On December 23, 2020, just before Georgia's January 5, 2021, U.S. Senate run-off election, Fair Fight filed a lawsuit against True the Vote (TTV) for challenging the eligibility of "more than 250,000 voters" prior to the run-off, according to Fair the Vote attorneys in Tuesday's closing arguments. Fair Fight stated that TTV was "reckless" with its Electoral Challenges and that challenging voter rolls "have serious implications with regard to the right to vote." In summary, Fair Fight believes challenging voter rolls is an act of voter suppression.
Fair Fight's multi-year lawsuit with TTV ended on November 7 after a 9-day bench trial in the U.S. Northern District of Georgia that began on October 26 with Judge Steve Jones presiding. UncoverDC was present for the last day and a half of the trial, hearing testimony from witnesses for the defense and closing arguments from attorneys. In January 2021, right before the run-off, the same judge ruled against Fair Fight's request "to stop True the Vote's work that simply follows the procedure outlined in state law," according to TTV's press release on January 2, 2021.
Catherine Engelbrecht, founder of TTV, testified on Monday that it was "Georgia citizens who solicited TTV's help" to ensure the state's voter rolls were adequately maintained for Georgia's senate run-offs. TTV announced its intention to "pre-emptively challenge 364,541 potentially ineligible voters" in all 159 counties ahead of the Senate run-off elections in a press release on December 18, 2020. However, Engelbrecht told UncoverDC on Wednesday that her organization was "ultimately left with volunteers in 65 counties who were willing to file Electoral Challenges. That is where the '250 thousand voters' number quoted by Fair Fight comes from." Engelbrecht added that she believed "only four counties ended up actually using the challenges."
Stacey Abrams founded Fair Fight after losing to Kemp in 2018. During CNN's broadcast of State of the Union on January 3, 2021, Abrams told host Jake Tapper that TTV's challenges are an example of "voter suppression," according to a TTV press release. Abrams stated, "Any attempt to prevent or discourage a voter from casting a ballot is voter suppression." Unchallenged by Tapper at the time, Abrams used the bogus examples of deployed military and college students as those who would be targeted by TTV as voters to challenge. Engelbrecht made it abundantly clear at the time that military and college students were "excluded from the challenger wherever known." Engelbrecht also testified the same on Monday. Abrams also tried to gaslight viewers with the idea that voters could be deemed "invalid" or removed from voter rolls. Engelbrecht told UncoverDC that "Abrams ducked the subpoena and failed to show up" for the trial.
Georgia CODE ANN. § 21-2-230 stipulates that an Elector Challenge must be filed before a vote is cast. TTV's December 18 press release notes an Elector Challenge "does not remove voter names from the registry. Voters who have been challenged will have the opportunity via GA. CODE ANN. § 21-2-230 to prove eligibility and still have their vote counted in the upcoming run-off election."
At the time of the 2021 Senate run-offs, the last time Georgia updated its voter rolls was in 2019. In Georgia, voter rolls are "cleaned" in the first six months of every odd year. The most recent update was in 2023 when Secretary of State Brad Raffensperger placed"a total of 191, 473 voter records into 'inactive status' based on returned mail and the NCOA list," according to reporting from Atlanta News First. Raffensperger claims Georgia's voter rolls"are the cleanest in the nation." Fair Fight is not the only organization that believes voter roll maintenance suppresses voters. Atlanta News First also wrote that a"coalition of 61 advocacy and civic engagement organizations opposed Raffensperger's plan to remove the voters."
Fair Fight Alleges TTV Was Reckless
The 2020 election, according to Engelbrecht's testimony, created an atmosphere of distrust in elections because Secretaries of State were suddenly side-stepping election laws to allegedly ensure a "safe" election because of the "pandemic." Americans saw "a massive push to mail-in ballots, drop boxes, and many changes at polling places. Mail-in voting is the least secure way to vote," Engelbrecht continued. Mail-in ballots are not secure "because of chain of custody issues, poor signature verification, standards in postmarks [pertaining to voting deadlines], and the fact that mail-in ballots" were sent out en masse without regard to the voter's eligibility. "Inaccurate voter rolls compounded the problem," said Engelbrecht. Distressed citizens in Georgia came forward, contacted TTV, and the Elector Challenge project was born.
