Trump Appointed Judge Slaps Around GAGOP Attorneys
How big of an elections nerd have I become that I find court transcripts regarding election law cases wildly entertaining? Wildly. Entertaining. I find it better than anything Disney is putting out under the Star Wars brand these days. Except the Mandalorian, of course. I guess there have to be exceptions for everything.
Yup. I am a big ole nerd.
What caught my attention was the official transcript of a case that was argued in the 11th Circuit Court of Appeals in front of Judge Stan Baker who just so happens to have been appointed to the bench by none other than President Trump. It is a lengthy document, weighing in at a hefty 142 pages, that I found to be completely enthralling. If you want to read the whole thing I am including it at the bottom, but I also wanted to highlight several aspects of it for you.
The scene: a Zoom based hearing of a case brought by the Republican National Committee and the Georgia Republican Party on Election Day against nine counties for opening up over the weekend before Election Day to to accept absentee ballots that were being hand delivered to election officials. The GOP sought to have ballots that were delivered in this manner separated from all others. Their intention here was not made clear in the transcript, but at a certain point in the hearing it became clear to the judge that they could eventually be discarded without being counted.
I wrote about this over that weekend, decided to not post anything (because it made Josh McKoon look dishonest), got called out by GAGOP Chairman, Josh McKoon ,for not saying anything, and then relented and posted my reaction. And it turns out that even though I delayed my response because I no longer trust the GAGOP to be a trustworthy source of information I may have overreacted myself. Because as the judge pointed out at the end of the proceedings, the attorneys for the GAGOP simply did not have facts on their side.
Don’t believe me? Well let’s get nerdy together and dive into the blackwaters that are the arguments made by GOP attorneys regarding the situation. A curated selection of excerpts for your enjoyment follows.
In direct examination, Alex Kaufman who is the GAGOP attorney, asks Justin Rice, who serves as the Executive Director of the Georgia Republican Party, about how offices being open over the weekend took the GAGOP by surprise. The highlight here is that the GAGOP did not have a plan to chase absentee ballots the weekend before the election. Ballot chasing means looking at publicly available data of who has and has not returned their absentee ballot yet, and then contacting those who have not to make sure it gets to the elections office in time to be counted. It is a basic function of campaigns and should have been happening regardless of any other circumstance, but the party failed to make a plan.
Q. As — now, did the Georgia Republican Party have preset arrangements on election activities and get-out-to-vote activities, et cetera, plans for the weekend that did not include having poll observers and poll watchers in place?
A. Yeah. We did not have — we had plans, but not plans for having poll watchers and observers at these locations.
Q. Okay. And what were those plans?
A. Our plans were to push voters to vote on Election Day.
Q. And as a result of defendant counties’ decisions, were those plans altered and affected at the state GOP level?
A. They were.
Q. How so?
A. We had to switch our resources to get people to Fulton County and the other defendant counties so that we can start pushing our voters to turn in their absentee ballots, called absentee ballot chasing.
Q. And did that cost the party — you said resources. What kind of resources did that cost the Georgia Republican Party?
A. Time, money, having volunteers and staffers drive to these locations.
Q. Okay. Had you been aware that the defendant counties had plans to open its offices to receive ballots over the course of the weekend and yesterday, what, if anything, would have — do you know the Georgia Republican Party would have done differently?
A. No. We would have — we had several folks from out of state looking to volunteer in Georgia, and had we known that we would be able to do absentee ballot chase activities in these counties, we would have had these folks come to these counties to help us with that. Instead, we sent them to different counties, and so we misused our resources because of this.
One of the complaints made by the GAGOP was that counties opened the weekend before election day without notice. In cross examination of Mr. Rice by Ryan Germany, the attorney for Gwinnett County, it became known just how much notice the GAGOP had that Gwinnett’s election office would be open for this purpose.
Q. Do you have — as part of your job duties, do you have contact with local members of boards of elections, particularly the members appointed by the local Republican parties?
A. I have their contact information. I have not personally reached out to any local board of election members.
Q. Do you have any contact with local board of election members just as part of your job?
A. No
Q. How do you keep yourself apprised of what county election boards are doing?
A. Mostly through the county chairs, the Republican Party county chairs.
Q. Are you aware that on July 17th, 2024, the Gwinnett County Board of Elections and Registration had a meeting where they specifically authorized acceptance of absentee ballot — absentee ballots at the elections office on November 2nd and November 3rd?
