A panel of the U.S. Court of Appeals for the Eleventh Circuit, including two South Florida judges, affirmed a finding that a lawsuit seeking to force Georgia to return to paper ballots will likely succeed.
The appellate panel that included Circuit Judges William Pryor of Alabama, Robin Rosenbaum of Fort Lauderdale and U.S. District Chief Judge K. Michael Moore of Miami held in a joint ruling that Georgia Secretary of State Brad Raffensperger and members of the state’s election board are not entitled to immunity from liability. The Eleventh Circuit issued its ruling just a week after hearing oral arguments.
Former Georgia Gov. Roy Barnes and law partner John Salter of The Barnes Law Group are defending the election board and the secretary of state. Salter had no comment by deadline.
Last September, they appealed U.S. District Judge Amy Totenberg’s order declining to dismiss pending claims against state election officials. The lawsuit named then-Secretary of State Brian Kemp, now Georgia’s governor, among others.
Totenberg of the Northern District of Georgia also rejected arguments that state officials had immunity.
The plaintiffs — Georgia voters and the Coalition for Good Governance, a nonprofit organization dedicated to election transparency and a return to paper ballots — had sought a court order barring the state from using the electronic voting system during the midterm election. They contended it created “an unacceptable risk” that voters’ ballots would not be accurately counted because hackers could intercept or modify them.
The Eleventh Circuit ruled that enjoining Georgia’s use of electronic voting machines would not run violate state sovereignty because “suits are permitted when the plaintiff alleges that state election officials are conducting elections in a manner that does not comport with the Constitution.”
The panel noted the plaintifffs “do not seek a court order directing the precise way in which Georgia should conduct voting. Instead, [they] seek only injunctive and declaratory relief against a system that they decry as unconstitutionally unsecure.”
The court also determined state officials “cannot claim legislative immunity because plaintiffs did not challenge legislative acts. Instead, [they] challenged the state defendants’ implementation and execution of a state law and policy.”
The lawsuit’s focus was not on the legislation or election rules but maintained “enforcement of that law in the future will burden their right to vote,” the panel said.
Totenberg initially found Sept. 17 that Georgia’s voting system posed “a concrete risk of alteration of ballot counts” that could affect the midterm vote. But she said “the eleventh-hour timing” of the request to immediately return to paper ballots “could just as readily jeopardize the upcoming election, voter turnout, and the orderly administration of the election.”
Totenberg promised if she were affirmed, she would put the case on an expedited schedule since “the 2020 elections are around the corner.”
Michael Qian, a Morrison & Foerster associate in Washington, who argued the appeal for voters, applauded the Eleventh Circuit for its quick action “in rejecting defendants’ arguments on appeal, which enables us to finally move forward with our case on the merits for the benefit of all Georgia voters.”
Coalition executive director Marilyn Marks and its attorney, Bruce Brown of Atlanta, said they look forward to expedited discovery.
“It’s time to get long overdue answers to the questions about systemic irregularities that occurred in the November 2018 and prior elections,” Marks said. “Such information will greatly benefit voters, election officials and lawmakers as they must overhaul the state’s voting system and reject unauditable electronic ballots.”