In her ruling, Judge Amy Totenberg concurred that there exists ample evidence to support the notion that the electronic voting machines employed by the State of Georgia possess significant deficiencies.
The District Court Judge determined that there is adequate reason to suspect that there might exist cybersecurity vulnerabilities that unlawfully impede the exercise of the Plaintiffs’ rights under the First and Fourteenth Amendments, as well as their ability to cast votes that are accurately tallied.
The bench trial, scheduled by Judge Totenberg, is set to take place on January 9, 2024, and will proceed without the presence of a jury. However, the individual acknowledged the potential for a compromise if the state legislature were to enact measures.
“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 judge’s footnote remarked.
After that, the District Court listed a number of legitimate concerns with the 2020 election.
First, the Court acknowledged that “No voters could verify whether their intended votes for particular candidates were actually cast” due to the DREs’ lack of a paper voting trail.
According to the court, the DRE machines were using software from 2005 that was “so out of date that the makers of the software were no longer providing security patches,” and other voting machines were still using an antiquated version of Windows XP or 2000.
Afterwards, the Court looked into “newly available evidence regarding the record destruction events, data systems mismanagement, and CES/KSU data breach that were previously addressed in the 2018 PI Order.” The enlarged record included more concerning information about the hack.
The Court also concluded 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 passwords, voter data, and outdated software issues.”
The Plaintiffs further questioned the State’s authority “to audit the functionality of the BMDs, specifically in the event that the choices present in the human-readable text (for instance, if the QR codes had been altered) did not match the choices contained within the QR codes.” The State Defendants contended at the hearing that audits would focus on the human-readable language rather than the QR codes. The plaintiffs contended that since most voters do not go over every choice they make as stated in the human-readable text, audits would not necessarily resolve this problem. As a result, the printouts could not be accurately audited against the QR data.
In the end, the Court finds that the State Defendants’ Motions for Summary Judgment on the major claims cannot be granted because of “material facts in dispute presented in the record.”
The Court subsequently said that it would “use the evidence presented at a bench trial to begin on January 9, 2024 to resolve these material factual disputes and related legal issues.”
Crucially, the Court acknowledges that political, not legal, solutions may be the most effective means of preserving election integrity.
“Let me be clear from the outset: absent a direct interference with the state legislature’s vested power to enact legislation, the Court is not legally authorized to grant the broadest relief that Plaintiffs seek in this case,” the judge stated. “The Court cannot require the Georgia legislature to draft legislation implementing a paper ballot voting system or judicially impose a statewide paper ballot system as injunctive remedy in this action, even if Plaintiffs prevail on their substantive claims. To put it simply, the Court can legally point out constitutional flaws in the current voting system, but it cannot compel or prescribe new ones—like paper ballots—to replace the one that was recently created by legislation.
However, the court declined to consider evidence suggesting that inadequate election security could amount to a violation of constitutional rights.
That being said, there are important questions presented in this case that do not “present a political question beyond this Court’s reach,” as the Eleventh Circuit previously acknowledged in this case, and actions challenging election methods [or regulations] are common. In Curling v. Raffensperger (11th Cir. 2022). 50 F.4th 1114, 1121 n.3.
“Even so, the plaintiffs bear a significant burden to demonstrate a constitutional violation associated with Georgia’s BMD electronic voting system, based on the way the State Defendants have executed the voting system, namely that it places significant security risks and burdens on the voting rights of Plaintiffs, or in any other way,” the judge continued.
On behalf of the Plaintiffs, a number of election security specialists testified, including Drs. J. Alex Halderman, Philip Stark, Andrew Appel, Kevin Skoglund, and Harri Hursti.
Dr. J. Alex Halderman may have presented the strongest critique of the state of Georgia’s voting systems to date.
In a comprehensive report that was presented on July 1, 2021, Dr. Halderman (1) elaborated on his previous evidence in this matter and (2) listed additional vulnerabilities he discovered in the BMD system based on his testing of a BMD and related election equipment that Fulton County had given him. Refer to Halderman Report, Redacted, Doc. 1681.
The following are the seven main weaknesses that Dr. Halderman has identified:
1. Attackers can alter the QR codes on printed ballots to modify voters’ selections
2. Anyone with brief physical access to the BMD machines can install malware onto the machines
3. 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.);
4. Attackers can execute arbitrary code with supervisory privileges and then exploit it to spread malware to all BMDs across a county or state (id.);
5. Attackers can alter the BMD’s audit logs (id.);
6. 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
7. A dishonest election worker with just brief access to the ICP scanner’s memory card could determine how individual voters voted (id.).
Additionally, according to Dr. Halderman, “election insiders and regular voters could be recruited by hostile sophisticated foreign nations or domestic political actors to attack Georgia’s voting system by, for instance, implanting malware.”
The State Defendants’ Motions for Summary Judgment were partially granted and partially refused after the court reviewed the matter.
On the other hand, Fulton County’s Motion for Summary Judgement was fully granted.
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