Smartmatic’s lawsuit against Newsmax over 2020 election coverage heads to trial

DOVER, Delaware — A lawsuit by an electronic voting machine maker that was targeted by allies of former President Donald Trump against a conservative news station that aired accusations of vote manipulation in the 2020 election is likely to go to trial after a Delaware judge ruled Thursday.

Florida-based news company Smartmatic sued Newsmax, alleging that the cable station’s hosts and guests made false and defamatory statements after the election suggesting that Smartmatic participated in rigging the results and that its software was used to change votes.

Newsmax, also based in Florida, says it was simply reporting on serious and well-publicized allegations made by Trump and his supporters, including former New York Mayor Rudy Guiliani and conservative lawyer Sidney Powell.

Attorneys for both sides asked Superior Court Judge Eric Davis to rule in their favor without a trial, which is scheduled to begin Sept. 30. On Thursday, Davis granted partial summary judgment to each side but said a jury must decide several key issues.

“The claims about Smartmatic software or voting machines changing election results are factually incorrect,” wrote Davis, who noted that Smartmatic did not supply any machines or election software used in the 2020 election outside of Los Angeles.

But the judge found that not every allegedly defamatory statement published by Newsmax, including claims about Smartmatic’s ties to Venezuela and its late President Hugo Chávez, turned out to be material.

“Accordingly, the court will allow Newsmax to challenge the falsehood of the information regarding Smartmatic’s ties to Venezuela,” he wrote.

In court documents, Newsmax described Smartmatic as a “struggling election technology company with a troubled history” that uses a legally unfounded and unconstitutional theory of liability to turn a huge profit.

Last month, a federal grand jury in Florida indicted three current and former Smartmatic executives for their role in a scheme to pay more than $1 million in bribes to place voting machines in the Philippines. Prosecutors say Smartmatic’s Venezuelan-born co-founder, Roger Piñate, conspired with others to funnel bribes to the chairman of the Philippine Election Commission, using a slush fund created by inflating the fees for each voting machine he delivered to authorities.

In a ruling in favor of Newsmax, Davis rejected Smartmatic’s claim that the news station acted with “manifest malice” under Florida law, meaning its primary purpose was to harm Smartmatic.

“There is no evidence that Newsmax acted with malicious intent toward Smartmatic,” the judge wrote.

Davis previously ruled that Smartmatic is a “limited public figure” for defamation purposes and must show that Newsmax acted with “actual malice” by knowingly and recklessly disregarding the truth. On Thursday, he said that actual malice is a question for a jury and that the jury must also decide whether Smartmatic is entitled to damages.

In another blow to Smartmatic, Davis said Newsmax could argue that it is protected from liability under Florida’s “neutral reporting privilege,” which covers “impartial and neutral reporting” on matters of public interest. Newsmax argues that the privilege applies because many of the allegedly defamatory statements were made by third parties appearing as guests or were re-aired after being made by third parties on platforms other than Newsmax.

“Given these facts, a reasonable jury could find that Newsmax was covering a matter of public interest while not supporting the election allegations,” he wrote, adding that a jury could also find that Newsmax’s reporting was not neutral.

Davis also said Newsmax could claim a “fair reporting privilege” regarding White House correspondent Emerald Robinson’s reporting on a whistleblower affidavit filed in a Georgia lawsuit challenging the election results. The affidavit included Powell’s claims that Smartmatic colluded with the Venezuelan government in that country’s 2013 presidential election.

Newsmax argues that Florida’s fair reporting privilege applies to accurate reporting of legal proceedings, including court records, and that Robinson was reporting on the contents of an affidavit filed in federal court. Smartmatic argues that the affidavit was not signed or sworn and is therefore not an official document. Davis said a jury must decide whether the fair reporting privilege applies to Robinson, who falsely reported that the affidavit was sworn.

The Delaware lawsuit, which challenges 24 Newsmax reports over a five-week period in late 2020, is one of several stemming from conservative news outlets’ reporting in the wake of the election. Smartmatic is also 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 news outlet.

Dominion Voting Systems has similarly filed several defamation lawsuits against those who spread conspiracy theories blaming election equipment for Trump’s defeat. Last year, in a case presided over by Davis, Fox News settled with Dominion for $787 million.