A Cobb County Superior Court judge on Friday dismissed a case contesting the election of Lt. Gov. Geoff Duncan.
Senior Judge Adele Grubbs said while she “respected” the argument there may be some issues with the entire voting system, the plaintiffs did not prove specific problems with the recording of ballots in the lieutenant governor’s race that would alter the outcome of the election.
The plaintiffs in the case said they plan to appeal.
Attorneys for the plaintiffs tried to prove that a drop-off in votes cast in the lieutenant governor’s race indicated the election between Duncan, a Republican, and Democrat Sarah Riggs Amico was caused by malfunctioning voting machines. Duncan won by more than 123,000 votes.
“Your attack is on the whole system, and I respect that there is scientific authority that says the (state’s voting) system is terrible,” Grubbs said. “But what I’m here on is one race — just one race. You haven’t sued the state to get rid of the system.”
The suit, filed in late November by an election integrity advocacy group and three voters, blamed the state’s 16-year-old direct-recording electronic voting system. 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.
Bruce Brown, an attorney representing the plaintiffs, said he was frustrated with the outcome because his clients were not allowed to examine the machines used in the November election — something he said is a bad precedent.
“The court did not allow discovery of the underlying programming, yet required us to prove that the programming — which we did not have access to — was malicious or had been misprogrammed,” he said. “So you’re caught in a Catch-22.”
A Democratic poll watcher testified that she witnessed a woman who was unable to vote on Election Day in the lieutenant governor’s race. Sara LeClerc, an Atlanta-based attorney, said the poll worker at Allen Temple AME Church took the machine out of service for a period of time and reopened it later in the day.
Richard Barron, the director of the Fulton County Board of Voter Registration and Elections, testified that the board’s investigation of the incident did not include checking for coding or mechanical issues with the machine.
Edward Lindsey, an attorney representing Duncan, said testimony proved that the machines were tested ahead of the election and on Election Day and could be trusted.
“I believe the people of Georgia can now rest assured that these allegations are false and let us now move on to the serious issue of governing,” Lindsey said.
While it’s not unusual for voters to skip down-ballot races, the lawsuit raised suspicions about potential irregularities in the lieutenant governor’s election.
Brown argued that a typical drop-off rate in the number of people who vote for governor but skip down-ballot races such as the lieutenant governor contest is typically about 0.8 percent. The drop-off rate in November’s race for lieutenant governor was about 4 percent.
When looking at the rate by the mechanism someone used to vote, 4.5 percent of voters using machines on Election Day didn’t cast ballots in the lieutenant governor’s race compared with 3.9 percent of those who used machines during early in-person voting and 1 percent who voted by absentee ballot. Brown called the difference in drop-off rates suspicious.
Lindsey argued that having a record number of new voters, a ballot configuration that could confuse people into believing the governor and lieutenant governor were running on one ticket, and negative press around the race could have caused people to skip the contest.
Fewer people voted in the race for lieutenant governor than cast ballots for agriculture commissioner.
Still, Lindsey called the General Assembly’s intent to examine the voting system a “legitimate issue” that needs to be addressed this legislative session.
“It’s not in dispute that there will be a new system in place in the next election,” he said. “The question is what will that system look like. But those are questions that need to be taken up by the Legislature, and I’m very glad that they’re taking it very seriously.”
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