WILMINGTON, Del. — Attorneys for an electronic voting company targeted by allies of former President Donald Trump with accusations of manipulating the 2020 presidential election asked a Delaware judge Thursday to rule in their favor in a defamation lawsuit against a conservative news outlet.
Florida-based Smartmatic sued Newsmax in 2021, claiming the cable network’s hosts and guests made false and defamatory statements in the weeks after the election that implied Smartmatic participated in rigging the results and that its software was used to switch votes.
“Smartmatic did not participate in rigging the 2020 election, and its software was not used to switch a single vote,” Smartmatic attorney J. Erik Connolly told Superior Court Judge Eric Davis during a hearing.
Attorneys for Newsmax, which also is based in Florida, are asking Davis to rule in their favor in advance of a trial that is scheduled to begin Sept. 30 and continue up to four weeks. The company argues it was simply reporting on serious and newsworthy allegations being made by Trump and his supporters about possible vote-rigging.
The judge has said that Florida defamation law applies to the case. Newsmax attorney Misha Tseytlin urged Davis to find that, under Florida law, a “fair reporting” or “neutral reporting” privilege should protect Newsmax from liability.
“There’s no evidence whatsoever that we imposed any harm on them,” Tseytlin said.
Davis did not rule on the competing summary judgment motions and advised attorneys to continue preparing for trial while he considers the arguments.
The Delaware lawsuit is one of several stemming from reports on conservative news outlets in the wake of the 2020 election. Smartmatic also is suing Fox News for defamation in New York and recently settled a lawsuit in the District of Columbia against One America News Network, another conservative outlet.
Dominion Voting Systems similarly filed several defamation lawsuits against those who spread conspiracy theories blaming its election equipment for Trump’s loss. Last year, in a case presided over by Davis, Fox News settled with Dominion for $787 million.
In order to win its defamation case against Newsmax, Smartmatic must prove that Newsmax officials acted with “actual malice” or “reckless disregard for the truth” in airing false claims of vote fraud.
Connolly, the Smartmatic attorney, rejected the notion that Newsmax should be allowed to escape liability by claiming that it was engaged in fair or neutral reporting.
“These were not balanced, they were not neutral, they were not disinterested,” he said of the Newsmax reports.
Connolly argued that over a five-week period during which 24 allegedly defamatory reports were aired, no one at Newsmax had any evidence to support claims of widespread voter fraud being made by the hosts and guests. He also noted that during the 2020 election the company’s machines were used only in Los Angeles County, where Democrat Joe Biden won 71% of the vote.
“It makes it inherently improbable that we rigged the national election,” Connolly said.
Tseytlin, the Newsmax attorney, told Davis there is no evidence that any network hosts or executives knew that statements about voter fraud being made by people such as former New York City mayor Rudy Guiliani and conservative attorney Sidney Powell were false.
Instead, Tseytlin said, Newsmax employees were trying to follow a directive from CEO Chris Ruddy that they should report fairly on a matter of public interest and emphasize that allegations of voter fraud had not been proven.
“What we have here is an editorial decision made by Chris Ruddy that Newsmax was going to report serious allegations by serious people,” he said.
In court papers, Newsmax described Smartmatic as “a struggling election technology company with a checkered history” that is using a legally baseless and unconstitutional theory of liability to try to obtain a massive windfall.
Thursday’s hearing came two weeks after a federal grand jury in Florida indicted three current and former executives of Smartmatic in a scheme to pay more than $1 million in bribes to put its voting machines in the Philippines.
Prosecutors allege that Smartmatic’s Venezuelan-born co-founder, Roger Piñate, colluded with others to funnel bribes to the chairman of the Philippines’ electoral commission using a slush fund created by overcharging for each voting machine it supplied authorities.
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