A packed courtroom watched the drama that has the potential to change how in-person voters cast their ballots, depending on how Totenberg rules.
“The train that is coming at us is the November 2024 election. The question is: Are we going to be ready?” said Robert McGuire, an attorney for the Coalition for Good Governance, an election advocacy group and a plaintiff in the case. “What makes this decision a hard one is the political moment.”
Attorneys for Georgia election officials said the case failed to show any actual violation of voting rights because voting machines haven’t been hacked or altered during an election.
The possibility of election hacking doesn’t justify changing the voting system used by 94% of Georgia voters who cast ballots either during early voting or on election day in the 2022 midterms, lawyers representing the state said. About 6% of voters used absentee ballots filled out by hand.
“This is the most battle-tested and stress-tested election system in the country, without a doubt,” said Carey Miller, an attorney for the state. “The outlandish nature of the claims have taken on a life of their own.”
The trial included testimony about whether paper ballots printed by touchscreens are trustworthy, the accuracy of computer-generated ballots and the breach in Coffee County in January 2021, when tech experts hired by supporters of former President Donald Trump copied the state’s voting software.
Plaintiffs’ attorney David Cross accused state election officials of doing a poor job of responding to cybersecurity threats, saying they pass the blame to county election officials.
Cross showed a meme in court of three Spider-Man characters pointing at each other — representing state election officials, county governments and Dominion.
“Their defense is to say, ‘We’ve secured the election. Trust us,’ ” Cross said. “Who is actually responsible for cybersecurity? ... It’s all driven by politics. The right to vote should never be driven by politics.”
Lawyers for the state responded that the plaintiffs are the ones trying to use the courts to change the voting system approved by Georgia’s legislators and Gov. Brian Kemp.
“They have no evidence that any vote on a ballot marking device has ever been been incorrectly counted or that any BMD in any election has actually been hacked,” said Bryan Tyson, an attorney for state election officials. The plaintiffs only showed “speculative fears of future harm.”
Earlier in the trial, University of Michigan computer science professor Alex Halderman, an expert witness for the plaintiffs, used a pen to reach a button inside a voting machine to put it in “safe mode” and then altered its programming.
But defenders of Georgia’s voting system said Halderman’s demonstration was unrealistic because a wrongdoer would be caught by poll workers, and that kind of hack would only affect one voting machine at a time.
Dominion, which is not a party to the case, said Halderman’s “experiment” doesn’t mean voting machines are insecure.
“In 2020 the misinformation was about Sharpies, today it is BIC pens,” a Dominion spokesman said. “The claims that someone can hack an election with either are false and take away from the important fact that with Georgia’s paper ballot system, elections can be audited and recounted. Mr. Halderman’s experiment did not happen in the real world.”
The plaintiffs asked Totenberg to bar further use of touchscreens in Georgia, which would require voters to instead rely on paper ballots filled out by hand.
They also suggested that Totenberg could order election officials to create a paper-ballot backup plan in case there are problems with voting machines, or she could allow counties to decide to use paper ballots.
Meanwhile in the Georgia General Assembly, legislators are considering bills that would remove computer coding from printed-out ballots and instead count votes directly from text on ballots or filled-in bubbles. The Senate plans to vote on that bill Tuesday.
Totenberg, who invalidated Georgia’s previous all-electronic voting machines in 2019, didn’t give an indication of when or how she would rule.
“The underlying parties have strong concerns,” said Totenberg, an appointee of Democratic President Barack Obama. “It’s what makes this case so hard.”