A Florida judge ruled this week that ex-Overstock CEO Patrick Byrne is not liable in a lawsuit brought by a Dominion Voting Systems executive over a film that accuses the former electronic voting hardware and software company  executive of saying he “made sure” that Republican presidential candidate Donald Trump wouldn’t win reelection in 2020.

The lawsuit, brought in 2022 by Eric Coomer, a former director of product strategy and security at Dominion Voting Systems, concerns comments made in a 2020 film produced by Byrne titled “The Deep Rig.”

In the film, which alleges a conspiracy to manipulate 2020 election results in favor of Democrat Joe Biden, a man identified as Joseph Oltmann claimed he listened to a conference call led by organizers of “Antifa,” wherein another participant mentioned that “Eric” “The Dominion Guy” was also on the call.

In the film, Oltmann says a man identified as “Eric” told others on the call that Trump wouldn’t win reelection because he had “made sure of it.” Coomer denies taking part in any such call, and filed a lawsuit against Byrne and seven other individuals and entities for defamation.

U.S. District Judge Tom Barber’s decision did not address most of the substantive claims in the lawsuit, such as Byrne’s ultimate legal responsibility for the statements by Oltmann that made it into the film.

Because the lawsuit was originally filed in Colorado, it must meet a state law requirement for defamation claims involving matters of public concern. Coomer must show “clear and convincing evidence” that Byrne or others involved in making the film knew the claims were false and defamatory, or acted with reckless disregard for the truth.

“Where the challenged speech involves a matter of public concern, as it undeniably does here, the plaintiff also bears the burden of proving, by clear and convincing evidence, that the challenged statement is materially false and was made with actual malice,” wrote Barber in his opinion.

The standard is not whether a reasonable person would have investigated the claims before airing them, but whether the defendant “in fact entertained serious doubts as to the truth of [the] publication, or was highly aware of its probable falsity.”

In this case, Barber said it’s not impossible to clear that standard for public figures, but under Colorado law, Coomer would have a hard time providing clear and convincing evidence that Byrne “in fact subjectively disbelieved or had serious doubts about Oltmann’s story.”

Barber further wrote that technology has given “a powerful microphone” and large followings to people who would otherwise be dismissed as “kooks” and conspiracy theorists. These people make statements that are “objectively and demonstrably wrong” but who hold firm to their core beliefs because they “genuinely and sincerely believe what they say with every fiber of their being, even when objective evidence may suggest otherwise.”

Still, he said the current language and meaning of the Colorado law is clear, suggesting it was a matter for higher courts or legislators to clarify or change.

“Under the actual malice standard, unless it can be proven that the speaker subjectively believed his or her statements to be untrue, the law imposes no liability,” Barber wrote. “That is a policy choice that might deserve reexamination by the appropriate decision makers – the United States Supreme Court and the Colorado courts.”

Byrne’s attorney, Peter Ticktin, called the ruling a “victory” in a statement to CyberScoop.

“This is a substantial victory for Patriot Patrick Byrne and for the principles at stake in this case,” Ticktin said. “The court’s decision speaks for itself. We are pleased that the facts and applicable law resulted in summary judgment in our client’s favor.”

Coomer sued Byrne in his personal capacity, and Dominion Voting Systems was not a party to the lawsuit. 

The voting machine giant was awarded more than $1.8 billion in combined legal settlements over the past two years from Fox News, Newsmax and MyPillow CEO Mike Lindell, all of whom made allegations that Dominion voting machines were used to maliciously flip or alter votes.

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State and local officials and election security experts largely panned a Thursday night primetime speech by President Donald Trump, saying it was reflective of White House “desperation” to find any credible evidence to support their claims that U.S. elections have been rigged against the two-term president.

While the White House teased explosive new claims about the potential compromise of U.S. elections by China, Trump’s speech was a rehash of claims that both have no supporting evidence and have been repeatedly debunked when investigated. 

David Becker, executive director of the Center for Election Innovation and Research and a former voting and civil rights attorney at the Department of Justice, said none of Trump’s claims or allegations were new or substantively different from previous theories he’s been espousing over the past six years.

“The White House promised a bombshell and they delivered a dud,” Becker said on a call with reporters Friday. “There was nothing that even calls into question past elections — certainly not the 2020 election.”

The administration declassified a huge tranche of documents from the intelligence agencies, and news outlets continue to sift through them, but thus far nothing has been found that remotely validates the administration’s claims about foreign interference from China costing Trump the 2020 election.

