Curling v. Raffensperger

• Docket Number: Civil Action 1:17-cv-2989-AT
• Decision Date: 10 November 2023
• Parties: DONNA CURLING, et al., Plaintiff, v. BRAD RAFFENSPERGER, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

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DONNA CURLING, et al., Plaintiff,
v.
BRAD RAFFENSPERGER, et al., Defendants.

Civil Action No. 1:17-cv-2989-AT

United States District Court, N.D. Georgia, Atlanta Division

November 10, 2023

OPINION AND ORDER

Honorable Amy Totenberg United States District Judge

I. Introduction

This election case is currently before the Court on the Defendants' Motions for Summary Judgment. [Docs. 1567, 1568, 1571].

Elections are contentious matters. So too are election cases. See Bush v. Gore, 531 U.S. 98 (2000). But the central issue in this case is not about partisan advantage, nor is it about how the winner of any specific election should be selected or why a particular group of voters or candidates have allegedly been favored over others, and it does not involve allegations of fraud. Cf. Jacobson v. Fla. Sec'y of State, 974 F.3d 1236 (11th Cir. 2020); Wood v. Raffensperger, 981 F.3d 1307 (11th Cir. 2020). Instead, this case focuses on whether Georgia's statewide electronic voting system,^[1] as currently designed and implemented, suffers from major

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cybersecurity deficiencies that unconstitutionally burden Plaintiffs' First and Fourteenth Amendment rights and capacity to case effective votes that are accurately counted.^[2]

Since its inception, this election case has gone through multiple stages of evolution. Plaintiffs have raised challenges to both the original, critically outdated Direct Recording Electronic (“DRE”) voting system and the current Dominion Ballot Marking Device (“BMD”) system that replaced the DRE system several years into the case, starting in 2020. A plethora of new factual and legal developments emerged along the way, topped off by the breach of the Coffee County election system in early 2021. This breach and the copying and sharing of election system software and voting data to actors and entities inside and outside of the state, as well as through the internet, bear serious ramifications for the future vulnerability of the State's election system as a whole. Plaintiffs initially discovered this breach in 2021 and, thereafter in 2022, conducted a series of depositions of individuals involved in the breach, some of whom were indicted in the pending RICO criminal case in Fulton County Superior Court. See Georgia v. Trump et al., 23SC188947 (Fulton Cty. Super. Ct. Aug. 14, 2023).

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This case's broad evidentiary scope can be daunting. To assist the reader's review of the Order, the Court has started by first providing a cast of many of the key individuals and experts who, in the last few years, have played a role in this case as well as a glossary of specialized terms and abbreviations. The Court then proceeds to provide information necessary to give context for a range of relevant topics, including, among others:

• the use of computerized electronic voting systems in Georgia and the history of the cybersecurity and voting issues raised by Plaintiffs in their series of legal challenges, as previously addressed by this Court

• the cybersecurity and reliability issues surrounding the use of the relevant electronic voting systems and the auditing of such systems and voting results

• the cybersecurity experts' evaluations and testimony regarding the State's voting systems and exposure to breaches, especially in the absence of timely, needed software patches and the implementation of other cybersecurity protective measures;

• the Department of Homeland Security's Cybersecurity & Infrastructure Agency's (“CISA”) review of the Dominion ImageCast X system and software (currently used in Georgia) and CISA's issuance of a national advisory notice on June 3, 2022 recommending that jurisdictions using this particular Dominion software and related technology implement specific measures to limit unauthorized access or manipulation of voting systems;

• the serious security issues and long-term ramifications surrounding the breach of the Coffee County election system and unauthorized access to the State Dominion voting software and election data, and the resulting impact on future voting security;^[3]

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• Defendants' principal defense that Plaintiffs lack standing to assert the constitutional claims raised in this case and, on the other side, the grounds Plaintiffs rely on to establish their legal standing to pursue their claims in this case - grounds including the alleged severe burden placed on their capacity to cast an effective and reliable vote by Defendants' handling of the election system;

• The Court's legal and evidentiary analysis of the issues in dispute raised by the Defendants' pending Motions for Summary Judgment.

As these evidentiary and legal issues are complex and interwoven, review of this Order takes patience. Ultimately, the Court concludes that there are material facts in dispute presented in the record that preclude its grant of the State Defendants' Motions for Summary Judgment on the primary claims. [D0cs. 1567, 1568.] The Court will resolve these material factual disputes and related legal issues based on the evidence presented at a bench trial to begin on January 9, 2024. That said, the Court finds that several distinct requests for relief advanced solely by the Coalition Plaintiffs are largely outside the scope of this case, as discussed in Section V.D. of this Order. The Court also concludes that Fulton County's Motion for Summary Judgment [Doc. 1571] should be granted based on the County's lack of direct authority over the voting system matters in dispute here.

To be clear from the start, the Court does not have the legal authority to grant the broadest relief that Plaintiffs request in this case without directly infringing on the state legislature's vested power to enact legislation. Even if Plaintiffs prevail on their substantive claims, the Court cannot order the Georgia legislature to pass legislation creating a paper ballot voting system or judicially impose a statewide

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paper ballot system as injunctive relief in this case. Quite simply, the Court has the legal authority to identify constitutional deficiencies with the existing voting system, but it does not have the power to prescribe or mandate new voting systems (i.e., a paper ballot system) to replace the current, legislatively enacted system. See Burdick v. Takushi, 504 U.S. 428, 433-34 (1992); Wood v. Raffensperger, 501 F.Supp.3d 1310, 1327-28 (N.D.Ga. 2020), aff'd, 981 F.3d 1307 (11th Cir. 2020).

That said, as the Eleventh Circuit previously recognized in this case, “suits challenging election procedures [or policies] are routine,” and there are critical issues raised in this case that do not “present a political question beyond this Court's reach.” Curling v. Raffensperger, 50 F.4th 1114, 1121 n.3 (11th Cir. 2022). Still, Plaintiffs carry a heavy burden to establish a constitutional violation connected to Georgia's BMD electronic voting system, whether in the manner in which the State Defendants have implemented the voting system - i.e., that it imposes serious security voting risks and burdens impacting Plaintiffs' voting rights - or otherwise. If Plaintiffs prevail at trial on one or more of their claims, there are pragmatic, sound remedial policy measures that could be ordered or agreed upon by the parties, such as (1) providing for the use of printed ballots for vote counting without the use of QR codes, (2) administering a broader scope and number of election audits to address vote count accuracy and other related issues, and (3) implementing other essential cybersecurity measures and policies recommended by the nation's leading cybersecurity experts and firms, including the Department of Homeland Security's CISA.

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As the Court has consistently advised the parties, it is in the public interest for them to seriously engage in the hard work of attempting to reach a consensual resolution regarding those voting system remedial measures that the State could implement and that the legislature could authorize funding for in the year ahead. The Court cannot wave a magic wand in this case to address the varied challenges to our democracy and election system in recent years, including those presented in this case. But reasonable, timely discussion and compromise in this case, coupled with prompt, informed legislative action, might certainly make a difference that benefits the parties and the public. For now, though, the Court must proceed with trial starting on January 7, 2023.

II. Legal Standard

The Court may grant summary judgment only if the record shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is material if resolving the factual issue might change the suit's outcome under the governing law. Id. The motion should be granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual

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disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324-26. The essential question is “whether the...