ATLANTA (CN) – Fulton County argued to a federal judge Friday that the Justice Department acted in “reckless disregard” when it obtained a search warrant to take possession of all of its original ballots from the 2020 election.
The county, which is the most populous in Georgia, asked the judge to order the return of 656 boxes of election materials seized by the FBI on January 28.
He argued that the Justice Department failed to establish the credibility of 11 anonymous witnesses cited in the statement used to obtain the search warrant and that he removed conflicting information without identifying any crime suspects.
“The statement makes no allegation that anything was done intentionally,” attorney Abbe Lowell said in court.
Lowell, of the firm DC Lowell & Associates, noted that it has been five years since the election took place and questioned the government’s motive for not requesting the materials sooner.
He added that there have already been numerous investigations into the elections that found no wrongdoing by the district and said that there are shortcomings in every election.
“That’s the nature of the beast,” Lowell said.
US District Judge JP Boulee acknowledged that the affidavit may have omitted conflicting information, but declined to rule on the jury whether that meant it was illegally obtained.
“The magistrate judge thought that was good enough and made the decision to sign the warrant,” said Boulee, a Donald Trump appointee.
“How far should the affidavit go?” he asked.
Testifying for the county, Bryan Macias, an election administration and security expert, said nothing in the affidavit proves any intentional misconduct on behalf of the county as charged.
As an election security consultant, Macias said he was brought in to help Fulton County with the influx of absentee ballots received during the 2020 election due to the Covid-19 pandemic.
Macias said that the allegations in the statement do not reflect the reality of how the elections were conducted and the typical behavior of the election administration. Because the margin in Georgia was so close for the presidential race, Macias said, the results were confirmed by a hand count of the votes and then an additional recount by the voting machine.
“The affidavit has no substantial basis in reality,” Macias said.
When asked about concerns about potential duplicate ballot images, Macias said that means a ballot has been “photographed” twice, not counted twice. These ballot images do not affect the outcome of an election since only the “cast vote record” from the voting machines is used for tabulation, Macias said.
He added that a duplicate ballot is not one that is scanned twice, but one that is recreated or recreated, such as for military voters who receive a digital ballot that cannot be scanned by a tabulator, similar to if an absentee ballot is torn or damaged.
A ballot scanned more than once means there was a jam in the tabulation machine that required it to be erased and scanned, Macias said.
“There are quality control methods to prevent any duplicate scanning of ballot papers,” he added.
In the statement, FBI Special Agent Hugh Raymond Evans wrote that Fulton County reported a recount of a total of 511,343 ballots, which was 17,434 ballots short of the initial count. The next day, Fulton County then reported 527,925 ballots counted.
Macias testified that the lower recount number comes from an internal report for the county to figure out where it was at the time of their count, not a full total.
The district asked Macias if he thought there was any evidence of intentional misconduct, to which he replied, “no.”
Boulee previously denied a request to reconsider his decision to overturn Evans’ summons. The judge sided with the government’s stance of not wanting to reveal facts about their ongoing investigation.
The district also argued that the Trump administration overlooked two pending civil lawsuits seeking access to the 2020 records. One is from the Justice Department and the other was brought by the State Board of Elections, which has long scrutinized Fulton’s 2020 performance.
In his view, the Justice Department tried to circumvent the slow process and costs estimated by the county to collect the data, casting the criminal investigation as a way to obtain the data itself.
“If that’s what happened, I think that would advance the petitioner’s argument considerably,” Boulee said.
But the Justice Department argued that this is an entirely separate investigation and that those other cases are irrelevant.
They also claimed the county has no particular need for original ballots, an argument Boulee seemed sympathetic to.
Fulton argued that they should return the ballots to ensure voter confidence in the election and to end the ongoing election fraud brigades by Trump and his allies.
“That’s not enough to climb this hill of callous disregard,” argued DOJ attorney Tysen Duva on behalf of the federal government.
Duva also said the statute of limitations doesn’t matter in this case because there are no limitations on search warrants.
As part of a separate petition, the NAACP also asked Friday that the court order reasonable restrictions on the government’s use of seized materials, barring use for purposes other than the government’s criminal investigation of matters described in the order.
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