In fact, some of the most relevant documents found at this point have supported the opposite conclusion, with agencies assessing that while China engaged in influence campaigns around the election, it was not attempting to outright interfere with U.S. election infrastructure, hack voting machines or manipulate ballots.

John Solomon, a former journalist and opinion writer at The Hill brought in by the White House to lead the investigation, also told reporters Thursday that his search hasn’t turned up evidence that the 2020, 2022 or 2024 elections were affected by fraud.

The one new major claim by Trump — that the Department of Homeland Security determined hundreds of thousands of noncitizens were registered to vote across four states — is almost certainly false or overinflated, given that it contradicts post-election state audits that have routinely found single or double-digit numbers of noncitizens registered to vote within a single state across multiple elections.

Over the past six years, similar claims by GOP secretaries of state and political activists purporting to find mass numbers of noncitizens registered to vote have turned out to be grossly inflated due to shoddy data analysis, and the vast majority of cases involving “suspected noncitizens” turn out to be U.S. citizens who are legally registered to vote.

The White House has provided little to no information on the methodology used to flag and identify supposed noncitizen voters, other than alluding to the use of “commercial data” and federal databases. A federal court recently ordered DHS to dismantle the SAVE database, its primary database for verifying the citizenship status of U.S. voters, because it was unreliable and violated longstanding privacy laws. 

 Apart from DHS admitting its own data on citizenship is incomplete, Becker said using a list that relies on matching voter files with commercial data is not a reliable way of determining citizenship.

“It is impossible to take a public voter file with very little information that is uniquely identified, like a driver’s license number, and compare it to a commercial database and say for sure the Maria Rodriguez or the John Lee or the Shawn O’Hara you have on that is the same person,” he said.

Election officials also responded forcefully. Nevada Democratic Secretary of State Francisco Aguilar said that Trump has spent a decade attempting to manufacture a crisis around voter fraud and the president’s speech Thursday night was an extension of that effort. 

“As Nevada’s chief elections officer, it’s my job to call balls and strikes — so when the President lies, I am obligated to call him out,” Aguilar said in a statement. “The facts have not changed: Nevada’s elections are among the safest, most secure and accessible in the nation.”

It’s not just Democrats that have objected to the administration’s efforts. GOP states have gone to court to block the Department of Justice from obtaining their voter data, and Idaho’s Republican secretary of state responded to a DOJ letter threatening prosecution of election officials as “not well met” and potentially illegal under state ethics laws. 

Trump’s speech potentially casts additional light on recent White House decisions, such as firing all three commissioners on the Election Assistance Commission. The agency helps certify voting machines for security, and all three commissioners have served across administrations and maintain close relationships with state and local election officials.  

Pamela Smith, CEO of the nonprofit Verified Voting, said that while the EAC can’t take certain actions that need commissioner approval, “critical functions like voting system testing and certification can continue under the existing framework and should not be affected.”

In 2020, Trump’s initial claims of widespread election fraud were undercut by leaders at the Cybersecurity and Infrastructure Security Agency, which said there was no evidence the election was compromised. The removal of EAC commissioners could represent an attempt to preempt any efforts to rebut or criticize White House claims that elections and voting machines have been compromised.

Some have worried that Trump could use the speech as a pretext to declare a national emergency or cancel elections.

Tom Lopach, CEO of the Voter Participation Center, said “you don’t dismantle election security infrastructure if you’re serious about protecting elections.”

“You dismantle it if you’re planning to claim, without evidence, that the system failed you,” he said. 

While Becker takes Trump’s broadsides against state election authority seriously, he also said it’s important not to lose sight of the fact that, in his view, the administration is losing the argument across the board.

More than a dozen federal courts have unanimously rejected the federal government’s attempts to forcibly obtain state voter data, while other courts have rejected core pieces of his election-related executive orders. State officials have publicly — and at times, angrily — pushed back on the administration’s demands as blatant federal overreach. 

Becker predicted that such an act would be quickly shot down by courts as well, noting that the U.S. has never canceled or postponed an election in its 250-year history, including when British troops were marauding on American soil during the War of 1812 or even at the height of the Civil War.

It’s important not to conflate the White House’s bluster and intentions with its actual authorities or capability to seize control of U.S. elections.

“This is what panic and desperation look like,” Becker said. “They’ve had 18 months in total control of the federal government and they have found nothing that would support President Trump’s lies about the 2020 election, and so they’re just trying to grab as much garbage as they can and throw it up against the wall, and it’s not sticking.”

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