The battle over how Georgia voters cast their ballots continued Wednesday in the 11th Circuit as attorneys for state election officials asked a three-judge panel to reject a lawsuit claiming the integrity of state elections is compromised by electronic voting machines. Last September, U.S. District Judge Amy Totenberg denied the Coalition for Good Governance’s request for an emergency preliminary injunction which would have forced Georgia voters to switch to paper ballots, ruling that the state could use its direct-recording electronic voting machines in the November midterm election. Totenberg acknowledged that the state’s 27,000 DRE voting machines are susceptible to “malicious intrusion,” but found that there were significant “fiscal, organizational and practical impediments” associated with orchestrating a large-scale change to the state’s voting systems just weeks before early voting was scheduled to begin. In the ruling, Totenberg advised state election officials to be prepared to switch to a more secure system by 2020, acknowledging warnings from cyber security experts who say that Georgia’s DRE machines are particularly vulnerable to hacking because they lack a physical paper-trail backup.
Although Totenberg denied the coalition’s request for an injunction, she found that the organization and several voters had standing to bring their complaint against the state and ruled that the government is not entitled to immunity from the claims.
“Plaintiffs allege that defendants have continued to fail to take action to remedy the DRE system’s vulnerabilities,” the judge wrote. “And they allege that this failure, in turn, impacts the integrity of the voting system and their ability as citizens to rely upon it when casting votes in this system. At the motion to dismiss stage, these allegations plausibly show causal connection, even if indirectly, between defendants’ continued use of unsecure DREs and the injury to plaintiffs’ constitutional rights.”
The state immediately appealed Totenberg’s decision to the 11th Circuit.