Thread by @AkivaMCohen

#Squidigation news: @DemocracyDocket has posted the Georgia transcript. So let's do a live read

democracydocket.com/wp-content/upl…

The first 2 pages of transcript are intros/is everyone ok on Zoom. Then we get to this ... which is not a good sign if you're the party asking for the TRO

Powell's response is "We'd like you to issue that first draft order that you circulated to the parties and my co-counsel posted to Twitter as though it had been issued"

I paraphrase. But not much.

Gotta again pause here to talk about how absolutely bat-shit insane this argument is. Not just substantively, but in terms of internal logic. The election was held November 3. The hearing was held 26 days later, on November 29.

Their argument is that the voting software system "can be easily altered" and their core claim is that the voting software *was in fact hacked* to cook the results, as part of a wide-ranging international conspiracy.

A wide-ranging international conspiracy that then ... what?

Just left the electronic evidence sitting around for several weeks on those easily accessible systems they already had backdoor access to? For, I suppose, funsies?

What?

OK, sorry. Back to the transcript.

The Judge wants to know if granting the relief Sidney is asking for will cause any practical problems.

The state says "hell yes, we need to use those machines in a few days" [today, actually]

They get into a little back and forth about which elections are coming up. Then Willard (GA's attorney) points out that Sidney hasn't even properly served and noticed everyone they need to serve, issues you might remember from such films as Wisconsin: The Kraken Cuts the Cheese

Batten then says "look, I understand you want more time, but I need to squeeze you given the schedule" - explains why he was so pissed that SidLin ran off and claimed everything was stayed - and focuses back on the practicalities: Why not just allow a quick inspection?

They then clarify that Powell is asking for machines from 10 counties, that her inspectors will need a day for each county, and they can do it with teams of inspectors over 3 days, if she gets all 10 counties she wants

The court runs with that: OK, we're down from 159 counties to 10. What does that mean for the practicalities, and what do the plaintiffs really need?

This is a *very* practical judge; you'll note a total absence of legal argument to this point

Shit, I broke the thread, didn't I. Sorry.

Oh well, onward.

Powell responds to the judge's practical question - what do you need and can you do it before Tuesday - by reading an audiobook of her Tinfoil and Talcum Newsletter

Apologies, thread continues here

https://twitter.com/AkivaMCohen/status/1334218920404918275

This tweet was meant to be between those two

https://twitter.com/AkivaMCohen/status/1334218338998870017

Willard has had enough. But the point he ends with is a GREAT one. I've litigated software cases back when I was at Foley, and this is EXACTLY how you handle a litigation where examining sensitive source code is critical to the case: A clean room where the expert works

You have a non-networked computer in the clean room, a log showing sign-ins and outs, and supervision while you're working with the machine.

Under no circumstances do you get unfettered access to a mirror of the system.

Of course, Powell's response is "your Honor, if you just assume we'll be able to prove our claims in full, then the system is already compromised so there's no need to worry about that."

Needless to say, "you can watch us as we make our copy of the source code and then leave with it" DOES NOT FLY in these types of situations.

At this point, the judge denies the plaintiffs any relief: They've got no evidence for their wild claims (though he says 'come back to me if you find some') and are probably suing the wrong parties

At this point I'm wondering why the order that came out gave them anything

Ah. Lin Wood jumps in, focuses right back in on the judge's practicality, and says "what if we asked for something much more limited?"

And the judge - again - says no. He understands the inclination but he's not going to order a forensic examination of any machines, in light of the security concerns, until the defendants have had a chance to respond to the request.

I can see where this is going, now

Wood moves to his next fallback: What if we just mirror the machines and immediately turn that mirror over to the court? That way we won't lose the evidence

Again, this is hitting every practical bone in the judge's body nice and square, and he's inclined to grant that request

The state's response here is, basically, you're violating our contract obligations and also this is no way to set an inspection protocol. We need real security

Oops, I did it again. Thread picks up here

https://twitter.com/AkivaMCohen/status/1334228015857983488

Judge gives Wood the last word and he repeats "look, we won't take a copy, it's secure enough." Then Powell gives a list of available counties with no election today

Willard, who can see where this is going, falls back to "they sued the wrong defendants". Powell tries to interrupt, which is both a procedural no-no (hence "let him finish") and a stupid interruption (Jacobson was an 11th Circuit case, so it's binding even if it came from FL)

Willard finishes, and the Court asks Powell to respond, and she basically argues that yes, the Secretary of State *can* order Cobb County to let them access the machines.

*I don't know GA law well enough to evaluate that claim

Wood jumps in to say they can amend to add the counties after they collect the material from the counties, which misses the point (if the Secretary of State doesn't control the machines, he can't order the counties to give access). The court suggests he just fucking do that

And Sidney jumps in to say they got access to the machines in Michigan with no problem, and found 1,474 changed votes. What exactly is this about?

At this point, the court basically asks for briefing from the state on what harm it would do to order forensic analysis of machines in Cobb, Gwinnett, and Cherokee Counties, where there's no Tuesday elections, and Willard points out that he's got a lot of work to do on elex cases

The court then turns on a dime and says "wait, if the machines aren't getting used on Tuesday in those counties, why do you need to forensically mirror them right now?"

Powell basically says "we're going to run out of time"

And basically, Batten decides that he's going to reserve decision and NOT order a forensic examination of machines before allowing the state to put in its explanation for why he shouldn't issue that order, and he wants to see an expert affidavit on what harm that would cause

And at this point the Plaintiffs' THIRD lawyer jumps in and says "well, can we at least get an order today saying 'don't wipe the machines while we are waiting for that briefing and ruling? Because that would be spoliation" [destruction of evidence, a big no-no even w/o a TRO]

This satisfies the Court. Willard says "look, it's not us doing anything" and the Court says "ok, then you should have no problem with me saying 'if you're doing anything, stop it'"

And that's basically the entire hearing

My takeaway from all this: This is a *very* practical judge who didn't much care that he found that the plaintiffs hadn't shown a likelihood of success on the merits - he wanted to preserve the status quo just in case

It also makes the Powell/Wood appeal @questauthority discussed yesterday even crazier: The court expressly found they had NO likelihood of success, which means legally, they weren't entitled to ANY temporary relief. The court gave them some anyway. And now they're appealing.