A. I’m not aware.
Q. Do you know who David Hancock is?
A. I do not.
Q. Do you know that David Hancock is a Republican-appointed member of the Gwinnett County local elections board?
A. I do not know that.
Q. Would you say that if you — And, Alex, I’m referring to what’s on the docket — the minutes of this are on the docket as Document 28, if you want to show the witness that exhibit. And, let’s see. You let me know when you have it in front of you.
…
Q. Yes, it’s Document 28-1, which are meeting minutes from the Gwinnett County Board of Elections and Registration. Do you keep apprised of meetings of local boards of elections as part of your absentee ballot chase program or any other of your duties?
A. No.
Q. Does anybody on the staff of the Georgia Republican Party keep themselves apprised of local election board meetings?
A. No.
Q. Do you see at the top of Document 28-1 where it says Wednesday, July 17th, 2024, 6 p.m.?
A. Yes.
Q. If you had knowledge in July of 2024 that Gwinnett County was going to accept absentee ballots at their Atlanta location on November 2nd and 3rd, would that be sufficient time for you to prepare for your absentee ballot chase program?
A. Yes.
MR. GERMANY: No further questions, Your Honor.
One of the counties the GAGOP sued for accepting ballots was Athens-Clarke County. The only problem? They were closed the entire weekend and didn’t accept ballots in this manner. Here is the exchange between the county’s attorney and Mr. Rice.
Q. Mr. Rice, again, my name is John Hawkins. I’m a deputy chief attorney with the Athens-Clarke County Attorney’s Office. Were you physically present in Athens-Clarke County on either Saturday or Sunday — excuse me — this past Saturday or Sunday?
A. No, sir.
Q. Were you aware that the Athens-Clarke County elections office was closed this past Saturday and Sunday?
A. No.
Q. Were you aware that the Athens-Clarke County elections office was not accepting personal delivery ballots this past Saturday and Sunday?
A. No.
Q. Did you attempt to check the Athens-Clarke County Board of Elections website to see whether the Athens-Clarke County elections office would be open either this past Saturday or Sunday?
A. No.
MR. HAWKINS: Nothing further right now, Your Honor.
In a separate cross examination of Mr. Rice the Democratic National Committee’s attorney, Felicia Ellsworth, points out that Republican counties were also open over that weekend to accept walk in drop offs.
Q. Are you aware that Walton County on November 2nd and
November 3rd, 2024, allowed for the in-person return of absentee
ballots?
A. I was not aware of that.
In the following exchange, GAGOP attorney Alex Kaufman gets schooled on what is in the law by Chatham County Board of Registrars Chair, Colin McRae. At issue was whether the law specifically allows elections offices to be open during the weekend before election day, not for early voting, but to allow absentees to be dropped off in person. Emphasis added.
Q. Okay. You mentioned a fair amount of the Georgia Code. Are you familiar with O.C.G.A. 21-2-215, the main office of the Board of Registrars?
A. Is there a specific section of it you’d like me to comment on?
Q. Sure. Are you familiar with 21-2-215(c)?
A. C as in Charlie?
Q. C as in Charlie.
A. Okay.
Q. And isn’t it true it reads that the main office of the Board of Registrars in each county shall remain open for business during regular office hours on each business day except Saturday?
A. Yes. I also see the second sentence that it shall open “at such designated times other than the normal business hours as shall reasonably be necessary to facilitate registration and at such other hours as will suit the convenience of the public.” We were certainly — we were looking out for the convenience of the public by offering to accept hand-delivered ballots on Saturday, and that’s one of the primary reasons that we decided to be open on Saturday.
Q. Right. But it was to facilitate registration; correct?
A. No. No. Registration had been closed by that time, Mr. Kaufman.
Q. I’m sorry. What did you say?
A. I said registration for the — to be eligible to vote in the November election had closed. That was not one of the purposes. It was one of the — the additional clause there, “and at such other hours as will suit the convenience of the public.” We were suiting the convenience of the public by assisting with the acceptance of those ballots. I’d also point out that that first sentence that you had me comment on, it says it shall remain open for business hours except Saturday. There’s no prohibition there in that language saying that we shall not be open on Saturday. There is just the mandatory language saying we shall be open during the week.
In the following exchange, Judge Baker points out that Mr. Kaufman has confused separate code sections to mean the same thing. The law addresses early voting separately than absentee voting, yet the GAGOP was trying to argue that absentee and early voting are the same. The legislature has set out different procedures for how these two processes are different.
