(Additional reporting by Brad Friedman.)
All parties to the litigation received U.S. District Court Judge Amy Totenberg's 135-page order [PDF] on Friday, in response to Georgia's Motion for Summary Judgement in the Coalition for Good Governance (CGG)'s years-long Constitutional challenge to the state's insecure, unverifiable touchscreen voting systems.
CGG will be going to trial as she denied the State's motion to dismiss our core claims regarding the critical battleground state's Ballot Marking Device (BMD) touchscreens. Trial is set to begin on January 9.
The Court described the inherent security flaws in Georgia's touchscreen voting system as well as the State's lack of response to the statewide system breaches emanating from the Coffee County breach activities we unearthed last year. That matter has now become infamous through Fulton County District Attorney Fani Willis' racketeering indictment against Donald Trump and 18 co-defendants, four of whom she charged for their involvement in the unprecedented copying and distribution of the state's voting system software after breaching the machines at the elections office in the rural, southeastern Georgia county. Two of the alleged co-conspirators specifically involved in the Coffee County plot, Trump attorney Sidney Powell and Atlanta bail bondsman Scott Hall, have pleaded guilty in the matter.
The Court noted the misleading and conflicting claims by the defendant in our case, Secretary of State Brad Raffensperger, regarding the Coffee breaches (see p. 66 of the ruling) and his delayed and ineffective response. The Order notes how the breaches have grave implications for the security of future elections. Nonetheless, the Secretary and State Election Board have continued to bury their heads in the sand, not wanting to second guess the Secretary's 2019 purchase of the highly flawed system that experts have concluded is less secure than the old paperless Diebold touchscreen system Judge Totenberg ordered to be replaced in 2019....
According to her Friday ruling, not a single election security expert has endorsed Georgia's complex touchscreen system, which one of the plaintiff's experts, University of Michigan's Dr. Alex Halderman, found to be at extreme risk for undetectable attack in his July 2021 report [PDF]. His findings were later confirmed by the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA), yet the State has done nothing to remedy the security failures. (State officials did not even bother to read the reports for many months, or show interest or concern.)
The gravely serious issues are being exacerbated with the continuing spread of the stolen software from Coffee County to unauthorized actors with unknown intent. No amount of software patches or "audits" can mitigate the dangers of the flawed touchscreen system design. Only hand-marked paper ballots counted by scanners with post-election audits can ensure verifiable election outcomes. The currently debated software update to the Dominion systems is a necessary action, but falls far short of delivering a system that can pass Constitutional muster to protect the voters' rights to cast accountable votes. (Lawmakers debating when the 5.17 update should be installed are missing the point entirely, that even after a future software update, the system still fails basic security requirements.)
This past week's BMD touchscreen voting mess in Northampton, PA is a sobering real world example of why such BMDs are unsafe by design, and unfit for elections. (Flawed programming caused two statewide judge retention questions to print the paper ballot with the wrong Yes or No vote on its human-readable portion. Although the barcode to be tabulated was reportedly accurate, the system created a paper ballot which did not reflect the voters' choice. Voters were told that their votes would not be counted as printed. The details of that debacle are still surfacing, but the lesson is clear. Once there is a systemic touchscreen BMD failure, the election also fails. There is no reasonable way to recover.)
The Court's Order makes it clear that Georgia's status quo is far too risky, and that these concerning issues merit a trial. We look forward to prevailing at trial as we demonstrate why touchscreen BMDs cannot be used safely.
But as the Court points out, a cooperative negotiated resolution with the State would be in the public interest. Immediate balloting security could go into place early next year, as the state has long-standing fail-safe voting system statutes that permit scanner-tabulated hand-marked ballots for just such problems as the state has encountered with the touchscreen component of its flawed system.
We hope that the Court's findings will be the wake-up call for the State Election Board and Secretary Raffensperger to cooperate with plaintiffs to address the grave inadequacies of the system in time to secure the 2024 elections.
Marilyn Marks is a longtime expert advocate for free-and-fair elections as founder and Executive Director of the Coalition for Good Governance, a non-partisan nonprofit organization committed to fair elections and government transparency. She can be followed on Twitter at: @MarilynRMarks1