A judge in Georgia has found for a group of election integrity activists who sued for the right to inspect ballots cast in the November 2020 election. State officials had been using obscure legal tactics to try and derail such a review.
Earlier this year Judge Brian Amero found for several Georgia residents and granted permission for digital images of nearly 150,000 absentee ballots cast in the November election in Fulton County to be scanned. Fulton County is Georgia’s largest.
A review of the scanned images, while not as effective as a physical inspection of ballots, would go a long way toward determining any election fraud that occurred.
The ballots were supposed to be scanned on May 28th. Two days before that inspection attorneys for the defendants – Fulton County and the Fulton County Board of Elections – filed a motion to dismiss. They argued they were never properly served as defendants.
Under a Georgia sovereign immunity law lawsuits could not be brought against state bodies in their official capacity. Instead members of those bodies had to be sued as individuals. A referendum changing that law was on the ballot in Georgia in November and passed. That allowed state officials to be sued in their official capacity beginning on January 1st of this year.
Judge Amero then substituted the individuals named in the case as defendants with their official governmental bodies, specifically the Fulton County Board of Elections. The Board then continued to participate in the case without objection.
Two days before the scanning of the ballots was to take place the Board filed a motion to dismiss arguing it, in its official capacity, had never been served.
Garland Favorito, one of the plaintiffs in the case and the head of VoterGA, a Georgia election integrity organization, addressed the tactic in a call with supporters that week.
“We served the responsible parties, which were the five election board members. Ironically the Election Board is now saying that they never were served when in fact, yes, as a whole you weren’t but all five were served,” he said at the time.
“The problem that the County has is if they had an issue with service, why did they appear in court? There’s many legal cases that say that if you appeared in court then this issue of service is moot. So I think our argument would be if you thought you should have been served but weren’t why did the Board of Elections show up to begin with?”
Arguments on the matter were heard this week and on Thursday Judge Amero issued a ruling dismissing the case against the individuals but keeping the case against the Board intact. The move returned the defendants in the case to how they were originally listed in December, leaving little material difference to the proceeding.
Notably, that is not how attorneys for the defendants nor some mainstream media outlets reported Amero’s decision.
“Georgia judge dismisses most of lawsuit seeking inspection of Fulton County ballots,” blared a CNN headline. “Judge throws out most of case alleging counterfeit ballots in Fulton,” read another in the Atlanta Journal-Constitution.
The AJC story goes on to quote Fulton County Board of Elections attorney Don Samuel as saying the litigation is “finished.”
“Is there going to be an audit? Not right now. … There’s no discovery permitted. There’s no lawsuit pending anymore.”
Favorito challenged that assertion in a conference call with supporters this morning. “We have won five times in a row in court and if you read the AJC you would think that we were on our last legs,” he said.
A request for clarification from Mr. Samuels had not been returned at the time of this publishing.
A hearing is now expected for July where Amero will rule on a ballot inspection plan to be submitted by Favorito next week.