The judge pointed to warnings from the U.S. Supreme Court asking lower courts to use restraint in ordering procedural changes so close to an election.
ATLANTA (CN) — A federal judge on Sunday again rejected voting integrity activists’ efforts to force Georgia election officials to abandon the state’s new touchscreen voting machines in favor of hand-marked paper ballots for the November election in light of security concerns.
For the fourth time since activists brought a 2017 lawsuit challenging the integrity of Georgia’s voting machines, U.S. District Judge Amy Totenberg refused to order top election officials to replace touchscreen ballot-marking devices with hand-marked paper ballots despite concerns that the voting machines are vulnerable to security risks.
In a 147-page order issued the day before early voting began in the Peach State, Totenberg, a Barack Obama appointee, ruled that a “fundamental modification in the election system” so close to Election Day would overwhelm the secretary of state and county election offices.
“The court has already seen in the record of this case enough election chaos, operational deficiencies, and challenges on all levels, plus stress in the system spiked further by Covid-19 complications, that the court cannot embrace a rosy view of the simplicity of moving to a total, comprehensive paper ballot system with so little time to prepare for such a major transition,” the judge wrote.
However, Totenberg did order election officials to find a way to review ballot images to ensure that voting scanner software isn’t overlooking partially marked ballot ovals. The judge ordered a resolution to be developed and implemented for elections after the January 2021 runoffs for U.S. Senate.
Activists from the Coalition for Good Governance claim that the state’s new $107 million voting system places an unconstitutional burden on the right to vote because voters cannot be sure their vote is accurately counted.
During a hearing in the case in September, state officials argued that Georgia has updated and secured its election infrastructure and claimed it was too late to make changes to the voting system.
The system uses touchscreen voting machines known as ballot-marking devices, or BMDs, to print a paper ballot with a non-encrypted QR code that is read by a scanner. The system does not produce a voter-verifiable paper record of the votes cast, requiring voters to trust that the barcode accurately conveys their intended ballot selections.
Activists allege that the barcode recording of votes can be manipulated through hacking.
Georgia is the only state using the barcode-based BMD system statewide as the mandatory voting method for all in-person voters.
The activists’ claims of insecurity were bolstered by the recent discovery that a voting machine software glitch caused a column of the ballot of the 20 candidates for one of Georgia’s U.S. Senate seats to disappear.
State election officials say they fixed the problem by installing upgraded software on the state’s 34,000 touchscreens before early voting began. The software fix was not approved by the Election Assistance Commission until Friday, after it had already been distributed to counties.
Totenberg warned Sunday that questions surrounding the security of Georgia’s voting machines are unlikely to abate, writing that “the vital issues identified in this case will not disappear or be appropriately addressed without focused state attention, resources, ongoing serious evaluation by independent cybersecurity experts, and open-mindedness.”
Although Totenberg acknowledged the activists demonstrated that equipment and voter registration database problems during this year’s June primary and August runoff elections “caused severe breakdowns at the polls, severely burdening voters’ exercise of the franchise,” the judge noted the U.S. Supreme Court’s warnings asking lower courts to use restraint in ordering procedural changes so close to an election.
“Despite the profound issues raised by the plaintiffs, the court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record,” Totenberg wrote.
In a statement emailed to Courthouse News on Monday, Georgia Secretary of State Brad Raffensperger’s office said the order “does nothing except undermine voter and candidate confidence in the results of the election.”
“Despite more than three years of litigation, the only thing these plaintiffs have accomplished is wasting taxpayer dollars by forcing them to defend state law against activists on a disinformation campaign,” the secretary of state’s office said. “In 2018, 2019, and now 2020, last-minute preliminary injunction motions filed by activists were decided without the benefit of the normal evidentiary process, and the views of ‘experts’ that were rejected as not credible by other courts have been accepted by this one as gospel even though they have yet to be cross-examined.”
The statement continued, “The activists that want to sow discord and disinformation will use this order to further their disinformation campaigns.”
Sunday’s order follows a Sept. 28 ruling in the same case requiring every polling place in Georgia’s 159 counties to have a paper backup of the list used to check voter eligibility in case electronic pollbooks malfunction on Election Day.
The secretary of state’s office has appealed that ruling to the 11th Circuit.
Reports surfaced Monday that electronic pollbooks malfunctioned at State Farm Arena, the largest early voting site in the state, during the first day of early in-person voting. The pollbooks reportedly stopped working while hundreds of voters waited in line. The issue was resolved by mid-morning.