ATLANTA (CN) – The battle over how Georgia voters cast their ballots continued Wednesday in the 11th Circuit as attorneys for state election officials asked a three-judge panel to reject a lawsuit claiming the integrity of state elections is compromised by electronic voting machines.
Last September, U.S. District Judge Amy Totenberg denied the Coalition for Good Governance's request for an emergency preliminary injunction which would have forced Georgia voters to switch to paper ballots, ruling that the state could use its direct-recording electronic voting machines in the November midterm election.
Totenberg acknowledged that the state's 27,000 DRE voting machines are susceptible to "malicious intrusion," but found that there were significant "fiscal, organizational and practical impediments" associated with orchestrating a large-scale change to the state's voting systems just weeks before early voting was scheduled to begin.
In the ruling, Totenberg advised state election officials to be prepared to switch to a more secure system by 2020, acknowledging warnings from cyber security experts who say that Georgia's DRE machines are particularly vulnerable to hacking because they lack a physical paper-trail backup.
Although Totenberg denied the coalition's request for an injunction, she found that the organization and several voters had standing to bring their complaint against the state and ruled that the government is not entitled to immunity from the claims.
"Plaintiffs allege that defendants have continued to fail to take action to remedy the DRE system's vulnerabilities,” the judge wrote. “And they allege that this failure, in turn, impacts the integrity of the voting system and their ability as citizens to rely upon it when casting votes in this system. At the motion to dismiss stage, these allegations plausibly show causal connection, even if indirectly, between defendants' continued use of unsecure DREs and the injury to plaintiffs' constitutional rights.”
The state immediately appealed Totenberg's decision to the 11th Circuit.
In October, the judge granted the state's motion to stay all proceedings in the case until the 11th Circuit could rule on its interlocutory appeal of the district court's order.
"This case presents evolving special circumstances and cyber issues affecting the integrity of the voting process (and results) at this particular moment in history. While the court has found that defendants have not provided a sound legal basis to support their Eleventh Amendment and legislative immunity defenses, it is not prepared to declare the defendants' position wholly frivolous in this context," Totenberg wrote in the order granting the stay. (Emphasis in original.)
On Wednesday, attorneys representing Georgia asked a three-judge 11th Circuit panel to overturn the district court's ruling.
Georgia Attorney General Christopher Carr said his office will not defend the state in the case because of conflicting public statements by officials, so the Peach State is represented by John Salter of Barnes Law Group.
Salter argued that an exception to 11th Amendment immunity – which allows plaintiffs to bring claims against state officers in their official capacities for injunctive relief when the state has allegedly acted unconstitutionally – does not apply in this case.
"There is no constitutional basis for asking for a specific voting system," he said. "There is no right to pick the manner in which an election occurs."
But U.S. Circuit Judge William Pryor Jr. interjected, telling Salter that the panel would only rule on the issue of standing and would not reach the merits of the case at this time.
"You can take up a pleading on the merits with the district court. We want to know if your clients are immune to suit," Pryor said.
"Yes, they are," Salter replied.
Michael Qian, a Morrison & Foerster attorney representing the plaintiffs, also urged the panel to focus on the issue of standing in their decision.
"The merits are not before the court in this interlocutory appeal," Qian said.
Pryor was joined on the panel by U.S. Circuit Judge Robin Rosenbaum and Chief U.S. District Judge K. Michael Moore, sitting by designation from the Southern District of Florida.
The panel did not indicate when they might issue a decision in the case.
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