‘Nightmarish’ or simple switch? After voting machine trial, a federal judge’s decision may lead to Georgians using paper ballots

A federal trial lasting nearly three weeks in a longstanding lawsuit over the constitutionality of Georgia’s voting machines has ended with the state’s defense centered on costs and logistics, not cybersecurity – the core of the case for the plaintiffs.

The trial, which was six years in the making, pits an election integrity nonprofit and a handful of Georgia voters against the Georgia Secretary of State’s Office, which oversees elections. The plaintiffs claim that the state’s computerized voting machines face an unacceptable risk of being hacked, which infringes on the constitutional rights of voters. 

Throughout the trial, which concluded Feb. 1, the state countered with arguments such as: poll workers in Georgia’s 159 counties and the policies and procedures they follow keep voting machines from being hacked; or, that hacking is illegal. Also: the findings of leading computer scientists regarding cybersecurity risks to the state’s system are merely theoretical.

U.S. Northern District of Georgia Judge Amy Totenberg must now decide whether to enjoin, or prohibit, the state from continuing to use Dominion Voting Systems touchscreen machines in elections. Such an order would likely lead the state to use pen and paper in November’s presidential elections, tabulated with scanners–and to reserve voting machines for people with disabilities. This is the system used by nearly 70% of voters nationwide. 

For the state’s defense, Gabriel Sterling, chief operating officer for the Secretary of State’s Office, testified that this “would be a monumental task,” and that making the change so close to the general election in November would be “nightmarish.” Sterling said using paper ballots statewide would require buying additional printers and training poll workers across Georgia. 

The plaintiffs countered that eliminating some 32,000 touchscreen voting machines would save considerable time and costs in testing and transportation.    

The judge’s decision, which will likely take weeks, could be historic; the ongoing case already includes an unprecedented 2019 ruling from Totenberg ordering the state to abandon its previous voting machines from Diebold Election Systems, due to cybersecurity concerns. 

Pew Research Center surveyed U.S. adults in Jan. ’24 and found there is bipartisan agreement on a number of election-related matters. Of those surveyed, 82% favored requiring electronic voting machines to print a paper backup of the ballot.

The state’s defense

An earlier Atlanta Civic Circle article outlined the plaintiffs’ case, as laid out by their witnesses during the trial’s first several weeks. The state presented its defense during the last week, with a series of state and local officials as witnesses, plus a computer scientist and an elections consultant–but, notably, no cybersecurity experts. 

At one point, with Georgia Elections Director Blake Evans on the stand, Totenberg said,  “I don’t know who any longer is responsible for cybersecurity within the system … based on the testimony presented here.” 

In his Feb. 1 closing arguments, plaintiffs’ attorney David Cross said, “They have not identified one person in the Secretary [of State]’s office with any cybersecurity training, any computer science background, who is involved in any decision on how this system gets used, [or] whether it is secure.”

The Coalition for Good Governance has spearheaded the plaintiffs’ case since 2017–well before former President Donald Trump and allies launched multiple conspiracy theories in the aftermath of the 2020 presidential election, distorting concepts such as election integrity and cybersecurity with claims of stolen votes.

Curiously, the state’s witness who spent the most time on the stand was Marilyn Marks, the coalition’s director. Her group uncovered the early 2021 efforts by Trump’s allies to copy software and other data from Georgia’s voting system in rural Coffee County. For most of the day on Jan. 30, the state’s lawyers seized on details of that incident.

The breach is mentioned more than 50 times in the indictments that the Fulton County District Attorney’s office has brought against Trump and 18 others in a separate, wide-ranging criminal RICO case over presidential election interference. So far, four defendants have pled guilty in that case after reaching deals with prosecutors. 

The Coffee County incident was called “the largest elections systems breach in U.S. history” by plaintiffs’ witness Kevin Skoglund, who serves on a cybersecurity advisory group to the U.S. Election Assistance Commission. It was a central issue throughout the trial, along with findings by University of Michigan computer scientist J. Alex Halderman, another plaintiffs’ witness, who demonstrated in open court how the Dominion machines currently used for Georgia elections can be hacked.

The state argued that the Coffee County breach was not evidence of the computer voting system’s vulnerabilities or of flaws in procedures for keeping equipment secure. Rather, the state’s lawyers said, Marks should have informed the Secretary of State’s office sooner in 2022 with her group’s findings. “You can’t argue the state was ineffective if they didn’t know what Marilyn Marks knew,” said Josh Belinfante, an  attorney for the state. 

However, the judge interrupted that line of questioning several times, finally admonishing the defense: “Whatever responsibility Marilyn Marks has for her actions, that is not the issue in this case – and you cannot turn it into a circus around that.” 

Logistics concerns with paper ballots

Sterling was the highest-ranking state elections official to testify, after Secretary of State Brad Raffensperger’s office successfully convinced the 11th U.S. Circuit Court of Appeals not to make him testify, as Totenberg had ordered. During his testimony, Sterling said switching to paper ballots would cost the state $15 million for new printers. What’s more, he cautioned, rolling out a different voting system with so little time before the November election could mean “people get the wrong ballots.”

However, Sterling acknowledged, Georgia law already requires counties to provide enough paper ballots for 10% of their registered voters as a back up in case of any problem with the Dominion touchscreen machines – and they train poll workers to handle those ballots. 

In response to questions from the plaintiffs’ attorneys, he also conceded that the Secretary of State’s office hasn’t supplied any documentation to the court to support his testimony on how much it would cost to change the state’s voting system.

The state wrapped up its defense by saying that the Georgia legislature–not federal court–was the proper place to assess the cybersecurity of Georgia’s voting machines. The primary place for election decisions is “the Gold Dome a few blocks away,” said Carey Miller, one of the state’s lawyers.

Switching to paper ballots so close to an election would be “nonsensical,” Miller added. 

But in the plaintiffs’ final rebuttal as the trial concluded, Cross pointed out that the state was able to respond to Totenberg’s October 2019 order to switch from the old voting machines to the current ones in time for the June 2020 presidential primary. 

“They got it all done in 10 months, including, as we have heard, during a global pandemic,” Cross said. “Well, we have about 10 months until the presidential election. What we’re asking for is far simpler.”