Judge could order Georgia to use paper ballots in fall elections

Georgia allowed its election system to grow "way too old and archaic" and now has a deep hole to dig out of to ensure that the constitutional right to vote is protected, U.S. District Judge Amy Totenberg said Friday.

Now Totenberg is in the difficult position of having to decide whether the state, which plans to implement a new voting system statewide next year, must immediately abandon its outdated voting machines in favor of an interim solution for special and municipal elections to be held this fall.

Election integrity advocates and individual voters sued Georgia in 2017 alleging that the touchscreen voting machines the state has used since 2002 are unsecure and vulnerable to hacking. They've asked Totenberg to order the state to immediately switch to hand-marked paper ballots.

But lawyers for Fulton County, the state's most populous county that includes most of Atlanta, and for state election officials argued that the state is in the process of implementing a new system, and it would be too costly, burdensome and chaotic to use an interim system for elections this fall and then switch to the new permanent system next year.

A law passed this year and signed by Gov. Brian Kemp provides specifications for a new system in which voters make their selections on electronic machines that print out a paper record that is read and tallied by scanners. State officials have said it will be in place for the 2020 presidential election.

Lawyers for the plaintiffs argued Friday that the current system is so unsecure and vulnerable to manipulation that it cannot be relied upon, jeopardizing voters' constitutional rights.

"We can't sacrifice people's right to vote just because Georgia has left this system in place for 20 years and it's so far behind," said lawyer Bruce Brown, who represents the Coalition for Good Governance and a group of voters.

Addressing concerns about an interim system being burdensome to implement, plaintiffs' lawyers countered that the state put itself in this situation by neglecting the system for so long and ignoring warnings. Lawyer David Cross, who represents another group of voters, urged the judge to force the state to take responsibility.

"You are the last resort," he said.

Georgia's voting system drew national scrutiny during the closely watched contest for governor last November in which Kemp, a Republican who was the state's top election official at the time, narrowly defeated Democrat Stacey Abrams.

The plaintiffs had asked Totenberg in August to force Georgia to use hand-marked paper ballots for that election. While Totenberg expressed grave concerns about vulnerabilities in the voting system and scolded state officials for being slow to respond to evidence of those problems, she said a switch to paper ballots so close to the midterm election would be too chaotic. She warned state officials that further delay would be unacceptable.

But she seemed conflicted Friday at the conclusion of a two-day hearing.

"These are very difficult issues," she said. "I'm going to wrestle with them the best that I can, but these are not simple issues."

She recognized that the state had taken concrete steps since her warning last year, with lawmakers providing specifications for a new system, appropriating funds and beginning the procurement process. But she also said she wished the state had not let the situation become so dire and wondered what would happen if the state can't meet its aggressive schedule for implementing the new system.

The request for proposals specifies that vendors must be able to distribute all voting machine equipment before March 31, which is a week after the state's presidential primary election is set to be held on March 24. Bryan Tyson, a lawyer representing state election officials, told the judge the state plans to announce the new system it's selected in "a matter of days."

Alex Halderman, a University of Michigan computer science and engineering professor, testified Friday that the state election system's vulnerabilities and that the safest, most secure system would be hand-marked paper ballots with optical scanners at each precinct.

Four county election officials, three of whom will oversee elections this fall, testified that it would be difficult to switch to hand-marked paper ballots in time for those elections. They cited difficulties getting enough new equipment, as well as challenges training poll workers and educating voters. They also said they'd have trouble paying for the switch unless the state helps.

The two groups of plaintiffs agree that the whole system is flawed and has to go. They also believe the ballot-marking devices the state plans to implement have many of the same problems, and they plan to challenge those once the state announces which vendor has won the contract. But they disagree about what the interim solution should be.

The plaintiffs represented by Brown are asking the state to use hand-marked paper ballots along with its existing election management system and to use the ballot scanners it currently uses for paper absentee and provisional ballots for all ballots.

The plaintiffs represented by Cross want the state to implement its new election management system in time for the fall elections and to use ballot scanners along with paper ballots.

Totenberg did not say when she would rule.