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Concerns were raised and lawsuits filed before November, but the Judge apparently didn’t act. The insanely complex. and expensive, Dominion voting system has a voter marking device, which then prints out a marked ballot with a barcode (QR Code). The ballot is fed through a scanner which reads the barcode (QR Code) and not the name of the candidate. Thus, theoretically it could say that you voted for Trump, but the barcode (QR Code) read and count Biden (or vice versa). The voter has no way to verify what is in the barcode. And, anyway, the vast majority of voters (over 90%) don’t even check the printed ballot, before casting it-scanning it. Despite the outrageous price, these machines are apparently rented from Dominion, rather than purchased, which creates additional issues.
DONNA CURLING, et al., : : : : : : : : :
CIVIL ACTION NO. 1:17-cv-2989-AT
Case 1:17-cv-02989-AT Document 964 Filed 10/11/20

Excerpts: “The Plaintiffs allege that Defendants have failed to implement a constitutionally acceptable election system by requiring all in-person voters to use a BMD system that, as a whole, in its design and operation, is not voter-verifiable, secure, or reliable. They contend this system

suffers from some of the same major cybersecurity vulnerabilities posed by Defendants’ deeply flawed, outdated Direct Recording Electronic (“DRE”) Voting System addressed by the Court’s lengthy Order of August 15, 2019 that granted injunctive relief.3 (Doc. 579.) Plaintiffs’ challenge embraces an array of associated issues involving the electronic voting process that impact if an individual’s vote (whether recorded from a scanned BMD-generated barcode or a hand-marked paper ballot) will be correctly captured, scanned, and accurately counted.4 Their claims thus also raise significant issues regarding the auditing of the election system’s voting results and ballot processing

But the tabulation of the vote is actually based on the ballot’s non-encrypted QR barcode on the ballot – designed to summarize the voter’s ballot selections in code – that by itself is not voter reviewable or verifiable. Thus, Plaintiffs contend that the system precludes direct voter verification of the QR barcode of votes cast on the ballot. The printed ballot is fed into an ImageCast optical scanner that tabulates the ballot votes solely based on the QR code – and not based on the human readable text on the printed ballot. Plaintiffs challenge the constitutionality of the State Defendants’ implementation of a barcode-based system for all in-person voting, based on

(1) this alleged fundamental vote verification defect;

(2) the system’s purported known and demonstrated risk vulnerabilities to access and manipulation identified by national cybersecurity experts; and

(3) the inherent problems posed in properly auditing votes tallied based on QR barcodes that cannot be verified by voters.6

As detailed in the Court’s Order of September 28, 2020, Plaintiffs’ challenge also addresses dysfunctions in the voter registration information database system and the pollbook voter check-in system, both of which they contend fundamentally impact the voting process and voter access to the ballot. (Doc. 918.)

Plaintiffs assert that the Dominion BMDs should not be used in Georgia’s elections because unlike hand-marked paper ballots the BMDs are unauditable. In conjunction with their request to enjoin the use of BMDs and to require hand-marked paper ballots as the primary voting method for in-person voting, Plaintiffs request that the State be required to adopt more robust election audit procedures based on generally accepted audit principles. Specifically, the Coalition Plaintiffs’ motion seeks an order “commanding the State Defendants to issue rules requiring meaningful pre-certification audits of election results, focusing on contested candidate races and ballot questions, with such auditing to be based on application of well-accepted audit principles in order to establish to a scientifically appropriate level of confidence that any incorrect outcomes will be detected in time to be remedied prior to certification of results.” (Doc. 809.) The Curling Plaintiffs similarly request that the Court order Defendants to file “a plan providing specific steps the Defendants intend to take to . . . institute pre-certification, post-election, manual tabulation audits of the paper ballots to verify election results, in sufficient detail for the Court to evaluate its adequacy.” (Doc. 785.)

Plaintiffs presented expert testimony from Dr. Philip Stark, a preeminent renowned statistician and original inventor and author of the risk-limiting audit (“RLA”) statistical methodology for auditing election outcomes embraced by the National Academies of Sciences, Engineering, and Medicine, et al. Securing the Vote: Protecting American Democracy at 109 (National Academies Press, 2018)

(“National Academies Report” or “NAS Report”).57 (See Declarations of Dr. Philip A. Stark, Docs. 296; 640-1 at 40-45; 680-1 at 2-24; 809-2; 853-1.) A risk-limiting audit is a “particular approach to catching and correcting incorrect election outcomes before they become official.” (Stark Decl., Doc. 296 ¶ 27.)…

Plaintiffs’ challenge to the State of Georgia’s new ballot marking device QR barcode-based computer voting system and its scanner and associated software presents serious system security vulnerability and operational issues that may place Plaintiffs and other voters at risk of deprivation of their fundamental right to cast an effective vote that is accurately counted. While these risks might appear theoretical to some, Plaintiffs have shown how voting equipment and voter registration database problems during the 2019 pilot elections and again in the June and August 2020 primary elections caused severe breakdowns at the polls, severely burdening voters’ exercise of the franchise. (See September 28, 2020 Order, Doc. 918.)

