Fulton County Audit Ruling To Dismiss Case
Fulton County Audit Ruling To Dismiss Case
Fulton County Audit Ruling To Dismiss Case
***EFILED***QW
Date: 10/13/2021 8:46 AM
Cathelene Robinson, Clerk
constitutional equal protection and due process rights, and violationsof the Open Records Act,
Ga. Code Amn. § 50-18-70 et seq. (the “ORA™).? In their Initial Petition, Petitioners claimed that
fraudulent ballots had been counted in the General Election. In support, they offered affidavits
from individuals who participated in the ballot counting process who averred that there were
large numbersofabsentee ballots that looked asifthey had been marked by machine rather than
by hand.? Further, two of these individuals averred that, while other absentee ballots “showed
obvious use”! there was at least one batchofabsentee ballots that was pristine and printed on
different paper stock.* The fact these ballots contained no creases or other indicia of being folded
10 be put in envelopes and mailed out caused one individual to believe that there had been
additional absentee ballots added in a fraudulent manner.
Petitioners therefore sought the productionofscanned ballot images and physical copies
ofevery mail-in and absentee ballot that was counted, audited, and recounted in the November 3,
2020 general election (the “General Election”) in Fulton County. Petitioners pursued the
productionofsuch documents through the discovery process and through several Open Records
Requests (“ORRs”) made pursuant to the ORA. The parties appeared before the Court on
January 6, 2021 and January 15, 2021 to argue the meritsofthese ORRs. On February 10, 2021,
Petitioners filed a consolidated motion to unseal the paper ballots, and the parties then appeared
before the Court on March 15, 2021 for the initial hearing on the motion to unseal. At this
hearing, the Court requested that Petitioners submit a written plan explaining the logisticsof how.
* As partof the Initia Petition, Petitioners aso submited Exhibits A through U, which includednine affidavits, he
Petitioners’ open records requests, and twolinks to Sate Farm Arena security video.
nial Peon, Exhibit C2: Exhibit D, 2: Exhibit E, 16; ExhibitF, 9 3-4
nial Petition, Exhibit E,§ 14.
nial Petition, Exhibit E,§ 15; ExHibit F, 3.
Initial Petition, Exhibit E, § 2.
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Favorito etal . Fulton County etal. | Case No. 2020CV343938
Order Granting Motion o Dismiss
the ballots would be handled and reviewed.” Then, the Court set a hearing to determine whether
the proposed plan should be adopted.
On April 13. 2021, the parties appeared for this second hearing on Petitioners’ motion to
unseal. At the hearing, Fulton County consented 10 the productionof scanned ballot images* so
as to allow Petitioners to determine whether these scanned ballot images could be a substitute for
amore onerous, expensive, and time-consuming production.” The Court also orally granted
Petitioners” motion to sever claims.” Shortly thereafter, consistent with the agreementof the
parties, the Court issued an order on April 16, 2021, directing Fulton County to produce all
scanned absentee ballot images in electronic format with the original metadata for cach ballot.
On April 20, 2021, the Court entered a final order finding Fulton County had violated the
ORA by failing to give timely and sufficient responses to Petitioners Favorito and Jeffords”
ORRs.
“The parties then appeared before the Court on May 21, 2021 for a final hearing on the
motion to unseal. At the hearing, Petitioners presented the expert witness testimonyof two
experts: Mr. David Sawyer,acertified fraud examiner and former partner at Emst and Young
who previously worked with the forensic units at PricewaterhouseCoopers and Ernst and
Young;'! and Dr. Lisa Detter-Hoskin, a paper and ink forensic analysis expert who worked with
the Federal Bureau of Printing and Engraving to help design currency. She also had previously
See Favorito Third Amended Petition,§ 88: Jeffords Third Amended Pion, § 306.
See Jeffords Second Amended Peiion, © 190: Jeffords Third Amended Petition, § 15.
4 Jeffords Second Amended Petition, € 191
3 Jeffords Third Amended Pion, § 306. See FavoritoThird Amended Petition,§ 85
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Favorto etal. v. Fulton County et al. |Case No. 2020CV343938
Onder Granting Motion 0 Dismiss
decision.” Sons of Confederate Veterans, 2021 WL. 3087576, at *S. A plaintiffsuffers an injury
in fact when the injury is both “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical.” Lujan v. DefendersofWildlife, 504 U.S. 555, 560 (1992) (internal
quotations omitted).
