Georgia’s new touchscreen voting system survives court challenge

Judge rejects switch to hand-marked paper ballots with early voting set to begin
Doug Kaye of the North Ormewood Park neighborhood casts his vote at the Lang Carson Community Center in Atlanta's Reynoldstown community Sept. 29.  (Alyssa Pointer /

Credit: Alyssa Pointer /

Credit: Alyssa Pointer /

Doug Kaye of the North Ormewood Park neighborhood casts his vote at the Lang Carson Community Center in Atlanta's Reynoldstown community Sept. 29. (Alyssa Pointer /

A federal judge has once again denied an effort to throw out Georgia’s touchscreen voting computers because of election security concerns. Her decision came late Sunday, just hours before the start of early voting.

U.S. District Judge Amy Totenberg ruled against switching the state to paper ballots filled out by hand.

She wrote that it was too late to make such a sweeping change that would disrupt the election as tens of thousands of voters are expected to go to the polls.

“The capacity of county election systems and poll workers, much less the Secretary of State’s Office, to turn on a dime and switch to a full-scale hand-marked paper ballot system is contradicted by the entire messy electoral record of the past years,” Totenberg wrote in a 147-page order. “Implementation of such a sudden systemic change under these circumstances cannot but cause voter confusion and some real measure of electoral disruption.”

Georgia’s new $104 million voting system adds paper ballots to the voting process for the first time in 18 years. Voters will make their choices on touchscreens connected to printers that will produce paper ballots.

Totenberg criticized state election officials for problems with voting equipment during this year’s primary elections but acknowledged that the U.S. Supreme Court has repeatedly emphasized that courts must exercise restraint in changing procedures near an election.

The lawsuit exposed security vulnerabilities with votes embedded in QR-codes, ballot scanning machines and the validity of audits, Totenberg wrote. But she didn’t issue her ruling in the long-running lawsuit until voting procedures for this year’s election had already been set.

“These risks are neither hypothetical nor remote under the current circumstances,” she wrote.

Totenberg did grant some relief, however, to help ensure that partially marked ballot ovals could be counted by scanning machines.

She directed election officials to find a way to review ballot images to ensure that voting scanner software isn’t overlooking votes. Totenberg ordered a resolution to be developed and put in place for elections after expected January runoffs for the U.S. Senate.

The plaintiffs, including several Georgia voters and an election security group, have argued in the 3-year-old case that voters can’t be confident their votes are accurately counted. The lawsuit attempted to make the case that electronic voting is inherently vulnerable to hacking, tampering or programming errors.

“There is no doubt that the system is unsafe, and all the evidence points to it. But the court feels that the state cannot manage a quick change to hand-marked ballots,” Marilyn Marks of the Coalition for Good Governance, a plaintiff in the lawsuit, wrote on Twitter.

Their case was bolstered by the recent revelation that a software problem caused a column of U.S. Senate candidates to disappear in rare situations after voters increased the type size on voting computers.

State election officials say they’ve fixed the problem by installing upgraded software on the state’s 34,000 touchscreens. The U.S. Election Assistance Commission approved the change Friday.

Attorneys for the state say there’s no evidence that Georgia’s voting computers, old and new, were ever compromised. Secretary of State Brad Raffensperger has said voting is safe and the real threat is activist lawsuits that undermine public confidence in elections.

Totenberg cited the movie “Groundhog Day” in her ruling, the fourth time she has rejected attempts to replace touchscreens with hand-marked paper ballots. As in the movie, she warned that the same questions about security of voting machines could arise again.

In a ruling last year, she criticized Georgia’s old voting system and required it to be replaced for this year’s presidential election, as state legislators and election officials had previously planned.

But she has granted other relief to plaintiffs concerned about technical problems at the polls.

Totenberg ruled last month that paper backups of voter registration records and absentee voting information must be available at every Georgia polling place, a backup in case voter check-in computers fail.

The secretary of state’s office has appealed that decision to the 11th U.S. Circuit Court of Appeals, arguing it will create a burden on stressed election officials preparing for a high-turnout election, with a total of 5 million voters expected to participate.