LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS has heard witness testimony that the ASOG report was part of a national communications plan to discredit the 2020 elections. 50 The defendants, Antrim County and the Michigan Secretary of State, responded with an expert technical investigation report prepared by a University of Michigan professor of electrical engineering and computer science, Alex Halderman, who is also one of top nations’ experts on election security. He refuted the central allegations in the ASOG report and explored what had gone wrong (the “Halderman Report”). 51 This report explained that there were significant errors in the unofficial results declared in Antrim County in the presidential and other contests, mis-stating vote totals by several thousand votes. However, the errors were corrected, and the presidential results were confirmed by a county-wide hand count of paper ballots and a state-wide risk limiting audit. The errors were a series of human errors caused by last-minute changes to the design of the electronic ballots, compounded by inadequate procedures, but were not due to a security breach, nor fraudulent actions. The Halderman Report describes how the ASOG report “contains an extraordinary number of false, inaccurate or unsubstantiated statements and conclusions,” and explains why many of ASOG’s assumptions and conclusions were erroneous. The plaintiff’s case was dismissed by the Michigan Court of Appeals, who found that the plaintiff had failed to make any “clear and positive” factual allegations, and that the irregularities the plaintiff alleged could not have affected the outcome of the presidential election. 52 The ASOG report is the subject of a multi-million dollar defamation claim by Dominion Voting Systems, which has put out statements refuting the disinformation campaign against the company. 53 The U.S. Federal Rules of Evidence define expert witness testimony as being from a person who “must have “scientific, technical, or other specialized knowledge” that “will help the trier of fact.” (R. Evid. 702). In other jurisdictions, such as France, the Code of Administrative Procedure provides the possibility for the judge to nominate experts, and requires that the expert be impartial and provides for the drafting of a report. 54 Rules of procedure may also provide for a renewed trial in case a ruling has been based on false statements by experts. 55 Although expert evidence can be tested in court, through cross-examination or deposition of the expert and questioning of their expertise, such scrutiny only goes so far in discrediting partisan and inaccurate reports. In that respect, the Halderman report makes an important recommendation: that election technology incidents be rigorously investigated as a matter of course to enhance accurate understanding and public trust in elections. 56 But such investigations require time, and sometimes, the timeline for adjudication of election disputes by an electoral court or tribunal are too short to nominate experts. The recruitment of ICT experts, review of evidence available, conduct of an audit and preparation of reports can take months to finalize. In Kenya during the 2022 petition, the Supreme Court admitted three ICT experts as amicus curia to provide some expertise on election technology, but they were not allowed to make oral submission, notably due to the short adjudication deadline. Antrim County, Mich., Tied to Election Fraud Claim Strategy (govtech.com), January 6, 2022. The Antrim County 2020 Election Incident: An Independent Forensic Investigation, by J. Alex Halderman, an expanded version of the expert witness report of March 26, 2021. 52 Bailey v Antrim County and Benson, Michigan Court of Appeal, April 21, 2022. 53 Facts About Dominion And Antrim County, Michigan (mailchi.mp), Dominion Voting Systems, December 14, 2020. 54 French Code of Administrative Procedure, 621-10; Law on General Administrative Procedure, Art.64 “Experts.” 55 See for example the General Administrative Procedure of North Macedonia, s. 114. “Ruling administrative act on false identification document or false statement by a witness or expert, or is consequence of a deed punishable according to the Criminal Code.” 56 On this issue, see also IFES’ paper on Risk Limiting Audits: A Guide (2021) - https://www.ifes.org/publications/risk-limiting-auditsguide-global-use. 50 51 21