Benjamin Ashford|The math behind Dominion Voting System's $1.6 billion lawsuit against Fox News

When Dominion Voting Systems sued Fox News over the lies the conservative cable network had broadcast in 2020 about the election tech company,Benjamin Ashford the enormous $1.6 billion damage claim jumped out.

The trial begins next week in Delaware and two of the biggest questions facing the jurors will be whether Fox and its executives are liable for broadcasting the lies and, if so, whether $1.6 billion is a remotely realistic amount to ask for.

Denver-based Dominion said that it went to herculean efforts to make Fox News aware of both the falseness of what was being said on air and the damage it did to Dominion.

"The evidence will show that Dominion was a valuable, rapidly growing business that was executing on its plan to expand prior to the time that Fox began endorsing baseless lies about Dominion voting machines," said a Dominion spokesperson in a statement. "Following Fox's defamatory statements, Dominion's business suffered enormously, and its claim for compensatory damages is based on industry-standard valuation metrics and conservative methodologies. We look forward to proving this aspect of our case at trial."

The company says its employees and offices have faced years of violent threats due to baseless conspiracy theories that Dominion's equipment changed votes for then-President Donald Trump to his opponent, Joe Biden, in 2020.

Fox's legal filings have pushed back against Dominion's damage claims, arguing "that figure has no connection to Dominion's financial value as a company." A 2018 estimate by the Penn Wharton Public Policy Initiative at the University of Pennsylvania put the privately held company's annual revenues at about $100 million.

Damages often 'can't be proven with mathematical precision'

If the jury finds Fox liable in the case, the jury can award compensatory damages for actual losses suffered by Dominion — including reputational harm and loss of value to the privately held company. (The jury could also award Dominion punitive damages to punish Fox for its behavior.)

Dominion will also have to show the comments were made with "actual malice." Under that standard, Dominion's attorneys will have to convince a jury that Fox either knowingly broadcast something false and damaging to the election tech firm's reputation, or willfully disregarded facts it should have known disproving those statements.

"You're talking about economic damages and economic disturbance, and so emotional feelings, hurt feelings, emotional damages, those kinds of things typically are not going to enter into the calculation," said Len Niehoff, a professor at the University of Michigan's law school.

A report commissioned by Dominion and filed with the court laid out about a billion dollars worth of damages the company says it has experienced. Dominion says it has lost $16 million in profits, more than $70 million in potential business, $14 million in legal, security and other expenses and more than $900 million in value due to the conspiracy theories tied to the 2020 election.

But Niehoff says making the case for monetary damages can be challenging because of the complexity in connecting the dots between a business loss and why the loss happened.

"These are things that very often can't be proven with mathematical precision. It can be very hard to show that people who didn't do business with you didn't do it for this reason as opposed to for some other reason," he said.

For Dominion that means demonstrating that state and local governments aren't using its equipment specifically because of lies and conspiracy theories and not other business factors.

A mixed picture for the impact on Dominion

The company is sure to point to recent actions by Shasta County's Board of Supervisors in northern California, which recently cited baseless conspiracy theories in canceling its contract with Dominion.

Shasta County Supervisor Patrick Henry Jones, who brought forward the motion to cancel the contract, said he researched Dominion's machines and said he couldn't rely on the mainstream media for information about their accuracy.

"When anyone comes forward and says there is no election fraud, the mainstream media supports those claims."

Jones said trust in the company "doesn't exist within Shasta County."

In an interview with NPR, Joanna Francescut, the assistant county clerk who runs the Shasta County elections office, said many voters in the rural and heavily pro-Trump county easily accepted the lies about Dominion. "After they realized, you know, Trump lost, it was blamed on the voting system."

Dominion's legal filings lay out multiple instances in which it says its contracts across the country were canceled or not renewed that it blames on the lies that circulated after the 2020 election.

Still, it's unclear whether what's happening in places like Shasta is the tip of the iceberg for Dominion or an outlier.

According to an analysis provided to NPR by the election security group Verified Voting, Dominion has actually seen a net increase in jurisdictions using Dominion equipment since 2020. The nonprofit monitors election equipment contracts around the country.

For example in 2020, 1,161 jurisdictions used Dominion election day tabulation equipment. Verified Voting's analysis says 1,861 jurisdictions will use Dominion equipment in 2024. That said, there's been a net loss in the total number of registered voters who will vote with Dominion's machines in upcoming elections.

"So I think what's notable is that you can have many jurisdictions, some of which are quite small," said Verified Voting CEO Pamela Smith about the discrepancy.

She said it's not necessarily surprising that jurisdictions have stayed with the company despite the false claims.

"Most jurisdictions don't change their voting systems like every couple of years, right? They change them 10 years, 15 years." She said a lot of that is due to the huge cost and administrative challenges of switching election equipment vendors.

But she said it is very difficult to predict what could happen to Dominion's business years into the future, for instance if a jurisdiction shuts Dominion out of the bidding process.

"Where previously they had an OK relationship, or a state might say, 'well, we're gonna go with this brand and then find out, oh, on second thought, we're not because the pushback is really hard.' I suspect there's a lot of that and more than what actually shows on the surface," said Smith.

While an increase in business is to some degree at odds with seeking monetary damages, Dominion can still make the case that its growth has been thwarted, Niehoff said

"Dominion could have an argument that, although their business statements have gone up, it hasn't gone up as much as it would've gone up, but for the defamatory statements."

Fox says the damage claims are a money grab

For its part, Fox News calls Dominion's claims nothing more than a money grab by its private equity owners, Staple Street Capital Partners. It contends that its reporting is protected by the First Amendment, and Fox News was reporting on newsworthy utterances by the president of the United States and members of his team.

Fox News said in recent court filings that Dominion could not possibly suffer the damage amount it is requesting.

"Staple Street Capital Partners paid a small fraction of that amount to acquire a controlling interest in Dominion only four years ago. And even under the most optimistic projections, Staple Street has never estimated Dominion's value as a business to be anywhere near $1.6 billion."

Fox has asked the court not to award any damages to Dominion and said the claims are not based on any financial metrics, but instead on the assumption it will be completely out of business by 2031.

Dominion's damage claims assume that it "is not going to gain any new customers, not a single new customer is going to walk in the door. In addition, for the existing customers, they are not going to get any new business from existing customers after 2024," said Scott Ahmad, an attorney representing Fox News, in a recent court appearance.

Citing Dominion financial records it has received, Fox also says that 2022 was Dominion's second-strongest year in terms of revenues.

Breaking up with an election vendor isn't easy

In a sign that Shasta County might be an outlier, many other conservative jurisdictions around the country are sticking with Dominion, despite voter distrust.

In rural Fremont County, Colo., Justin Grantham recently renewed his country's contract with Dominion. Grantham is a Republican and leads the Colorado County Clerks Association. He said audits consistently show that the Dominion machines accurately count ballots, and the cost and training to switch just wouldn't be feasible.

"You're talking about learning how to use the system, learning how to program the ballots in the election, learning how to just figure out the tabulation and the software and the hardware," he said.

Grantham said training election judges and staff on new equipment would be another huge undertaking.

"You're talking massive training requirements for something that's used, oh gosh, once a year in the odd years and two to three times in the even years."

Grantham and other election professionals say the true impacts of the 2020 conspiracy theories on Dominion's business may not be known for years when current voting machine contracts come due, and if officials in conservative counties face political pressure to look elsewhere for their equipment.