ATLANTA — A lawsuit challenging the security and constitutionality of electronic voting machines in Georgia will be heard during a bench trial on Jan. 9.
The lawsuit was originally filed in 2017 by the Coalition for Good Governance when the state used Direct Recording Electronic (DRE) machines, which allowed voters to directly select and submit their selections on an electronic screen with no verifiable paper backup.
The suit has since been directed to the state’s use of Ballot Marking Devices (BMD), which the state began using in 2020.
It notably points to the breach of devices in January 2021 in Coffee County as part of an alleged RICO (Racketeer Influenced and Corrupt Organizations) scheme for which several defendants have been indicted in Fulton County Superior Court, including former President Donald Trump.
“This breach and the copying and sharing of election system software and voting data to actors and entities inside and outside of the state, as well as through the internet, bear serious ramifications for the future vulnerability of the state’s election system as a whole,” the United States District Court of North Georgia-Atlanta Division Nov. 10 order states.
The initial lawsuit referenced two cybersecurity experts who were, on separate occasions, able to virtually access the state’s central election server maintained by Kennesaw State University’s Center for Election Services on behalf of the Secretary of State’s Office via the internet between August 2016 and March 2017.
One of the cybersecurity experts was reportedly able to access, via the internet, the election management databases for at least 15 counties — databases used to create ballot definitions; program memory cards; and tally, store and report all votes, according to the court filing.
In 2018, the court ruled to prevent the state from using the DREs after the 2019 election.
The state’s use of the BMD system by Dominion Voting Systems was used for the first time statewide in Georgia in the June 2020 presidential primary election.
In late 2019, the lawsuit was amended to target BMDs.
Plaintiffs claim the voting devices violate the Equal Protection Clause, alleging that in-person voters using the BMD system are deprived of equal protection compared to voters using absentee paper ballots, and that the QR code system also fails to give voters a verifiable paper ballot.
The lawsuit also acknowledges a 2021 report by University of Michigan Professor J. Alex Halderman, which suggested the potential for attacks of Georgia’s voting system that could alter the QR codes on printed ballots without the knowledge of voters, use malicious hardware on voting machines, or remotely install vote-stealing malware on ballot-marking devices.
“According to plaintiffs, because the BMD system was not secure, reliable or voter verifiable, it unconstitutionally burdened their right to cast effective votes that would be accurately counted,” the court order states.
U.S. District Court Judge Amy Totenberg, in the Nov. 10 order, said even if the challenge is successful, the court can’t order Georgia lawmakers to pass legislation creating a paper ballot voting system or judicially impose a statewide paper ballot system, as requested by plaintiffs.
“The court has the legal authority to identify constitutional deficiencies with the existing voting system, but it does not have the power to prescribe or mandate new voting systems to replace the current, legislatively-enacted system,” Totenberg said.
Remedial policy measures could be ordered or agreed upon by the parties, Totenberg said.
In recent years, Georgia has seen a movement of residents who are pushing legislators to move to hand-marked paper ballots.
Supporters of hand-marked paper ballots say they are a more secure method of voting and are less susceptible to errors or hacks that could result from using electronic voting devices; however, election officials have argued that moving to hand-marked ballots could come with more timely and costlier challenges, and could come with human errors.
More than 40 other states have hand-marked ballots as an option to vote in-person, with ballot marking devices also available, according to information compiled by Ballotpedia.