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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.

    Documents