3. Derek Somerville

During the relevant events in 2020 giving rise to this lawsuit, Defendant Derek Somerville lived in Georgia.20 Tr. 1212:12–18. Previously, he served in the Marine Corps for 4-years and on the FBI’s public corruption and white-collar squad. Tr. 1217:21–22, 1222:6–10. At the time of the 2020 elections, he was well-known in his “general county region” and it was not uncommon for people to reach out to him and discuss issues in Georgia. Tr. 1123:11–20.

In late November 2020, before taking any action, Somerville and Davis sought guidance on the Section 230 process from a Georgia General Assembly Representative and legislative counsel. Tr. 1246:8–23. They ultimately determined that this was “viable way to engage” with issues and people on election integrity. Tr. 1258:13–23. The process of challenging voters under Section 230 was, in Somerville’s words, “benign” and to “help[ ] ensure that [voters] actually vote in the right place.” Tr. 1257:7–25. Somerville and Davis did not seek to change the voting behavior of any person. Tr. 1514:6–11. No contact or communication was had with any voter on the challenger list crafted. Tr. 1472:19–23. They never intended for anyone to be or feel intimidated or targeted, and Somerville testified that they never “would have engaged in this if we thought it would have resulted in any amount of harm” (Tr. 1257:23–25), though Somerville acknowledges that participating in a hearing following one of these challenges may have been intimidating (Tr. 1203:5–14).

Davis and Somerville were “relatively obsessive” about working on the list from late November until the list’s completion in December. Tr. 1477:2–7. Somerville and Davis’s Section 230 challenge list contained over 39,000 potentially ineligible voters across Georgia’s 159 counties. Tr. 1165:16–21. However, Somerville only remembered challenges from his and Davis’s list being made in around 40 counties. Tr. 1171:12–23.

As far as the list of potentially ineligible voters themselves, Somerville described the process as a “funnel,” starting with the large population contained in the NCOA dataset. Tr. 1159:4–12. From there “it was an exhaustive effort of pare down, pare down, pare down, pare down.” Tr. 1159:4–12, 1509:11–1510:14 (testifying that there was a lot of “exclusionary logic” to the funnel, including the removal of inactive voters, limiting the time period of NCOA applications, and removing intra-county moves). Their sources of data included the NCOA dataset, the Georgia’s voter file, the absentee voter file, and geospatial data. Tr. 1540:5–23. No part of their effort was partisan, despite efforts by others to make it so. Tr. 1504:19–1505:4. They did not consider gender, race, party affiliation, or other demographic factors in making their list of potentially ineligible voters, though afterward they reviewed the list and found it to be “on par” with Georgia’s overall demographics. Tr. 1521:25–1522:22, 1527:3–19; see also Tr. 1657:1–24 (Davis affirming no demographic factors were considered in making the voter files).

They removed voters eligible to vote under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and attempted to exclude those who had relocated for military service. Tr. 1545:1–25. They also removed duplicates. Tr. 1546:1–5. Somerville and Davis both admitted that removing student voters was a challenge.21 Tr. 1551:21–1552:22, 1669:1–9. The Court credits Somerville’s trial testimony regarding the efforts to exclude these groups of people from the Somerville and Davis’ list. The Court, however, weighs this testimony in the light of the fact that Somerville failed to fully describe every step of the exclusion process during discovery. Tr. 1546:6–1547:1.

Somerville and Davis also attempted to get volunteer challengers from each county in Georgia. To establish negligence in handling their list of challenged voters’ names, Plaintiffs submitted a social media post by Somerville describing the volunteer process as a “15 minute” effort. PX 41. The Court, however, credits Somerville’s testimony that this statement was “not [ ] very articulate” and not intended to mean volunteers would spend literally 15-minutes on the challenge, but that the effort itself would not be onerous. Tr. 1533:11–23. Overall, the Court finds that Somerville and Davis adequately engaged with their volunteers under the circumstances. See, e.g., Tr. 1534:14–23 (Plaintiffs’ counsel admittedly describing the document transmitted to volunteers to “include[ ] a large number of instructions”).

Once Somerville and Davis’s list was compiled and they had a volunteer challenger for a county, Somerville and Davis gave the volunteer the lists of potentially ineligible voters either via email or by giving the challenger access to the Google Drive and Dropbox.22 Tr. 1169:23–1170:7. This Dropbox was never made public, nor was it referenced in any public postings by Somerville. Tr. 1479:3–13. They also gave a document to the challenger with a disclaimer, their communication policy, and instructions. Tr. 1481:13–1482:14; DX 38. Admittedly, this document did not include instructions to “scrutinize” or “investigat[e]” the list. Tr. 1535:3–17.