Using the United States Postal Service National Change of Address (NCOA), TTV and various Georgia citizens who are named in the lawsuit coordinated efforts to "identif[y] 124,114 registered voters who no longer reside in the county of record and 240,427 voters who no longer reside in the state of Georgia," according to the lawsuit. Witnesses for the defense all agreed that NCOA is the "gold standard" for challenging addresses on voter rolls. The National Voter Registration Act of 1993 (NVRA) specifically names NCOA as one of the "safe harbor" references or "procedure[s]" whereby registrars may "verify or correct address information" for a voter. Fair Fight alleges that NCOA is an insufficient vehicle for voter verification because it doesn't include all the "interrelated factors" that describe a voter's record. They cited business ownership, motor vehicle information, income tax, and whether the voter is financially independent as some examples of a more fulsome record.
During its closing arguments, Fair Fight attorneys alleged TTV was "reckless." Fair Fight contended its four witnesses who testified were "recklessly accused" and that the "challenges made them fear they had done something wrong." Fair Fight tried to make the case that TTV made "direct action toward voters" and created challenge lists that were "error-prone." However, Engelbrecht told UncoverDC that Fair Fight's expert "introduced the errors, and her experts could prove them. Had we had our own expert run a statistical analysis of his data, we would have buried him."
Fair Fight alleged TTV's challenge lists of being "an unmitigated disaster," whereby TTV and cooperating citizens "solicited challengers" and then "enlisted counties to confront voters." Engelbrecht and the other TTV witnesses testified they never "personally interacted or intimidated any voter." Instead, they followed the law, doing everything in their power to avoid targeting specific voters or classes of voters. Engelbrecht told UncoverDC on Wednesday the challenge list was as large as it was in an effort to "not target" voters. Fair Fight asserted that TTV and its volunteers "need not have direct contact with voters" for intimidation to occur. Fair Fight also alleged that TTV targeted "black and brown voters" by association of zip code.
Engelbrecht's organization benefits from over a decade of experience with issues related to elections. According to her testimony on Monday, Engelbrecht founded TTV in 2009 because of "a practical matter." At the time, she struggled to find volunteers to help with elections in the Fort Bend/Harris County area, with a "voting block that, at the time, was the second largest in the country." According to Engelbrecht, True the Vote was "born of an underlying passion for citizen service" when she was not particularly focused on politics. She believed citizens should be involved in elections because "elections are foundational, should be free and fair, and should be reflective of where citizens wanted their county and their country to go." Her mission was to "support voters' rights and empower citizens to service." It was evident in her testimony that she applied the same spirit to her efforts on behalf of Georgia citizens in late 2020 and early 2021 with TTV's Elector Challenges.
Engelbrecht's earnest wish to do the right thing translated to multiple layers of due diligence before undertaking what she knew would most likely be a controversial and inflammatory effort. She knew many people would bristle at a mass challenge after the November election. She also saw renewed citizen engagement concerning elections, which is why citizens came forward to volunteer their time.
Engelbrecht testified she spoke with "three law firms, two commissioners from the Election Assistance Commission, 1 DOJ attorney, and the Secretary of State himself and his staff prior to initiating the mass challenge." According to her signed affidavit, Engelbrecht attended the meeting with SoS Raffensperger on December 16, 2020. Also present were Deputy Secretary of State Jordan Fuchs, General Counsel Ryan Germany, Brian Robinson, a respected communications strategist, and Ben Harbin of Baker Hostetler. Knowing the 364 thousand plus challenge number might be alarming to groups like Fair Fight, Engelbrecht double-checked her numbers with Raffensperger during their meeting. When she told him she planned to challenge over 364,000 voters, she recalls, "he grabbed a piece of paper and a pen and said, 'Yes, that's about right. Approximately 11 percent of America moves every year. We haven't cleaned the rolls in two years. I am surprised your number isn't bigger.'" She said she tried to subpoena him about the conversation, but her attorneys "made a mistake in a filing, and Raffensperger was able to quash the subpoena."
Secretary Brad Raffensperger's direct statement of support to TTV noted in the December 18 press release emboldened TTV's path toward carrying through on the Elector Challenges. Raffensperger stated the Elector Challenge would be a good "vehicle to ensure voter integrity" in light of the fact that federal law (NVRA) "restricts our ability to update our voter registration lists." Engelbrecht confirmed during her testimony that the National Voter Registration Act (NVRA) limits the removal of names from voter rolls to "very narrow conditions." Therefore, ineligible names often remain on the list for an "extended period of time," and the Elector Challenge becomes the only vehicle to review who should be on the voter rolls.
