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IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIAGARLAND FAVORITO, MICHAEL SCUPIN, TREVOR TERRIS, SEAN DRAIME, CAROLINE JEFFORDS, STACEY DORAN, CHRISTOPHER PECK, and ROBIN SOTIR, PETITIONERS,v.MARY CAROLE COONEY, VERNETTA KEITH NURIDDIN, KATHLEEN RUTH,AARON JOHNSON, MARK WINGATE, and RICHARD BARRON in their individual capacities,RESPONDENTS.Civil Action No. 2020CV343938SUPPLEMENTAL BRIEF IN SUPPORTOF THE PETITIONERS RIGHT OF ACCESS TO THE STATE FARM ARENA MAIL IN BALLOTSWhen the Fulton County Superior Court transferred this case, they described it as an "electoral challenge" and an "election contest." See 1/4/2021 Order, 1st and 2nd “Whereas” paragraphs. Petitioners need to clarify: this action is not an electoral challenge, and does not seek to overturn any particular election or political contest. No election candidate and no political party is involved in this action.The recent election was tense and fraught with bitterness; if anything, the aftermath has been even worse. With nationwide attention focused on the events at State Farm arena on November 3 and 4, Georgia citizens have been left with serious questions about whether their votes were fairly and accurately counted.The Petitioners in this case are not seeking a particular electoral result, but rather the open and honest truth about what occurred in Fulton County on the night of the election, and information about whether Fulton County fairly and accurately counted the ballots submitted by Fulton County voters. I.WHAT THE COURT IS BEING ASKED TO DECIDE.A. What the Court is Being Asked to Decide at the Initial Hearing.Petitioners have presented verified allegations related to the November 3, 2020, election, stating that they personally saw: series of ballots that were unrealistically and impossibly skewed toward one candidate (i.e., with 100% or 98% of the votes being for a single candidate); mail-in ballots that were not creased as they would have been had they been mailed to and then from voters; ballots that appeared to be marked by toner instead of a pen; and ballots that were printed on a paper stock that was different from the stock Fulton County used. At this initial hearing, Petitioners are asking the Court to:(1) Issue a temporary injunction preventing the destruction, removal or tampering with all mail-in paper ballots in Fulton County; (2) Allow the Petitioners and their representatives to visually inspect and then scan Fulton County's mail-in paper ballots from the November 3, 2020, General Election; (3) Require Respondents to export to an electronic drive provided by Petitioners certain Dominion ballot images and election reports in certain formats for technical inspection and validation;(4) Require Respondents to produce an electronic copy of the 11/03/2020 Interim elections results for each transmission made from Fulton County to the office of the Secretary of State, as requested in an Open Records Act request by Petitioner Garland Favorito. 1. Legislative Support for the Request to Inspect Ballots.The Georgia Senate Standing Judiciary Sub-Committee on Election Law held hearings looking into Fulton County's conduct during the November 3rd election. Afterwards, the Chair of the Committee stated that the Committee had seen "unequivocal proof of duplicate scanning of absentee ballots at the State Farm Arena on the evening of November 3rd and early morning hours of November 4th.” See 12/30/2020 letter from Senator William Ligon, attached as Exh. 1. The Committee was very concerned that Fulton County was not permitting inspection of the Fulton County ballots:“It was disappointing to our Committee members to hear that the legally protected right to access the subject ballots was denied, particularly given the fact that the integrity of Fulton County’s count of the subject ballots was called into serious question based upon the video from the State Farm Arena on November 3rd and 4th, 2020. When one reviews that video, it is patently obvious to even an untrained observer that absentee ballots were being scanned in duplicate many times by the vice Fulton County poll workers. Id. (The Court can view the video that so alarmed Senator Ligon and the Committee at ) The Committee "voted unanimously to respectfully request that Fulton County … cooperate fully and produce the subject ballots and related electronic devices involved in the scanning and tallying of votes” so that "the public, which has a right to this authentication of the ballots, may have this information this week.” Id. (Fulton County disregarded the request.)2. Statutory Support for the Right to Inspect Ballots.The Georgia Open Records Act provides that:All public records of an agency as defined in subsection (a) of this Code section, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.O.C.G.A. § 50-18-70. While the Act enumerates 50 different categories of documents that are exempt from disclosure, it notably does not exempt ballots or voting records or election reports. 3. Case Law Support for the Right to Inspect Ballots.Numerous courts have ruled that ballots are public records and subject to inspection: "Nothing could be more obvious than that a?ballot?becomes a?public?record once it is voted."? Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. Dist. Ct. App. 2005) (emphasis added) (unlike used ballots, unused ballots are not public records). See also People ex rel. Sherman v. Slater, 42 Ill. App. 3d 396, 399, 355 N.E.2d 735, 737 (1976) (voter affidavits are public records even though they contain the name and address of the voter on them); Marks v. Koch, 284 P.3d 118, 122 (Colo. App. 2011) (ballot secrecy would not be violated if "the identity of the voter cannot be discerned from the face of that?ballot"; permitting access to TIFF files.)4. Lack of Harm if the Court Permits the Inspection of Ballots and electronic export of election reports.If the Court allows the Petitioners to inspect and scan the mail-in paper ballots, Fulton County will not be harmed: Petitioners anticipate that they can review, inspect and scan the documents in a matter of a few, probably 5-6, hours. The ballots are not identified with any particular voter, so no privacy issues will be involved. The ballots will not be harmed, and the Petitioners are not requesting to do any destructive testing of the ballots. The costs of the inspection will be borne entirely by Petitioners. Additionally, Respondents will suffer no harm in simply exporting election reports, as requested by Petitioners, to an external drive to be provided by Petitioners.B. Requests to Be Heard at a Later Date.When these inspections are completed, Petitioners will ask the Court for a declaratory judgment declaring that the Respondents violated Petitioners' due process and equal protection rights. CONCLUSIONOn their side of the scales of justice, the Respondents place virtually nothing: Fulton County will bear no cost and will sacrifice no important interest by complying with the Court order as requested by Petitioners. On the other side of the scales, Petitioners have the right to open and fair elections, and the integrity and very legitimacy of the Georgia and United States governments. Georgia citizens deserve to see the ballots and to know the truth about what happened in their election. Time is of the essence because the citizens of Georgia and particularly Fulton County have a right to know what happened in the State Farm Arena on the night of the election. Respectfully submitted this 5th day of January, 2021.MADDOX & HARDING, LLC /s/ Todd A. HardingTodd A. Harding, for the Firm Ga. Bar No.: 101562113 E. Solomon StreetGriffin, GA. 30223 770-229-4578kamikazehitman@Attorney for PetitionersCHEELEY LAW GROUP, LLC/s/ Robert D. CheeleyRobert D. CheeleyGA Bar No. 1227272500 Old Milton Parkway, Suite 200Alpharetta, GA 30009T: 770-814-7001bob@Attorneys for PetitionersCERTIFICATE OF SERVICEI hereby certify that on this 5th day of January, 2021, I electronically filed the within and foregoing Petitioners’ Emergency Supplemental Brief with the Clerk of Court using the Odyssey eFile/GA system which will provide automatic notification to the following counsel of record:Cheryl Ringer, Esq.Cheryl.ringer@David R. Lowmann, Esq.David.lowmann@141 Pryor StreetSuite 4038Atlanta, GA 30303CHEELEY LAW GROUP, LLC/s/ Robert D. CheeleyRobert D. CheeleyGA Bar No. 122727 ................
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