Although Georgia Secretary of State Brian Kemp’s counsel persuaded a federal judge not to order the state to conduct the November midterm election by paper ballot, Kemp and the State Board of Elections still intend to appeal.
Hours after Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia issued an order Monday night rejecting a request to bar use of the state’s antiquated computer voting machines in favor of paper ballots on Nov. 6, attorney John Salter filed a notice of the appeal on behalf of state officials who are defendants in the case.
Kemp, who is running for governor on the Republican ticket, and election board members will ask the U.S. Court of Appeals for the Eleventh Circuit in Atlanta to overturn Totenberg’s refusal to dismiss the case and her ruling that state election officials are not entitled to immunity in this instance.
Salter is defending Kemp and elections board members with law partner and former Georgia Gov. Roy Barnes.
Even though Totenberg rejected the emergency paper ballot petition, she also held that four Georgia voters and a Colorado-based coalition seeking a return to paper ballots have demonstrated a likelihood that some of their claims will succeed on the merits.
The judge said the plaintiffs demonstrated the state’s “continued reliance on the use of [computer] voting machines in public elections likely results in a debasement or dilution of the weight of plaintiffs’ votes, even if such conduct does not completely deny plaintiffs the right to vote.”
The plaintiffs “shine a spotlight on the serious security flaws and vulnerabilities in the state’s [computer voting] system—including unverifiable election results, outdated software susceptible to malware and viruses, and a central server that was already hacked multiple times,” she said.
Totenberg said she was making the finding with “a measure of true caution.”
“The Court’s caution is that though the parties have filed endless briefs on [the]defendants’ multiple motions to dismiss and amended complaints, largely due to [the] plaintiffs’ changes in counsel, the case did not move substantively forward until the motions for preliminary injunction were filed in August,” she said. “The subject matter in this suit is complex, even if well-presented, and there is still key information that needs to be gathered.”
“The case,” she added, “would benefit from some discovery and a full evidentiary hearing on the merits over several days.”
On Tuesday, Salter referred questions about the appeal to Kemp’s office. Kemp’s spokeswoman forwarded a written statement but would not address the appeal.
Kemp said in the statement that, “With this ruling behind us, we will continue our preparations for a secure, orderly election in November.” Kemp also touted a commission he established to study options to replace the state’s 16-year-old computer voting system.
The 18-member commission, which Kemp chairs, includes five state legislators, six county election officials, attorneys representing the state’s three major political parties, a former prosecutor, a metro Atlanta lawyer with a solo practice and the general counsel of the state Department of Behavioral Health and Developmental Disabilities. The commission includes one cybersecurity expert—Wenke Lee, co-director of Georgia Tech’s Institute for Information Security and Privacy.
In a presentation Lee gave the commission last month, which was introduced as an exhibit at an all-day hearing Totenberg convened last week, the computer science professor suggested paper ballots coupled with auditing could verify that votes were cast as intended, accurately collected as cast and accurately counted. It also would ensure the system could not be completely controlled or otherwise manipulated by a cyber component.
On Monday night, Marilyn Marks, executive director of the Coalition for Good Governance, said the organization intends to ask for a ruling directing the state to replace the electronic voting machines with paper ballots for the midterm runoff election in December.
David Cross, an attorney with Morrison & Foerster in Washington, D.C., who represents the four individual Georgia voters, called the state officials’ intent to file an immediate appeal “borderline frivolous.” Cross also said he will ask for expedited discovery.
Cross said he was encouraged the judge “says outright that she finds we have a likelihood of success on the merits of the claims.” Her order also “sends a fairly stark warning to the state that there will be relief for the 2020 elections,” he added.
Cross also said Totenberg’s order emphasized “that she’s going to move this case forward expeditiously. I think we fully have her attention; she appreciates what the issues are. … She is going to make certain this case moves at a pace where relief is available before the  election.”