Established Supreme Court authority recognizes that States retain the authority and power to regulate their elections and the voting process itself, subject to the preservation of citizens’ fundamental First and Fourteenth Amendment rights. And the Supreme Court has repeatedly emphasized in the last months the principle that district courts must exercise great restraint in considering the grant of injunctive relief that requires major new electoral rules on the cusp of an election where a court’s order could cause electoral disruption and potential voter confusion. The posture of this case collides with this latter principle. The sweeping injunctive relief that Plaintiffs seek would require immediate abandonment of the ballot marking device voting system enacted by the Georgia Legislature in 2019 that is in its first year of implementation by the Secretary of State pursuant to his authority under Georgia law. Though major difficulties have arisen during the course of this new system’s rocky first year, the Court recognizes that the staff of the Secretary of State’s Office and county election offices have worked hard to roll out the system in short order during a Covid-19 pandemic era that presents unique hurdles. That hard work though does not answer the fundamental deficits and exposure in the system challenged by Plaintiffs.

Thus, although Plaintiffs have put on a strong case indicating they may prevail on the merits at some future juncture, the Court must exercise real caution in considering the grant of their request for extraordinary injunctive relief, given its obligation to follow governing Supreme Court and Eleventh Circuit authority. Despite the profound issues raised by the Plaintiffs, the Court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record. The capacity of county election systems and poll workers, much less the Secretary of State’s Office, to turn on a dime and switch to a full-scale hand-marked paper ballot system is contradicted by the entire messy electoral record of the past years. Implementation of such a sudden systemic change under these circumstances cannot but cause voter confusion and some real measure of electoral disruption. As with any systemic change, implementation of a statewide hand-marked paper ballot system as the State’s primary electoral system would require long term planning and advanced poll worker training. Accordingly, based on the binding appellate legal authority, the State’s strong legal interest in ensuring an orderly and manageable administration of the current election, and the Court’s assessment of the operational realities before it, the Court must deny the Plaintiffs’ Motions for Preliminary Injunctive Relief in so far as they request immediate replacement of the current BMD system with a statewide hand-marked paper ballot system. 99

But the Court cannot part with that message alone. The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation. These risks are neither hypothetical nor remote under the current circumstances. The insularity of the Defendants’ and Dominion’s stance here in evaluation and management of the security and vulnerability of the BMD system does not benefit the public or citizens’ confident exercise of the franchise.

The stealth vote alteration or operational interference risks posed by malware that can be effectively invisible to detection, whether intentionally seeded or not, are high once implanted, if equipment and software systems are not properly protected, implemented, and audited. The modality of the BMD systems’ capacity to deprive voters of their cast votes without burden, long wait times, and insecurity regarding how their votes are actually cast and recorded in the unverified QR code makes the potential constitutional deprivation less transparently visible as well, at least until any portions of the system implode because of system breach, breakdown, or crashes. Any operational shortcuts now in setting up or running election equipment or software creates other risks that can adversely impact the voting process.

The Plaintiffs’ national cybersecurity experts convincingly present evidence that this is not a question of “might this actually ever happen?” – but “when it will happen,” especially if further protective measures are not taken. Given the masking nature of malware and the current systems described here, if the State and Dominion simply stand by and say, “we have never seen it,” the future does not bode well.

Still, this is year one for Georgia in implementation of this new BMD system as the first state in the nation to embrace statewide implementation of this QR barcode-based BMD system for its entire population. Electoral dysfunction – cyber or otherwise – should not be desired as a mode of proof. It may well land unfortunately on the State’s doorstep. The Court certainly hopes not.

The Court recognizes the major challenges facing the Secretary of State’s Office in rapidly implementing a new statewide voting system. Yet the vital issues identified in this case will not disappear or be appropriately addressed without focused State attention, resources, ongoing serious evaluation by independent cybersecurity experts, and open-mindedness. The Secretary of State and Dominion are obviously not without resources to tackle these issues. And at very least, the Court cannot fathom why, post-election, the State and Dominion would not at least be moving toward consideration of the software upgrade option Dominion originally promised, allowing voters to cast ballots that are solely counted based on their voting designations and not on an unencrypted, humanly unverifiable QR code that can be subject to external manipulation and does not allow proper voter verification and ballot vote auditing.

Time will tell whether Act V here can be still avoided or at least re-written.

For the foregoing reasons, the Court DENIES the Curling Plaintiffs’ Motion for Preliminary Injunction [Doc. 785] and DENIES IN PART AND GRANTS IN PART the Coalition Plaintiffs’ Motion for Preliminary Injunction on BMDs, Scanners, and Tabulators, and Audits [Doc. 809].

IT IS SO ORDERED this 11th day of October, 2020

Case 1:17-cv-02989-AT Document 964 Filed 10/11/20 https://cases.justia.com/federal/district-courts/georgia/gandce/1:2017cv02989/240678/964/0.pdf?ts=1602580634