Stanford’s Robert Rabin on Voting Machines, Liability Lawsuits, and Trump Associates

Part of former president Trump’s accusation of a “stolen election” rests on a claim that voting machines were rigged and that they deleted and misread ballots. But not one claim against Dominion Voting Systems and Smartmatic has been proven and even the Trump administrations Cybersecurity & Infrastructure Security Agency, which oversees U.S. election security, said in a statement, “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Both Dominion and Smartmatic Corp. have now filed lawsuits totaling billions of dollars, claiming that their businesses have been severely damaged. Here, Stanford Law Professor Robert Rabin discusses the charges and liability cases.

Voting Technology 1

What is the main complaint being made by Dominion and Smartmatic?

Both Dominion and Smartmatic, election tech companies, allege that they have been defamed by rigged election claims made by conspiracy advocates—Rudy Giuliani, Sidney Powell, and others—that were repeated on Fox News’ widely-viewed Lou Dobbs business reports show. (Fox apparently scrambled to “fact-check” the claims and subsequently renounced them.)

It is important to understand that defamation—false statements of fact causing reputational harm—can be successfully brought against the repeater, as well as the originator, of defamatory assertions.

Robert L. Rabin
Stanford Law School Professor Robert Rabin

From what you’ve read, how strong a case do you think they have against Trump’s associates?

The claims certainly seem to have sufficient merit to have sounded alarm bells for Fox News, which cancelled Dobbs’ program last week, and other conservative news outlets that have trafficked in conspiracy theories. Both Dominion and Smartmatic can credibly claim reputational damage from the assertions, contrary to substantial evidence, that they were engaged in criminal conspiratorial activities.

Can you briefly explain the line that was crossed from “free speech” to liability for damage?

The First Amendment protections for freedom of speech and press—limiting defamation claims for damages—rest on the landmark case of New York Times v. Sullivan, decided in 1964. In that case, the Supreme Court held that a public official or public figure must show “reckless disregard of the truth” in order to successfully establish a claim for defamatory damages. Given the prominence of these voting system companies, my view is that they’d be considered public figures. (If they were found to be private figures all the protection they’d get would be a requirement that negligence be established.) In light of the demonstrably false conspiracy claims of these Trump supporters, Dominion and Smarmatic appear to have credible claims of reckless disregard of the truth.

Is there a legal difference between an individual lawyer (Guiliani and Powell) and employees of Fox News?

No difference for assertions made in the social media or public speeches.

What is the main defense for Trump’s associates?

They would argue that newsworthiness and the public benefits of a robust marketplace of ideas require breathing space for claims such as theirs. But the Supreme Court’s requirement of reckless disregard of the truth is precisely aimed at providing lots of room for assertions that turn out to be false before a defendant can be held liable; there is no absolute immunity from liability under the First Amendment.

Why aren’t these companies suing Trump? Some news reports indicate that Dominion may try to.

Defamation law recognizes absolute immunity (not just qualified immunity as per NY Times v. Sullivan) for statements made by executive officials in the course of discharging their duties. Trump remained president until Biden was sworn in. No matter how false his statements about the electoral process, they almost certainly would fall within this immunity. In addition, he may never have alluded directly to these voting system companies.

Robert L. Rabin, A. Calder Mackay Professor of Law at Stanford Law School, is an expert on torts and legislative compensation schemes with extensive knowledge of the history and institutional dynamics of accident law.