Judge Amy Totenberg (Courtesy photo) Judge Amy Totenberg, U.S. District Court for the Northern District of Georgia (Courtesy photo)

A federal judge in Atlanta is allowing a lawsuit to go forward that would force the state of Georgia to replace electronic voting machines currently in use with a system based on paper ballots.

In a 61-page order issued Tuesday, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia rejected a motion by Georgia Secretary of State Brad Raffensperger to dismiss the case.

Totenberg said the suit paints “an unsettling picture of the vulnerabilities of Georgia’s voting system” that dovetails with “recent, increased, and real threats of malicious intrusion and manipulation of the system and voter data by nation states and cyber savvy individuals.”

State attorneys argued that new legislation signed into law by the governor earlier this year to replace Georgia’s obsolete electronic voting apparatus with an upgraded electronic version made the case moot.

Totenberg disagreed.

The judge determined that the plaintiffs—a nonprofit organization dedicated to election integrity and a return to paper ballots and a number of Georgia voters—“have plausibly and sufficiently demonstrated a legitimate concern that when they vote by [electronic voting machines], their vote is in jeopardy of being counted less accurately and thus given less weight than a paper ballot.”

“At the motion to dismiss stage,” she concluded, “plaintiffs’ allegations that [the state of Georgia’s] continued use of unsecure [electronic voting machines] infringe the plaintiffs’ fundamental right to vote are sufficient to state a plausible due process violation.”

The case challenges the constitutionality of Georgia’s continued use of electronic voting machines that the state purchased in 2002. The software that powers those machines and the electronic servers that tally the votes expired in 2014, according to testimony in a hearing before Totenberg last fall. Following that hearing, Totenberg ruled that the plaintiffs  demonstrated a likelihood they would prevail. But she said their “eleventh-hour” request for an injunction ordering the state to conduct the 2018 election by paper ballot was unworkable on such short notice.

Totenberg said the plaintiffs’ complaints about Georgia’s obsolete voting system “emphasize current cybersecurity developments regarding election security and the heightened, legitimized concerns of election interference.”

The judge also said that, contrary to the secretary of state’s characterizations, “Plaintiffs’ allegations are not premised on a theoretical notion or hypothetical possibility that Georgia’s voting system might be hacked or improperly accessed and used.”

“As this court recognized in its prior order, national security experts and cybersecurity experts at the highest levels of our nation’s government and institutions have weighed in on the specific issue of [electronic voting] systems in upcoming elections and found them to be highly vulnerable to interference, particularly in the absence of any paper ballot audit trail,” Totenberg wrote. “Georgia’s  system also originally was intended to include the capacity for an independent paper audit trail of every ballot cast, and this feature was never effectuated.”

The state’s arguments, she added, “completely ignore the reality faced by election officials across the country … that electronic voting systems are under unceasing attack.”

In her ruling, Totenberg also said she would not be bound by  a 2009 Supreme Court of Georgia ruling in Favorito v. Handel, which state lawyers cited, and which at the time, unsuccessfully challenged the reliability and accuracy of Georgia’s electronic voting machines.

Totenberg said the lawsuit “was brought during the infancy of the use of [electronic voting machines] in Georgia when the susceptibility of the machines to fraudulent manipulation may have been foreseeable but was far from a reality.”

More than a decade later, the judge said the  U.S. Department of Homeland Security has declared electronic voting systems a “national security concern.”

The judge also said that since Georgia’s current system was developed in 2001, “The technology has not been updated to address known vulnerabilities in the face of persistent election security threats that the national government warns remain looming for future elections.”

“Respectfully, many of the court’s findings regarding the reliability of Georgia’s [electronic] voting system in Favorito have been proven outdated or inaccurate with the passage of time,” Totenberg added.

The judge also said the viability of the federal lawsuit claims “cannot be determined in a vacuum based on the decade-old circumstances in existence at the time of the Favorito court’s decision.”

Totenberg also concluded the federal claims now before her are “based on substantiated allegations of the serious security flaws and vulnerabilities in the state’s [electronic voting] system—including unverifiable election results, outdated software susceptible to malware and viruses, and a central server that was already hacked multiple times.”

David Cross, an attorney with Morrison Foerster in Washington, D.C., who is representing the plaintiff voters in the case, on Tuesday said Totenberg’s order, “validates the serious constitutional concerns underlying our case and provides an opportunity to finally institute secure, reliable and transparent elections for Georgia voters.”

Atlanta attorney Bruce Brown, who represents the Coalition for Good Governance and several voters, couldn’t be reached for comment.  But coalition executive director Marilyn Marks said that in the wake of Totenberg’s order, “The case will be moving forward immediately to address the severe vulnerabilities in Georgia’s election technology.”

“The court has recognized the infringement on voters’ constitutional rights when voters are forced to vote on unreliable, insecure and vulnerable equipment,” Marks said. “Georgia must immediately move to a system of hand-marked paper ballots counted by optical scanners and audited after tabulation. That is the relief we will be seeking in a [new] motion for preliminary injunction we plan to file within the next few days.”

A spokeswoman for the secretary of state also couldn’t be reached. A spokeswoman for state Attorney General Chris Carr declined comment on the judge’s order.