A federal judge on Monday said forcing Georgia to scrap its electronic voting machines in favor of paper ballots for the upcoming midterm elections is too risky, though she said the state needs to move quickly to address concerns about the security of the machines and its elections system.
U.S. District Judge Amy Totenberg's ruling means the state won't have to use paper ballots for this year's midterm elections, including a high-profile gubernatorial contest between the state's top elections official, Republican Secretary of State Brian Kemp, and Democrat Stacey Abrams, a former state House minority leader who's trying to become the country's first black, female governor.
Totenberg said the voting rights advocates who sought the change to paper ballots have demonstrated "the threat of real harms to their constitutional interests," but that she worried about the "massive scrambling" required for a last-minute change to paper ballots. Early voting starts Oct. 15 for the Nov. 6 midterm elections.
"Ultimately, any chaos or problems that arise in connection with a sudden rollout of a paper ballot system with accompanying scanning equipment may swamp the polls with work and voters — and result in voter frustration and disaffection from the voting process," she wrote. "There is nothing like bureaucratic confusion and long lines to sour a citizen."
Voting integrity advocates had sued state and county election officials, arguing that the touchscreen voting machines Georgia has used since 2002 are vulnerable to hacking and provide no way to confirm that votes have been recorded correctly because there's no paper trail. They had sought an immediate change to paper ballots for the midterm elections while the case is pending.
Coalition for Good Governance executive director Marilyn Marks and David Cross, a lawyer who represents a small group of voters, both noted that Totenberg found merit in their arguments and that they plan to continue fighting for a secure voting system. Both said they're reviewing the decision to decide whether to appeal.
The case is being watched closely because Georgia is among five states, along with more than 300 counties in eight other states, that exclusively use touchscreen voting machines that provide no paper record, according to Verified Voting, a nonprofit group focused on ensuring the accuracy of elections.
"My view is that this ruling has huge national significance," said Larry Schwartztol with Protect Democracy, which has brought a similar case in South Carolina. "The court acknowledged that states violate the Constitution if they fail to provide an election system that can stand up to modern cyber-threats."
Totenberg chastised the state, saying it had been slow to respond to "serious vulnerabilities of its voting system" as well as software and hardware issues that have long been evident and said "further delay is not tolerable in their confronting and tackling the challenges before the State's election balloting system."
A spokeswoman for Kemp did not respond to an after-hours email seeking comment on the ruling.
The judge noted a general consensus among cybersecurity experts and federal officials about the insecurity of electronic voting machines with no paper record, specifically pointing to a Sept. 6 report from the National Academy of Sciences report that says all elections should be conducted with "human-readable paper ballots" by 2020 with every effort made to use them in this year's general election.
"Advanced persistent threats in this data-driven world and ordinary hacking are unfortunately here to stay," she wrote, adding that state elections officials "will fail to address that reality if they demean as paranoia the research-based findings of national cybersecurity engineers and experts in the field of elections."
Kemp, who rejected federal offers of assistance with election system security in 2016, has conceded that the current machines should be replaced. He established a commission earlier this year to look into a change and last month called for proposals to implement a system with voter-verifiable paper records in time for the 2020 presidential election.
"This process that we're going through would be an orderly process to changing the system, and that's the way it should be done - to where you don't have problems," Kemp told CBS affiliate CBS46.
But he and other election officials argued the machines are still secure and a last-minute change would be costly and cause chaos.
In addition to worries about the machines, Totenberg seemed concerned that the state did not seriously address the impact of a breach of a state election server in its arguments. "Some of the testimony and evidence presented indicated that the defendants and state election officials had buried their heads in the sand," wrote Totenberg.
Security experts last year disclosed a gaping hole that exposed personal data for 6.7 million Georgia voters, as well as passwords used by county officials to access election-staging files. That hole still wasn't fixed six months after it was first reported to election authorities.
Kemp's office blamed the Center for Elections Systems at Kennesaw State University that managed the system. But ultimately, it reported to his office.
Less than a week after the lawsuit was filed in July 2017 demanding the touchscreen system be replaced, the server that had been accessed was wiped clean by staff at Kennesaw State. Kemp denied ordering the data destruction or knowing about it in advance.