A federal judge ruled in a lawsuit Thursday morning that Georgia must completely phase out its current inventory of paperless voting machines before the state’s 2020 presidential primary, but stopped short of ordering the state to revert to hand-marked paper ballots during this year’s local elections as the case’s plaintiffs had requested.
In her 153-page ruling, Judge Amy Totenberg of the Northern District of Georgia prohibited the state from conducting elections on the digital touchscreen voting machines that have been in use for the last 17 years after 2019. The direct-recording electronic machines, also known as DREs, do not produce paper records of votes cast, prompting criticism and legal action from groups like the Coalition for Good Governance, which filed the lawsuit in 2018.
With Totenberg’s ruling, the office of Secretary of State Brad Raffensperger may now implement the $107 million contract it announced on July 29 to purchase 30,000 new voting machines and 3,500 optical scanners. The new devices, sold by Dominion Voting Systems, also feature a touchscreen interface — known in voting-tech parlance as a ballot-marking device, or BMD — but print out paper records that can be scanned and tabulated. The contract called for the new machines to be distributed to Georgia’s 159 counties in time for the state’s presidential primaries next March 24, though a handful might start using them in local races this fall.
Totenberg also wrote that Georgia cannot keep the old DREs around next year as a stopgap “in the event the Secretary of State and its contractor are unable to fully and properly rollout the new BMD system” in time for the primary.
While the ruling in Curling v. Raffensperger phases out aged, oft-criticized equipment, it doesn’t go as far as plaintiffs wanted. The Coalition for Good Governance had argued that DREs should have been replaced with paper ballots completed with pen or pencil. Totenberg denied the request to prevent the DREs from being used in the handful of contests around Georgia this year.
During the case, plaintiffs argued that the DREs posed several cybersecurity risks to Georgia’s elections, including that they could be infected with malware designed to steal votes from one candidate and assign them to a rival. The machines themselves are not connected to the internet, but witnesses called during the case told the court that they could still be infected with malicious code installed on the memory cards that upload digital ballots.
Plaintiffs also accused state officials of erasing servers at Kennesaw State University, where Georgia houses its election data, when their content was found to be accessible through the public internet. State officials have denied that allegation, but Totenberg wrote that their denial “has flagged other, similar troubles” in how Georgia’s election information is safeguarded.
“The Court does not minimize the challenges any state faces in operating a secure, reliable voting system in the current cyber era,” she wrote. “Still, the Defendants have been slow and poorly equipped in tackling the security and functionality challenges afflicting its current voting system and the well-established deficiencies in a non-auditable DRE voting system.”
Although Georgia’s new ballot-marking devices produce paper records, ballot-security advocates still clamored for the state to pick an entirely paper-based voting system. But Totenberg wrote that the specific merits the Dominion machines the state recently selected were not the subject of the case.
Still, the judge was at times withering in her assessment of how Georgia officials have handled election security.
“The past may here be prologue anew – it may be ‘like déjà vu all over again’,” she wrote, quoting Yogi Berra, the loquacious baseball great. “The Defendants have previously minimized, erased, or dodged the issues underlying this case. Thus, the Court has made sure that the past is recounted frankly in this Order, to ensure transparency for the future.”
The Dominion machines were certified on Monday after being tested by a third-party vendor, but the legal fights may not be over. In a statement released shortly after Totenberg’s ruling, the Coalition for Good Governance’s executive director, Marilyn Marks, put out a statement saying she and her fellow plaintiffs plan to sue to block implementation of the electronic BMDs, arguing they still pose risks.
“Coalition Plaintiffs will promptly file a legal challenge to the State’s decision to adopt this new touchscreen electronic voting system that is just as insecure and un-auditable as the current system,” read the statement, which was reported by Georgia Public Broadcasting. “It is essential that Georgia voters’ rights to accountable elections be honored with hand marked paper ballots, counted by optical scanners with thoroughly audited thoroughly audited results. Georgia still has a long way to go to achieve this basic democratic principle.”