Georgia high court to hear appeal in election challenge

ATLANTA (AP) Georgia's outdated voting machines are in the spotlight as election integrity advocates try to convince the state's highest court that a judge shouldn't have dismissed a lawsuit challenging the outcome of November's race for lieutenant governor.

The lawsuit says tens of thousands of votes were never recorded in the race and the contest was ``so defective and marred by material irregularities'' as to place the result in doubt. It contends an unexplained undervote in the race was likely caused by problems with the state's paperless touchscreen voting machines.

Republican Geoff Duncan beat Democrat Sarah Riggs Amico by 123,172 votes to become lieutenant governor. Amico is not a party to the lawsuit, which was filed in November by the Coalition for Good Governance, an election integrity advocacy organization; Smythe Duval, who ran for secretary of state as a Libertarian; and two Georgia voters. It was filed against Duncan and election officials.

A judge dismissed the lawsuit in January.

In an appeal to the Georgia Supreme Court, lawyer Bruce Brown argues the judge erred by not allowing discovery prior to trial. But even without evidence that might have turned up in discovery, it's clear that the election was flawed enough to ``place in doubt the result,'' he wrote.

Generally, almost all voters vote for the race at the top of the ballot in this case the governor's race and then it drops slightly for down-ballot races, the appeal says. But in November's election, there was a much bigger drop in total votes recorded in the lieutenant governor's race than in the governor's race than normal, and other down-ballot races didn't experience a similar decline. In recent elections, the lieutenant governor's race has gotten about 99.2% as many votes as the governor's race, which means the undercount could be more than 127,000 votes in November's election, the lawsuit says.

Even more suspect, the ``aberrant pattern'' only appeared in votes reported cast on touchscreen voting machines, not those cast on paper absentee and provisional ballots, Brown wrote. The paper ballots followed the normal pattern.

Cybersecurity experts have long warned that the touchscreen voting machines Georgia has used since 2002 are unreliable and vulnerable to hacking, and provide no way to do an audit or confirm that votes have been recorded correctly because there's no paper trail.

Lawyer Ed Lindsey, representing Duncan, wrote in a brief that there are a number of possible reasons for the undervote, including an electronic ballot design that was different than in prior years. He also argued that multiple tests were run ``before, during and after'' the November election to ``verify, re-verify, and confirm the integrity of Georgia's electronic voting system.''

As part of the discovery process, plaintiffs sought access to an electronic state database containing election data, as well as access to voting machines so their experts could do a forensic examination that would include a review of the internal memory of voting machines. They also sought an extension to give them time to gather the needed information and asked for a jury trial.

Senior Superior Court Judge Adele Grubbs improperly refused those requests, Brown wrote.

Lindsey argued courts have ``broad discretion to control discovery. He also said the plaintiffs were given a chance for meaningful discovery but ``refused to engage.'' They tried instead to go beyond what the judge had provided for, seeking access that ``would place in jeopardy the very issue complained of the cybersecurity of Georgia's election systems,'' he wrote.

Brown calls this an ``incorrect narrative,'' arguing that the access offered did not allow for a forensic analysis, the only way to determine whether the undervote was caused by a programming defect.

A group of seven election security experts submitted a brief in support of the plaintiffs. They argue that the ``significant size'' of the undervote in the lieutenant governor's race and the fact that it wasn't reflected in the paper ballots ``strongly suggests that malfunction, misconfiguration, bugs, hacking and/or other error or malfeasance'' caused some electronic voting machines not to properly record votes in that race.

An expert examination of the state database containing election data and the internal memory of the voting machines ``is required to determine the cause of the potential defects and the estimated impact,'' they said in arguing for a reversal of the lower court judge's dismissal.