The Independent View: GA is Voting on Insecure Machines in Yesterdays Primary

When Georgia Voters went to the Polls for the State’s Primary yesterday, they Cast their Ballots on Aging Electronic Voting Machines that Government Officials and Security Experts agree are easy to Hack. But if a long-shot Federal Lawsuit succeeds, they could Vote in a much more Secure way come November. They would Vote on Paper.

As the Intelligence Community warns against a repeat of the kind of Digital Interference we saw in the 2016 Elections, a Nonpartisan Advocacy Organization and a Group of Georgia Voters are asking a Judge to compel the State to Abandon its Electronic Voting Machines in favor of Paper Ballots.

The Georgia Electronic machines produce No Paper Vote Record, making them virtually impossible to Audit. The Plaintiffs want the State instead to switch to a Hand-Marked Paper Ballot system, which Experts widely regard as Safer because the Results can be easily Verified. “Given what we've learned about election interference and what's expected in the midterms, you can’t go forward with a machine that can’t be audited,” said David Cross, an Attorney for the Plaintiffs. “If we can get the relief we want before November, the system will be much more secure.” The Plaintiffs' Goal is to have such a System in place before November 6th, even if it means having every Georgia Voter cast a Paper Absentee Ballot for the time being. They face an Uphill Battle. Similar Legal Challenges have Failed in other States in recent years, with Judges showing a reluctance to Order States to change their Systems.

With more Public Information surfacing about the Digital Threats facing Elections, that may change, says Lawrence Norden, Deputy Director of the Brennan Center for Justice’s Democracy Program. “While these lawsuits in the past few years have seemed like Hail Marys, there may be a different calculation now given what's come out about actual threats against these systems,” Norden told me. “Courts may be more willing to take these lawsuits seriously.” This Case could serve as a Bellwether for others looking to challenge their States' Voting Systems in Court. Norden expects other Lawsuits like this one to keep coming up if efforts across the Country to get States to Scrap outdated Voting Machines continue to stall.

Five States including Georgia rely exclusively on Electronic Voting Machines that produce No Paper Trail, and another Eight States use them in some Districts. Officials are facing mounting pressure from Congress, the Department of Homeland Security, and Private groups to Replace that Equipment with Paper-Backed systems, but Upgrades are Expensive, and some have been Slow or Unwilling to Legislate the Change. “People are feeling very desperate about this," Norden said. "They’re concerned, and despite all the publicity around security risks of paperless systems, they haven’t been able to succeed legislatively."

Georgia in particular has Resisted the push to ditch Electronic Voting Machines, which are known as Direct Recording Equipment, or DREs. Secretary of State Brian Kemp (R) has argued that the Equipment is Safe, and that Replacing it with Paper Ballots might not make the system more Secure. He also said last year that he opposed Financial Assistance from the Federal Government to help overhaul the State’s Voting System.

In this Case, the Plaintiffs allege that State Officials ignored Warnings from Experts that Georgia's Voting System was Insecure and Failed to take the Minimum Steps to make sure it was Safeguarded. They argue that's all in Violation of Georgians' Voting Rights. Meanwhile, the State has asked the Court to Dismiss the Lawsuit on various grounds, including that the State is Immune from the Litigation under the Georgia Constitution.

But Kemp, who is Running for Governor this year, has more recently signaled he's thawing his Opposition on this Issue. He tapped a Panel of State Officials in April to weigh Options for a New Voting System after a Bill to Replace Georgia’s DREs Failed in the Legislature. He says he now Supports a System with a Paper Trail and wants to have it in place by 2020. “I am confident that the current system, which is tested by experts for every election, continues to properly capture and reflect all voters’ choices,” he said in a Statement last week.

The Plaintiffs, led by the Coalition for Good Governance, originally Sued in Georgia State Court, and the Case was moved to the U.S. District Court for the Northern District of Georgia in August 2017.

There are heavy-hitting Lawyers on both sides of the Case. Cross, an Antitrust Attorney with the Law Firm Morrison and Foerster, is representing the Plaintiffs Pro Bono with John Carlin, another Lawyer from the Firm who previously served as Assistant Attorney General for the Justice Department’s National Security Division.

The Defendants are being represented by Roy Barnes, the former Democratic Governor of Georgia who was in Office when the State purchased many of its DREs, and his Law Partner John Salter. Cross said the Parties are expecting a hearing on a Preliminary Injunction in July or August. That would leave enough time to take the Logistical Steps necessary to get a more Secure Voting System in place ahead of the General Election.

Mothballing Tens of Thousands of Electronic Voting Machines and switching to Paper Ballots in just a matter of weeks is no Small Undertaking. But Cross says it’s possible. He pointed to Virginia, where the Board of Elections last fall ordered all the State’s DREs Scrapped and Replaced with Hand-Marked Paper Ballots to better Secure its Elections, took about a Month.