On Friday afternoon a Nevada state court judge in Carson City ruled in favor of the State of Nevada and against the six GOP Electors named for President Trump, holding that the Plaintiffs had not proven that fraudulent ballots were cast in a number sufficient to change the outcome of the election.
The Judge’s opinion is a good example of the problems that confront plaintiffs in an election challenge such as the one the Trump Campaign and surrogates have been waging over the validity of mail-in ballots — all the evidence rests in the hands of the opposition. The time frame allowed for an election contest in state statutes NEVER considered the circumstances where hundreds of thousands of ballots were submitted by mail, the process for validating those ballots rested with local officials — often partisan local offices — and the witnesses who might offer pertinent and admissible first-hand testimony are almost all employed by the opposing party in the case.
The complaint was filed on November 17, 2020. The Nevada Judge authorized 15 depositions to be taken by each side and set the hearing for December 3. As a trial attorney with more than 30 years of experience, it is a mystery to me how Plaintiffs could be expected to identify witnesses, gather evidence, take depositions, and make an orderly presentation of the same in an evidentiary hearing in just 16 days — with a holiday in the middle. It is simply not possible — but that is not the fault of the Judge. This physical impossibility is created by the circumstances of modern voting with mail-in ballots. The final vote count in Nevada wasn’t even certified until November 16, and the complaint was filed the next day.
The Judge’s opinion faults the Plaintiffs for not presenting evidence before the Court in a format required by the election contest statute. Normally such evidence would be in the form of deposition transcripts where both sides had examined and cross-examined the witnesses, and through live witness testimony at the hearing. But the best the Plaintiffs were able to offer under all the circumstances confronting litigation attorneys in the age of COVID were affidavits which the Judge called largely “self-serving.” He noted that such affidavits are hearsay, and the use of such affidavits defeats the intention of the election contest statute which is to make sure witnesses are confronted and cross-examined by the opposing side.
Nevertheless, even with this evidentiary shortcoming, the Judge stated that he would consider the information in the affidavits as part of the “totality of evidence” presented in the case.
The Judge rejected the expert opinions of all three experts presented by the Plaintiffs as they could not validate or verify the source of data they relied upon in reaching their conclusions. That takes me back to the issue I raised above — all the most pertinent data rests in the hands of the State of Nevada in the form of voter registration information and signature samples used to match a mail-in ballot to a bona fide registered voter. Laypersons might not recognize the subtle “dig” at the Plaintiffs’ case, but experienced trial attorneys clearly see the “rebuke” from the Judge in the following statement by him:
“Dr. Herron’s testimony [that there was no fraud] is buttressed by Contestants’ own expert witness, Mr. Gessler, who also testified that he had no personal knowledge of that any voting fraud occurred in Nevada’s 2020 General Election.”
When the Judge cites your expert witness for the proposition that the underlying premise of your complaint has no substance, the Judge is publicly mocking you for having wasted his time.
But, exactly how would Mr. Gessler be expected to obtain “personal knowledge” of voting fraud without having the evidence in the possession of Nevada and Clark County from which THEY made the determination that they counted only valid ballots?
The opinion continues along in pretty much the same tone, faulting the Plaintiffs’ claims for being little more than allegations and theories without substantive evidence to support them, and doing so without ever acknowledging the practical reality that all the substantive information is safeguarded by the opposition.
There were several other developments on the legal front through the course of the day on Friday, all of which seem to be a collective signal from the Judiciary that “enough is enough,” and the outcome of the election has now been ordained.
Over the weekend I’ll try to put together a rundown of events of the past 48 hours, and where I think the litigation pathway now leads.