Judge Amy Totenberg, U.S. District Court for the Northern District of Georgia (Photo: John Disney/ALM)

A nonprofit organization allied with Georgia voters to seek a return to paper ballots has asked a federal judge to order state officials to take steps to improve ballot security before the midterm election.

The Coalition for Good Governance and four representative Georgia voters filed the motion Wednesday asking Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia to issue an injunction directing Secretary of State Brian Kemp, the state Board of Elections and the Fulton County Board of Elections, which handles a majority of Atlanta’s ballots, to put in a place a plan that would provide more checks on an antiquated computer voting system that cybersecurity experts have testified is vulnerable to hackers.

The motion for a preliminary injunction comes two weeks after Totenberg refused to issue an injunction forcing the state to junk its computer voting machines that have been in use since 2002 in favor of paper ballots.

Totenberg said in her Sept. 16 order that, although Georgia’s voting system “poses a concrete risk of alteration of ballot counts” that could affect the vote, “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.”

But lawyers defending election officials and Kemp, who is running for governor on the Republican ticket, appealed Totenberg’s order to the U.S. Court of Appeals for the Eleventh Circuit, contending the case should be dismissed and that the defendant public officials have immunity from liability.

Former Georgia Gov. Roy Barnes and partner John Salter Jr. of the Barnes Law Group in Marietta, who are defending state election officials, have also asked Totenberg to stay the case pending a ruling by the federal appeals court. Lawyers representing the coalition and Georgia voters have urged Totenberg to deny the request.

Salter declined to comment.

Kemp spokeswoman Candice Broce called the new motion “a complete waste of everyone’s time and taxpayer dollars.”

“The plaintiffs need to stop this nonsense,” she added, and “get behind efforts to responsibly replace the voting system” by supporting the Secure, Assessable and Fair Elections Commission, whose members have been tasked with recommending a new voting apparatus for the state to replace the 16-year-old software and hardware still in use.

Wednesday’s motion asks Totenberg to order state election officials to take the following actions:

  • Put procedures in place to address errors in the state voter registration database that led to at least one congressional district giving voters the wrong ballot earlier this year. That election was thrown out by a superior court judge last month.
  • Provide poll workers with paper backups of electronic poll books, which are used by county election officials to determine who is registered to vote.
  • Plan to conduct an audit of all paper ballot tallies, including absentee and provisional ballots, that are counted by hand or by optical scanner before the election is certified.
  • Enjoin the secretary of state and his staff from directly or indirectly prohibiting or discouraging local county election boards from converting to paper ballots prior to Nov. 6;
  • On Nov. 6, check the accuracy of printed vote tallies by every computer voting machine in use by comparing those tallies to the total number of voters who cast ballots in each precinct.
  • Mandate the use of paper ballots in the December runoff and order the state to use paper ballots for all elections after Jan. 1, 2019.

The requests are based on voter affidavits that documented problems and vulnerabilities associated with the state’s voting system, including its potential exposure to hackers in the runup to and following the 2016 presidential election.

Atlanta attorney Bruce Brown, one of a team of lawyers representing the coalition, said the requested actions are necessary and should not be put off until the pending case goes to trial, likely sometime next year.

“There will be other elections, and every election and every vote is important,” Brown said. “But the stakes today are very high, and there will never be another opportunity to improve the reliability or security of this crucial 2018 midterm election. The coalition plaintiffs therefore urge the Court to order these reasonable measures to improve the integrity of the election results and voter confidence in the democratic process.”

Marilyn Marks, the coalition’s executive director, said problems with the state’s current machines are well known.

“The eyes of the nation are on Georgia’s governor’s race, and there is widespread recognition that the touchscreen machines are not reliable,” Marks said. “We must take all reasonable actions to seek the Court’s intervention to impose feasible security measures, even if the election cannot be fully audited. If paper ballots are audited as we request, voters can have confidence that their paper ballots will be counted as they intend.”