(The Center Square) – Six years ago, the elections data analyst who’s sounding alarms about tens of thousands of potentially illegal votes being cast in Georgia teamed up with a former FBI agent to prove it was happening.
Their efforts in the wake of the 2020 presidential election got both men sued in federal court. The case dragged out for three years and would pressure-test analyst Mark Davis’s method of estimating potential residency violations-people who move to a different county or another state, fail to re-register to vote at their new address, then at election time return to their old county to cast a ballot beyond the 30-day grace period.
Fair Fight, a heavily funded, left-leaning voting rights group founded by former Georgia gubernatorial candidate Stacey Abrams, accused them of illegally intimidating voters by challenging their eligibility to vote in their former counties. But after a nearly two-week bench trial, an Obama-appointed federal judge, Steve Jones, ruled for Davis and his co-defendants.
Despite that, Secretary of State Brad Raffensperger continued to cast doubt earlier this month about Davis’s credibility, calling his residency violation figures “not even factually based.”
“Their numbers aren’t accurate. That’s what I’m telling you,” Raffensperger said of Davis during a voting equipment demonstration for news reporters in Bartow County.
In numbers Davis ran at the request of The Center Square, he projects nearly 31,000 potentially illegal ballots being cast in the election now underway that will decide Georgia’s next governor and one of its U.S. Senate seats. In close races, particularly for county or state office, a few hundred votes can often separate the winner from the loser and so people voting illegally out of their residential districts can swing a race, he maintains.
Records of the 2020 federal lawsuit-including the judge’s final ruling, testimony of challenged voters, and follow-up data analysis done in preparation for trial-cut against Raffensperger’s characterization of Davis, showing his methodology to be at the very least a starting point for pinpointing violations, a review by The Center Square found.
Ex-FBI agent Derek Somerville, Davis’s collaborator turned co-defendant, said he delved back into Georgia voting rolls three years after the 2020 election to prepare for trial in the case, finding they’d been correct about most of the voters they suspected of moving.
Of his and Davis’s list of 39,000 potentially ineligible voters, he found in August 2023 that almost 33,000, or 84%, had either changed their registered addresses, been placed on the inactive voter list because of residency concerns, or been removed from the rolls after the state confirmed they moved-the same reasons for including them on their list of challenged voters in the first place.
Of those, 10,600 had re-registered at the same new addresses Somerville had predicted.
Those numbers were never presented in court. The Center Square has not independently verified them and the Secretary of State’s office refused to cooperate in evaluating any data associated with Davis.
“The net net,” Somerville told The Center Square, “was 39,141 voters who cast a ballot where there was probable cause to believe that they no longer resided in the residence where they were registered to vote. So in other words, they were casting a ballot that, per state law, was not eligible.”
Somerville’s data shows about 12,300 of them, or 31%, had requested for their mail to be permanently forwarded out of state, mostly to Florida, South Carolina and Alabama.
U.S. District Judge Jones didn’t validate their numbers. He criticized the data work of a co-defendant-whom Davis and Somerville did not work with-saying that list “verges on recklessness.” But Jones called Somerville and Davis’s efforts “reasonable.”
“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,” Jones wrote in his decision.
Why it matters now
Using that same methodology, Davis has been warning state election officials and lawmakers that Georgia has a big problem with residency violations. There is no reason to believe that many other states, except maybe Arkansas where lawmakers recently addressed the issue, don’t have similar concerns.
Davis has been working with Georgia’s election files for four decades and runs a data house called Data Productions. He uses National Change of Address data compared against Georgia voting records to determine how many people may have voted while still registered in their former counties.
Though very rarely prosecuted, knowingly committing a residency violation can be a misdemeanor or a felony crime, or both. If there’s a federal election on the ballot, it’s a potential federal crime.
Davis, who sits on the Georgia Republican Party’s Election Confidence Task Force, isn’t pushing for mass prosecutions, but rather a legislative fix that would have poll workers questioning voters who recently had their mail forwarded about where they actually live. Arkansas started doing that last year, allowing voters to transfer their voter registration from one county to another as late as Election Day to make sure they vote on the correct ballot.
Several members of the Georgia State Election Board, including its sole Democrat, support the idea.
Davis’s projection of nearly 31,000 people possibly casting illegal ballots in ongoing races is based on levels he found in the last midterm general election in 2022.
In public testimony last month to both the State Election Board and the General Assembly’s Joint Election Equipment Specifications and Standards Committee, he said a combined 97,500 people may have cast illegal ballots in 2020, 2022 and 2024.
“One of these days, these issues are going to bite us in the butt,” he told the State Election Board on Sept. 28. “One of these days, we’re going to have a very close congressional election or some other very important election. It could have happened in 2020. And if Kamala Harris had had a very narrow loss in 2024, she could have filed almost the same complaint.”
Asked whether he’s ever reviewed Davis’s figures on potential residency violations, Raffensperger said he’s “talked to him for years now,” but then pivoted to the 33-year-old National Voter Registration Act, which he blames for limiting his office’s ability to quickly remove voters from the rolls who records show may have moved.
No systematic removals may be done within 90 days of a federal primary or general election, the federal law says, essentially barring action from being taken the entire year.
Raffensperger, who leaves office in January, called on Congress to update the law “so you could follow these and update this right up to the election day.”
The Center Square tried to ask Raffensperger’s office how Davis’s numbers compare to its own estimates for residency violations, but was rebuffed by spokesman Robert Sinners, who dismissed Davis as a “Trumper.”
“You don’t even need to send me anything,” Sinners said.
