Sidney Powell made good on her promise to file an astonishing lawsuit on Wednesday night.
On behalf of several Republican Presidential Electors, Powell — joined as Plaintiffs’ counsel by famed Atlanta trial attorney Lin Wood — filed a 104-page complaint that begins with the allegations that the Dominion voting system sold to Georgia was originally designed for, and used by, Hugo Chavez to ensure that he never lost an election as President of Venezuela. The complaint alleges that various uncontrolled and open parts of the software architecture are designed so that real-time activity logs can be modified to delete activity involving vote switching and/or addition/subtraction from the accumulated vote totals in such a way that the activity would not appear on the activity logs as part of an audit.
She alleges that video from the State Farm Arena in Fulton County, where vote counting activity involving mail-in ballots took place, documents that a false claim of a water main break was used to evacuate the area of all election workers and observers involved in the counting of ballots for a period of two hours, but that a small number of election workers remained behind working at the computer terminal on vote tallying without any supervision or observation by outsiders for nearly three hours.
Powell filed this action in federal court, but procedurally she is seeking to have the matter heard by the Court both as a federal constitutional challenge — which gets the matter into federal court — but also as an “election contest” under Georgia State law which would be heard by the federal court pursuant to what’s called “ancillary” jurisdiction. When a plaintiff has both state and federal claims that they can assert in a lawsuit, “federal question” jurisdiction is the basis upon which the federal court will hear and resolve the disputes under federal law. Related state law claims can also be determined by the federal court — applying state substantive law and procedures where necessary — pursuant to the court’s “ancillary” jurisdiction so as to allow all the matters to be resolved as part of one proceeding.
This is just a guess, but this may be one reason why the Trump Campaign opted to announce that Powell is working on her own. I believe the Trump campaign will be filing an “election contest” in Georgia state court very shortly, seeking to prove that a number of unqualified voters larger than the margin between the candidates cast ballots for Biden. If the Campaign were working hand-in-hand with Powell when she filed this suit on behalf of the Electors, it is possible that the Court would consider the Campaign an “indispensable” party, and allow the defendants to bring them into this action.
Working separately — separate attorneys and separate investigators — is the basis upon which the Campaign will likely file its own action in state court. That, in effect, gives them at least two election contests underway in different courts at the same time, each with different allegations and theories supporting their request for relief.
After the Introduction, Factual Background, and Jurisdiction and Venue portions of the Complaint, the first substantive allegations supporting a claim for relief is similar to the claims made by Lin Wood in his earlier action challenging the settlement by Georgia officials of a lawsuit over the “signature matching” provision under state law for the greatly expanded use of mail-in ballots. In the settlement agreement, the state officials agreed that County Boards of Elections would perform a bureaucratically cumbersome process to meet the “signature matching” requirement of state law — the logical consequence of which was that local election workers would opt to not find “mismatched” signatures in order to avoid the bureaucratic burdens imposed by the procedure. One feature of that burden was that the election workers making the decision to reject a ballot based on a non-matching signature would have to identify themselves by name in a fashion that could lead them to become known to the public — or unhappy voter — as being responsible for the ballot being rejected.
The legal challenge to the settlement agreement is based on the “Electors Clause” of the US Constitution, which “textualists” claim gives to state Legislatures the sole authority to prescribe the manner in which the selection of Presidential electors shall take place, and that the Georgia legislature has done so. The Complaint alleges that the procedures put in place by the Secretary of State as a result of the settlement of the lawsuit are contrary to the plain language of the election law statute, and therefore violate the US Constitution.
This claim is being advanced in a variety of ways in many different cases that seem to be on a path to the US Supreme Court, where four Justices have expressed an interest in addressing this issue. But one issue that might stand in the way is the question of who is an appropriate plaintiff to assert this claim. One federal appeals court has already ruled that only state legislatures have standing to assert a claim based on the “Electors Clause” since changes to state election laws by state officials work to cause an injury to authority that belongs only to them.
Powell’s complaint also challenges an election rule put in place by the Secretary of State allowing County Election Boards to begin processing mail-in ballots three weeks prior to election day when Georgia election law passed by the legislature specifies explicitly that ballots cannot be processed prior to 8:00 am on election day.
Under the terms of the settlement agreement, when election workers determined that a ballot would be rejected for non-matching signatures, specific steps were required to be taken in order to contact the voter and advise them as to what has happened. The voter was to be given information as to how they might “cure” the defect in the ballot.
But if the procedure had strictly followed the language of the Georgia statute passed by the Legislature — with mail-in ballot envelopes being opened only on election day, there would have been no opportunity for this procedure to be employed, and defective ballots would have gone uncured.
The complaint next addresses problems connected to the audit/recount ordered by the Secretary of State, and the treatment of Trump Campaign and GOP observers by partisan political officials in heavily Democrat counties. This section of the complaint addresses many of the claims made in the 20+ affidavits filed in connection with Lin Wood’s earlier litigation challenging the “signature matching” requirements agreed to in the settlement agreement prior to the election. The allegations regarding the audit/recount improprieties had nothing to do with the signature matching done — or not done — on election day, but by filing them in support of a motion for a temporary restraining order, Wood did effectively accomplish the purpose of putting many of these allegations into public discourse.
The next section of the complaint falls under a bold caption “EVIDENCE OF FRAUD” and “Absence of Mistake.” This section includes a litany of allegations drawn from various affidavits — many from the Lin Wood case — setting forth allegations about recount/audit activities that all seemed to improve the likelihood that Joe Biden would be found by the audit to have received more votes than President Trump. I had begun the process of cataloging the discreet allegations myself, and it would have been helpful here — and improved the manner in which the complaint reads — if the attorneys had organized these affidavits/allegations by the County in which they were observed. Time permitting over the holiday weekend, I might return to my earlier project and provide a county-by-county analysis of the claims made in the various affidavits.
Pages 37 to 54 of the complaint go into significant detail regarding the weakness and vulnerability of the Dominion voting system purchased by Georgia in 2019 for use in the 2020 elections. Much of this section draws upon earlier litigation filed by Democrat interest groups who sought prior to the election to prevent Georgia from using the new voting system based on observed problems in the much smaller state-wide “run-off” elections in August 2020. The complaint draws upon expert affidavits presented in that litigation about observed weaknesses and lax security in the use of the new Dominion system, and the heavy reliance of state election officials on Dominion employees to make the system run as designed — actions which could not be monitored by election officials simply because they lacked an understanding of what was being done by the technicians.
I’m not going to try to recap this section further. I provided links to the earlier litigation in this story I wrote shortly after the election.
Part Two coming shortly.