Some big legal guns are squaring off in a federal lawsuit challenging Georgia’s use of all-electronic voting systems.
A major national law firm has deployed attorneys to represent plaintiffs in the suit on a pro bono basis, going up against a more locally based defense team that includes Georgia’s former governor.
John Carlin, former assistant U.S. attorney general in charge of the National Security Division, and his partner in the Washington, D.C., office of AmLaw 35 national law firm Morrison & Foerster, David Cross, are representing three Georgia voters who claim their fundamental constitutional right to vote is endangered by the systems.
On the other side, representing the State Election Board, its members and Secretary of State Brian Kemp are John Frank Salter Jr. and former Gov. Roy Barnes of the Barnes Law Group.
Prior to serving as DOJ’s highest-ranking national security lawyer, MoFo’s Carlin served as chief of staff and senior counsel to former FBI director Robert Mueller III. In that role, he helped lead the agency’s evolution to meet growing and changing national security threats, including cyber threats, according to his firm bio.
The lawsuit filed in the U.S. District Court for the Northern District of Georgia alleges that “the inherent flaws” in the Direct Recording Equipment voting system used in Georgia, “render it not possible for the state to comply with the election law or to protect the rights of Georgia voters,” according to the second amended complaint. Georgia is one of only five states to use a wholly electronic voting system.
Specifically, in addition to providing neither a paper trail nor any other means to audit the records of votes, the DREs run on antiquated software that is downloaded from just one central location, which makes the system “far more vulnerable than systems that are managed through numerous sites at the county level across the state,” the complaint states.
The complaint also alleges that in August 2016, a cybersecurity expert was able to access key components of Georgia’s electronic election infrastructure, without entering a password, and found private information, including driver’s license numbers and the last four digits of Social Security numbers, for more than 6.5 million Georgia voters.
The suit alleges both federal constitutional violations and various state constitutional and statutory violations, including state ballot secrecy laws and disclosure of personal identifying information notification requirements.
It seeks an injunction prohibiting continued use of the DRE system, hopefully in time for the general elections in November, Cross said. He and his partner Carlin got involved in the case, Cross added, in part because there appears to be “no motivation to fix” the issue.
“We’re not seeing anything coming out of the federal or state administration to remedy these problems, so it’s going to have to be through the courts,” he said.
“For me, this is one of, if not the best, cases out there right now that provide the most effective avenue to take up these election vulnerabilities that we’re hearing about,” Cross added.
A representative for Kemp could not be reached for comment.
In its motion to dismiss, the state said it saw the matter quite differently, describing the complaint as “a typical shotgun pleading” that “alleges only generalized fears that Georgia’s election machinery is vulnerable to tampering and continue to assert that tampering in prior elections should be presumed.”
The case is pending before U.S. District Judge Amy Totenberg. Motions to dismiss have been filed, and a status conference is scheduled for this week.
Other local lawyers on the case include: Halsey Knapp Jr. and Adam Martin Sparks of Krevolin & Horst for the same plaintiffs Cross and Carlin are representing; Robert McGuire of the Robert McGuire Law Firm and Bruce Brown of Bruce P. Brown Law for another plaintiff, advocacy group the Coalition for Good Governance; and Cary Ichter of Ichter Davis and William Brent Ney of Ney Hoffecker Peacock & Hayle for the coalition and three additional Georgia voters.
The slightly more than a dozen county entities and officials named as defendants in the suit are represented by their respective legal departments, with the Cobb County defendants also represented by Daniel Walter White of Haynie, Litchfield Crane and White.
This story has been corrected to eliminate reference to Steptoe & Johnson, as that firm is no longer involved in this litigation.