Attorneys for a nonprofit organization calling for a return to the paper ballot have asked a federal judge in Atlanta to order Georgia to abandon computerized voting in the upcoming November election.
On Tuesday, U.S. District Judge Amy Totenberg called the request for a preliminary injunction posed by the Coalition for Good Governance and several Georgia voters “a pressing challenge,” but “no small request.” They want to junk the state’s current, antiquated electronic voting apparatus in favor of a return to paper ballots by November.
In a three-page order, Totenberg sought more information about the possible effects of the sought-after injunction, specifically, whether an order mandating a conversion to paper ballots statewide before the November election would “adversely impact the public interest” by compromising the election’s integrity and the ability of the state and its 159 counties to successfully carry it off.
The judge said in the order that while she “appreciates the gravity and importance of the constitutional issues that the Coalition plaintiffs raise in their motion, at the same time, the court needs as a priority to assess the concrete reality of the challenges involved” in just three months.
Totenberg directed the defendants—Secretary of State Brian Kemp, who is running for governor on the Republican ticket, and members of the state Election Board—to focus on “the practical realities surrounding implementation of the requested relief in the next one to three months” in responding to the injunction request. She also directed them to file their response by Aug. 14.
Totenberg ordered the coalition to do the same and file any reply by Aug. 20.
Citing alarms raised by security officials last week that states, including Georgia, have already been targeted, the Colorado-based Coalition for Good Governance warned in court papers filed Friday the state’s voting infrastructure has already been compromised and that, absent a return to paper ballots, the legitimacy of the November election results “will be cast into doubt.”
Coalition lawyers also asked Totenberg to order the secretary of state to audit the state’s electronic pollbook data by Oct. 1, and correct any errors. The pollbooks generally contain lists of registered voters by precinct.
“Given the increased alarm expressed by every responsible member of the federal government, the coalition plaintiffs believe it’s imperative to seek immediate injunctive relief so that Georgia’s elections can be conducted on paper ballots, which is a system that is feasible and fair and verifiable,” said Atlanta attorney Bruce Brown.
Brown represents the coalition along with Cary Ichter of Atlanta’s Ichter Davis, William Ney of Atlanta’s Ney Hoffecker Peacock & Hayle, and Seattle attorney Robert A. McGuire. Morrison & Foerster represents several individual Georgia voters who are also plaintiffs.
The board is slated to meet Tuesday in executive session to discuss the pending litigation with counsel John Salter of the Barnes Law Group. Salter declined to comment Monday on the injunction request.
Georgia’s computerized voting infrastructure, inaugurated nearly two decades ago, is outdated and has no paper audit trail to verify the accuracy of the ballots cast, Brown said. Microsoft terminated technical support and security patches in 2013 for the software the state currently relies on to tally votes, he said.
The outdated software is insufficient “to withstand today’s onslaught of criminal activity,” the lawyer contended. “You don’t have to believe in any Russian conspiracy to understand these systems are thoroughly and profoundly vulnerable to attack and have been for years.”
Moreover, Brown said at least two “white hat hackers” have penetrated large segments of the state’s election database beginning in August 2016 when it was still housed at Kennesaw State University’s Center for Election Systems. Although cybersecurity experts who accessed the confidential voting data alerted KSU, the data remained exposed for another seven months, Brown said.
The publicly accessible data included software applications, encryption keys, passwords for voting equipment and administration, voter histories, personal confidential voter registration information for the state’s entire voting population, ballot proofs, tabulation and memory card programming databases for past and future elections, technical training videos and other sensitive information intended for exclusive use by county election officials across the state, the injunction motion contends.
The motion also contends the voting files housed at KSU were exposed for so long that Google cached digital backups.
“The experts will tell you once a server like that is exposed, you cannot detect ways malware may have infiltrated the system absent a cost prohibitive forensic examination of not only the server but every single piece of equipment, memory card, and modem that system has touched,” Brown said. “We know Georgia has not done that sort of forensic cleansing.”
KSU’s contract with the secretary of state to house the data was terminated last year.
But a spokesman for the secretary of state said Monday the state’s elections system and voting equipment “remain secure.”
Kemp spokeswoman Candice Broce told The Daily Report after a federal indictment of 12 Russian military intelligence officers revealed they had visited election websites in at least two Georgia counties that an FBI investigation of the reported KSU vulnerabilities uncovered “no evidence that the server had been manipulated in any way.”
The KSU voter registration list “was more akin to the public list of voters that we have to make available to members of the public by law,” she said. “There is no central server for elections officials to sign in on Election Day.” Database files configured to produce test ballots were fictitious races used for training purposes, she said.
Broce also told The Daily Report the secretary of state has “never been hacked and, according to President Trump and the Department of Homeland Security, we have never been targeted. Georgia has secure, accessible, and fair elections because Secretary of State Brian Kemp has leveraged private-sector solutions for robust cybersecurity, well before any of those options were offered by the federal government. We continue to bolster our security, and we are vigilant in this environment.”
But coalition lawyers countered in their injunction request that instituting paper ballots would not create any undue hardship because they are already being printed for absentee and provisional voters. “The injunction will, of course, cause a substantial increase in the number of votes cast by paper ballot, but the actual burden of this change … will be slight,” they argued.
Moreover, there would be no remedy if the state’s current voting infrastructure is compromised, they insisted. “The test is not whether injury is certain to occur, but whether it is likely to occur. … The widespread acceptance of the legitimacy and accuracy of an election is itself a value that is certain to be irreparably harmed if the election goes forward using Georgia’s profoundly vulnerable and concededly unverifiable system.”