ATLANTA (CN) — A federal judge ruled Monday night that Georgia can use its electronic voting machines for the upcoming November election, but warned that state officials should be prepared to switch to a more secure system by 2020.
Despite concerns that the state's 27,000 direct-recording electronic voting machines are susceptible to "malicious intrusion," U.S. District Judge Amy Totenberg denied a request for an emergency preliminary injunction which would have forced 6.8 million Georgia voters to switch to paper ballots.
Georgia is one of five states still using electronic voting machines without a physical paper trail backup. Without a paper backup, cyber security experts warn that the machines could be hacked and election results could be changed via the use of undetectable malware.
The decision comes as part of an ongoing lawsuit brought by the Coalition for Good Governance against Georgia Secretary of State Brian Kemp. Kemp, a Republican, is currently campaigning against Democrat Stacey Abrams to win the race for Georgia governor.
In a 46-page ruling, Totenberg called Georgia's voting system "dated" and "vulnerable," and noted that some Georgia election officials had "buried their heads in the sand" where matters of cyber security are concerned.
But Totenberg found that the "fiscal, organizational and practical impediments and burdens" associated with overhauling Georgia's electoral system just weeks before early voting is scheduled to begin in the November 6 election outweigh the immediate security concerns surrounding the use of DRE machines.
"The Court’s greater concern, in considering the evidence, is that the massive scrambling required to implement such injunctive relief in roughly 2,600 precincts and 159 counties will seriously test the organizational capacity of the personnel handling the election, to the detriment of Georgia voters," the ruling states.
"There is nothing like bureaucratic confusion and long lines to sour a citizen," Totenberg wrote.
During a September 12 hearing on the motion for preliminary injunction, attorneys representing Kemp warned that a switch to paper ballots so soon before a major election could lead to chaos. They claimed that there is not enough time before the start of early voting on October 15 to train poll workers and purchase new paper ballot scanning machines.
Although Totenberg's ruling emphasized caution and concern for the voting process, she warned that the state cannot dismiss the plaintiffs' fears of election tampering as "paranoia or hypothetical fear."
" National security experts and cybersecurity experts at the highest levels of our nation's government and institutions have weighed in on the specific issue of DRE systems in upcoming elections and found them to be highly vulnerable to interference, particularly in the absence of any paper ballot audit trail. Indeed, the evidence and testimony presented conforms with the patterns of heightened cybersecurity breach and data manipulation attacks now regularly appearing in civil financial cases as well as criminal cases," the ruling states.
Although Totenberg ruled in favor of the Secretary of State, the judge laid out an expectation that the state take the plaintiffs' concerns seriously.
"[T]he court advises the defendants that further delay is not tolerable in their confronting and tackling the challenges before the State's election balloting system," the ruling states.
"Advanced persistent threats in this data-driven world and ordinary hacking are unfortunately here to stay," the ruling says.
David Cross, an attorney representing the plaintiffs, said in a statement Tuesday morning that the Coalition's fight is far from over.
"Although the court late last night denied our preliminary injunction aimed at securing the midterm elections in Georgia, it found that the current system is critically unsecure and that a new, secure system with a verifiable paper trail is required before the next elections," Cross said.
"The court takes election officials to task for their “head in the sand” approach to the extraordinary threat facing Georgia voters this fall and the little understanding they exhibited about election security," he continued. "The court emphasizes that our case will move forward expeditiously with discovery in pursuit of a permanent injunction. Unfortunately, the court concluded that it’s too late to implement paper ballots this fall.
"Ironically, the ineptitude demonstrated by certain state election officials in this case likely played a significant part in the decision that those officials could not manage a change now. We will continue the fight for all Georgia voters — and the Court makes clear that while we lost this initial battle, we are on track to win the war for safe, secure, transparent, honest elections in Georgia," Cross said.
During a hearing on the motion for a preliminary injunction on September 13, attorneys for both sides indicated that they may appeal Totenberg's decision prior to Election Day.
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