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<\/p>\nBy: Scottie Fralin<\/p>\n
<\/p>\n
Earlier this week, I cast my vote in the midterm election on a paper ballot. In Georgia, paper ballots have been replaced entirely by Direct Recording Electronic voting machines (DREs), which have no paper trail by which to verify or audit the recording of each elector\u2019s vote.[1]<\/a> DREs employ computers that record votes directly into the computers\u2019 memory.[2]<\/a> Some <\/em>DRE systems are also equipped with a printer, which voters can use to confirm his or her choices before committing them to the computer\u2019s memory.[3]<\/a> Most states use paper ballots, and some use both paper ballots and DREs with mechanisms to ensure a paper trail.[4]<\/a> The only states that use DREs without a paper trail and no accompanying paper ballot are Delaware, Georgia, Louisiana, New Jersey, and South Carolina.[5]<\/a> Colorado, Oregon, and Washington use neither paper ballots nor DREs, and instead vote by mail.[6]<\/a> The vast majority of states use a combination of paper ballots and DRE systems with a paper trail.[7]<\/a> In those states, the ballot is typically retained after scanning in case verification or a recount is required.[8]<\/a> Apparently, manufacturers of DRE voting machines have been so secretive in the past about how the technology works that they have required election officials to sign non-disclosure agreements preventing them from bringing in outside experts who could assess the machines.[9]<\/a><\/p>\n The skepticism surrounding electronic voting machines is well-founded, as computers can be vulnerable to viruses and malware. In fact, civil rights groups and voters in Texas and Georgia have filed complaints, alleging that electronic voting machines inexplicably deleted some people\u2019s votes for Democratic candidates or switched them to Republican votes.[10]<\/a> In August of 2017, the Georgia Coalition for Good Governance filed suit against Brian Kemp, claiming that the DRE voting system in Georgia is unsecure, unverifiable, and compromises the privacy and accuracy of their votes.[11]<\/a> The Coalition claimed that Defendants\u2019 continued use of the DRE system violated their constitutional rights.[12]<\/a> Though the court denied the Coalition\u2019s motions for preliminary injunctions, it advised the Defendants that further delay in dealing with the vulnerability of the state\u2019s DRE systems is not tolerable because damage to the integrity of a state\u2019s election system undermines public confidence in the electoral system and the value of voting.[13]<\/a><\/p>\n As the court said in Curling v. Kemp<\/em>, \u201cadvanced persistent threats in this data-driven world and ordinary hacking are unfortunately here to stay.\u201d[14]<\/a> Therefore, especially given the upcoming 2020 elections, if a new balloting system in Georgia is to be launched, it must \u201caddress democracy\u2019s critical need for transparent, fair, accurate, and verifiable election processes that guarantee each citizen\u2019s fundamental right to cast an accountable vote.\u201d[15]<\/a> This Georgia case went up on appeal to the Eleventh Circuit, and state officials argue that the district court judge should have dismissed the suit on the grounds that it violates the government\u2019s entitlement to immunity and improperly subjects the state to suit and discovery.[16]<\/a> The Coalition argues that granting the state\u2019s request to dismiss the suit would have a chilling effect on voters and voting-rights groups.[17]<\/a> Despite federal Judge Amy Totenberg\u2019s decision not to replace Georgia\u2019s DREs just weeks before midterm elections, most commentators suggest that by 2020, Georgia\u2019s voting systems will include some form of backup.[18]<\/a> The public outcry and bad publicity surrounding Georgia\u2019s DREs and their attendant risks is surely something to watch. It might just be a matter of time before legislatures or courts of other states will follow suit and call for an overhaul of election equipment to ensure ballot security.<\/p>\n <\/p>\n [1]<\/a> See <\/em>Curling v. Kemp, No. 1:17-CV-2989-AT, 2018 U.S. Dist. LEXIS 165741, at *7 (N.D. Ga. Sep. 17, 2018).<\/p>\n [2]<\/a> See <\/em>Ballotpedia, Voting Methods and Equipment by State<\/em>, https:\/\/ballotpedia.org\/Voting_methods_and_equipment_by_state.<\/p>\n [3]<\/a> See id. <\/em><\/p>\n [4]<\/a> See id. <\/em><\/p>\n [5]<\/a> See id. <\/em><\/p>\n [6]<\/a> See id.<\/em><\/p>\n [7]<\/a> See id. <\/em><\/p>\n [8]<\/a> See <\/em>Jeremy Laukkonen, Which States Use Electronic Voting? <\/em>Lifewire, https:\/\/www.lifewire.com\/which-states-in-united-states-use-electronic-voting-4174835 (last updated Nov. 1, 2018).<\/p>\n [9]<\/a> See <\/em>Jessica Schulberg, Good News for Russia: 15 States Use Easily Hackable Voting Machines<\/em>, HuffPost (July 17, 2017), https:\/\/www.huffingtonpost.com\/entry\/electronic-voting-machines-hack-russia_us_5967e1c2e4b03389bb162c96.<\/p>\n [10]<\/a> See <\/em>Christian Vasquez & Matthew Choi, Voting Machine Errors Already Roil Texas and Georgia Races<\/em>, Politico, https:\/\/www.politico.com\/story\/2018\/11\/05\/voting-machine-errors-texas-georgia-2018-elections-midterms-959980 (last updated Nov. 6, 2018).<\/p>\n [11]<\/a> See <\/em>Curling v. Kemp, No. 1:17-CV-2989-AT, 2018 U.S. Dist. LEXIS 165741, at *15 (N.D. Ga. Sep. 17, 2018).<\/p>\n [12]<\/a> See id. <\/em>at *15.<\/p>\n [13]<\/a> See id.<\/em> at *57.<\/p>\n [14]<\/a> See id<\/em>.<\/p>\n [15]<\/a> See id. <\/em>at *57-58.<\/p>\n [16]<\/a> See <\/em>Kayla Goggin, Georgia Officials to Appeal Paper Ballot Ruling to 11th Circuit<\/em>, Courthouse News Service (Sept. 20, 2018), https:\/\/www.courthousenews.com\/georgia-officials-to-appeal-paper-ballot-ruling-to-11th-circuit\/.<\/p>\n