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Cobb County Board of Elections Special Meeting 12/18/20

Prior to the start of the meeting, attorney in house mentioned that another challenge (in addition to the two previously on the agenda) had been received against 30K+ voters.

Meeting called to order at approximately 3:14pm

Four board members were present in person. Two attorneys present, one in person (Greg Linsfield), one remotely (Daniel White).

Fred Aiken, Vice Chair, presided, as Phil Daniell has been admitted to the hospital with severe back issues.  

Three challenges had been received.  Greg will read challenges on the agenda.

Greg: We have a challenge from Jason Shepherd to challenge the eligibility of 16,024 voters to vote in the January 5th election, pursuant to OCGA 21-2-230.  We have a challenge from Pamela Reardon to challenge the eligibility of 3,618 voters in the January 5th election pursuant to OCGA 21-2-230a. We have a third challenge from Pamela Reardon to challenge the eligibility of 28,760 voters to vote in the January 5th election pursuant to OCGA 21-2-230. So, we’re gonna take these challenges together.  This board is called, pursuant to 21-2-230, to basically hold a probable cause hearing… to determine if a probable cause exists to sustain such challenge.  Mr. Shepherd and Ms. Reardon have filed complaints, rather challenges, stating that people who registered to vote have filed notice of address change through US Postal Service.  They have provided lists.  Mr. Shepherd has provided a list that shows the name, address where it was moved and the date completed (?).  Ms. Reardon challenges show name of person, address where they were living to the new address on the NCOA (National Change of Address). Again, we’re given … probable cause – probable cause is the existence of such facts or circumstances that would create a reasonable belief that the accused person committed the act alleged.  (Repeats the definition) I don’t believe this is probable cause to challenge these voters. I’m gonna give you my reasons… the mere production of the voter registration database compared with the national change of address registry is not sufficient. The lists that were provided do not show that they are the same person per se as in the national registry. It could be an entirely different person.  We’re talking about a national registry. Mr. Shepherd’s list doesn’t show that the Cobb address and Cobb address shown in the NCOA are the same. It doesn’t even give us the original Cobb address in the NCOA list. The NCOA list, —- the database doesn’t show if it was a permanent move or temporary… People change their address for various reasons.  They’re temporarily… particularly during COVID, they may be out of state or out of county…taking care of a loved one who’s sick and they want to receive their mail.  So, the mere fact that there’s a list that has these names on it, to me, isn’t sufficient.  (OCGA) 21-2-333 SOS Procedure – voter is sent a confirmation notice to old address and new address. If they confirm that they’ve moved out of state, their name is removed. If they confirm they’ve moved to another county, their registration is transferred. If they do not respond, their name is not removed, it goes on an inactive list. They stay on inactive list for two election cycles…they are then removed [if still inactive]. Furthermore, the National Voter Registration Act states…[paraphrasing] cannot systematically remove voters less than 90 days prior to a primary or general election. This list is not a fact…does not create a reasonable belief, in my [attorney’s] opinion, that the voter is ineligible to vote. Now, Daniel may have something else to say.

Daniel White: I agree with Greg. It’s ultimately up to the Board. We’re here to advise you. Our understanding of the statute…under 330… you either have to find probable cause or you deny it…or you deny the challenge…If you do find probable cause, the voters would still…and this is for the benefit of everyone listening, too…these voters would still be able to vote, they would just be marked as challenged in the system. When they show up to vote, they vote provisional ballot. If they send in absentee, it would be marked as provisional. You would have a hearing afterwards. And, it would be on Jason Shepherd and Pamela Reardon to prove every single one of these voters is not a resident. And, that exercise…what you’ve gotta do is decide if what is presented today is enough to warrant a hearing and s and r come in and prove that these 30K or 16K or however many are not residents. And I just don’t, without more than they’ve presented so far…this is a pretty regular practice, called “caging”, where they’ll wait until a certain point in the election…where different parties or people will make this attempt to make this challenge. I just don’t know…if there was more specific facts…the Board could consider.  But this is Greg and I giving you advice, as your attorneys, you have the authority to make the decision (Board of Registrars)… want to make this clear that this is us advising you and it’s up to you whether you find probable cause.  That wouldn’t automatically disqualify these voters, it would just move them into a challenge…at which point the challengers would have the burden under OCGA 229 to prove that they’re not eligible.  If you were to move forward at this time with what they’ve presented, I don’t think you have enough to prove a single one of them ineligible. That’s my reading of the statute and the protections under the national…this is very close to the type of thing that the national act prohibits which is massive list maintenance during an election…you want to be very careful if you want to exercise that kind of action right now.

Jessica Brooks speaks, some difficult to understand due to her mask.  She talks about reading the statutes herself (had copy of OCGA text) and states that she agrees with counsel in her understanding of the statute. This evidence [submitted by challengers] only uses the change of address as proof.  We have all kinds of proof of residency that we can use. 

Janine Eveler: She checked the Cobb voters on the second challenge from Ms. Reardon and 15% of those have changed their registration to the address on there [the list?] or they have changed it to another Cobb County address that is not even on that list. Question the validity…

Jessica Brooks: [unintelligible]

Daniel White: [paraphrasing] there was a Fulton County Superior Court case…similar grounds…Schmitz v. Board of Elections of Fulton County, hearing on September 28, Order on October 1.  Judge found this type of evidence “inappropriate and insufficient” to challenge these voters… Not necessarily appellate case law that’s binding, but it is a ruling from a court in the state of Georgia, so we consider it persuasive and probably binding on us.  Not quite as rock solid as if issued by the Court of Appeals but it is a strong indication of the way the Court would handle this if somebody brought a lawsuit.

Fred: [paraphrasing] We always have gotten great advice from our counsel and this is a probable cause hearing and due to the high level of agreement we have due to the lack of evidence or proof…to take a vote to accept these challenges that prohibit these people on here to vote, they can still vote…eventually challenged.  Entertain a motion…

Jessica Brooks: I so move.

Someone seconded.

Fred: So we have a motion not to accept these challenges.  All in favor raise their hands.  4-0

Daniel: Clarify for reference purposes because I’m pretty sure there is counsel listening. Your motion was to not find probable cause and to deny the challenges.  Is that correct?

Fred: That’s correct

Daniel: There was a point where it cut out on audio. I wanted to make sure I heard it and everybody else heard it, too.

Jessica: she clarified that she only said, So Move, and…

Daniel: If Jessica is affirming that the motion was to deny, then I think we’re good on the record…

Jessica: I was affirming that it was a motion to deny.

Daniel: That’s good.

Fred: Motion to adjourn. 4-0

Meeting adjourned at 3:29pm.

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