Georgia Supreme Court and Court of Appeals Building (Photo: John Disney/ALM) Georgia Supreme Court and Court of Appeals Building (Photo: John Disney/ALM)

It was a hot bench at the Supreme Court of Georgia on Tuesday as justices peppered lawyers with an unstinting barrage of questions over whether to revive a challenge to Lt. Gov. Geoff Duncan’s election.

At the outset, Atlanta attorney Bruce Brown, who represents the challengers, told the court its ruling will shape how future election contests based on electronic voting will be litigated.

Justices asked who should be respondents in an election contest lawsuit where Georgia’s 159 counties are responsible for managing voting, even though the secretary of state is considered Georgia’s chief election officer, and the state owns most, if not all, of the voting equipment. They also sought explanations for the math behind the statistical anomalies in the race and whether those anomalies were sufficient to legitimately contest Duncan’s election.

The justices also questioned whether plaintiffs contesting the race were given sufficient discovery after being stymied by lawyers for Secretary of State Brad Raffensperger from reviewing the internal memory of select electronic voting machines in Fulton, the state’s most populous county, after Raffensperger was dismissed from the case,

The high court will consider whether to reverse Senior Superior Court Judge Adele Grubbs’ decision dismissing the election challenge on a directed verdict last January. Chief Justice Harold Melton and Justice Robert Benham were not present for the oral arguments. But Justice David Nahmias said they will review the briefs and video of the oral arguments and join in the ruling.

More than 3.78 million votes were cast in the race last year, where Duncan bested Democratic challenger Sarah Riggs Amico by 123,172 votes.

A slate of plaintiffs including the Coalition for Good Governance, a nonprofit organization focused on election integrity; Smythe Duval, the Libertarian Party’s 2018 candidate for secretary of state; and voters from Fulton and Morgan counties sued for a do-over election, claiming that electronic voting anomalies not reflected in more than 250,000 paper ballots also cast in the race showed a significant and unexplainable undervote.

Amico is not a plaintiff, but the lawsuit mirrors a complaint she made last November to the secretary of state claiming that the undervote rate in her race was 6.5 times greater than in the governor’s race and appeared to impact Democratic-leaning counties “more heavily” than Republican-leaning counties.

The lieutenant governor’s race received far fewer total votes than all other down ballot statewide races, including those for secretary of state, state attorney general, school superintendent, agriculture commissioner and even some local state legislative races, said Brown, who is representing the challengers.

Justices Sarah Hawkins Warren, Nels Peterson and Charles Bethel homed in on the math behind the electronic ballot anomaly. Warren asked when a race that was a statistical outlier became irregular enough to warrant a legitimate challenge, and whether there were reasonable explanations as to why voters may have voted the way they did.

“We are all lawyers. We are all judges. You are making us shudder with math,” Warren said.

Said Justice Nels Peterson: “I am one of many people who went to law school because I was told there would be no math.” Yet, he said, “Here it is.”

Peterson wanted to know how the challengers determined that at least 127,000 votes—enough to overturn the race—were in doubt. “The only real evidence you have that anything at all happened is the number.”

Brown explained that the number was based on average undervotes from several previous elections. But, he said, “That’s a fact question.” And, right now, the statistical anomaly remains the primary basis for the challenge “because we didn’t have discovery.”

While Grubbs initially allowed a limited examination of some electronic voting machines, Brown said he, Fulton County lawyers and counsel for the secretary of state were quickly at loggerheads over how the memory could be accessed without destroying the internal data.

“That’s what the parties were grappling with,” Brown said in response to a question from Nahmias about the nature of the discovery dispute and whether the challengers ultimately were at fault for walking away. “You are complaining the state violated the discovery order,” Nahmias said.

“Our complaint is that three days of discovery as a matter of law is insufficient,” Brown said. “The result we are seeking is a fair trial, not to win a fair trial. … If it turns out we can’t prove a defect that is sizable enough to cast the race in doubt, we will lose.”

Brown wasn’t alone in being peppered with questions. Edward Lindsey, a partner at Dentons in Atlanta who represents Duncan, also faced a similar barrage of questions.  In response to questions from Justice Keith Blackwell, Lindsey said that because the challengers “are claiming a system-wide defect” in the electronic balloting,  the respondents would necessarily have to include all of the state’s 159 counties so that they would all be bound by the court’s orders if aa do-over election were ordered.

Lindsey’s argument prompted Peterson to ask: “Do we not normally presume government entities follow the law? If a superior court enters an order saying there are systemic flaws … and there has to be a new election, is it your view that whoever is required to effectuate it can say, ‘I was not a party. I don’t have to do it.’?”

“I believe if a party is bound by a certain order, they ought to have a chance to respond to a particular order,” Lindsey responded.

Nahmias also questioned what he called “the black box” that the state has raised around the function of its voting infrastructure.

“I do have concerns,” when the state claims, “We have a black box. We tested it. Trust us. It works exactly the way we said it does. We will tell you what’s in the black box,” Nahmias said.

Edward responded that the state’s results were both “well regarded” and “undisputed.”

“If they are undisputed, I’m not sure why we are here today,” Warren said.

Peterson added, “Their point is, without discovery, … it’s not possible to dispute.”

When Lindsey began offering a list of benign reasons for the electronic ballot anomaly in the lieutenant governor’s race, Peterson cut him off. “Why does any of that matter to us? We don’t do factual findings. That’s for a trial court.”