Curling v. Raffensperger

• Decision Date: 15 August 2019
• Docket Number: CIVIL ACTION NO. 1:17-CV-2989-AT
• Citation: 397 F.Supp.3d 1334
• Parties: Donna CURLING, et al., Plaintiffs, v. Brad RAFFENSPERGER, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

397 F.Supp.3d 1334

Donna CURLING, et al., Plaintiffs,

v.Brad RAFFENSPERGER, et al., Defendants.

CIVIL ACTION NO. 1:17-CV-2989-AT

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

Signed August 15, 2019

Cameron A. Tepfer, Catherine L. Chapple, David D. Cross, Jane P. Bentrott, John P. Carlin, Marcie Brimer, Robert W. Manoso, Morrison & Foerster, LLP-DC, David R. Brody, Pro Hac Vice, Jacob Paul Conarck, Ezra David Rosenberg, John Michael Powers, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Robert Alexander McGuire, III, Robert McGuire Law Firm, Seattle, WA, Adam Martin Sparks, Halsey G. Knapp, Jr., Krevolin & Horst, LLC, Bruce P. Brown, Bruce P. Brown Law, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, William Brent Ney, Ney Hoffecker Peacock & Hayle, LLC, Lawrenceville, GA, for Plaintiffs.

Baconton Missionary Baptist Church, pro se.

Alexander Fraser Denton, Brian Edward Lake Carey Allen Miller, Joshua Barrett Belinfante, Kimberly K. Anderson, Vincent Robert Russo, Jr., Robbins Ross Alloy Belinfante Littlefield, LLC, Bryan Francis Jacoutot, Bryan P. Tyson, Taylor English Duma LLP, Cheryl Ringer, David R. Lowman, Kaye Woodard Burwell, Office of Fulton County Attorney, Atlanta, GA, for Defendants.

ORDER

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

I. Introduction...1338

II. Joinder of Municipalities Conducting November 2019 Elections...1342

III. Continuing Vulnerability and Unreliability of Georgia's GEMS/DRE System and Voter Registration System and Database...1347

A. Georgia's DREs operate on outdated and vulnerable software...1347

B. The DREs work in tandem with the Global Election Management System ("GEMS") interface, which poses additional problems for election integrity and security...1349

C. The DRE/GEMS system is particularly susceptible to manipulation and malfunction...1353

D. The State's expert Dr. Shamos essentially agrees that Georgia's DRE/GEMS system is not reliably secure...1358

E. "What's Past is Prologue."...1368

F. The experience of voters in the 2018 election demonstrates serious problems and failures in the State's DRE/GEMS and ExpressPoll systems...1382

IV. Plaintiffs' Requested Injunctive Relief and Feasibility of Implementation of Paper Ballots in 2019 Elections...1392

A. Defendants' Evidence...1394

B. Plaintiffs' Evidence...1397

V. Analysis of Injunctive Relief Factors...1401

VI. Conclusion...1411

I. INTRODUCTION

Approximately two months before the 2018 Georgia state general election, this Court recognized in its first preliminary injunction order that the State had "stood by for far too long" in failing to address the "mounting tide of evidence of the inadequacy and security risks" posed by Georgia's Direct Recording Electronic voting system. Curling v. Kemp , 334 F. Supp. 3d 1303, 1307, 1327 (N.D. Ga. 2018). The Court at that time found that Plaintiffs were substantially likely to succeed on the merits of their claims that they faced an imminent threat of the diminishment and burdening of their First and Fourteenth Amendment rights to cast a vote that is properly counted. The Court, however, ultimately determined that the Plaintiffs' eleventh-hour request for an immediate rollout of paper ballots statewide would likely adversely impact the public interest in an orderly and fair election. But, with the 2020 elections looming around the corner, the Court advised the State Defendants that any new balloting system adopted by the State should address democracy's critical need for transparent, fair, accurate, and verifiable election processes that guarantee each citizen's fundamental right to cast an accountable vote. The Court also expressly warned Defendants that further delay by the State in remediating its technologically outdated and vulnerable voting system would be intolerable and any future timeliness objections relating to the State's inability to comply with the requested relief would be of the State's own making.

