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Common Cause Georgia v. Brad Raffensperger

The Brennan Center and co-counsel filed a lawsuit on behalf of Common Cause Georgia (CCGA), seeking to protect Georgia citizens’ fundamental right to vote from malfeasance or tampering with Georgia’s voter registration database. CCGA has asked the Court to enter an injunction ensuring that all provisional ballots cast by eligible voters are counted.

Published: January 25, 2019

On Novem­ber 5, 2018, the Bren­nan Center and co-coun­sel filed a lawsuit on behalf of Common Cause Geor­gia (CCGA), seek­ing to protect Geor­gia citizens’ funda­mental right to vote from malfeas­ance or tamper­ing with Geor­gi­a’s voter regis­tra­tion data­base. CCGA has asked the Court to enter an injunc­tion ensur­ing that all provi­sional ballots cast by eligible voters are coun­ted. The Court gran­ted in part Plaintiff’s request for a tempor­ary restrain­ing order on Novem­ber 12, 2018. In April 2019, in response to the lawsuit, Geor­gia adop­ted new laws enhan­cing the secur­ity of the voter regis­tra­tion system and the provi­sional ballot­ing protec­tions offered to Geor­gia voters.

Back­ground

My Voter Page, a website of the Geor­gia State Govern­ment, is a public inter­face where voters can check their voter regis­tra­tion status, poll loca­tions, and view sample ballots for upcom­ing elec­tions. It appears that at the very least for a signi­fic­ant period of time prior to the Novem­ber 6, 2018 general elec­tion, My Voter Page and the state’s voter regis­tra­tion server were vulner­able to multiple secur­ity breaches.

Secret­ary of State at the time, Brian Kemp, know­ingly main­tained an unse­cure voter regis­tra­tion data­base and then exacer­bated the secur­ity risk by expos­ing said vulner­ab­il­it­ies to increased publi­city just prior to the Novem­ber 2018 elec­tion. This increased the risk that eligible voters would be unlaw­fully removed from the State voter regis­tra­tion data­base or have their voter regis­tra­tion inform­a­tion manip­u­lated in a manner that prevents them from cast­ing a regu­lar ballot. To the extent the regis­tra­tion data­base was manip­u­lated, experts would expect to see a signi­fic­ant increase in the number of provi­sional ballots cast; there has been such an increase, and Geor­gi­a’s provi­sional ballot count­ing scheme fails to provide adequate process here. This is because a voter’s provi­sional ballot is not coun­ted in the state unless elec­tions offi­cials affirm­at­ively determ­ine that the voter is duly registered. But, as a result of Secret­ary Kemp’s actions, the state’s inform­a­tion may not be accur­ate at the time the provi­sional ballots are coun­ted.

CCGA reques­ted emer­gency relief to prevent elec­tions offi­cials from reject­ing provi­sional ballots until the Court has an oppor­tun­ity to exam­ine the evid­ence more fully. More broadly, CCGA is asking the state to put in place a modi­fied provi­sional ballot­ing count­ing system that would presume the ballots are valid unless elec­tion offi­cials can prove other­wise—by show­ing “clear and convin­cing evid­ence” that a voter was not eligible to vote or was not registered. This modi­fied count­ing system would aim to address the risks posed by a vulner­able system and ensure that all qual­i­fied voters’ provi­sional ballots are coun­ted.

On Novem­ber 12, the Court gran­ted Plaintiff’s request for a tempor­ary restrain­ing order in part. The order required the state to take a number of steps to protect voters who had to cast provi­sional ballots during the Novem­ber 8 elec­tion because of regis­tra­tion prob­lems, includ­ing: estab­lish­ing a hotline and website for voters to check if their ballots were coun­ted; conduct­ing a thor­ough review of provi­sional ballots; and provid­ing detailed inform­a­tion about provi­sional ballots cast. The Secret­ary of State subsequently agreed to imple­ment these steps in connec­tion with the Decem­ber 4, 2018 run-off elec­tion.

On April 2, 2019, Governor Kemp signed HB 316, which included new protec­tions for Geor­gia voters who are required to cast provi­sional ballots. On April 30, 2019, Governor Kemp signed into law HB 392, which has a provi­sion requir­ing Geor­gi­a’s secret­ary of state to take steps to shore up the secur­ity of the state’s voter regis­tra­tion data­base. These provi­sions were enacted in direct response to the lawsuit.

On June 14, 2019, the parties filed a joint stip­u­la­tion of dismissal, in light of the passage of these new laws.

Common Cause Geor­gia is repres­en­ted by the Bren­nan Center for Justice at NYU School of Law, Paul, Weiss, Rifkind, Whar­ton & Garrison LLP, and Sugar­man Law LLP.

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