Judge Weighs Ordering Changes To Georgia’s Election System
As a three-day hearing on the activists’ requests for immediate changes ended Monday, U.S. District Judge Amy Totenberg did not indicate when she would rule. Questions she asked throughout the hearing and during the lawyers’ closing statements seemed to indicate that she was open to ordering at least some changes.
Mike Stewart / Associated Press file
A federal judge is considering whether to order Georgia to make changes to the way elections are run in the state with seven weeks to go before November’s general election.
Lawyers for election integrity advocates, who filed a lawsuit challenging Georgia’s election system, are asking U.S. District Judge Amy Totenberg to order the state to abandon its new voting machines in favor of hand-marked paper ballots, among other changes.
They say Georgia’s current election system does not allow voters to have confidence that their vote is accurately counted, which they argue is an unconstitutional burden on the right to vote.
Lawyers for the state countered that Georgia has made great strides in recent years to update and secure its election infrastructure. The activists have not shown any real burden on their right to vote, and the changes they are demanding would be extremely costly and difficult to implement, especially with early voting set to start in four weeks, the state argues.
As a three-day hearing on the activists’ requests for immediate changes ended Monday, Totenberg did not indicate when she would rule. Questions she asked throughout the hearing and during the lawyers’ closing statements seemed to indicate that she was open to ordering at least some changes.
The lawsuit originally filed in June 2017 targeted the outdated, paperless, touchscreen voting machines Georgia had used since 2002. The state last year bought a new election system that includes touchscreen machines that print a paper ballot that’s read by a scanner. It was purchased from Dominion Voting Systems for more than $100 million.
Totenberg has been highly critical of the state in the past, saying election officials long ignored clearly evident problems with the old machines, as well as other glaring security holes in the election system.
Robert McGuire, an attorney for the Coalition for Good Governance and individual voters, recalled Totenberg’s prior admonitions to the state in his closing argument. He noted that Totenberg previously told the state that a new voting system should address the need for “transparent, fair, accurate and verifiable election processes that guarantee each citizen’s fundamental right to cast an accountable vote.”
All of the evidence presented to the court shows that the state’s new system using ballot-marking devices “satisfies none of these requirements,” McGuire said.
In addition to asking Totenberg to order a switch to hand-marked paper ballots, McGuire also asked her to order the state to have paper poll book backups at every polling place to check voters in, to ensure that every mark made by a voter on a ballot is counted or reviewed and to ensure meaningful post-election audits.
Experts called by the activists testified during the hearing that the state’s voting machines are insecure and can’t be secured, and the state doesn’t sufficiently test machines before elections. As evidence of insufficient “hardening” of election hardware, McGuire pointed to testimony that games were found loaded on election computers in multiple counties.
Problems with Georgia’s new electronic poll books contributed to hourslong lines during the June primary election, a problem that could be mitigated by paper backups, McGuire argued.
The auditing procedures Georgia has planned are insufficient and meaningless, in part because the ballots are marked by machines rather than voters and research has shown that voters can’t or won’t check their ballots prior to submitting them, McGuire said.
The scanners that tabulate the votes need to be set so that when they are reading hand-marked paper ballots, which are currently used for absentee voting, they either count or flag for review any mark made by a voter, McGuire said.
Bryan Tyson, a lawyer for the state, said the activists offered “recycled theories and speculation” rather than any real evidence of either problems with Georgia’s election system or an unconstitutional burden on their right to vote.
He said they’ve ignored all of the changes and upgrades the state has made in recent years and that an unrealistic combination of factors would have to exist for the voting machines to be manipulated.
During early voting, voters can go to any polling location in the county where they live, so all locations would have to have all possible ballot versions for that county. Organizing and managing that would be a major undertaking, especially the most populous counties, and the printing costs would be significant, Tyson said.
Tyson argued there is disagreement within the election community about the scope of audits and said Georgia is ahead of most states with a requirement for rigorous post-election auditing written into law last year.
Totenberg seemed to favor the idea of paper poll book backups at polling places as a feasible solution to a demonstrated problem with the electronic poll books. She also seemed concerned about the state’s auditing rules and the fact that when voters fail to completely fill in the ovals on a ballot the scanners may not count or flag certain marks for review.
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