The State Defendants immediately appealed this Court's denial of their motions to dismiss on jurisdictional grounds and then sought a stay of this case pending the appeal.¹ After the State's appeal was denied in March 2019, the Plaintiffs filed new Motions for Preliminary Injunction. The Plaintiffs' motions seek to enjoin Defendants from using the Global Election Management System ("GEMS") and its central Diebold AccuVote Direct Recording Electronic ("DRE") voting mechanism. The Plaintiffs seek injunctive relief to remedy the claimed unconstitutional gauntlet of state election system practices that continue to thwart and burden their right to vote. And they seek to require the State's use of hand-marked paper ballots in the 2019 municipal and county elections and thereafter.² The Plaintiffs also seek equitable relief in connection with the Secretary of State's ("SOS") continued use of an electronic voter registration pollbook system, which they contend is riddled with data reliability and accuracy problems that result in the unconstitutional disenfranchisement and burdening of voters' rights to cast regular ballots that are actually counted.

Plaintiffs' new motions present testimony manifesting a catalogue of pervasive voting problems arising in the 2017-2018 election period that compounds and expands the evidence established in the September 2018 preliminary injunction record compiled before the November 2018 general election, which itself yielded voluminous voting process complaints as well as litigation. Cumulatively, Plaintiffs in this case have marshaled a large body of evidence to demonstrate the burdens to the voting process and to the casting of a secure, reliable, counted ballot that some portion of voters across Georgia, including Plaintiffs, have experienced. The record in this case is substantial.³

This case arises in a technology context where Georgia's current voting equipment, software, election and voter databases, are antiquated, seriously flawed, and vulnerable to failure, breach, contamination, and attack. The ongoing breach of the State's Center for Election Systems⁴ ("CES") servers, computer networks, and data housed at Kennesaw State University ("KSU"), in 2016 and 2017 unfortunately was an early talismanic event in this saga as was the subsequent wiping of the CES voting system servers upon public exposure of the breach immediately following the filing of this lawsuit.⁵ The State Defendants' refusal to fully acknowledge or remedy these circumstances and their broader ramifications for the voting system's security and reliability both before and after the Secretary of State's Office took over the CES's functions has flagged other, similar troubles.⁶

The Court does not minimize the challenges any state faces in operating a secure, reliable voting system in the current cyber era. Still, the Defendants have been slow and poorly equipped in tackling the security and functionality challenges afflicting its current voting system and the well-established deficiencies in a non-auditable DRE voting system. And Defendants' inconsistent candor with the Court about the CES/KSU hack and the security of the servers, as well as other germane subsequent voting system security issues impacts the evidence.

The imminent threats of contamination, dysfunction, and attacks on State and county voting systems, disparaged by the Secretary of State's representatives at the 2018 hearing virtually as a fantasy and still minimized as speculative at the 2019 hearing, have been identified in the most credible major national and state cybersecurity studies and official government reports. And, in "real life," this played out with the United States' July 2018 criminal indictment of a host of Russian intelligence agents for conspiracy to hack into the computers of various state and county boards of election and their vendors as well as agents' efforts during the 2016 election to identify election data system vulnerabilities through probing of county election websites in Georgia and two other states.⁷ Similarly, the record demonstrates the perilous vulnerability and unreliability of the State's electronic voter registration system as well as its burdening of Georgia citizens' right to cast a vote that reliably will be counted.

All that said, the posture of the case is also markedly different than in September 2018. The Court concluded in its Order last year that although the Plaintiffs had established a likelihood of prevailing, the balancing of equities and public interest preliminary injunction factors weighed against granting an injunction at that late date because of the magnitude of the administrative and fiscal challenges posed by implementation of a paper ballot system in a statewide election in 2600 precincts and 159 counties. However, the Court forewarned the Defendants that their arguments as to administrative and resource constraints "would hold much less sway in the future" in post-2018 election cycles "if Defendants continue to move in slow motion or take ineffective or no action." Curling , 334 F. Supp. 3d at 1327.

On April 2, 2019, the Governor of Georgia approved newly enacted state election legislation.⁸ The legislation replaces the statewide mandated use of DREs with mandated electronic ballot-marking devices ("BMDs") and optical scanners that count votes recorded on the paper ballots produced via printers attached to the BMDs.⁹ The legislation also revises various voting procedures and provides somewhat vague requirements for expanded auditing of the balloting system and results, using the ballot printout as a key element in the audit process.

The Secretary of State's Office formally released a request for bid proposals on March 15, 2019, two days after the Georgia Senate approved the legislation. The State represented to the Court that the contract was expected to be awarded by mid-July 2019. Mid-July came and went with no announcement from the State regarding the selection of its voting machine vendor and system. On July 25 and 26, 2019, the Court held a...