Federal Judge Orders Voting Machines in Three Georgia Counties to be Subject to Expert Examination in Powell Lawsuit

AP Photo/Jacquelyn Martin

There was a flurry of legal activity during the course of the day on Sunday regarding the status of Dominion voting machines in Georgia, and efforts by the Plaintiffs in the lawsuit brought by Sidney Powell and Lin Wood to have them preserved in their present condition until Plaintiffs’ experts could examine them.

Apparently, at some point, the Plaintiffs learned that all devices in Georgia are going to be “wiped” clean of data in preparation for the upcoming run-off elections scheduled for the first week of January 2021

In response, Plaintiffs filed an emergency motion with federal District Judge Timothy Batten seeking an emergency temporary restraining order directing Defendants to maintain the machines in their current condition until such time as they could be subjected to examination and testing by Plaintiffs’ experts.

“Plaintiffs contend that Union County officials have advised that they are going to wipe or reset the voting machines of all data and bring the count back to zero on Monday, November 30.

To the extent Plaintiffs seek a temporary restraining order to preserve the voting machines in the State of Georgia, and to prevent any wiping of their data, their motion is granted. Defendants are ordered to maintain the status quo and are temporarily enjoined from wiping or resetting any voting machines until further order of the court.”

Later in the day, Judge Batten issued a second order which reversed his first order.

“Plaintiffs’ request fails because the voting equipment that they seek to impound is in the possession of county election officials.”

“Any injunction the court issues would extend only to defendants and those within their control, and plaintiffs have not demonstrated that county election officials are within defendants’ control. Defendants cannot serve as a proxy for local election officials against whom the relief should be sought.”

It is likely that the first Order was issued without notice to the State Defendants, or an opportunity is given to them to be heard given the exigencies of the matter.  But, after the first Order was entered, and not wanting to be blamed for actions they could not control, the State Defendants sought reconsideration from Judge  Batten by making him aware of the current status of the machines and who was in control of them for purposes of “wiping” them clean.  That led Judge Batten to reverse himself on the basis that officials from the Counties in possession of the machines were not named as defendants in the case, and as such he had no jurisdiction to order them to act or not act in any particular manner.

But that was not the end of the matter as it turned out.

Plaintiff’s applied a second time for emergency relief, and the Court conducted an emergency hearing via Zoom.  To address the issue of jurisdiction over county election officials, Plaintiffs’ counsel told Juge Batten that they would be amending their complaint to name the members of the Election Boards from Cobb, Gwinnett, and Cherokee Counties as Defendants.  They asked that machines from those three counties by the subject of his Order and that the Court order that the machines be provided to Plaintiffs’ experts for examination and inspection.  That process will be videotaped, and experts or other representatives of the Counties and State Defendants can be present to observe.

The State Defendants objected on the basis that the Dominion machines ran proprietary software, and examination by experts would likely result in the discovery of “trade secret” information. But the Plaintiffs offered to enter into a protective order to cover any such information, which is the standard method used in such circumstances.

On the basis of those conditions, Judge Batten granted the Plaintiffs’ request and ordered that machines from the three counties be preserved in their current condition.  He gave the State Defendants until Wednesday, December 2, 2020, to file legal authorities in opposition to the request by Plaintiffs to have the machines inspected and tested by Plaintiffs’ experts.  The Order is good for 10 days.

This is typical of a “TRO” proceeding, which generally proceeds with only notice to the Defendants, but without their opportunity to file legal authorities in opposition to the request.  Judge Batten has now given them 72 hours to file such opposition papers. Normally an evidentiary hearing on a motion for preliminary injunction will take place at the end of the 10 day period — or earlier if the Court and parties are prepared.

Questions were asked last night on Twitter when the latest events happened why only the three counties, and why Fulton County was not included.  My guess is that the Plaintiffs are only seeking to preserve enough evidence to make their case and that the three counties singled out were the ones where the expert forensic analysis has shown the most questionable instances of activity on November 3 and 4 while the election results were being tallied through the Dominion system.  Not only do they want to inspect any data that remains on the machines, I expect that the experts will use the machines to demonstrate how they believe the vote totals were altered in ways that were not apparent or easily detectable by audit given the architecture of the software.

If they can convince Judge Batten that they are likely to prevail on the merits of their fraud claim at trial, that would — for the most part — justify the entry of a preliminary injunction preventing Georgia from naming Electors for Joe Biden.