Election Tech Vendors File $5.3B in Defamation Lawsuits – Government Technology
After years of preparation against election fraud and tampering, the Cybersecurity and Infrastructure Security Agency (CISA) in November called the 2020 election “the most secure in American history.” The U.S. Department of Justice found no evidence of widespread fraud that could have changed the outcome. Nationwide election officials, election security experts and computer scientists, some of whom had expressed concerns about vulnerabilities before, came to the same conclusion. The consensus was clear.
Still, in the weeks and months following the election, former President Donald Trump and several high-profile figures who supported him repeated specific claims. Trump’s attorney Rudy Giuliani, Trump’s former attorney Sidney Powell, and several TV programs on Fox News, Newsmax and One America News Network (OANN) echoed Trump’s allegations that the election had been stolen. Specifically, they blamed a multi-state conspiracy involving Democrats, Republicans and “rigged” voting machines from two companies, Dominion Voting Systems and Smartmatic. Within weeks, half of Republican voters said they believed the election had been stolen, and some of them on social media called for Dominion and Smartmatic employees to be jailed or sent them death threats. Now those companies are suing for a collective $5.3 billion in damages, and some election security advocates don’t blame them.
Suing for defamation
To date, Dominion has filed two lawsuits in federal court in Washington, D.C., each seeking $1.3 billion — one on Jan. 8 against Sidney Powell, her company and her website; the other on Jan. 25 against Rudy Giuliani. Smartmatic filed a $2.7 billion lawsuit in New York state on Feb. 4 against seven defendants: Fox Corporation, Fox News Network, three of their hosts (Lou Dobbs, Maria Bartiromo and Jeanine Pirro), and Giuliani and Powell.
Smartmatic, which says its only customer for the 2020 U.S. election was Los Angeles County, was founded in Florida in 2000 and has done much of its business internationally, selling voting technology to 25 countries. The company demanded retractions in December from some of the defendants later named in its lawsuit, along with Newsmax and OANN for making similar claims.
Dominion, one of the largest domestic providers of election tech along with ES&S, has threatened others besides Giuliani and Powell with litigation. The right-wing website American Thinker responded with a retraction and apology, admitting to publishing false statements and “abandoning nine journalistic principles.” Shows on Fox News, Fox Business and Newsmax aired corrections explaining that they had broadcast claims without evidence, and OANN deleted stories from its website mentioning Dominion. Dominion told Forbes that more lawsuits are likely to follow.
Giuliani responded on WABC Radio by calling Dominion’s lawsuit an “act of intimidation” to suppress his right to free speech and to defend his client, former President Donald Trump.
Real vs. imagined threats
Hundreds of pages in the lawsuits rebut specific claims made by various defendants, but many of the same claims appear over and over: that Smartmatic owns Dominion, that Smartmatic was founded in Venezuela and funded by corrupt dictators, that Dominion uses Smartmatic software, that the software sent votes to foreign countries for manipulation, and that the software was used in 2020 to steal the election by fixing and rigging the vote.
When these claims have come before judges in several states, dozens of times, they’ve either been thrown out for lack of evidence or standing, or rejected on the merits. In many cases, the claims misstated what was probably true, such as who owns the companies, or whether their software “flipped” votes in a particular state. Every recount demanded by people alleging fraud has reconfirmed the original election result. In Georgia, votes were counted and then recounted twice by hand.
It’s impossible to know exactly what these claims have cost Dominion and Smartmatic in business, but the lawsuits project hundreds of millions in lost revenue for each company over the next five years. The lawsuits also cite examples of widespread vitriol on social media and death threats to employees. And earlier this month, the Republican Party in Georgia asked the state to ditch Dominion voting machines, after spending $107 million in 2019 to buy them for every precinct. With or without evidence, people have taken these conspiracy theories seriously.
Susannah Goodman, a policy analyst at the nonprofit Common Cause who has advocated for election security measures in the past, said they shouldn’t. Goodman was one of the people warning about election security for the past several years, and she granted that there have been valid concerns about touchscreen ballot-marking devices and election equipment that connects to the Internet. But those concerns were the result of computer scientists testing the devices, understanding and demonstrating what they saw, she said. Their explanations encompassed facts about the technology and didn’t hinge on denying provable truths about who owns it, where it came from or what it does.
Some of the lawsuits against Giuliani and Powell mention that experts and officials explained to them in detail what was wrong, but they simply didn’t listen and kept repeating the claims anyway.
“The point is, you can have a rational discussion about what is working and what needs fixing, but you have to respect facts. You can’t make stuff up and have a rational discussion,” Goodman said. “[Conspiracy theorists] were not trying to shed light on legitimate places in election infrastructure where there needed to be more resilience built into the system. That’s what the cybersecurity experts do.”
Lately, Goodman said, election security faces an even bigger problem: physical danger posed by mobs, animated by conspiracy theories, to volunteers and buildings.
“This is the first time so many election officials got death threats. We have death threats,” she said. “People are thinking, ‘Do I want to serve my community by being an election director? No, I have children, I don’t want to die.’ That’s a bigger problem.”
Cause for optimism
Goodman said she felt “so much better” heading into the 2020 election than 2016 because of the robust preparations that occurred in between. The Department of Homeland Security designated election infrastructure as critical infrastructure, CISA was regularly talking to states and sending warnings about attacks, many states had new audit practices in place and people across the political spectrum were taking election security seriously. And for the first time in 16 years, the U.S. Election Assistance Commission this week adopted new guidelines for voting machines, pushing states toward paper ballots and mandating that election equipment vendors submit to cybersecurity testing.
Goodman described a sea change between 2016 and today, as “election security became national security,” and cybersecurity took over as a subject of focus among groups such as the National Association of Secretaries of State and the National Association of State Election Directors.
“So many briefings, so many discussions were around, ‘How do you make your systems resilient? What does that look like? What help can you get from the federal government? What money can you get from the federal government?’ All these conversations were happening, and it was a relief to see, because they needed to happen,” she said. “Nobody will tell you that it’s perfect. But is it way better than it was, and can you trust it? I say yes.”
Lawrence Norden, director of the election reform program at New York University’s Brennan Center, reiterated that one of the most important steps over the last few years has been having a paper record of every vote, as was the case for 44 states in 2020, including every battleground state.
“It would be a big problem if we discovered that there was a successful attack against our systems, but at least we have the evidence now that we could prove or disprove that that happened,” he said. “We have heard over the years, and will continue to hear, about vulnerabilities that exist in our systems. That doesn’t mean there has been a successful attack against them, and we need to look at the evidence to determine whether or not that’s true.”
Norden said state and local officials have also done a good job of creating redundancies, not only to catch voting machine errors but for voter registration systems, electronic poll books, election-night reporting, election websites and other parts of the process. He said they still have work to do on shoring up those redundancies, and six states still have to implement paper ballots.
In the coming years, Norden said he hopes that states avail themselves of CISA as a resource to identify vulnerabilities, and that they continue creating backups for each part of their election systems.
“One of the biggest concerns I had going into 2020 was that, whether by attack or by technical failure, we might see electronic poll books go down, which are tablets used to check people in,” he said. “When they’re not working, it can mean that people just aren’t allowed to vote. They can’t check people in to verify their identity … so having paper ballots available for people to fill out by hand, if the machines can’t be activated, or having a backup poll book, those kinds of redundancies are essential.”
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