Understanding the head-spinning series of court orders in Georgia
By Andrea Widburg
If you're wondering what happened in Georgia on Sunday, you're not alone. A federal district court issued three different orders about county officials' plans to wipe Dominion voting machines. Thankfully, the last order gets it right and stops Georgia officials from erasing information on voting machines at the heart of the debate about election fraud.
Word went out that Georgia officials were wiping Dominion voting machines in Fulton County, ostensibly to prepare them for the run-off election, which is more than a month away. In Coreco Ja'qan Pearson, et al. v. Brian Kemp, et al., a lawsuit seeking to stop Georgia from certifying the election, the plaintiffs filed an emergency request for injunctive relief to stop the deletions.
Judge Timothy C. Batten, Sr. issued an order stopping Union County officials from wiping voting machines:
In addition, 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 of the State of Georgia, and to prevent any wiping of data, their motion is granted. Defendants are ordered to maintain the status quo and are temporarily enjoined from wiping or resetting any voting machines in the State of Georgia until further order of the Court.
This was an appropriate order. The point of injunctive relief is to stop irreversible actions that could negatively affect material issues in a lawsuit.
An hour later, Judge Batten reversed his order because plaintiffs had not named the county officials who controlled the voting machines:
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. [snip] Therefore, to the extent Plaintiffs seek emergency relief to impound and preserve the voting machines, that request is denied.
Lin Wood, upon learning of the order, asked the appropriate question: "Why are GA officials determined to wipe these machines clean [by] resetting them?"
At this point, Lin Wood's counsel in a different matter filed a "spoliation letter." I discussed that doctrine here.
Briefly, the spoliation doctrine holds that, when a party to litigation, a person or entity who knows that litigation is possible and imminent, or a person constrained by law, destroys documents, that destruction creates the automatic presumption that the evidence so destroyed proved the liability or guilt of the person or entity who carried out that destruction. Put more simply, only someone guilty would destroy evidence.
In the letter, Wood's attorney put the defendants on notice as to the evidence they will be expected to make available as the litigation continues.
Meanwhile, in Pearson v. Kemp, things were looking grim. However, late in the evening, Judge Batten reversed himself again. In his third (final?) order, Batten summarized the parties' arguments.
The plaintiffs said that they would amend their complaint to add the county officials, which would address the court's concerns about jurisdiction. The defendants, who do not include Dominion, said "allowing such forensic inspections would pose substantial security and proprietary/trade secret risks to Defendants." I'm probably missing something here, but why would Georgia government officials be claiming "proprietary/trade secret risks" in the Dominion voting system?
Plaintiffs' counsel countered that defendants could record any forensic analysis. Afterward, the information would not be released but would be subject only to the court's review (in camera review). This is the norm in cases involving trade secrets and proprietary information.
Judge Batten decided he needed more information. He gave the defendants until Wednesday, December 2, at 5 P.M. to file a detailed brief explaining their concerns. In the meantime:
Defendants are hereby ENJOINED and RESTRAINED from altering, destroying, or erasing, or allowing the alteration, destruction, or erasure of, any software or data on any Dominion voting machine in Cobb, Gwinnett, and Cherokee Counties.
It took three tries, but, for the time being, the court finally got it right.
One more thing: Lin Wood is among those advising Georgia conservatives to boycott the January 5 election in the Senate runoff. I'm with Trump that this is bat–fecal matter crazy:
Until the fraud is proven, the elections are going forward, and it's imperative that conservatives turn out in full force.No, the 2020 Election was a total scam, we won by a lot (and will hopefully turn over the fraudulent result), but we must get out and help David and Kelly, two GREAT people. Otherwise we are playing right into the hands of some very sick people. I will be in Georgia on Saturday! https://t.co/1ziqFq9S6O
— Donald J. Trump (@realDonaldTrump) November 27, 2020
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-Tex