Earlier today I traced yesterday’s sequence of events in federal district court in Georgia that led to the issuance of a TRO by District Court Judge Timothy Batten, whereby he directed officials in Cobb, Gwinnett, and Cherokee Counties to not take any action to alter or delete electronic data stored on the Dominion voting system machines that were used in the Nov. 3 election. Judge Batten reserved, for now, the question of whether to allow the machines to undergo forensic examination by experts hired by the Plaintiffs in the case and gave the State and County Defendants until Wednesday to file legal opposition to the Plaintiffs’ request that he allow such an examination.
Late in the afternoon on Monday, Judge Batten issued another order which is likely confusing to non-attorneys — he authorized the State and County Defendants to appeal his TRO to the 11th Circuit Court of Appeals, in order to resolve a particular question of law that might implicate the legal basis of the TRO he has entered.
Earlier in the day, the Democrat Party of Georgia sought leave to intervene in the case, and filed a proposed motion to dismiss. Among the grounds raised in the motion is that the Plaintiffs — the electors selected by the GOP to attend the Electoral College on behalf of Pres. Trump had he prevailed in Georgia — lack standing to pursue the claims raised in the complaint. In addition, the motion claims that Georgia state law bars election contest matters from being litigated in federal court.
There is no filed request for permission to file an interlocutory appeal yet available from the District Court’s ECF system that I can find. So it is uncertain at this point what question of law Judge Batten has identified that might dictate his course of action here depending on the outcome of an appeal to the 11th Circuit, as he does not specify what it is in his order.
Generally speaking, only “final” orders are appealable. This is to prevent piece-meal appeals of individual matters from an ongoing case. Once a “final” order in the case is entered, all matters which have been “preserved” by way of objection may be subject to an appeal.
If during the course of the litigation, however, the district court judge identifies a particular legal issue which is disputed between the parties, and resolution of that issue will significantly impact the course of the proceedings in the trial court, the district court judge can authorize the taking of an “interlocutory” appeal in order to get a decision from the appeals court on the issue in question.
It is possible that Judge Batten wants the Appeals Court to decide the question of standing on the part of these particular Plaintiffs, especially in light of the fact that another judge in the same court dismissed an earlier action brought by attorney Lin Wood, with himself as named Plaintiff, on the basis that simply as a voter in Georgia, Wood lacked standing to pursue the claims he raised. The Complaint before Judge Batten has many of the same claims from the earlier case, but the Plaintiffs are no longer just voters like Wood — they are the losing “electors” who would have voted for Pres. Trump in the Electoral College.
If the 11th Circuit rules that the Electors lack standing, then Judge Battan will dismiss the case with no further proceedings.
But if the 11th Circuit finds they do have standing, then Judge Battan will need to go forward with making a decision on the motion to allow inspection of the Dominion voting system.
One unmistakable fact that can be taken away from this saga is that the State and County Defendants — and now the Democrat Party of Georgia — really don’t want the Plaintiffs’ experts to have a chance to examine the Dominion system and devices.