Posted originally on the conservative tree house on June 24, 2021 | Sundance | 85 Comments
One step forward; however, in the longer term I fear this is two steps back… The next lawfare chess move looks transparent, but maybe I’m wrong.
In the Atlanta ballot lawsuit Henry County Superior Court Chief Judge Brian Amero has granted the ability of Fulton county, the county elections board, and county courts clerk, as offices, to be removed as defendants in the lawsuit filed by Garland Favorito and nine plaintiffs. However, Judge Amero kept the lawsuit alive by granting the plaintiffs’ request to add individual members of the county board of elections as respondents.
The problem this presents is transparent. The next move by Lawfare lawyers representing opposition to the case will be for each of the individual members to now claim sovereign immunity as none of their specifically individual actions will be identified as contributing to any ballot fraud. This level of legal confidence seems present in the defense statements after the ruling was released:
“Don Samuel, an attorney for the Fulton elections board, said he planned to file motions to dismiss the claims against the board members because there are no allegations they had a role in counting the county’s ballots.” (link)
Favorito released a statement showing confidence in the result. However, CTH is not so sure.
Perhaps the plaintiff lawyers have a good argument to focus on the individual board members, but in my experience any petition therein would have to show direct evidence linking a specific person to the specific harm claimed by the plaintiff.
If the Fulton County board of elections is not responsible for the way the ballot counting was handled, it seems challenging to identify a specific member of that board who would be responsible. I’m not a lawyer, but that’s the way the defense argument seems to be framed.
The bottom line in this private civil lawsuit is the harm needs to be identified in order for the discovery, the actual inspection of the 147,000 absentee ballots, to be conducted. The plaintiff is alleging harm based on the sworn depositions of election workers. However, the defense is telling the court that a specific person will need to be identified as responsible for the alleged fraud the election workers are claiming to have witnessed. This is a typical Lawfare catch-22.
The solution for this is obviously the Georgia Senate ordering an audit of those ballots via a legislative subpoena. However, it doesn’t appear the Georgia legislature has taken any steps toward that goal.
I may be wrong, but I am less optimistic now than before.