I don’t often say a fellow attorney should be disbarred, but these attorneys should be disbarred. This is a disgrace to the nation, not merely the profession.

“Plaintiffs alleged that certain acts or events constituted violations of the Michigan Election Code when, in fact, Plaintiffs’ counsel failed to make any inquiry into whether such acts or events were in fact unlawful.”

So my crack up top about 28 USC 2254(d)(1) is a reference to how dastardly hard it is to get a habeas petition granted on the basis of a Sixth Amendment ineffective assistance of counsel claim. Tl;dr you basically have to show your trial lawyer did nothing.

This is the whatever-the-hell-is-going-on-here equivalent of that. “Failed to make any inquiry” is a big statement. Any. Not “sufficient” or “substantive” or “meaningful” or “thorough.” Any.

This isn’t “you didn’t study hard enough for your test.” This is “you skipped all your classes, never opened the textbook, and avoided everyone you knew who was taking or has ever taken that class.”

“The sanctionable conduct is not based on whether the facts described in the Gustafson Affidavit are true or false. What is sanctionable is counsel’s allegation that violations of the Michigan Election Code occurred based on those facts, without bothering to figure out if Michigan law actually prohibited the acts described.”

“You’re not being grounded because your little sister lied to us, dear. You’re being grounded because you repeated that lie without even bothering to find out if it was true or not.”

Plaintiffs, finally, argue they shouldn’t be sanctioned because they were acting in good faith – which I have to admit is a tough sell when most humans acting in good faith at least try to follow rules and find out if rumors are true before repeating them to anyone, especially to a federal court. Of course, the Court here is having none of this either:

“Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions.”

Wait – we can’t lawyer just by feeling good in our hearts about our clients? What? Oh my gosh, I totally knew that because I went to law school and also passed the MPRE!

“And surely Plaintiffs’ attorneys cannot fail to reasonably inquire into an affiant’s speculative statements and thereafter escape their duty to “stop-and-think” before making factual allegations based on the statements, simply because their expert did the same.”

Wait, we can’t just make shit up because we hired someone to make shit up? Oh my gosh, I totally knew that too because once again, I am a lawyer and also a reasonable adult human who would not have assumed I could lie to a court because it made my heart happy and also I paid another guy to do it!

(N.b. “stop-and-think” is a quote from the commentary on FRCP 11, not the court writing weirdly.)

A few paragraphs later, the court basically says that Plaintiffs’ lawyers would have been lawyering better if they had literally just Googled their expert’s “results.”

“It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact”

*insert entire Hamilton cast saying ‘DAMN’*

There is of course more, but I’m worn out after so many pages of ineptitude. I’m not sure what any competent lawyer will learn that we didn’t already assume every member of the profession knew, but it’s worth a skim for the popcorn factor, anyway.

.


*Full disclosure: I am not actually going to do this, because I am not this bad at lawyering.

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