THE COURT: Let me go to your primary argument. The primary argument is that they could not receive ballots in person after the — absentee ballots after the close of advance voting. So I want to go to the text. Sorry. That’s where we always should begin is with the text. So the text of O.C.G.A. 21-2-385 tells a voter that at any time after receiving an absentee ballot, but before the day of the primary or election, they can fill that ballot out. So according to that statute — just walk with me through the statutes, if you would. According to that statute, if I’m an absentee voter, I can fill it out all the way through yesterday. Can’t fill it out today, but I could fill it out through
MR. KAUFMAN: Through — yes.
THE COURT: The day before the primary — okay. So I can fill it out —
MR. KAUFMAN: Or election.
THE COURT: — yesterday. Right? All right. So is your argument that I could fill it out yesterday, but then I just couldn’t deliver it?
MR. KAUFMAN: Well, it’s admittedly — 21-2-385(a), I believe, conflicts with 21-2-385(d)(1) where it says the period of —
THE COURT: Whoa, whoa, whoa. (d)(1) — and I’m sorry to cut you off, but I want to be sure we’re clear. I’m talking about absentee ballots. Now, (d)(1) is there shall be a period of advance voting that shall commence. Correct? That’s (d)(1); correct?
MR. KAUFMAN: Yes, Your Honor.
THE COURT: So would you agree with me that absentee voting and advance voting are two different things?
MR. KAUFMAN: That’s really one of the difficult questions to answer, Your Honor.
THE COURT: I mean, just because it cuts against your client doesn’t make it difficult. The legislature has set out two different subsections. One, advance voting; and one, absentee ballots; correct?
MR. KAUFMAN: Correct. …
At this point the judge explains that he is not trying to berate Mr. Kaufman, and since we were not there we cannot hear the emotion or lack thereof in his voice, but it is easy to imagine that he was getting frustrated here. It is also easy to imagine that this exchange flustered Mr. Kaufman quite a bit because the court stenographer caught his stuttering … “I –I — I– I–“
THE COURT: I’m truly trying to understand your argument here. I’m not trying to berate you. I’m trying to understand how, given what the Georgia General Assembly has said and what your own witness testified to today, can you argue that you cannot deliver an absentee ballot in person once the advance voting period ends. Help me with that.
MR. KAUFMAN: I think under two provisions. And so one is, of course, if the county fulfills the obligations of proper notice with the three days’ advance, at least, in the publication of when their offices will be open if there are different hours, and then two —
THE COURT: Okay. So you would say — so you would agree that for those counties who did publish it — we’ve heard from two today at least — one who had a publication in the newspaper and the other who adopted resolution, that you have no argument as to them? Is that what I’m hearing you say?
MR. KAUFMAN: Well, I — I — I — I believe that if they fulfilled those obligations, you now are in a conflict between the 385 and 3 — of (a) and (d) that I believe that by practice it would be accepted, certainly by mail; and in 385(a) there is a provision that says hand delivery.
Later in the above exchange Judge Baker gets Mr. Kaufman to admit that if an absentee ballot is received by mail over the weekend it is a legal process. He then attempts to get Mr. Kauffman to point to the code section where there is a difference in hand delivery and mail delivery after the advance voting period has ended. Mr. Kaufman, unable to point to the difference in the code tries reverting to drop boxes which causes the Judge to shut him down.
THE COURT: Point to me the statute — I’m sorry. I’m a bit of a textualist, so it’s hard for me to get away from the text. Okay. I get into the text. I apologize. So tell me where in the statute you see a difference between the period for delivering an absentee ballot by mail or in person, because I don’t see it. So I’d like to know where you see it.
MR. KAUFMAN: Well, the answer is the three days that they didn’t give the notice that they were going to be —
THE COURT: I’m sorry. You’re getting to your second argument, and I’m sorry, I’m a stickler for this. I want to stick to the first argument, and I want you to stick to my question. Where in the statute — if you don’t see it, that’s fine; just tell me you don’t see it. Where in the statute do you see a difference?
MR. KAUFMAN: I — I don’t see a difference by mail. The only difference is the drop box period, because that does end on —
THE COURT: Right.
