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At the end of plaintiff's testimony it is routine for the defendant to make what amounts to a renewed motion for summary judgment. In this context the motion would styled as motion for judgment as a matter of law. In any case, the judge is asked to view the testimony presented by the complaintant as true and all reasonable inference of that testimony as true and decide whether the judgment should none-the-less be entered for the defendant.
The motion was pro forma and merely renewed the pre-trial motion for summary judgment by the defendant. There was oral argument on the subject which gave both side a chance to trot out their best show horses for a pre-view of their closing arguments. The judge took very little time to consider the matter - he recessed to take it under advisement, but I wouldn't be surprised if he just needed a bathroom break.
I find there be little merit in some of the county's defenses to the records request. They claim there are statutory and administrative law issues that serve as a threshold issue. If these statutory objections aren't overcome, the issue of whether the records request's public purpose outweighs the reasons for confidentiality will never be considered. I find no merit whatever in these claims, and will likely post something about that matter at some time in the future. To my mind, there is certainly a legitimate question as to whether the security concerns involved in release of the databases outweighs the public purpose, but that very clear conflict has been submerged in extraneous issues throughout the county's questioning.
The county even continued to undermine their credibility with the judge by maintaining a blatantly absurd - and to the judge's mind, already settled issue, of whether the database even constitutes a public record. By reputation Chris Straub is a fine attorney; I can't see him taking such an untenable and uncomfortable position without considerable pressure being brought to bear on him. I can think of no other reason why he would undermine his personal credibility with a judge he practices before regularly otherwise.
In fact, much of the county's case is flimsy, at best. I know that Chris Straub would rather have settled this case, or even joined with the Democratic Party in a case against the Secretary of State for having certified GEMS in the first place. His heart is clearly not in his defense, though I believe that he may sincerely believe there could be security problems posed by the release of the database, I think he is being put in an untenable position by his superiors to defend a case that is not meritorious in his own legal judgment. If Bryan Crane is this trial's Frank Burns (as one trial observer opined) then Straub is its Hawkeye - a heroic professional soldiering on for a cause he doesn't believe in, suffering fools gladly to practice his calling.
Please recall that the following is not a transcript by a condensed and paraphrased summary. Thanks to David Safier for preparing this summary.
Summary of Judgment as a Matter of Law Argument
Christopher Straub gives a lengthy discourse.
He says the databases are not public records. They are confidential.
He says the database files contain parameters and tests for generating ballots and that the database files contain codes.
Judge Miller interrupts, saying that he thought everyone agreed that the databases are public records, and the question in the case has to do with the issue of confidentiality.
Straub continues, citing earlier testimony by Duniho and Crane that he says substantiates his claim that the databases contain programs.
The people who use GEMS, and the Secretary of State, agree that the databases are programs, and we should defer to the people who use the software.
It is in the best interests of the state and the public to maintain confidentiality.
Because GEMS and databases are insecure, we shouldn’t make them more insecure by making the databases public.
The databases aren’t valuable from an evidentiary point of view.
There is no evidence of election fraud.
A statute says, when the voting is completed votes should be counted in the presence of the public.
The ballot counting process should be as public as possible.
Some of the material in the Secretary of State’s manual is contradicted by the statute. We can’t let the opinion of the Secretary of State override statute.
Judge denies motion for summary judgment.