b. Davis’s and Somerville’s Section 230 challenges

Davis and Somerville connected in the wake of the 2020 general election and mutually shared a concern over potential voter fraud in Georgia based on a voter list that had not been cleaned in months. Tr. 1629:2–1630:2, 1667:23–25 (indicating that Davis removed voters who “had likely already been evaluated by the Secretary of State prior to June of 2019,” which was the last time the voter rolls had been cleaned). The two collaborated, after consultation with legal and legislative authorities on the matter, to facilitate challenges to Georgia voters whose residency in the county in which they were registered to vote was uncertain. Tr. 1635:21–1636:11, 1246:8–23, 1258:13–23. Davis worked with the voter data and registration roles, whereas Somerville utilized his connections and social media platforms to recruit volunteer challengers. Tr. 1508:7–22.

The Court finds that the process that Somerville and Davis underwent to make their challenge files was more careful and deliberate than that of TTV. Plaintiffs submitted no expert testimony assessing the Davis and Somerville list. Cf. Tr. 372:21–23. Instead, Somerville and Davis both convincingly testified that they finalized their voter challenge list after a series of extensive exclusions. Tr. 1159:4–12, 1509:11–1510:14, 1653:1–1654:25. Somerville testified about the funnel they used to exclude as many voters from the initial NCOA list. Tr. 1159:4–12, 1540:5–23. As their goal was to draw attention to an issue in the Georgia voter file, they wished to challenge as few people as possible and ensure that the voters they did challenge had a legitimate basis to be challenged. Tr. 1650:20–25. They did not want to burden voters or Boards of Elections. Tr. 1651:1–6, 1653:4–8. Davis’s experience with the Georgia voter roll further reinforces the Court’s greater confidence in Davis’s process than TTV’s process. See, e.g., Tr. 1603:21–23, 1607:1–1609:25.

The Court finds that it is likely eligible voters still remained on Davis and Somerville’s list, but in a less concerning number than TTV’s list. Per Mayer’s expert testimony, problems with removing student voters or even voters who are temporarily relocated for work or military service exist no matter how careful data analytics are conducted. Tr. 400:23–401:2. The Court finds that Davis and Somerville took reasonable efforts to remove eligible voters as part of their overall desire to narrow their challenge file as much as possible and not overly burden the counties where they facilitated Section 230 challenges.

To be sure, in its order granting Plaintiffs’ motion for sanctions, the Court allowed an adverse inference that Gregg Phillips from OpSec Group thought Davis’s process was bad and that Phillips would have undergone the analysis differently (i.e., better). Doc. No. [333], 17. The Court takes this fact as established for purposes of this Order. However, the Court weighs Phillips’s opinion about Davis’s process very little. First, while Phillips did not testify as a witness at trial, he did testify under oath regarding potential sequestration issues during the course of trial. See Tr. 1309:11–1332:4. The Court found his demeanor during his testimony to be non-credible and unreliable. Moreover, Phillips’s deposition testimony is only afforded the weight of a lay witness55 and the Court finds Davis’s lay testimony more believable than Phillips’ testimony. Thus, the Court finds that Davis made a reasonable effort to ensure only ineligible voters were on his challenge file—even if those efforts did not perfectly omit all eligible voters.

In total, Somerville and Davis facilitated volunteer challengers in around 40 counties in Georgia. Tr. 1171:12–23. Once a challenger had volunteered, Davis and Somerville made the list of potentially ineligible voters they had crafted available to the volunteer. Tr. 1169:23–1170:7. Often this list was emailed, but under certain conditions, the list was too large and they shared access to a Google Drive and Dropbox with the list of voter challenges. Tr. 1169:23–1170:7. Neither Davis nor Somerville knew how many people could access the voter file, but both were certain that access was limited. Tr. 1479:3–13, 1679:5–20. Moreover, it is unclear how many challenges were actually submitted from Davis’s and Somerville’s lists because they did not follow-up with the volunteer challengers and only a handful of volunteers confirmed that the challenges had in fact been made (and in some cases, rejected by the county Board of Elections). Tr. 1171:7–11, 1262:2–15.