4. Mark Davis

Defendant Mark Davis is a resident of Gwinnett County. Tr. 1601:13–16. He is the president of a data processing and project management company, and serves clients in the political, commercial, and nonprofit spheres. Tr. 1603:7–14. He personally handles data processing in his business, often using NCOA data. Tr. 1603:13–1606:22.

Davis began working with Georgia voter data in 1986. He has built a Georgia voter database. Tr. 1603:21–23. Davis has continually updated his work with the voter data, adjusting to technological advances and federal regulations governing states’ records. Tr. 1607:1–1609:25. While he is familiar with the NVRA’s limitations on the Georgia’s maintenance of the voter rolls, he understands that he is not regulated by the NVRA and often uses NCOA data to best serve his client’s needs. Tr. 1611:9–1612:8. In his experience, Davis has not seen the NCOA data produce a false match. Tr. 1613:12–16.

Over time, Davis has identified issues with the Georgia voter rolls. Tr. 1618:2–22. Particularly, he notes that there are “a lot of voters who no longer live[ ] where they were registered.” Tr. 1618:24–25. He has met with the Secretary of State’s office to express his concerns over the voter lists (Tr. 1620:10–1621:3, 1687:12–21) and testified in the Georgia General Assembly on similar topics (Tr. 1621:11–24).

In 2020 specifically, Davis used available voter data and determined that there were likely thousands of voters in Georgia who voted outside their county in the elections leading to the Senate runoff election. Tr. 1622:20-25. Understanding that the Secretary of State’s office could not do much to stop these voters from improperly voting in the runoff election—given the NVRA’s restraints on purging voting rolls—Davis turned to the avenue he believed best to resolve the issue: voter challenges under O.C.G.A. § 21-2-230. Tr. 1623:11–24.

During this period, Davis met Defendant Somerville.24 Tr. 1629:2–1630:2. He encouraged Somerville to review his voter registration data. Tr. 1629:13–1630:2. Following this review, Somerville and Davis crafted a challenger list of potentially ineligible voters based on NCOA data for all 159 counties in Georgia. Tr. 1635:21–1636:11. Davis believes the NCOA data is good evidence of someone’s intent to permanently move and would be a basis of probable cause for a county Board of Elections to further inquire into a voter’s residency. Tr. 1649:20–1650:17, 1652:2–10; but see Tr. 502:15–17 (Ryan Germany testifying that he “didn’t believe” that NCOA “was sufficient probable cause” for further inquiry but ultimately “that was [the county Boards’] determination to make”).

Davis acknowledged that filing a NCOA change of address application itself may not necessarily mean a person has permanently moved, especially in the case of students or members of the military. Tr. 1683:18–1684:16. Davis thereby never considered using only NCOA data to make a list of potentially ineligible voters. Tr. 1650:18–1651:6.

The primary purpose of Davis’s and Somerville’s list was to garner attention from decision-makers about the residency issues in the voter list file. Tr. 1637:12–20. Thus, Davis and Somerville wanted to “challenge as few people as possible,” and did not want to “burden . . . voters or county boards of election any more than [they] thought was necessary.” Tr. 1650:18–1651:6. They tried to make extensive cuts to the NCOA list, as discussed in greater detail supra, including the elimination of UOCAVA voters, inactive voters, and voters who did not cast a ballot in the 2020 general election. Tr. 1653:1–1654:25. They also attempted to remove students from the voter file, but such process is complex and difficult to ensure complete accuracy. Tr. 1669:1–9, 1671:13–1672:1. In fact, for student voters, Davis thought the final inquiry was best done by the county Board of Elections. Tr. 1669:1–9, 1671:24–1672:1. Davis’s and Somerville’s list ultimately included over 39,000 voters, and did not consider party affiliation, race, or gender. Tr. 1673:4–5, 1657:15–24. Davis and Somerville completed their list on December 15, 2020.25 Tr. 1637:8–11.

Davis and Somerville then sought to recruit challengers and facilitate challenges in each county. Tr. 1647:22–1648:4 (indicating that Somerville took the lead in the recruitment efforts). They kept their voter file on a Google Drive Dropbox, and Davis did not know how many people could access these lists. Tr. 1678:24–1679:20. He knew access was controlled, though and did not know of any unauthorized access. Tr. 1679:5–20.

Somerville’s and Davis’s list eventually was sent to the Secretary of State’s office (Tr. 1633:11–15), but the goal was not to actually remove any voters with these challenges (Tr. 1641:2–4). When a volunteer made a challenge Davis expected the county Boards of Elections to determine if probable cause existed to make a voter show proof of residency in the county. Tr. 1641:25–1642:7. If a challenged voter tried to vote, Davis believed the challenged voter would merely have to provide further documentation of his or her residency—a process Davis did not personally perceive to be intimidating. Tr. 1646:17–22, 1681:8–17.

Davis trusted the Section 230 process and hence did not make any attempts to contact voters. Tr. 1643:25–1644:5. Davis was not concerned about the county Boards of Elections being overwhelmed by these challenges either because the challenges largely scaled according to the size of the county (i.e., large counties had more potentially ineligible voters but also more resources, and vice versa for small counties). Tr. 1644:10–1645:4, 1681:18–1682:11. It was Davis’s impression, moreover, that even if the counties ultimately did not act on the challenges made in the Senate runoff election, they had interest in the lists for future purposes. Tr. 1645:5–12.

Since the challenges, Davis has spoken with various levels of people at the Georgia state legislature and the media about his and Somerville’s efforts as part of his goal to raise attention to the issue of the voter rolls. Tr. 1660:12–1661:3. He testified at trial, however, that he would not consider making Section 230 challenges again given this lawsuit and his deteriorating health.26 Tr. 1662:10–22.

The Court finds Davis’s testimony to be credible. Davis thoroughly and with candor answered questions on both direct and cross examination. He did not contradict himself, his prior testimony, or the testimony of other witnesses in this case. In fact, his testimony aligns with that of Defendant Somerville and the documentary evidence in this case. Accordingly, the Court credits Davis’s testimony and weighs it in reaching its legal conclusions herein.