Critics of Georgia’s outdated voting system told a judge on Tuesday that a new system outlined by lawmakers has many of the same fundamental flaws and is unconstitutional.
A law signed last week by Gov. Brian Kemp provides specifications for a new voting system. Bids are due later this month, and state officials say they plan to implement the new system in time for next year’s presidential election.
Lawyers for the Coalition for Good Governance and for a group of voters, who had filed a lawsuit challenging Georgia’s election system, told U.S. District Judge Amy Totenberg they plan to ask her initially to stop the state from using the current machines for special and municipal elections scheduled this year. Ultimately, they said, they want her to prohibit the state from using the current paperless machines, as well as the ballot-marking machines provided for in the new law.
Lawyers for the state argued complaints about the current voting system have been made irrelevant by the new law and that complaints about ballot-marking machines can’t be considered yet because the state hasn’t even selected a new system.
The lawsuit is one of several pending challenges to various aspects of Georgia’s voting system, which drew national scrutiny during last year’s midterm election in which Kemp, a Republican who was the state’s chief election officer at the time, narrowly defeated Democrat Stacey Abrams.
The plaintiffs previously sought in August to force the state to use paper ballots in November’s midterm election. Totenberg denied those requests, saying she worried it would be too chaotic to make the switch so close to the election.
But she found that the plaintiffs had demonstrated “the threat of real harms to their constitutional interests.” She also said state election officials had too long ignored “a mounting tide of evidence of the inadequacy and security risks” of the voting system and said further delay wouldn’t be tolerable.
The new law calls for voters to make their selections on electronic machines that print out paper ballots that are read and tallied by scanners.
The 2020 state budget awaiting Kemp’s signature includes $150 million in bond funding that’s intended to cover the initial purchase of the machines as well as rollout and training.
Election officials hope to test the new machines during municipal elections in November 2019, with plans to implement them statewide for the 2020 primary and general elections.
The law passed the legislature last month largely on a party line vote, with the Republican majority favoring electronic ballot-marking machines. Democrats, voting integrity advocates and cybersecurity experts argued hand-marked paper ballots were the most secure option.
Coalition for Good Governance lawyer Bruce Brown argued Tuesday that any system that puts a computer between the voter and the permanent record of the vote can’t be effectively audited and is unconstitutional.
Some of the ballot-marking devices print a record that includes a text summary of a voter’s choices and corresponding barcodes used by a scanner to read and tally the votes. That’s problematic, Brown said, because voters can’t verify that barcodes accurately reflect their choices.
But even with systems where the scanner reads a human-readable list, an unreasonable burden is placed on voters to verify that the printed record reflects their choices, Brown said. Research shows many voters won’t do that, he said.
Hand-marked paper ballots don’t need to be checked because voters verify their choices as they mark the ballots.
Brown also argued that cybersecurity experts have said ballot-marking devices are unsecure.
Vincent Russo, a lawyer representing the state, said election officials took Totenberg’s previous order to heart and lawmakers responded with specifications for a new voting system that should address her concerns.
The way a scanner reads the record printed by a ballot-marking device is very similar to the way a hand-marked ballot would be read, he argued. Furthermore, he said, ballot-marking devices cater to the needs of voters with disabilities, prevent voters from double voting in a given race and alert them if they skip a race.
State lawyers said the request for proposals requires that vendors provide for various security measures that would keep the system safe.