Since the 2016 election, Americans have grown uncomfortably familiar with the voting machines used by the state of Georgia. What we’ve learned is that Georgia has been using voting machines that are vulnerable to mischief-making from outside actors. And we’ve learned that elections officials in the state aren’t terribly concerned about this fact.
In the run-up to the 2018 midterms in the state, a group of Georgia voters and advocacy groups attempted to force the state to use more secure machines. They were unable to effect that change before the November elections, but a federal judge at the time refused Georgia’s attempts to dismiss the lawsuit.
And with those controversial elections in the past and the nation’s attention elsewhere, attorneys for both sides have continued to argue that lawsuit. In February, a three-judge panel from the 11th Circuit ruled that the lawsuit could continue, rejecting the state’s claim that officials should be immune from the action.
How the 11th Circuit Ruled
The case was originally brought in 2018 by The Coalition For Good Governance, a Georgia-based advocacy group. The plaintiffs argued that Georgia’s voting machines were unsafe and unreliable and asked the court to order the state to use paper ballots or machines that left a paper receipt.
A federal judge ruled in September 2018 that it was too close to the upcoming election to make such a change in time for the midterms. However, Judge Amy Totenberg rejected the state’s argument that the entire lawsuit should be thrown out, ruling the Coalition had a valid argument that voters’ constitutional rights were being violated.
Secretary of State Brian Kemp – who would go on to win a bitterly contested gubernatorial election against Democrat Stacey Abrams – appealed the ruling, arguing that election officials were entitled to immunity. That appeal was heard in January by a three-judge panel of the 11th Circuit.
Observers at the oral hearings in January suggested that the judges were skeptical of Georgia’s immunity argument. The plaintiffs argued they were entitled to an exception to 11th Amendment immunity, claiming they were entitled to pursue an action against state officials because they were victims of an unconstitutional action from those individuals acting in their capacity as state officials. Georgia’s attorneys disagreed, arguing that voters are not constitutionally entitled to a specific voting system.
However, Judge William Pryor Jr., a George W. Bush appointee, pointed out that the panel was not holding a hearing on the merits of the plaintiffs’ claim and was only ruling on the plaintiffs’ standing to sue.
The panel’s ruling was clear. In an unsigned opinion, the panel rejected the state’s immunity argument and ruled that the case could go forward. While the judges did not rule on the merits of the underlying suit, they said it did not violate the state’s special sovereignty interests. The panel agreed with the plaintiffs’ claim to an immunity exception.
Judge Totenberg had earlier said she intended to pursue an expedited discovery process if her ruling was upheld.
Why It Matters
The security of Georgia’s voting machines could prove of great interest to the rest of the country in 2020.
Typically considered a “red” state, Georgia has experienced demographic changes that have made it more competitive (the last Democrat to win Georgia was Bill Clinton in 1992, and he benefited from Ross Perot’s third party candidacy). A growing minority population has provided Democrats with a reliable base of support in the state, and the affluent suburbs of Atlanta – previously Republican redoubts – have grown alienated from Donald Trump’s Republican Party. Democrats flipped one suburban Congressional district in the 2018 midterms and came within a few hundred votes of flipping another. Meanwhile, Abrams nearly forced a run-off in a gubernatorial election that was marred by her opponent’s controversial voter suppression actions as Secretary of State.
Democrats, then, are optimistic they can compete in Georgia in the 2020 presidential election. In addition, Republican Senator David Perdue is up for re-election in 2020, and Abrams – who remains a popular figure in the state and a rising star in the Democratic Party – is openly eyeing a challenge for his seat.
All of this means that Georgia could be one of the most closely watched states in the country next year. Regardless of the outcome of the existing lawsuit, the state will be breaking in new voting technology. The legislature recently voted to purchase electronic voting machines that print out a paper receipt – the legislation was approved on a party line vote, as Democrats unsuccessfully agitated for paper ballots.