One of TTV's witnesses was Mark Davis. He testified on Monday from home due to serious health-related issues. As with the other citizen volunteers, Davis put his reputation and business on the line when he stepped forward to do his due diligence with the Elector Challenges.
He and Derek Somerville worked independently, but because Engelbrecht publicly acknowledged their efforts, according to Engelbrecht, "Fair Fight accused them all of conspiracy and sued them too." According to TTV attorney Jake Evans, Somerville is a "veteran, a marine, and was extremely methodical and meticulous in his part on generating the list."
Davis testified that he brought decades of experience with "data project management with multiple corporate and non-profit clients, including political campaigns" that needed help with mailers. He has extensive experience with NCOA and is experienced with voter databases and validation of data. He told the court, "False matches in [the] NCOA database are rare because NCOA uses gender and middle names for matching." He is also intimately acquainted with NVRA.
Oddly, Fair Fight stated TTV did not use middle names for matching in its challenges, even though Engelbrecht confirms they had over "61,000 middle names in their files." While Davis was not technically designated as an expert witness in this trial, he stated he had been an expert witness in at least five other lawsuits. Davis also shared he had been "concerned for decades" about "inaccuracies in the voter rolls" and was "utterly shocked with what he saw" while looking at the data after the 2020 election. "Rarely are people held accountable for voting out of their county," he added. "Without proper challenges, poll workers have no way to know, and so they green light voters" who shouldn't be voting where they showed up to vote. Davis and Somerville worked closely with True the Vote but ultimately submitted their own work to counties.
After the November election, Davis found several issues in the voter rolls. In his December 2, 2020 affidavit, Davis writes he "found 267,255 voters who have told the USPS they were moving to an address out of state...14,980 of those out-of-state movers voted in our November 3, 2020, General election." Davis also told the court he found "2000 voters in a small building in downtown Atlanta." He also stated that many voted "more than once on the same registration or registered two and three times."
In preparing for the run-off, Davis told the court he found an average of approximately 250 challenges per county. Once he compiled his data, he turned his lists over to the counties to do as they may with them. For his efforts, Davis and several others working toward the same goal were also sued by Fair Fight. True, the Vote stepped in to cover their legal expenses. On Monday, the lead attorney for TTV asked Davis if he would participate in a similar effort again. Davis's answer was heartbreaking. He told the court it would "not be worth it" because the emotional, physical, and financial costs were too great. Fair Fight served him on Christmas Eve in 2020.
When asked what she would most like the American people to take away from this battle, Engelbrecht answered her wish for Americans to embrace a "fundamental understanding or appreciation of the fact that our voter rolls are not being kept accurate and that is impacting elections. The last time the rolls were cleaned in Georgia was in early 2023. So, the rolls will be what they are going to be, effectively, until 2025. So, unless citizens step in to give another way for counties to take a look, to carry out Elector Challenges, that is the only way it happens" in the meantime. Instead, TTV is often left alone, holding the ball and paying the bills. Engelbrecht said she was extremely grateful for those Georgians who stepped up. "Free and fair elections are worth the fight," she added.
In his closing statement, TTV's attorney Jake Evans, arguably the sharpest attorney in the courtroom on Tuesday, enumerated the many ways Engelbrecht went to "great pains and lengths" to ensure their Elector Challenges were well prepared. He elegantly argued the core premise also stated in TTV's February 13, 2023, Amended Response to Amicus filed by the Protect Democracy Project. Evans reminded the court that for "free speech to be restricted" in this case, "under Section 11(b), a plaintiff must as a threshold matter show the alleged intimidation, threat, or coercion was directed to an individual or group of individuals." Evans argued that Fair Fight's arguments were "insufficient and did not meet the standards" required to prove voters were intimidated or that TTV was wreckless in its actions.
Most importantly, Evans argued that TTV and the other Defendants followed the letter of the law by submitting their voter challenges to County Boards of Elections (BOEs), who ultimately had the choice as to whether to address the challenges. Evans argued that BOEs are the "firewall" that protects voters from the very things Fair Fight alleged TTV did. He added, "BOEs are held to strict standards" concerning voters' information and rights. Evans also stated the case should be dismissed. Judge Jones gave both parties until Wednesday, November 15, at 5 p.m. to submit their brief summaries. UncoverDC will continue to report on the trial details when summaries become available.