Georgia Voters Lose Last-Ditch Bid for Midterm Paper Ballots

(Bloomberg) -- It’s too late to force Georgia to replace the state’s flawed electronic-voting system with paper ballots for the midterm election despite evidence that votes could be altered, diluted or not counted at all, a U.S. judge ruled.

A good-government group and several voters who claimed the current system puts the election at risk of Russian-style interference waited too long to make their request, and switching to paper now could also imperil the election, U.S. District Judge Amy Totenberg ruled in Atlanta on Monday.

While the ruling is a victory for Georgia Secretary of State Brian Kemp, the judge rejected his claim that the lawsuit could be boiled down to "paranoia or hypothetical fear." The voters have “shown the threat of real harms to their constitutional interests," Totenberg said.

The judge highlighted the voters’ concerns about Direct Recording Electronic voting machines, or DREs, which Georgia began using in 2002. The system allows for a paper ballot audit trail, but Georgia never used it, according to the ruling. The 2020 presidential election is "around the corner," Totenberg said.

"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 DRE systems in upcoming elections and found them to be highly vulnerable to interference," especially without a paper trail, the judge said.

In November, Robert Mueller, the special counsel investigating Russia’s interference in the 2016 election, said a group of 13 Russians had sought “to identify vulnerabilities” in voting systems in several Georgia counties. And the state is one of five with "the most serious election security vulnerabilities," according to a July report by congressional Democrats cited in the lawsuit.

The plaintiffs claimed that Georgia’s paperless system is at such risk that the Republican-led state is violating residents’ constitutional rights by failing to fix the problem.

The judge, calling the situation "a true catch-22," said that state witnesses had convinced her at a recent hearing that a last-minute switch to paper ballots could "seriously test the organizational capacity of the personnel handling the election."

"Although the court late last night denied our preliminary injunction aimed at securing the midterm elections in Georgia, it found that the current system is critically unsecure and that a new, secure system with a verifiable paper trail is required before the next elections," David Cross, a lawyer with Morrison & Foerster LLP who worked on the case, said in a statement.

Notably, Kemp is on the ticket for Georgia’s governor race. An ardent Donald Trump supporter, he vowed in the primary to round up “criminal illegals” and haul them to the border in his pickup truck. The Democrat, Stacey Abrams, is an African-American woman who called for the carvings of Confederate icons sandblasted from Stone Mountain.

Kemp’s press office didn’t respond to a request for comment.

The impact of the state’s election vulnerabilities may never be known, according to Totenberg’s ruling.

"Given the absence of an independent paper audit trail of the vote, the scope of this threat is difficult to quantify, though even a minor alteration of votes in close electoral races can make a material difference in the outcome," the judge said.

The case is Curling v. Kemp, 1:17-cv-02989, U.S. District Court for the Northern District of Georgia (Atlanta).

©2018 Bloomberg L.P.