The Secretary of State’s office apparently has received data from Davis in the past. Former General Counsel Ryan Germany referenced it in a 2021 internal email that came up in discovery during the Fair Fight case, in which Germany blasted the premise of Davis’s research.
“The NVRA requires ‘individualized inquiry’ into each voter’s situation,” Germany wrote to the office’s then-spokesman, so he could respond to an inquiry from a FactCheck.org reporter. “Calling these voters ‘illegal voters’ without doing that individualized inquiry is a disservice.”
Germany, now an attorney in private practice, declined to comment for this story.
Why they got sued
In December 2020, with COVID-19 raging and Donald Trump claiming the election he lost to Joe Biden had been stolen and rigged, Davis generated data suggesting the election in Georgia had indeed been compromised. But not for any of the nefarious conspiratorial reasons Trump and his legal team were pushing on the public.
Somerville, meanwhile, told The Center Square he had become alarmed that Trump’s rhetoric about rigged elections could dissuade Republican voters from showing up at the polls for a Jan. 5, 2021, runoff that would decide Georgia’s two U.S. Senate seats. The races were ultimately won by Democrats Jon Ossoff and Raphael Warnock.
The CEO of an energy industry consulting firm, Somerville spent two years in the FBI following 9/11 assigned to white-collar crime and public corruption investigations. In 2019, as a citizen activist, he played a role in exposing late Georgia House Speaker David Ralston’s use of legislative privileges to strategically stall cases for clients of his law practice.
He and Davis met during a conference call about election integrity concerns.
“It wasn’t to overturn the results of the general election,” Somerville told The Center Square. “It was to highlight a glaring administrative vulnerability in the quality of the voter data file before the special election, so we didn’t have ineligible voters casting ballots.”
According to worksheets Somerville provided The Center Square, he and Davis limited their list to active voters who had voted in the 2020 general election and had also filed permanent mail forwarding requests to addresses different from their voting registration addresses. They removed voters whose suspected new addresses were post office boxes or commercial mail receiving agencies; voters whom the Secretary of State’s office had likely already reviewed before its last roll cleanup in June 2019; and people who had likely moved because of military service.
Their objective wasn’t just to identify potentially ineligible voters, but to initiate a legal process that would see those voters’ eligibility challenged at the polls if they tried to vote again in the wrong counties. Somerville used networking and social media to recruit volunteers to file those challenges in 40 counties.
Another group, conservative elections integrity nonprofit True the Vote, was engaged in a similar effort at the time. In a press release, True the Vote announced that it planned to challenge 364,541 Georgia voters before the Senate runoff. The press release mentioned Davis’s and Somerville’s parallel work, too.
Five days later, Fair Fight filed a lawsuit against all of them-Davis, Somerville, True the Vote, its founder Catherine Engelbrecht, two men who recruited for True the Vote, and one man who filed challenges for True the Vote.
“The focus of these efforts has been to intimidate and deter eligible and qualified Georgians-particularly Black and brown voters and first-time voters-from exercising their fundamental right to vote,” the complaint said.
Somerville called that “as absurd as it was insulting.”
Fair Fight declined to comment for this story through spokeswoman Karol Molinares. None of the Fair Fight attorneys that The Center Square reached out to in the case-including Allegra Lawrence-Hardy, Marc Elias, Christina Ford, Uzoma Nkwonta and Dara Lindenbaum, who’s now a Biden-nominated commissioner on the Federal Election Commission-responded to emails or phone messages.
Shortly before trial, Davis suffered heart failure and a pulmonary embolism.
“The stress of it got to me,” he said. “They came after us for all their attorneys’ fees, all these expenses. That would have just wrecked me.”
Trial testimony
Four challenged 2020 voters testified in the trial, held in Gainesville, Ga., that being challenged made them feel “othered” and “scared.” One man said it triggered his PTSD from having lived through the civil rights era.
All four said they had, in fact, moved, but still asserted they had voted in the correct places. One challenged voter was attending graduate school at Auburn University, went back to Georgia to vote, then got pulled out of line and handed a provisional ballot. Another man who cast an absentee ballot in Muscogee County had been living in California for the past year for a construction job, leasing an apartment there. He said he still considered Georgia his home, though.
One woman was living in Germany as a Defense Department civilian employee. The Muscogee County elections board overturned the challenge against her and accepted her absentee ballot.
Only one person who testified had been on Davis’s and Somerville’s challenge list-a CNN employee named Jocelyn Heredia. According to her testimony, she returned to her home county in northeast Georgia to vote even though she had been working in Atlanta for the past year. Heredia did not respond to phone and email messages from The Center Square.
“The Court finds that there was a reasonable question about her residency for purposes of voting in the 2020 elections,” Judge Jones wrote in his decision. “… The Court finds the evidence overall supports a challenge to her voting eligibility.”
None of the challenged voters who testified were prevented from casting ballots. Heredia testified that she returned to Banks County to vote in the runoff, and after a poll worker informed her she’d been challenged, she found documentation in her car showing she had an address in that county. It took several hours to vote, she said, causing stress and nervousness.
Though Jones blasted True the Vote’s challenge list, saying it “utterly lacked reliability,” he still ruled for the defendants.
“There is insufficient evidence to show voter intimidation or attempted voter intimidation,” Jones’s decision said.
Fair Fight has filed an appeal, but dropped Davis and Somerville as defendants. The 11th U.S. Circuit Court of Appeals has yet to rule.
Engelbrecht, of True the Vote, told The Center Square she stands by her organization’s figure for questionable 2020 voters.