Petitioners allege their votes have been diluted due to the “substantial likelihood” that
fraudulent ballots were introduced during ballot processing for the General Election. They
reason that Respondents” failure to properly implement state election laws and their negligent
oversight of Happy Facesstaffand other agents who assisted in counting ballots at al stages of
ballot processing resulted in the introduction and countingof counterfeit ballots. They also
allege that the issue will persist in future elections ifnot corrected.**
However, regardlessofthe veracity of these allegations, the Court finds Petitioners have
still filed to allege a particularized injury.
A. Petitioners have failed to allege a particularized injury.
An injury is particularized when it “affects the plaintiff in a personal and individual
way.” Wood v. Raffensperger, 981 F.3d 1307, 1314 (11th Cir. 2020) (internal citations and
styling omitted). Petitioners” allegations are, in sum, that their state equal protection and due
process rights were violated because their votes, and the votesofother Georgia voters, were
diluted as a resultofthe inclusion of fraudulent ballots that were counted because Respondents.
negligently oversaw the ballot processing for the General Election.
“The 11th Cireuit in food found substantially similar allegationsofvoter dilution
insufficient to confer standing. Wood, the appellant, alleged that “irregularities in the hand
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Favorito etal. v. Fulion County et al. | Case No. 2020CV343938
‘Order Granting Motion to Dismiss
Here, Petitioners allege a basis for standing similar to that asserted in Wood. However, as
in Wood. Petitioners” arguments are not enough to give rise to a particularized injury. Vote
dilution as a resultofallegedly unlawfully processed ballots is “a paradigmatic generalized
grievance.” Wood, at 1315 (citation omitted). See also Palier v. Cegavske, 457 F.Supp.3d 919.
926 (D. Nev. Apr. 30, 2020) (“But Plaintiffs’ purported injuryofhaving their votes diluted due
to ostensible election fraud may be conceivably raised by any Nevada voter. Such claimed injury
therefore does not satisfy the requirement that Plaintiffs must state a concrete and particularized
injury.”). “[A] generalized grievance, no matter how sincere, cannot support standing.” Wood, at
1314 citing Hollingsworth v. Perry. 70 U.S. 693, 706 (2013) (internal quotations omitted).
Accordingly. the Court concludes the Petitioners have not alleged a particularized injury,
and therefore, do not have standing
Having considered the evidence submitted, the arguments of counsel, and the record as a
whole in the light most favorable to Petitioners, it is hereby ORDERED that the motion to
dismiss by Respondents Alex Wan, Vemetta Nuriddin, and Aaron Johnson is GRANTED.
IT IS FURTHER ORDERED that, due to the similar lack of standing, the claims
against Respondents Kathleen Ruth and Mark Wingate be, and hereby are, also DISMISSED.”
One ofthe cases Petitioners use to argue they have standing is Curling v. Kemp, 334 F.Supp 3d 1303 (N.D. Ga.
Sept 17, 2018), in which the district court found standing for laitiffs based on arguments tha use of Direct
Recording Flectronic voting machines (“DRE”) violated plaintiffs federal constitutional rights to equal protection
and due process by diluting the weight oftheir votes due to th easly-hackabe nature ofthe DRES. In doing 50.
a vote dilution case by
Carling implicitly offers another njury-infsct analysis through which to consider standing inanalysis
Tocusing on whether there has been concrete, diet harm. See id at 1314-15. However, his Curlingappears 0 be
out ofstep with the sanding, framework utilizedby the 11h Circuit, See Wood, supra. But see order v. Secretary
of Georgia, 761 Fed App. 521.935 (11h Cir. 2019) affirming Curling cour’ interlocutory merits denying motion
To dismiss on Eleventh Amendment immunity and legislative immunity grounds, ut nt reaching of standing
analysis on such interlocutory appeal).
57plaintiffwith sanding is a prerauist forth existenceofsubject mtrjurisdiction andv. Leeunenburg, is thereforea
threshold ssue for the Court's determination which the Court has aduty 0 address. Parker 300 Ga.
789,790 (Ga. 2017); In re Haney, 355 Ga. App. 638, 660, 845 S.E.24 380 (Ga. Ct. App. 2020).
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Favoritetal. v. Fulton County etal. | Case No. 2020CV343938
Order Granting Motion 0 Dismiss
IT IS FURTHER ORDERED that, because the Courts final order on April 20, 2021
fully adjudged Petitioners’ ORA claims, no further relief may be accorded to Petitioners under
the ORA, and therefore, Respondent Fulton County is also DISMISSED.
2 th
50 ORDERED this | © Tay of ho
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Favorito etal. v. Futon County etal | Case No. 2020CV343938
Onder Granting Motion to Dismiss