On Lawfare, Jessica Marsden explains the significance of a recent ruling by the U.S. District Court for the Northern District of Georgia regarding voting machines:
Last month, the U.S. District Court for the Northern District of Georgia recognized that the risk of election hacking is of constitutional significance—and that courts can do something about it. In Curling v. Kemp, two groups of Georgia voters contend that Georgia’s old paperless voting machines are so unreliable that they compromise the plaintiffs’ constitutional right to vote. In ruling on the voters’ motion for preliminary injunction, Judge Amy Totenberg held that the plaintiffs had demonstrated a likelihood of success on the merits—in other words, Georgia’s insecure voting system likely violated their constitutional rights. While the court declined to order relief in time for the 2018 elections, the ruling suggests that Georgia may eventually be ordered to move to a more secure voting system. …
Until now, courts have had few opportunities to consider the constitutional dimensions of vote-counting procedures. Voting rights litigation has centered on voter-registration rules, access to the polls, and access to the ballot, rather than the mechanics of counting votes. But with a new focus on election hacking, courts are being invited to scrutinize the sufficiency of different states’ voting systems and their security from intruders. Totenberg’s ruling shows that courts are fully capable of evaluating the risks of different voting technologies—and ordering remedies when they are needed.
I applaud the recognition of the Court of the importance of voting procedures which exhibit a high degree of integrity. That is an important part of the foundation of our democracy. And that the Court recognizes that in advance of the mid-terms, even if, for practical reasons, a remedy cannot be readied in time:
Importantly, the court found that voters have standing to challenge voting procedures even before an election hacking attack occurs. Generally, standing requires a plaintiff to show (1) an injury in fact that was (2) caused by the defendant’s conduct and (3) that is redressable by the court. Here, the Court found that Georgia plaintiffs satisfied the injury-in-fact requirement in two ways. First, the voting system actually has been hacked—by cybersecurity experts who reported the system’s vulnerabilities to election officials. The plaintiffs’ right to vote was burdened by a voting system that failed to “accurately and reliably record[] their votes and protect[] the privacy of their votes and personal information.”
But I am utterly appalled and infuriated that the State of Georgia felt it necessary to litigate the matter. Their first priority should be to have a voting system in place that has a more than reasonable chance of reflecting the will of the people. If no computer system can be found that satisfies the security requirements established by the experts, then bloody well setup a manual system.
They should be working to establish a system of which they can be proud, not a system which can be manipulated by foreign adversaries – or corrupt officials.
