What Is the End Game for the Litigation Strategy in Georgia?

AP Photo/John Bazemore

Let’s begin with a simple observation — no single district court judge and no three-judge panel of a federal circuit court of appeals is going to enter an order that reverses the outcome of a state’s reported vote count with regard to selecting the electors who will choose a President. Doing so would run contrary to the long-standing principle of not involving the Judicial branch in the outcome of disputes of a political nature involving the two political branches.

Lower courts will conduct hearings and receive factual evidence, but at the end of the process, it is almost a certainty that they will decline to exercise any authority to intervene — even in cases of fraud.  The point of view from the judiciary is going to be that such issues are capable of being resolved by the legislature and at the ballot box where offending officials can be punished and/or removed.  They use the “standing” requirement to avoid ruling on misconduct, finding that even if the allegations are true, the plaintiff in the matter generally doesn’t have a legal cause of action that he/she is authorized by law to pursue.  This is by necessity — imagine what would happen in federal courts across the nation if voters unhappy about their preferred candidate having lost an election could simply file a lawsuit asking federal judges to change the outcome, and every such lawsuit had to be considered on its merits.

It is not the role of federal courts to alter the math in order to change the outcome of an election as determined by the authorized state officials.  But that doesn’t mean that litigants will always be denied the opportunity to come into court and make a “record” regarding what they claim to have been misconduct on the part of state officials in carrying out their functions in the conduct of elections.

Georgia has conducted an election, and a risk-limiting audit of the electronic vote tally by doing a complete hand recount of all paper ballots cast.  Links to spreadsheets with the results of the recount can be found here.

The hand recount contained anomalies in several counties — paper ballot totals that did not match the electronic tally.  In some instances, the discrepancy was minor, likely attributed to human error in the hand recount process.

Three counties reported finding electronic storage media that contained votes not entered into the electronic tabulation following the close of voting on November 3, and one county reported finding 2600 ballots that were not scanned and included in the vote totals following the election.  Those four combined to add approximately 6000 votes to the outcome.

In looking at some of the recount totals, there are clear questions that need to be explored and the Trump Campaign should ask for the machine recount it is entitled to under Georgia law. The first reason to do so is the anecdotal evidence supplied in some of the affidavits filed in the Lin Wood litigation which questioned the integrity and accuracy of the hand recount process.

But the second reason to do so is that the hand recount totals show some of the big counties that have been the object of suspicion due to their late-night posting of massive numbers of Biden votes which put Biden over the top, show recount results that are unexpected based on logic and statistics. The counties at issue are in the metro Atlanta area and include Fulton, DeKalb, Cobb, Gwinnett, Clayton, Henry, and Rockdale.  Listed below is the vote percentage won by Biden, and the change the vote totals following the recount:

Fulton (73%):  Increase of 634 votes; +345 net vote gain for Trump

Gwinnett (58%): Increase of 1642 votes; +285 net vote gain for Trump

Clayton (85%):  Increase of 260 votes; +145 net vote gain for Trump

Rockdale (70%):  Decrease of 6 votes; +241 net vote gain for Trump

While these numbers appear quite small, when 3 out of 4 voters in Fulton County pick Biden, and you recount those ballots by hand, logic suggests that you are more likely to find changes that favor the larger number of ballots. The total vote count in Fulton increased by 634 votes — out of a hand recount of over 525,000.  Yet the “error” was that Trump closed the margin in Fulton County by 345 votes.

For that math to work, that means that Fulton County added 489 Trump votes, and 145 Biden votes.

So, a County that voted 73% of Joe Biden, found an error where 78% of the vote change went in favor of the candidate who received only 26% of the vote on election day.

In Clayton County, the recount produced an increase of 360 votes overall and an increase in the vote count for Trump of 145.  For the math to work, that means the 360 additional votes broke 252 to 107 in favor of Trump over Biden.

So, a County that voted 85% for Joe Biden, the recount produced additional votes that went 70% to 30% for Trump over Biden.

Rockdale is interesting for a different reason — it is much smaller than the other counties, with only 44,680 total votes.  The recount actually resulted in a total vote of 6 ballots fewer than the original count, yet Trump’s vote total in the County increased by 241 votes.  The only way that makes sense is if Biden votes from the election tally became Trump votes in the recount.  That is either an error in the recount, or an anomaly from the original vote that needs to be explained since the election night vote was an electronic tally of all scanned ballots — supposedly.

Gwinnett is similar to Fulton but in smaller numbers. The recount ended up with 1642 additional votes, and a net benefit to Trump of 285 votes.  The math says the 1642 additional votes broke 963 to 679 in favor of Trump. Gwinnett only voted for Biden 58% to 40%, but the additional votes went to Trump at a rate of 59% to 41%.

The other three metro-Atlanta counties ended up with more Biden votes, but in percentages that still meant that Trump overperformed in the recount compared to the election tally.

DeKalb (83%): Increase of 732 votes; +560 net vote gain for Biden

Cobb (56%): Decrease of 301 votes; +315 net vote gain for Biden

Henry (60%) —  Increase of 73 votes; +117 net gain for Biden

DeKalb County’s recount ended up with 732 additional votes total and a net gain for Biden of 560 votes.  That means the additional votes broke in Biden’s favor by 596 to 136 — a rate of 81-19%.  That would fit the overall voting pattern of the state, with DeKalb having been won by Biden with 83% of the vote.

But Cobb County has some explaining to do.  Its recount came up 301 votes short of the electronic tally from the election.  Yet Biden’s margin in Cobb County increased by 315 votes — meaning about 160 Trump votes became Biden votes in the recount.

Henry County had a gain of only 73 total votes, but Biden’s lead increased by 117 votes. So even if he received every one of the 73 added votes from the hand count, he still received another 44 votes that had to come from the electronic tally for Trump.

If you set aside Floyd County, which had the 2400 unscanned ballots which were left out of the electronic tally, there are no Trump counties that had an increased recount number greater than 100.  Setting aside the 2400 unscanned ballots, Henry County had only 64 additional votes in its recount.

The Trump counties are all much smaller than the metro Atlanta counties.  But only two counties won by Trump — Fayette (114), and Hall (120) — had a change in their hand recount of more than 100 votes.  In each case, the vote total in the recount increased, and the breakdown of the additional votes was roughly the same as the overall percentage of the two counties for the candidates on election day — which would be expected if the additional ballots from the recount were random.

Because the overall margin of victory was less than .05%, Trump is entitled to a machine recount under Georgia election law.

The litigation strategy should be to bring the recount issues to the attention of the public via sworn affidavits submitted in Court.  That is why the Trump campaign needs to file a federal suit in Georgia itself.  If some of the anecdotal information about recount anomalies is true, then a machine recount should reflect that — and there will be more questions about the validity of the outcome for the Georgia Legislature to consider, and for Gov. Kemp to consider in deciding whether to conduct an audit of the “signature matching” done by County election workers.