Late Friday, U.S. District Judge Amy Totenberg denied a motion by Georgia election officials to dismiss a case that claims the state’s electronic voting system is insecure.
The Curling v. Raffensperger suit was initially filed in 2017 by Democrats who want the state to ditch its electronic voting machines in favor of hand-marked paper ballots. The plaintiffs argued that the paperless touchscreen voting machines had major cybersecurity flaws that amounted to a violation of voters’ constitutional rights in the Peach State. The suit was amended in 2019 to challenge the new Dominion election system, with claims that the new voting system had similar vulnerabilities.
Since 2019, Georgia has used Dominion’s election equipment in all 159 counties, which includes 34,000 ballot machines and several thousand scanners.
The suit maintains that the voting system, “as currently designed and implemented, suffers from major cybersecurity deficiencies that unconstitutionally burden the plaintiffs First and Fourteenth Amendment rights and capacity to case effective votes that are accurately counted.”
Georgia’s Secretary of State Brad Raffensperger and the Election Board had asked the judge to rule in its favor without the case going to trial, but Totenberg found there were “material facts in dispute” that must be adjudicated.
In her 135-page order, Totenberg detailed the relevant topics being examined in the years-long case:
• the use of computerized electronic voting systems in Georgia and the history of the cybersecurity and voting issues raised by Plaintiffs in their series of legal challenges, as previously addressed by this Court;
• the cybersecurity and reliability issues surrounding the use of the relevant electronic voting systems and the auditing of such systems and voting results;
• the cybersecurity experts’ evaluations and testimony regarding the State’s voting systems and exposure to breaches, especially in the absence of timely, needed software patches and the implementation of other cybersecurity protective measures;
• the Department of Homeland Security’s Cybersecurity & Infrastructure Agency’s (“CISA”) review of the Dominion ImageCast X system and software (currently used in Georgia) and CISA’s issuance of a national advisory notice on June 3, 2022 recommending that jurisdictions using this particular Dominion software and related technology implement specific measures to limit unauthorized access or manipulation of voting systems;
• the serious security issues and long-term ramifications surrounding the breach of the Coffee County election system and unauthorized access to the State Dominion voting software and election data, and the resulting impact on future voting security;
• Defendants’ principal defense that Plaintiffs lack standing to assert the constitutional claims raised in this case and, on the other side, the grounds Plaintiffs rely on to establish their legal standing to pursue their claims in this case — grounds including the alleged severe burden placed on their capacity to cast an effective and reliable vote by Defendants’ handling of the election system;
• The Court’s legal and evidentiary analysis of the issues in dispute raised by the Defendants’ pending Motions for Summary Judgment.
Totenberg stressed in her order that at this stage in the process, where she was considering the state’s motion for summary judgment, she was required to look at the facts in a light most favorable to the plaintiffs. At the upcoming trial, the plaintiffs have “a heavy burden to establish a constitutional violation” connected to the voting system, she wrote.
Even if she ultimately rules in their favor, she wrote, she can’t order the state to implement a paper ballot system. She said there are “pragmatic, sound remedial policy measures” that she could order or that the parties could agree upon, including: eliminating QR codes on ballots and having scanners read human-legible text; using a broader scope and number of election audits; and implementing essential cybersecurity measures and policies recommended by leading experts.
Dominion came under heavy scrutiny after the 2020 election when members of former president Trump’s legal team accused the company of flipping hundreds of thousands of votes for Joe Biden in key swing states. These concerns were roundly dismissed in the corporate media as unfounded conspiracy theories.
Dominion responded with litigation, notably reaching a $787 million settlement with Fox News in April.
In a footnote of her ruling, Totenberg made clear that the evidence in this case “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.”
“We look forward to presenting our full evidence at trial and obtaining critical relief for Georgia voters,” said David Cross, an attorney for some of the plaintiffs.
“But we hope this decision will be a much-needed wakeup call for the Secretary and SEB, and finally spur them to work with us on a negotiated resolution that secures the right to vote in Georgia.”
Coalition for Good Governance executive director Marilyn Marks said Raffensperger has continually failed to address concerns about the state’s voting system.
“The Court’s Order makes it clear that the status quo is far too risky, and that these concerning issues merit a trial,” Marks said.
Totenberg urged the two sides to work together to reach a resolution.
“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.”
The case is set for a bench trial beginning January 9th, 2024.
A decision that Raffensberger et al. failed to secure Georgia’s election systems could throw special counsel Jack Smith’s Jan. 6 indictment against Trump into disarray as Smith’s central argument is that Trump attempted to “overturn the election” based on lies.
A key witness in that case is none other than Brad Raffensberger.