Bruce P. Brown, Bruce P. Brown Law LLC, Atlanta. (Photo: John Disney/ALM)

The Supreme Court of Georgia will hear oral arguments Tuesday on a challenge to last year’s election of the state’s lieutenant governor.

The high court took the appeal after Senior Superior Court Judge Adele Grubbs tossed out a suit contesting the election of Lt. Gov. Geoff Duncan last January.

A slate of plaintiffs including the Coalition for Good Governance, a nonprofit organization focused on election integrity; Smythe Duval, the Libertarian Party’s 2018 candidate for secretary of state; and voters from Fulton and Morgan counties challenged the lieutenant governor’s election, claiming that electronic voting anomalies not reflected in the paper ballot count showed a significant and unexplainable undervote.

Duncan, the Republican candidate, won the race by 123,172 votes out of 3.78 million ballots cast. But plaintiffs attorney Bruce Brown contended that as many as 127,000 votes may have been affected.

Duncan’s Democratic challenger, Sarah Riggs Amico, is not a plaintiff, although the lawsuit mirrors a complaint she made last November to Georgia’s secretary of state citing “significant anomalies” with “an unusually high rate” of residual undervotes  that were either invalid, not recorded or never cast on electronic ballots in the lieutenant governor’s race.

In her complaint, Amico claimed the residual vote in her race was 6.5 times greater than the residual votes in the governor’s race and appeared to impact Democratic-leaning counties “more heavily” than Republican-leaning counties.

The lieutenant governor’s race received far fewer total votes than all other down ballot statewide races, including those for secretary of state, state attorney general, school superintendent, agriculture commissioner and even some local state legislative races, Brown said in his appeal.

“Even more alarming, this unprecedented pattern appears only in the results of votes cast on the direct-recording election (DRE) voting machines,” he said. “Votes on paper ballots conformed to the historical pattern, with the election for lieutenant governor receiving only slightly fewer paper-ballot votes than governor, and slightly more paper-ballot votes than secretary of state.”

Grubbs dismissed the suit after little more than a day of testimony—much of which she discounted, struck or refused to admit as evidence. In granting Duncan’s motion for a directed verdict, Grubbs said there was there was “absolutely nothing” to show that votes were cast illegally or that legal votes were rejected.

Grubbs dismissed the case despite a discovery dispute in which the secretary of state’s lawyers intervened to stop the plaintiffs from examining the internal memories of selected individual electronic voting machines in Fulton County. Fulton was one of several counties where voters reported problems in casting a vote for  lieutenant governor.

In his appeal, Brown contended that Grubbs’ handling of that dispute was one of several reversible errors.

Less than a week before trial, Grubbs agreed to limited discovery permitting the plaintiffs’ electronic voting expert to inspect the internal memory of some Fulton voting machines.

But the secretary of state’s lawyers intervened at the scheduled  inspection—even though the secretary had been dismissed as a defendant in the case—with a list of protocols that severely limited what the plaintiffs could do.

The plaintiffs’ cyber security expert said those protocols, if followed, would have altered the memory and internal data of the electronic voting machines. He proposed an alternative, but the secretary’s lawyers rejected it.

After the aborted inspection, Grubbs denied Brown’s motions to compel discovery and for a continuance until the dispute was resolved. She also denied the plaintiffs’ motion for a jury trial—Brown contends those rulings were errors, too.

Brown also said that, because the plaintiffs and their experts were barred from examining the software programs that power electronic voting machines and tally the votes, they had no way to detect defective programming.

Brown also argued that Grubbs told the parties she was fast-tracking the case partly because she was “getting some pressure as to why this isn’t going through faster than it’s been.”

“There is nothing in the record explaining the source or nature of this pressure,” Brown said.

Edward Lindsey Jr.

Edward Lindsey, a partner at the Atlanta office of Dentons who represents Duncan, offered several possible explanations for the undervote in the lieutenant governor’ race in his appeal brief, including what he suggested was a flawed electronic ballot design.

He also insisted there was “no evidence of tampering with Georgia’s electronic voting system in 2018” and “no reason to doubt the accuracy of the electronic voting system.”

Lindsey also contended that Georgia’s electronic voting system “is not susceptible to remote, internet-based hacking.”

Cybersecurity experts disagree. Several have challenged the accuracy of the state’s outdated electronic voting apparatus in ongoing litigation in federal court in Atlanta, including a demonstration that changed election results on an electronic voting machine while overriding the machine’s accuracy test.

The state’s electronic voting management software, including software powering individual voting machines, expired in 2013. Georgia is one of just five states that still use electronic voting machines without an auditable paper trail.

Lindsey also argued that the plaintiffs “chose not to engage” in discovery as laid out by the secretary of state’s counsel. Instead, Lindsey said the plaintiffs “sought to expand it by proposing a discovery protocol which was radically different from the terms of the order.” He also labeled the plaintiffs’ proposed examination methods as “destructive.” The plaintiffs sought access to “unprivileged but sensitive materials” that would be “harmful and against public interest,” Lindsey said.

Lindsey also argued there was no need for the plaintiffs or their experts to copy the internal memories of individual voting machines or have a cyber expert examine the election management servers when printed reports by Fulton and Gwinnett county election officials were available with sufficient information showing the system was secure.

Discovery sought by the plaintiffs “would have jeopardized the security of Georgia’s election systems by exposing “sensitive information” and providing “a roadmap or schematic” of the election management servers and individual electronic voting machines that could then “be used to create a virus for those systems,” Lindsey contended.

“The important interest of the state and the secretary of state in securing the state’s elections is without question, and a trial court is properly permitted to look to public policy considerations in limiting discovery,” he said.