Case alleging missing electronic votes argued at Georgia Supreme Court

The Georgia Supreme Court wrestled Tuesday with the mystery of why tens of thousands of votes appeared to go missing during last fall's race for lieutenant governor.

Plaintiffs asked the state's highest court to revive their case challenging the results of the race between Republican Lt. Gov. Geoff Duncan and Democrat Sarah Riggs Amico. They want to pry open Georgia's electronic voting machines to find out whether computer errors or election tampering explain a stark dropoff in votes in that contest.

An attorney for Duncan told the court there's no evidence that votes were miscounted and that a judge's decision to dismiss the case in January should be upheld. Duncan defeated Amico by 123,172 votes, but the plaintiffs allege there were about 127,000 fewer votes than expected compared with previous elections.

Several Supreme Court justices expressed doubts that a statistical anomaly alone was enough to restart the court case seeking a redo of the election.

“I went to law school because I was told there would be no math, and then I get cases like this,” Justice Nels Peterson said. “The only real evidence you have that anything at all happened is the numbers.”

Justice Charles Bethel said there are several legitimate reasons voters might have skipped the lieutenant governor’s race, including the notoriety of the candidates and amount of interest in the race. Even if Amico received 98% of the allegedly missing votes, she still wouldn’t have won, Bethel said.

But Bruce Brown, an attorney for the plaintiffs, said voters deserve to know whether something went wrong with the state’s 17-year-old voting machines, which lack a paper ballot that could be used to check the accuracy of election results.

“This election was cast in doubt,” Brown said. “The result we’re seeking is a fair trial. If it turns out we can’t prove a defect that’s sizable enough to cast the election in doubt to the magnitude we can prove, then we will lose.”

The turnout for the lieutenant governor’s race raised suspicions because so many fewer votes were counted in that contest than in the hotly contested race for governor between Republican Brian Kemp and Democrat Stacey Abrams. Some dropoff in vote counts is normal in down-ballot races, but not to the degree seen in the lieutenant governor’s race, the plaintiffs said.

In previous elections, more than 99% of voters for governor also cast ballots for lieutenant governor. Last fall, only 96% voted in both races. There would have been 127,504 more votes in the lieutenant governor’s race if turnout had mirrored historical averages, according to the lawsuit.

Vote totals were higher in other down-ballot races such as secretary of state, attorney general, agriculture commissioner and insurance commissioner.

About 80,000 fewer votes were counted in the lieutenant governor's race than the average of ballots recorded in 10 statewide contests in the Nov. 6 election.

An attorney for the lieutenant governor, Ed Lindsey, said there’s no indication that votes went missing. Voters might have intentionally chosen not to cast ballots for lieutenant governor because they weren’t interested in the race, or the way the ballot was displayed on touchscreens could have caused voters to move on to other races, he said.

“You have to first determine whether or not there was in fact something that went wrong in terms of the election,” Lindsey told the justices. “The evidence in the case is crystal clear that there was not.”

The plaintiffs — three Georgia voters and the Coalition for Good Governance, an election security organization — said they were denied an opportunity to find out whether there were problems with voting machines. They wanted to examine voting machines for problems, but the Georgia Secretary of State’s Office would only allow limited access to election data.

If the Supreme Court overturns Senior Superior Court Judge Adele Grubbs’ dismissal of the case, the plaintiffs could seek a more thorough inspection of the state’s voting machines and then get a new trial, Brown said.

Election integrity advocates have frequently criticized Georgia's voting machines, saying they're vulnerable to hacking and their digital results can't be verified.

The state government is planning to replace those machines in time for next year's presidential primaries. At least four companies are bidding for a $150 million contract for a voting system that includes touchscreens that print out paper ballots.

The Georgia Supreme Court could rule on the case sometime in the coming months.