Judge Amy Totenberg agrees that there are serious problems with Georgia’s computerized voting equipment.
The District Court Judge determined that there is enough reason to suspect that there may be “cybersecurity deficiencies that unconstitutionally burden Plaintiffs’ First and Fourteenth Amendment rights and capacity to case effective votes that are accurately counted.”
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Totenberg has set a bench trial on January 9, 2024, without a jury. If the state legislature takes action, though, perhaps a compromise might be reached.
“The Court cannot wave a magic wand in this case to address the varied challenges to our democracy and election system in recent years, including those presented in this case,” she wrote. “But reasonable, timely discussion and compromise in this case, coupled with prompt, informed legislative action, might certainly make a difference that benefits the parties and the public.”
Crucially, the court rejected the notion that concerns about Georgia’s voting machines’ security are only the product of “conspiracy theories.”
“The Court notes that the record evidence does not suggest that the Plaintiffs are conspiracy theorists of any variety. Indeed, some of the nation’s leading cybersecurity experts and computer scientists have provided testimony and affidavits on behalf of Plaintiffs’ case in the long course of this litigation,” The court noted in a footnote.
The District Court emphasized a number of well-known criticisms about the 2020 presidential election.
First, the Court acknowledged that the absence of a paper vote trace in the DREs meant that “No voters could verify whether their intended votes for particular candidates were actually cast.”
The court observes that a number of voting machines were using an antiquated version of Windows XP or 2000, and that the DRE devices were using software from 2005 that was “so out of date that the makers of the software were no longer supporting it or providing security patches.”
The Court then examined “newly available evidence regarding the CES/KSU data breach, data systems mismanagement, and record destruction events previously addressed in the 2018 PI Order. The expanded record revealed additional troubling details regarding the breach.”
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Moreover, the Court determined in its 2019 Order that “Plaintiffs presented significant evidence of vulnerabilities in the State’s voter registration database in connection with the previously discussed exposure of voter data, the exposure of passwords, and outdated software issues.”
The Plaintiffs also questioned the State’s competence to “to audit the functionality of the BMDs, specifically in the event that the selections contained within the QR codes did not match the selections that appear in the human readable text (for example, if the QR codes had been altered). At the hearing, the State Defendants argued that audits would look to the human readable text – not the QR codes. Plaintiffs argued that audits would not necessarily remediate this issue because most voters do not review each of their selections contained in the human-readable text. This would not allow the printouts to be properly audited against the QR data…”
In the end, the Court determines that there are “material facts in dispute presented in the record that preclude its grant of the State Defendants’ Motions for Summary Judgment on the primary claims.”
The Court subsequently declared that it will “resolve these material factual disputes and related legal issues based on the evidence presented at a bench trial to begin on January 9, 2024.”
The Court acknowledged that political remedies are just as important for maintaining election integrity as legal ones.
“To be clear from the start, the Court does not have the legal authority to grant the broadest relief that Plaintiffs request in this case without directly infringing on the state legislature’s vested power to enact legislation,” the judge said. “Even if Plaintiffs prevail on their substantive claims, the Court cannot order the Georgia legislature to pass legislation creating a paper ballot voting system or judicially impose a statewide paper ballot system as injunctive relief in this case. Quite simply, the Court has the legal authority to identify constitutional deficiencies with the existing voting system, but it does not have the power to prescribe or mandate new voting systems (i.e., a paper ballot system) to replace the current, legislatively enacted system.”
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“That said, as the Eleventh Circuit previously recognized in this case, suits challenging election procedures [or policies] are routine,’ and there are critical issues raised in this case that do not “present a political question beyond this Court’s reach.” Curling v. Raffensperger, 50 F.4th 1114, 1121 n.3 (11th Cir. 2022).”
“Still, Plaintiffs carry a heavy burden to establish a constitutional violation connected to Georgia’s BMD electronic voting system, whether in the manner in which the State Defendants have implemented the voting system — i.e., that it imposes serious security voting risks and burdens impacting Plaintiffs’ voting rights — or otherwise,” the judge added.
Leading Experts on Election Security Testify: Drs. J. Alex Halderman and Philip Stark, Among Others, Support the Plaintiffs.
In a masterful speech, Dr. J. Alex Halderman offers the strongest criticism of Georgia’s voting procedures.
The July 1, 2021 submission of Dr. Halderman’s Report delves further into his earlier evidence and reveals fresh BMD system weaknesses. He thoroughly tested electoral apparatus supplied by Fulton County as well as a BMD. See the Redacted Halderman Report, Doc. 1681, for further information.
The following are the seven main weaknesses that Dr. Halderman has identified:
- Attackers can alter the QR codes on printed ballots to modify voters’ selections
- Anyone with brief physical access to the BMD machines can install malware onto the machines
- Attackers can forge or manipulate the smart cards that a BMD uses to authenticate technicians, poll workers, and voters, which could then be used by anyone with physical access to the machines to install malware onto the BMDs (id.);
- Attackers can execute arbitrary code with supervisory privileges and then exploit it to spread malware to all BMDs across a county or state (id.);
- Attackers can alter the BMD’s audit logs (id.);
- Attackers with brief access to a single BMD or a single Poll Worker Card and PIN can obtain the county-wide cryptographic keys, which are used for authentication and to protect election results on scanner memory cards (id.); and
- A dishonest election worker with just brief access to the ICP scanner’s memory card could determine how individual voters voted (id.).
Moreover, Dr. Halderman believes that “election insiders and ordinary voters could
be recruited by domestic political actors or hostile sophisticated foreign nations to
attack Georgia’s voting system by, for instance, implanting malware.”
Following a judicial review, the State Defendants’ Motions for Summary Judgment were partially granted and partially refused.
The Motion for Summary Judgment filed by Fulton County has been fully granted.
