4. Jane Doe

In a declaration, Plaintiff Jane Doe recounts her history of being a challenged voter in Clarke County by True the Vote in 2020 prior to the Senate runoff election. PX 78, ¶¶ 2, 5. Jane Doe supposedly learned of the challenge to her voter eligibility by reading a newspaper story about the challenges and finding her name on a list of the challenged voters, which was hyperlinked on the newspaper’s webpage. PX 78, ¶ 5 & Ex. 1. Jane Doe further submitted that Clarke County did not act on the TTV challenges and did not prevent her from voting in the Senate runoff election. PX 78, ¶ 8. Nevertheless, given her concern over being challenged, Jane Doe shifted her plans to vote and voted in-person instead of voting absentee as she initially planned. PX 78, ¶ 8.

Plaintiff Jane Doe did not testify at trial. Instead, at the end of their case-inchief, Plaintiffs submitted a number of exhibits as evidence. See generally Tr. 1093:4–1104:4. Many, if not most, of these exhibits had not been referred to during Plaintiffs’ case. One of these exhibits was Jane Doe’s declaration made on May 15, 2022. PX 78. Defendants did not object to the admission of Jane Doe’s declaration. Tr. 1099:1–20, 1102:14.

As the trier of fact, the Court is concerned about the reliability of Jane Doe’s declaration, its attached exhibit of the newspaper article discussing TTV challenges in Clarke County, and the hyperlink in the article with the challenged voters’ names. Not only is Jane Doe’s affidavit self-serving and made without the benefit of cross examination, but her statements (and the newspaper article/hyperlink referenced therein) are all out of court statements offered for the truth of the matter asserted, and thus would ordinarily constitute hearsay evidence. Fed. R. Evid. 801(c); see also Hope For Fams. & Cmty. Serv., Inc. v. Warren, 721 F. Supp. 2d 1079, 1178 n.114 (M.D. Ala. 2010) (“Newspaper articles generally are considered hearsay under Rule 801(c) when offered for the truth of the matter asserted . . . [and] [i]ndeed, statements in newspapers often present hearsay within hearsay problems.” (citing United States v. Baker, 432 F.3d 1189, 1211 & n.23 (11th Cir. 2005)). Defendants however did not object to this evidence being admitted, and thus the hearsay objection has been waived. Cf. Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987); Hope For Fams., 721 F. Supp. 2d at 1178 n.114 (considering hearsay evidence on a motion for summary judgment, in part because of a lack of objection thereto).

Even though Jane Doe’s affidavit and its exhibits are record evidence in this case, the Court still sits as a trier of fact making factual determinations. And with Jane Doe’s evidence, the Court has severe concerns about the reliability of Jane Doe’s attestations. Indeed, the hearsay exclusion is based on a concern about the general “untrustworthiness of hearsay statements.” ADT LLC v. Vivint, Inc., No. 17-CV-80432, 2017 WL 11632866, at *1 (S.D. Fla. Dec. 8, 2017) (quoting T. Harris Young & Assoc, Inc. v. Marquette Elec., Inc., 931 F.2d 816, 826 (11th Cir. 1991)). “Hearsay presents substantial risks of insincerity and faulty narration, memory and perception.” Id. (quoting T. Harris Young & Assoc, Inc. v. Marquette Elec., Inc., 931 F.2d 816, 826 (11th Cir. 1991)).

As the trier of fact, the Court must weigh evidence and make credibility determinations. Jane Doe was not subject to cross examination and never had to defend her assertions. Moreover, given that Jane Doe is proceeding anonymously, there is no way for the Court to determine (nor have Plaintiffs even attempted to make information available in the trial record for the Court to independently verify) that Jane Doe indeed was published as a challenged voter in Clarke County. Given the hearsay nature of this evidence, the clearly self-serving nature of the declaration, and the inability for the Court to independently verify the information contained in the declaration, the Court only considers Jane Doe’s declaration and its attachments with very little weight in reaching its legal conclusions. It is Plaintiffs’ burden to prove voter intimidation under Section 11(b). The Court cannot say that the evidence submitted in support of Plaintiff Jane Doe’s case for voter intimidation helps them carry this burden. Accordingly, the Court finds this evidence to be so inconsequential in its decision that it need not discuss it independently in its conclusions of law infra.