Constitutional challenge to Georgia voting machines set for trial early next year

FILE - New state-issued voting machines used for the Georgia primary election on June 9, 2020, are seen at Park Tavern in Atlanta. U.S. District Judge Amy Totenberg issued a 135-page ruling late Friday, Nov. 10, 2023 in a long-running lawsuit filed by activists who want the state to ditch its electronic voting machines in favor of hand-marked paper ballots.(AP Photo/Brynn Anderson, File) (Brynn Anderson, Copyright 2020 The Associated Press. All rights reserved.)

ATLANTA – The question of whether Georgia's electronic voting system has major cybersecurity flaws that amount to a violation of voters' constitutional rights to cast their votes and have those votes accurately counted is set to be decided at trial early next year.

U.S. District Judge Amy Totenberg issued a 135-page ruling late Friday in a long-running lawsuit filed by activists who want the state to ditch its electronic voting machines in favor of hand-marked paper ballots. The state had asked the judge to rule in its favor based on the arguments and facts in the case without going to trial, but Totenberg found there are “material facts in dispute” that must be decided at trial.

She set a Jan. 9 bench trial, which means there will be no jury. But she also suggested that the two sides work together to reach a resolution.

“The Court cannot wave a magic wand in this case to address the varied challenges to our democracy and election system in recent years, including those presented in this case,” she wrote. “But reasonable, timely discussion and compromise in this case, coupled with prompt, informed legislative action, might certainly make a difference that benefits the parties and the public.”

The lawsuit was filed by several individual voters and the Coalition for Good Governance, which advocates for election security and integrity, against Georgia Secretary of State Brad Raffensperger and members of the State Election Board. It claims that the current configuration of the state's election system presents a threat to voters' right to have their votes counted as cast.

It spawned an expert report that identified vulnerabilities in the election system used in Georgia that led a federal cybersecurity agency to issue an advisory to jurisdictions that use the equipment and has prompted some Georgia Republicans to call for abandoning the machines. It also led to the exposure of a breach of election equipment in a rural south Georgia county, which has resulted in criminal charges for several people as part of the sprawling Fulton County indictment against former President Donald Trump and 18 others.

Since the lawsuit was first filed in 2017, Georgia has emerged as a pivotal swing state, putting a national spotlight on its elections. The electronic voting system the state uses, which was purchased from Dominion Voting Systems in 2019 and implemented statewide in 2020, has been the subject of outlandish conspiracy theories.

Dominion has been a particular target of Trump supporters, who claimed that the machines were used to help steal the election from him. The election equipment manufacturer has aggressively responded with litigation, notably reaching a $787 million settlement with Fox News in April.

Totenberg made clear in a footnote in her order that the evidence in the Georgia case “does not suggest that the Plaintiffs are conspiracy theorists of any variety. Indeed, some of the nation’s leading cybersecurity experts and computer scientists have provided testimony and affidavits on behalf of Plaintiffs’ case in the long course of this litigation.”

The lawsuit long predates the swirl of controversy that followed the 2020 election. When it was initially filed in 2017, it targeted the paperless touchscreen voting machines that Georgia had been using for 15 years. It was then amended to challenge the election system the state bought in 2019, with claims that the new system has similar vulnerabilities.

The touchscreen voting machines used by virtually every in-person voter in Georgia print a paper ballot with a human-readable summary and a QR code, a type of barcode, that is read by a scanner to count the votes.

Among other concerns about the election system, the activists say voters can’t be sure that the barcode read by the scanner accurately reflects their selections. Many voters also don’t take the time to check the human-readable part, making meaningful audits impossible, they say.

University of Michigan computer scientist J. Alex Halderman, an expert witness for the plaintiffs, examined Dominion voting machines and identified vulnerabilities that he said could be exploited by bad actors. He has said the risks presented by those vulnerabilities were exacerbated when a computer forensics team hired by Trump allies copied data and software from election equipment in rural Coffee County in January 2021 and distributed it to an unknown number of people.

The state has said it will not install a software update meant to address those vulnerabilities ahead of the 2024 election, saying it would be impractical to update all of the equipment by then. Gabriel Sterling, chief operating officer in the Secretary of State's office, earlier this month dismissed Halderman's findings as "hypothetical scenarios that can’t work."

Lawyers for the election officials have consistently argued that no election system is without vulnerabilities and that the state takes countless measures to protect the integrity of its system.

Totenberg stressed in her order that at this stage in the process, where she was considering the state's motion for summary judgment, she was required to look at the facts in a light most favorable to the plaintiffs. At the upcoming trial, the plaintiffs have “a heavy burden to establish a constitutional violation” connected to the voting system, she wrote.

Even if she ultimately rules in their favor, she wrote, she can't order the state to implement a paper ballot system. She said there are “pragmatic, sound remedial policy measures” that she could order or that the parties could agree upon, including: eliminating QR codes on ballots and having scanners read human-legible text; using a broader scope and number of election audits; and implementing essential cybersecurity measures and policies recommended by leading experts.

“We look forward to presenting our full evidence at trial and obtaining critical relief for Georgia voters,” said David Cross, an attorney for some of the individual voters. “But we hope this decision will be a much-needed wakeup call for the Secretary and SEB, and finally spur them to work with us on a negotiated resolution that secures the right to vote in Georgia.”

Both Cross and Coalition for Good Governance executive director Marilyn Marks said Raffensperger has continually failed to address escalating risks to the state's voting system.

“The Court's Order makes it clear that the status quo is far too risky, and that these concerning issues merit a trial,” Marks said.

A representative for Raffensperger did not immediately respond to an email Saturday seeking comment.