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Expert Witnesses Have Failed to Offer Convincing Opinions in Support of 2020 Election Challenges

Written on Tuesday, December 22nd, 2020 by T.C. Kelly
Filed under: Expert Opinions, In the News, Working with Experts

Challenges to the 2020 presidential election have been based on a variety of legal claims. Some lawsuits have argued that states followed incorrect election procedures or that state legislatures failed to authorize changes that permitted voters to cast ballots more easily and safely during the pandemic. Others have alleged that ballots or counting procedures were fraudulent.

No challenge to date has altered the election outcome in any state. As judges have repeatedly commented, it is not the function of the courts to choose the president. Only convincing evidence coupled with a sound legal theory will convince a court to review election results after votes have been cast.

In several cases, expert witnesses have weighed in on the election. The expert evidence presented by election challengers has not been viewed with favor.

Nevada Experts

An election contest in Nevada was based largely on the assertion that voting machines did not accurately tabulate the votes that were cast. The challenge relied in part on the opinions of three expert witnesses. The court ruled that the expert testimony was insufficient to prove that the results were inaccurate.

To prove that votes were cast illegally, Michael Baselice conducted a telephone survey of voters. Surveys are only valid if participants consist of a sufficiently large group of randomly chosen voters who are representative of all voters. Since Baselice failed to identify the source of his survey data and “conducted no quality control of the data he received,” the court rejected his conclusions.

Jesse Kamzol concluded that votes were cast illegally based on his analysis of commercial databases of voters. Kamzol did not collect or verify the data, did not know how it was collected, and could not say whether his methodology accounted for false positives. The court concluded that the analysis was unreliable.

Scott Gessler concluded that mail voting was fraudulent. The court rejected that opinion because it was based on a small number of affidavits that Gessler made no effort to corroborate. The court faulted Gessler for failing to support his conclusions with verified facts.

Matthew Braynard

A Georgia election challenge relied on a telephone survey of absentee voters conducted by Matthew Braynard, a former employee of the Trump campaign. After the election, Braynard was hired as an expert witness and paid $40,000 to prepare an expert report. Braynard claims expertise in “the voter data and election administration field.”

Braynard alleged that his staff telephoned people chosen at random and asked them whether they requested and returned an absentee ballot. The answers were then compared to names in a statewide database of voters. Braynard extrapolated his comparisons and concluded that more than 200,000 absentee ballot were cast that were not requested by the voter or that the voter did not return.

Journalist Spenser Mestel explains why election surveys like Braynard’s are often based on bad science. More to the point, when Braynard was confronted with evidence that people he identified as illegal voters had in fact cast legal ballots, he admitted he made no effort to verify whether people listed in the database as having voted were the same people who told him that they had not voted. The election challenge was voluntarily dismissed soon after Braynard’s expert report was filed.

Braynard’s reports were filed in other election challenges, as well. A response to Braynard’s report filed in federal court by Stephen Ansolabehere, a professor of government at Harvard, contended that there was “no scientific basis for drawing any inferences or conclusions from the data presented.” His response identifies errors in Braynard’s data collection methodology and in his survey design and concludes that Braynard’s undescribed “list matching” technique was likely riddled with error.

Russell J. Ramsland Jr.

Attorney Lin Wood Jr. filed a lawsuit challenging the Georgia election. He relied in part on the expert opinions of Russell J. Ramsland Jr., a cybersecurity worker. Ramsland filed an affidavit that purported to identify inconsistencies in electronic voting machines. The New York Times reported that the alleged inconsistencies occurred in Michigan, not Georgia.

Nor were the claims accurate as to Michigan. The same Times report found that the “affidavit also listed a number of towns and counties in which Mr. Ramsland’s analysis ostensibly showed that the number of votes cast exceeded the number of eligible voters. But most, if not all, of the places Mr. Ramsland listed appeared to be townships and counties in Minnesota, not Michigan.

Ramsland filed a subsequent affidavit in a Michigan lawsuit that managed to focus on Michigan jurisdictions. Ramsland claimed that voter turnout in six Michigan precincts exceeded 100%. An investigation of those assertions judged them to be “wildly inaccurate.”

A federal judge who was appointed by President Trump rejected the Georgia challenge. The judge questioned the absence of reliable evidence to support the claim of fraud but ultimately decided that the plaintiff lacked standing to bring the suit. The Michigan lawsuit was dismissed because it was based on “theories, conjecture and speculation” rather than evidence.

Joshua Merritt

Sidney Powell has filed multiple election challenge lawsuits. Before filing in Michigan and Arizona, Powell famously told the media that she would “release the Kraken.” Her lawsuits in those states, as well as her lawsuits in Wisconsin and Georgia, were quickly dismissed.

Powell identified an expert witness in her complaints by the code name “Spyder” (sometimes “Spider”). Powell described Spyder as a former Military Intelligence expert. In a declaration filed in four states, Spyder opined that server traffic data proved that voting systems in the United States were “certainly compromised by rogue actors, such as Iran and China.”

The Washington Post reported that Spyder is Joshua Merritt, an information technology consultant. While he is an Army veteran who once enrolled in an entry-level military intelligence training program, he failed to complete the program. The military denies that he ever served as an intelligence analyst. Records show that he spent most of his military career as a truck mechanic.

Whether the judges who dismissed Powell’s lawsuits were aware that Merritt’s credentials have been stated incorrectly is unclear. The judges were likely unimpressed by a “secret expert witness” whose opinions were speculative and unsupported by reliable facts.

Terpsichore “Tore” Maras-Lindeman

Another secret witness for Powell claimed expertise as a “trained cryptolinguist.” That witness was recently identified as Terpsichore “Tore” Maras-Lindeman, a pro-Trump podcaster whose Navy experience lasted less than a year. Maras-Lindeman has a history of overstating her military credentials. Three years ago, she was fined for soliciting funds for a concert to benefit three homeless shelters and diverting those funds for her own purposes.

Michigan Audit

Claims that vote tabulating machines manufactured by Dominion switched votes to favor Biden have been widespread in social media. In response to a lawsuit founded on those claims, a Michigan judge gave an election challenger access to forensic images of logs prepared by the vote tabulation machines. The judge did not endorse those claims, but authorized the audit based on a voter’s claim that a Dominion machine incorrectly counted a vote on a village proposal to allow a marijuana dispensary.

The audit was authorized in Antrim County, where a clerk’s failure to update media drives for certain vote tabulators initially resulted in an incorrect vote count. An AP fact check found that the clerk’s subsequent correction of the error caused election challengers to argue that the error was caused by the Dominion vote tabulators when it was actually caused by human error.

The audit was conducted by Allied Security Operations Group. Its report was signed by Russell Ramsland, the same expert whose opinions were rejected in Georgia and an earlier Michigan case. The report does not identify or provide credentials of the people who prepared it. Whether they are experts is therefore unclear.

The report alleges that Dominion machines are “intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results.” Dominion denies that allegation.

The AP fact check notes that some of the report’s assertions, including the claim that the county had a “68% error rate,” are largely unexplained. According to the AP, the report contains a “slew of other debunked claims about Dominion.”

After the audit was completed, Antrim County completed a hand recount of the presidential ballots. The recount confirmed that Trump won the county by less than 3,800 votes. The difference in the machine count and the hand recount amounted to about a dozen votes, a minor error rate that is common in elections. It is difficult to believe that a court will credit an audit that is undermined by an actual count of the votes.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.