From there, they “didn’t control [the challenger’s] process” and the challenger “had the ability to manipulate what . . . they ultimately submitted.” Tr. 1168:8–15. While there is no documentary evidence of the challenger’s ability to manipulate the challenges submitted, Somerville persuasively testified that this understanding occurred largely from conversations with the volunteers because he knew them personally. Tr. 1168:18–1169:15. Somerville also admitted to some “process breakdown” once the lists were distributed. Tr. 1171:7–11 (“[T]hose are probably some of the weaker parts of our process . . . making sure we kept track of who received one and certainly happened after that.”). They received confirmation about submitted challenges from four to five volunteers but did not follow-up with every volunteer. Tr. 1262:2–15. He knows that Dan Gasaway was a volunteer challenger in Banks County, and that Plaintiff Heredia was on the Davis and Somerville list for Banks County. Tr. 1172:7–15; see also Tr. 1648:21–1649:19 (Davis testifying that he connected Gasaway with Somerville to talk about voter challenges). He disclaims any challenges being made in Muscogee County.23 Tr. 1173:22–1175:15, 1177:2–8. Somerville himself did not make any challenges because there was a volunteer who camet forward from Forsyth County (where Somerville lived) and his preference was for other citizens to submit the challenges to engage with the political process in “a constructive way[.]” Tr. 1189:1–1190:11.

The hope of these challenges was that “the individual Board of Elections would review the material and do what the Government does.” Tr. 1185:22–24. Somerville’s understanding was that the Board of Elections for each county would review the challenges submitted and then make a probable cause determination. Tr. 1497:3–8. Somerville did not understand the law to require the challenger to have probable cause when making the challenge (because such was a determination for the Board of Elections) but that it was nonetheless “important to [Davis and himself] to be as certain as [they] could” about the challenges facilitated. Tr. 1563:23–1564:9.

Ultimately, no Board of Election accepted Somerville’s and Davis’s challenges. Tr. 1467:2–13. This result did not necessarily surprise Somerville because he never quite knew how the Boards would respond. Tr. 1467:2–13. Even though the challenges themselves had no immediate impact, Somerville still maintains that “a lot of good[ ] came” from the experience, including “highlight[ing] a significant issue that is imperially demonstrable.” Tr. 1501:11–14; see also Tr. 1502:2–1505:4 (recounting the effort’s positive impact in relation to the rampant “conspiracy theories” and general political climate at the time).

As far as Somerville and Davis’s connection to TTV’s Section 230 voter challenge effort, Somerville was particularly “sensitive to groups that were coming in from out of the state,” because he wanted to ensure that the organization had the people of Georgia’s best interest in mind. Tr. 1484:4–15. Defendant Ron Johnson initiated the contact between Somerville and Engelbrecht and the two met for dinner on December 15, 2020. Tr. 1122:9–14. Somerville indicated that while they had “cursory” discussions about the voter challenges at dinner, the communications were more introductory in nature. Tr. 1122:18–20. Somerville also attended a meeting for “Elector Challenge Alignment” with Engelbrecht, Gregg Phillips, and Davis. Tr. 1124:2–24; PX 6. Somerville and Engelbrecht specifically spoke about suing counties who did not act on the submitted Section 230 challenges. PX 92, 11–12. The documentary evidence submitted further indicates a significant amount of communication between Engelbrecht and Somerville in the period between their introduction and the Senate runoff election. See, e.g., PX 70; PX 92.

Also on December 18, 2020, TTV announced its intent to file over 360,000 Section 230 challenges in Georgia. This announcement included Somerville’s and Davis’s names as part of the effort. PX 42 (indicating that Somerville and Davis “have been leading citizen efforts to highlight issues in Georgia’s voter rolls”); Tr. 1135:22–25. Somerville reviewed this announcement prior to its release and had even made the suggestion to include Davis as part of the announcement. Tr. 1135: 2–8, 1489:6–1490:15. Somerville also publicly shared the announcement, indicating a “collaborat[ion] on methodology” with TTV. Tr 1137:24–1138:1; see also PX 76. Somerville at trial indicated that using the word “collaborated” was an exaggeration, yet did affirm that he “offer[ed] encouragement” for TTV’s efforts in recruiting volunteers. Tr. 1138:2–25, 1142:1–5. Nine or ten days after meeting Engelbrecht and TTV, Plaintiffs filed the instant suit, naming Somerville and Davis as Defendants. Tr. 1486:11–12.

Overall, the Court finds Somerville to have testified with candor and consistency. The Court credits his testimony and accordingly weighs it in reaching its legal conclusions.