U.S. District Judge for the Northern District of Georgia Amy Totenberg admitted in a late Monday ruling that there are “substantial concerns” about Georgia’s voting system but refused to address them, instead dismissing a years-long case that sought to move the state to hand-marked paper ballots for alleged lack of standing.
The case, Curling v. Raffensperger, was brought back in 2017 and has since evolved. Plaintiffs, which include the Coalition for Good Governance and several Georgia voters, asked the court — according to Totenberg’s ruling — “to stop Georgia’s use of its electronic in-person voting system so that it can be replaced with a hand-marked paper ballot system.”
Plaintiffs argued, in part, that the current voting system “makes it impossible for these voters to verify that the QR codes on their printed ballots, which are used to tabulate their votes, accurately reflect the ballot selections they made on the voting machines,” according to the ruling.
Totenberg ruled that “Plaintiffs lack standing to pursue their claims because neither of these asserted injuries constitute an invasion of a legally protected interest under governing precedent.” But Totenberg also ruled that plaintiffs “identified substantial concerns about the administration, maintenance, and security of Georgia’s electronic in-person voting system …”
Plaintiffs: System Doesn’t Let Us Know If Vote Is Accurately Cast And Counted
Plaintiffs alleged that Georgia’s voting system made it impossible for voters to be sure that their votes were accurately “counted as cast.” As I previously reported, “Prior to adopting the current system, the state used a DRE system, which stands for direct-recording electronic machines.” In this instance, voters would mark their ballots on a tablet but no physical ballot of any kind was created. As part of Curling v. Raffensperger, Totenberg ruled in 2019 that the DRE machines must be phased out, though Totenberg stopped short of mandating the state revert to hand-marked ballots.
Under Georgia’s current Ballot Marking Device (BMD) system, a voter marks their ballot on a touchscreen before a print-out summary and QR code of their vote is created.
“The new voting system uses a QR code, printed on the paper ballots submitted by voters, to record and count the selections that voters make on the electronic voting machines. Although the QR code is used to tabulate each person’s vote, voters cannot review the contents of the QR code to confirm that it accurately reflects their selections,” Totenberg wrote in her 33-page ruling.
Plaintiffs argued the current BMD system violates the First Amendment and the Fourteenth Amendment’s due process and equal protection clause.
Notably, QR printouts are not always accurate. During a 2023 election in Northampton County, Pennsylvania, voters who voted “yes” when asked whether two state judges should be retained for another 10-year term had their votes flipped to “no” on the printouts. Election officials said the issue caused the wrong vote to appear on the printouts but did not impact the recorded vote.
Experts Showed Court How System Can Be Manipulated With Ballpoint Pen
During the trial, University of Michigan computer scientist and professor Dr. J. Alex Halderman “outlined how the BMD system could be targeted for outsider manipulation,” Totenberg wrote.
“Among other things, Dr. Halderman found that an attacker could potentially alter ballot QR codes to modify voter selections, install malware on BMDs, manipulate smart cards, alter audit logs, and obtain county-wide BMD passwords,” Totenberg ruled.
Notably, Halderman demonstrated for the court — as described in Totenberg’s ruling — how “BMDs can be attacked by sticking a ballpoint pen in the back of the machine to reboot the BMD in safe mode, which can allow an attacker to gain access to election files and manipulate the machine.”
Halderman testified that an attacker could alter the “QR codes on printed ballots to modify voters’ selections” and that voters “have no practical way to confirm that the QR codes match their intent” even though the codes “are the only part of the ballot that the scanners count.”
Notably, Halderman’s findings were shared with the Cybersecurity and Infrastructure Security Agency (CISA), which later issued a report in June of 2022 confirming Halderman’s findings about the BMD system’s vulnerabilities.
Additional evidence was presented by plaintiffs as well throughout the trial exposing the system’s vulnerabilities, as noted in the ruling.
Totenberg Refuses To Rule On The Merits Despite ‘Concerns’ About System
Despite acknowledging the “security” risks to Georgia’s voting system, Totenberg ruled that plaintiffs failed “to prove that Georgia’s use of the BMD system has caused or is likely to cause them to suffer a legally cognizable injury” and that “this Court lacks jurisdiction to consider the merits of their claims.”
As for the first argument presented by plaintiffs — that is, they are unable to read a QR code and therefore have no way of knowing if the system accurately captured their intentions — Totenberg ruled that “upon lengthy consideration of the trial evidence” the Court doesn’t think plaintiffs have standing.
“Although Plaintiffs have capably, thoughtfully, and diligently pursued their opposition to Georgia’s use of the BMD system, the Court cannot consider the merits of their claims without such a legally cognizable injury,” Totenberg ruled.
Totenberg further ruled that she is “unable to conclude that the injuries identified by Plaintiffs at trial” — namely that voters are unable to verify that the “vote of record that will be tabulated is in fact an accurate record of the … selections [voters] made on the touchscreen” — are recognized by precedent as being a “legally cognizable harm to voting or associational rights.”
Ultimately, Totenberg acknowledged that plaintiffs have spent years and resources “to educate the public about the risks of BMD system and the DRE system before it” and that “Plaintiffs presented substantial evidence supporting their deeply held concerns about the administration, maintenance, and security of the BMD system.”
“These are undoubtedly concerns of long-term public import,” Totenberg admitted in her ruling before refusing to resolve those concerns.
But election attorney and founder of the Election Integrity Network Cleta Mitchell told The Federalist she believes Totenberg had actually “found herself in an unusual situation where the [Democrat Party and Republican Party] changed their views” on the security (or lack thereof) of voting systems. Mitchell noted that prior to the 2020 election, it was Democrats who were raising concerns of insecure voting systems and that courts always find “Democrats and left wing groups have standing and [Republicans] never have standing.”
“[Totenberg] didn’t know how to get out of it, so it’s taken her a year-and-a-half and a trial to decide plaintiffs don’t have standing,” Mitchell added. “Basically plaintiffs had standing when Democrats hated voting machines but now that Democrats love voting machines, plaintiffs don’t have standing.”
Marilyn Marks, Executive Director of the Coalition for Good Governance, said the ruling — which was finally handed down after the judge sat on the case for more than a year — was “deeply disappoint[ing]” and a “serious misrepresentation of the law.”
“This decision effectively treats the right to vote as merely the right to cast a ballot, not the right to know what vote is being cast and counted,” she continued. “That cannot be the law. A system where a voter has no way to know whether their ballot reflects their true selections is fundamentally incompatible with the constitutional right to vote.”
Marks told The Federalist “We are exploring options, including appeal, and will be making a firm decision shortly. We believe there are multiple compelling grounds for appeal of the Court’s ruling.”
Brianna Lyman is an elections correspondent at The Federalist. Brianna graduated from Fordham University with a degree in International Political Economy. Her work has been featured on Newsmax, Fox News, Fox Business and RealClearPolitics. Follow Brianna on X: @briannalyman2
