Senior Judge Adele Grubbs (Photo: Zachary D. Porter/ALM) Cobb County Senior Judge Adele Grubbs (Photo: Zachary D. Porter/ALM)

A lawsuit contesting the election of Lt. Gov.-elect Geoff Duncan is set for trial on Jan. 17.

Senior Superior Court Judge Adele Grubbs set the trial date after a hearing Wednesday on motions by Georgia Secretary of State Robyn Crittenden, Duncan and election officials for Fulton and Gwinnett counties, who sought to dismiss the challenge.

The lawsuit contesting Duncan’s election was filed by Atlanta attorney Bruce Brown for the Coalition for Good Governance, a nonprofit organization that has three pending lawsuits challenging the state’s use of obsolete electronic voting machines in the midterm election rather than reverting to paper ballots. Other plaintiffs include Smythe Duval, who lost his bid as the Libertarian candidate for secretary of state, and voters from Fulton and Morgan counties. Sarah Riggs Amico, Duncan’s unsuccessful Democratic challenger, is not a party.

Said Brown: “We look forward to being able to try our case.”

A University of California-Berkeley statistics professor who analyzed the election results said in an affidavit that the results “are in substantial doubt.”

Grubbs embraced arguments that Crittenden should be dismissed as a defendant because the secretary of state should not be considered an election superintendent, according to Brown and Crittenden counsel Vincent Russo. The state’s election law holds that county election superintendents, not the secretary of state, conducted the challenged election and would be required to conduct a new election, should the court order one.

Russo, a partner at The Robbins Firm who is defending Crittenden as a special assistant attorney general, said he and co-counsel Joshua Belinfante are waiting on a ruling from Grubbs as to whether the secretary of state remains a defendant in federal civil rights claims stemming from allegations of anomalies in the lieutenant governor’s race.

Late Wednesday, Grubbs handed down an order dismissing the constitutional claims  that the plaintiffs’ “fundamental right to vote” was infringed and that they were denied equal protection—both Fourteenth Amendment claims—because voting on the state’s obsolete electronic machinery was less effective than paper ballots. Grubbs held, “There is no basis for recovery even if all allegations are deemed correct.”

Brown said he and his clients are considering whether to appeal.

Duncan and the election boards of Fulton and Gwinnett counties remain defendants. Brown said Grubbs did not require the plaintiffs to add election board members of the state’s other 157 counties as defendants. State law would allow her to extend her ruling to election officials in all counties, should she rule that a new election is warranted, Brown said.

Dentons partner Edward Lindsey, Duncan’s lawyer, said Grubbs called Wednesday’s ruling on whether to dismiss the case “a close decision.” The judge also said that for the plaintiffs to prevail, “They must not only show that there were some defects in the election but that the defects were large enough to offset Mr. Duncan’s substantial margin of victory,” Lindsey said.

Duncan bested Amico by 123,172 votes. More than 3.7 million votes were counted.