MR. KAUFMAN: — the Friday. So then the question —
THE COURT: Right. We’re not dealing with drop boxes here; right? We’re not dealing with drop boxes –
MR. KAUFMAN: I agree. But that’s the distinction of delivery. So now we’re talking as to whether or not is it an early vote by — if it’s hand delivered versus stuck in a box. That’s really the distinction. And, frankly, it’s a difficult distinction, except when you look at O.C.G.A. 21-2-380, which is, going to your other point, was you’re either — all voting is either absentee, whether it’s absentee in person or absentee by mail or you’re a day-of voter. That’s the only distinction that the Court — that the Code makes, which is sort of what I was trying to get at is that it’s a little incongruent as far as — as far as how that is determined, because it’s clear that absentee voting ended on the 1st.
THE COURT: Where is that clear? I see where advance voting ended on the 1st, and I can understand an argument that someone would make to me that would be advance voting is a category of absentee voting. In fact, the Georgia Supreme Court has said just that. But I haven’t seen anything that says that absentee voting is a category of advance voting. Do you have any cases or statutes that do say that?
MR. KAUFMAN: Not off — not offhand, Your Honor.
THE COURT: Well, now would be the time.
Ouch. That’s gonna leave a mark. In the following remark Judge Baker highlights that the GAGOP is not a reliable source of information because evidence doesn’t back up their claims and witness testimony revealed that they were wrong on too many facts to be considered credible. In short, I feel seen, because this has been the problem lately with the GAGOP. Create a narrative, stoke outrage, and don’t worry about the facts.
THE COURT: The difficulty I have with your complaint is your complaint says all the defendants were accepting these over the weekend, and I’ve heard testimony from Athens-Clarke County today that they weren’t accepting them. And also in your complaint itself, there’s a contradiction because it says Clayton County was not accepting them. So I can’t really go to the complaint.
Ultimately this Trump appointed Judge ruled against the GAGOP and went on to expressed some concern with the very nature of the case. After lecturing them for venue shopping, a practice used by attorneys in search of a favorable judge, he encouraged them to go and read “The Boy Who Cried Wolf.” Jeeze.
THE COURT: Now, before we adjourn, I’ve gotta address some concerns I have with the litigation tactics in this case. This Court has a reputation of being a stickler when it comes to the duty of candor, the forum shopping and being certain that you represent the law and the facts uprightly. My predecessors for sure, my colleagues and I, we’ve been known, we’ve got a reputation to be equal opportunity in this respect. We’ve garnered quite a reputation for holding attorneys to a high standard regardless of political affiliation or other characteristic…
THE COURT: Moreover, the law is clear that not only were the defendants allowed to receive ballots up to the close of the polls today, they are required to do so. Their [plaintiffs] own in-person witness testified today that he understood that is the law. If he understands it, I don’t understand why plaintiffs’ counsel does not.
THE COURT: Now, I understand that in today’s day and time, individuals often play fast and loose with the facts and the law in the political arena, and perhaps I’m just a little bit old fashioned, but, look, we don’t do that in the courtroom. Public perceptions notwithstanding, when a lawyer speaks, this Court expects that as officers of this Court, the lawyers and their clients are doing their level best to present the truth, nothing more, nothing less. Our system of justice demands it, particularly when it comes to matters that underpin our constitutional republic, including our election system. Those of us in the legal profession owe an obligation not only to the Court, but also to our fellow citizens, that we not pull any punches, but also that we not strike any foul blows.
THE COURT: Unfortunately, plaintiffs’ counsel has missed that mark in this case. It is dangerous when a non-lawyer makes claims that are just factually and legally incorrect about the right to vote, but as lawyers it’s even more dangerous. We gotta realize that lawyers’ words matter. They’re given special attention. And that’s why we have serious repercussions for lawyers who violate their duty of candor.
THE COURT: Mr. Kaufman and Mr. Feemster will tell you that a late predecessor of mine, he liked to hand out reading assignments. I haven’t adopted that. Usually his reading assignments were a dense tome on ancient history or some other volume that he’d quiz you on the next time he saw you. I was certainly a victim of that. Like I say, I don’t do that, but I do commend to you a much shorter but just as powerful read, that being the fable of the child which kept the sheep, also known as The Boy That Cried Wolf. When the watchmen scream that there’s a constitutional violation at the door and there just simply is none, eventually those who are called upon to answer the door are going to question when the knock comes as to whether there’s really a violation behind it.
THE COURT: I’m not saying that we’ve gotten there, but I’m worried that we will. So please don’t take us any closer to that ledge.
