ATLANTA– Election integrity activists want a federal judge to order Georgia to stop using its current election system. The country says it is vulnerable to attacks and has operational problems that could cost voters their right to cast their votes and have them accurately counted.
In a trial set to begin Tuesday, activists plan to argue that Dominion Voting Systems' touchscreen voting machines are so flawed as to be unconstitutional. Election officials insist the system is secure and reliable and say it is up to the state to decide how to conduct elections.
Georgia has become a crucial electoral battleground in recent years, with national attention focused on the elections. The statewide election system used by nearly all in-person voters includes touchscreen voting machines that print ballots with a human-readable summary of voters' choices and a QR code that a scanner reads to count the votes.
The activists say the state needs to move to hand-marked paper ballots, counted by scanners, and also needs much more robust post-election audits than currently exist. U.S. District Judge Amy Totenberg, who is overseeing the long-running case, said in an October order that she cannot order the state to use hand-marked paper ballots. But activists say banning the use of touchscreen machines would essentially force the use of hand-marked paper ballots, because that's the emergency reserve provided by state law.
In the aftermath of the 2020 election, wild conspiracy theories about Dominion voting machines proliferated, spread by allies of former President Donald Trump who said they were used to steal the election from him. The election equipment company has aggressively fought back with lawsuits, most notably reaching a $787 million settlement with Fox News in April.
The trial, which begins Tuesday, stems from a lawsuit that long predated those claims. It was originally filed in 2017 by several individual voters and the Coalition for Good Governance, which advocates for election integrity, and took aim at the outdated, paperless voting system used at the time.
Totenberg in August 2019 banned the state from using the outdated machines after that year. The state had agreed to purchase new voting machines from Dominion a few weeks earlier and rushed to deploy them before the 2020 election cycle. Before the machines were distributed across the state, the activists amended their lawsuit to target the new system.
They claim that the system has serious security issues that can be exploited without detection and that the state has done little to address these issues. In addition, voters cannot be assured that their vote will be accurately recorded because they cannot read the QR code, they say. And the voting machines' large, upright screens make it easy to see a voter's choices, which violates the right to voting secrecy, they say.
Lawyers for Secretary of State Brad Raffensperger recently wrote in a lawsuit that he “vigorously disputes” the activists’ claims and “strongly believes” their case is “legally and factually meritless.”
Experts retained by the activists have said they have seen no evidence that vulnerabilities have been exploited to change the outcome of elections, but they say the concerns must be addressed immediately to protect future elections.
One of them, computer scientist J. Alex Halderman of the University of Michigan, examined a Georgia machine and wrote a lengthy report detailing vulnerabilities he said bad actors could use to attack the system. The U.S. Cybersecurity and Infrastructure Security Agency, or CISA, issued an advisory in June 2022 based on Halderman's findings, urging jurisdictions using the machines to quickly mitigate vulnerabilities.
At a hearing in May, an attorney for the state told the judge that the physical security elements recommended by CISA were “largely in place.” But the secretary of state has said a Dominion software update would be too cumbersome to install before the 2024 election.
The fact that the voting system software and data were uploaded to a server and shared with an unknown number of people after unauthorized access to election equipment in January 2021 makes it even easier to plan an attack on the system, it says Halderman. That breach of the elections office in rural Coffee County was exposed by the plaintiffs in the lawsuit.
A sweeping racketeering indictment by Fulton County against Trump and 18 others included charges against four people linked to Coffee County. Two of them, including Trump-affiliated attorney Sidney Powell, have pleaded guilty after reaching deals with prosecutors.
In several statements during the lawsuit, Totenberg made it clear that she has concerns about the voting system. But she wrote in October that the activists “bear a heavy burden to establish a constitutional violation” related to the voting system or its implementation.
David Cross, a lawyer for some of the individual voters, said the judge has seen only a small piece of their evidence so far. He said he believes it will swing in their favor, but he doesn't expect any changes before Georgia's presidential primaries in March. He said changes could be possible before the general election in November, if Totenberg governs quickly.
“We are hopeful, but we recognize that it is an uphill battle for 2024, at just the right time,” he said, acknowledging the likelihood that the state would appeal a ruling in favor of the activists.
Marilyn Marks, executive director of the Coalition for Good Governance, was similarly optimistic ahead of the trial: “We have the facts, the science and the law on our side, and basically the state has no defense.”
A representative for Raffensperger did not respond to multiple requests to interview someone in his office ahead of the trial.
The activists planned to call the Secretary of State to testify. They wanted to ask why he chose a voting system that uses QR codes that are not readable by voters. They also believe his office failed to investigate or implement proper security measures after the Coffee County breach and wanted to ask him about that under oath.
The judge ordered him to appear despite the objections of his lawyers. But the 11th U.S. Circuit Court of Appeals ruled Friday that he does not have to testify, citing his status as a top official and saying prosecutors have not shown his testimony was necessary.
“This process weighs heavily on the public interest, and voters deserve to listen to Secretary Raffensperger during the process. It's a travesty that they won't do that,” Cross said. “And it is unfair to our clients who need answers to questions at trial that only he can provide.”