Judge Won’t Toss Suit Challenging Georgia Voting Machines

The state’s voting system drew national scrutiny during last year’s midterm election in which Brian Kemp, a Republican who was the state’s chief election officer at the time, narrowly defeated Democrat Stacey Abrams to become Georgia’s governor.

State lawyers had asked U.S. District Judge Amy Totenberg to dismiss the lawsuit.

Totenberg wrote in her order rejecting that request that the state’s arguments “completely ignore the reality faced by election officials across the country underscored by Plaintiffs’ allegations that electronic voting systems are under unceasing attack.”

She cited multiple reports and findings by federal government officials and cybersecurity experts that highlight security vulnerabilities in the kind of system Georgia uses.

Among other arguments, lawyers for the state said the lawsuit was no longer valid because a new law provides specifications for a new voting system that state officials say will be implemented in time for the 2020 election cycle.

But Totenberg had said during a hearing last month that she didn’t think the claims were irrelevant given that the current machines are still in use for numerous special and municipal elections scheduled this year.

The lawsuit was filed by a group of voters and the Coalition for Good Governance, an election integrity advocacy organization. Totenberg wrote that they have “plausibly and sufficiently demonstrated a legitimate concern” that when they use the current paperless electronic voting machines “their vote is in jeopardy of being counted less accurately and thus given less weight than a paper ballot.”

At this stage in the litigation, where the decision is whether to allow the lawsuit to continue, the allegations that the use of those “unsecure” machines violate their fundamental right to vote are enough to assert “a plausible due process violation,” Totenberg wrote.

Tess Hammock, a spokeswoman for Secretary of State Brad Raffensperger, declined to comment on the ruling.

Totenberg’s order Tuesday allows the parties to begin the process of gathering information, including requesting documents and taking sworn statements from potential witnesses. It doesn’t stop the state from continuing to use the current machines.

Lawyer Bruce Brown, who represents the Coalition for Good Governance, said in a phone interview Tuesday that a next step will be to ask the judge to order the state to immediately stop using the current machines and to replace them with hand-marked paper ballots while the lawsuit is ongoing.

The plaintiffs made a similar request in August, asking Totenberg to force the state to use paper ballots in the November midterm election. Though she said they had demonstrated “the threat of real harms to their constitutional interests,” she denied the request in September, worrying it would be too chaotic to make the switch so close to the election.

Now would be an opportune time for a switch to hand-marked paper ballots because the state has enough time to implement them in the upcoming elections, which are smaller in scope, Brown said.

Lawyer David Cross, who represents three of the individual voters, said Totenberg’s order “validates the serious constitutional concerns underlying our case and provides an opportunity to finally institute secure, reliable and transparent elections for Georgia voters.”

Georgia’s voting machines will be replaced by touchscreen ballot-marking devices that print a paper ballot, according to the new law signed by the governor. Brown argued during a hearing last month that those machines are also unconstitutional because there’s still a computer between the voter and the permanent record of the vote.

Totenberg didn’t address those concerns in her order, saying only in a footnote that since the state has yet to choose a specific system, “how these issues will play out in the context of new voting technology remains an open question.”

This lawsuit is one of several filed before and after last year’s midterm election that challenges various aspects of Georgia’s voting system. U.S. District Judge Steve Jones is currently considering the state’s motion to dismiss a separate suit filed by Fair Fight Action, a group founded by Abrams.