This is a curious development that took me by surprise.
In this story yesterday I covered the fourth order issued by Judge Timothy Batten in the case filed by Sidney Powell and Lin Wood, in which Judge Batten authorized the taking of an “interlocutory appeal” to the Eleventh Circuit Court of Appeals with respect to his Order securing the Dominion voting machines.
As you can see from the headline, I assumed it was the State Defendants who wanted Judge Batten’s final order to be reviewed by the Appeals Court.
Judge Batten’s order was not specific as to which party had sought authorization to file an appeal of his order, and today it was revealed that it was the Plaintiffs who filed a Notice of Appeal.
Recall that the sequence of events was that Judge Batten first issued a Temporary Restraining Order to the State of Georgia that all the Dominion voting devices be preserved in their current conditions, and that the results of the November 3 election not be “wiped” from the software as the State indicated it was about to do in preparation for the upcoming runoff contests.
Several hours after entering his TRO, Judge Batten reversed himself based on representations made by the State Defendants that the Dominion voting devices were in the custody and control of County Election Boards, and the State Officials lacked authority under Georgia law to issue them any instructions like those ordered by Judge Batten in his TRO. Since the County Officials were not named as Defendants, Judge Batten ruled that he lacked authority to direct them to take any action, and the order he issued against the State Defendants was ineffectual since they did not control the machines.
After that Judge Batten convened an emergency Zoom hearing, and after hearing from both sides — based on the representation of Powell and Wood that they would amend their complaint to name the members of the Cobb, Gwinnett, and Cherokee County Boards of Election as defendants — Judge Batten ordered that the Dominion devices in those three counties be preserved for inspection and testing by experts for the Plaintiffs.
What seems to be happening is that the Plaintiffs want to “test” Judge Batten’s view that he lacks authority to order preservation of the Dominion voting devices unless County Election Officials in each county holding the machines are named as Defendants. The Notice of Appeal states that Judge Batten’s view of his jurisdiction would require them to name 600 state and county officials in order to get a TRO preserving the Dominion voting devices in their current condition. Judge Batten’s order seems somewhat “friendly” to the idea of having the Appeals Court clarify the extent of his jurisdiction, as he noted in his order yesterday that the answer to the question by the Appeals Court might significantly influence the way in which he handles the matter. Reading between the lines — and taking into account his first Order — I think Judge Batten would like to have affirmation from the Appeals Court that he can — through the State Officials — order the preservation of the Dominion voting devices without having the Plaintiffs name 600 officials as defendants.
Judge Batten issued an Order after the Notice of Appeal was filed taking off calendar the evidentiary hearing he had set for November 4 based on the expectation that the proceedings in the 11th Circuit would still be ongoing. He did make one ominous observation in that order:
If the Court of Appeals disagrees with the plaintiffs, it will dismiss their appeal, whereupon this Court will probably need to reschedule the hearing presently set for Friday, December 4 (since the parties’ briefs, due tomorrow and Thursday, probably will have not been filed). Any delay in conducting the hearing on the claims in Plaintiffs’ complaint would be attributable to Plaintiffs—not this Court—since Plaintiffs are
the ones who filed the notice of appeal.
The Court can read the calendar, and recognizes that this one-week sojourn to the 11th Circuit is taking precious days away from what might be accomplished in the district court. If the time comes that relief can no longer be afforded to Plaintiffs simply because there is no more time, the Court is noting that it is Plaintiffs who have made the decision to take this appeal.
The Plaintiffs have proposed an expedited briefing schedule with the Appeals Court according to which they will file their opening brief by midnight on December 2, and the Defendants will file their Opposition brief before midnight on December 4.