A Temporary Loss Could be a Big Win for Secure Voting

A federal judge declined to make Georgia abandon its insecure paperless voting machines for this election. But the ruling laid the groundwork for forcing Georgia and other states to ditch the machines in the future.

September 19, 2018

At first glance, Tuesday’s federal court ruling allowing Georgia to use insecure all-electronic voting machines in the midterms was a defeat for advocates seeking safe, accurate and fair elections.

But a deeper look at the 46-page decision in Curling v. Kemp reveals that it lays the groundwork for other states to finally abandon vulnerable all-electronic voting systems and replace them with those that leave a tangible, concrete paper trail.

The only reason U.S. District Judge Amy Totenberg did not order Georgia to adopt such a system now, she wrote, is because of the short timeframe before the November election. With early voting set to begin in only a few weeks, replacing the all-electronic machines with those that produce paper receipts, she said, would be unduly disruptive and sow confusion.

But the ruling puts Georgia (and the 12 other states using all-electronic systems) on notice: Continuing to use these systems likely violates voters’ rights. The electronic voting system, Totenberg wrote, puts voters "at imminent risk of deprivation of their fundamental right to case an effective ballot,” and it puts “their vote ... in jeopardy of being counted less accurately and thus given less weight than a paper ballot.” 

Totenberg also admonished state leaders for not acting to resolve the problem. She noted the state’s slow response to problems of “aging software arrangements, hardware, and other deficiencies,” which were known prior to 2016. She added that a commission Secretary of State Brian Kemp created in April to “review Georgia’s next voting system” had met only twice. The array of evidence, Totenberg ruled, shows that “the Defendants and State election officials had buried their heads in the sand.”

Other recent events support the court’s findings. In March, a cyberattack crippled Atlanta’s government, leaving its computer network partially disabled and blocking municipal employees from accessing the system that facilitates core government services, like police and local courts. (The residents of the state capital are still reeling as the attack left taxpayers with a multi-million-dollar recovery bill.) Then, Special Counsel Robert Mueller filed a criminal indictment this summer alleging that Russian military officers interfered with various components of U.S. elections including when they “visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities,” just ahead of the 2016 election. In her opinion, Totenberg warned that these type attacks may be the new normal – “[a]dvanced persistent threats in this data-driven world and ordinary hacking are unfortunately here to stay."

Totenberg’s findings could have broad implications. Much of the opinion’s discussion of the risks that the state’s voting system poses to its voters could also apply to the 28 percent of registered U.S. voters in the dozen other states that use these insecure machines. With this decision, officials in these jurisdictions are forewarned that they may also face lawsuits if they continue to use paperless electronic voting machines after November. (In fact, in July, a similar suit was filed in South Carolina, a state that, like Georgia and three others – Delaware, Louisiana, and New Jersey – use these machines statewide.)

In the mean time, as voting gets underway in the coming week, Georgia and other states using these systems should take all necessary precautions to minimize the risks these machines pose. Among other steps, they should perform thorough logic and accuracy testing on all voting machines and stock precincts with 2-3 hours’ worth of emergency paper ballots in case the voting equipment fails. They should also conduct ballot reconciliation after polling places close to ensure that the number of voters signed into polling places matches the total number of votes cast.

Once the election is over, Congress and state governments must act to replace these insecure machines. After the 2018 midterms, the window to update and secure the election infrastructure is relatively short. Unlike say, building a highway, installing new window machines cannot be a decade-long project. But at least in Georgia – and one hopes in other states, as well – the era of stalling is over. The judge noted further proceedings, if needed, will proceed “on an expedited schedule.” Above all, Totenberg correctly understood the stakes, noting that in a democracy, there is a “critical need for transparent, fair, accurate, and verifiable election processes that guarantee each citizen’s fundamental right to cast an accountable vote.”

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