Breaking: Federal Court, Citing Evidence of Vulnerabilities of Georgia Voter Registration Database, Issues TRO Giving Some Voters Casting Provisional Ballots Chance to Have Vote Counted Before Kemp-Abrams Race Results Certified

You can find the 56 page opinion in Common Cause v. Kemp at this link. From the order:

Plaintiff Common Cause Georgia filed this action against the Georgia Secretary of State1 seeking emergency injunctive relief to ensure that provisional ballots cast by eligible registered voters in the 2018 general election are properly counted. According to Plaintiff’s Complaint, information in the State’s voter registration server, used at the polls to determine whether voters are eligible to vote, is vulnerable to multiple security breaches and exploitable by manipulation of voter data. Plaintiff alleges that Brian Kemp, as Secretary of State, failed to maintain the security of voter information despite known vulnerabilities leading up to the 2018 election. Plaintiff further alleges that the Secretary’s knowing maintenance of an unsecure, unreliable voter registration database increased the risk that eligible voters have been and will be unlawfully removed from the State’s voter registration database or will have their voter registration information unlawfully manipulated or mismanaged in a manner that prevents them from casting a regular ballot.

Under the State’s existing provisional ballot scheme, a voter whose name is not found on the voter registration list may only vote by casting a provisional ballot, and such ballot will not be counted if the voter’s eligibility cannot be verified because the voter’s name is not found on the voter registration list maintained by the Secretary of State. As a result of the Secretary’s actions, Plaintiff alleges that eligible voters who have taken the required steps to register and maintain their registrations may – through no fault of their own – arrive at the polls and not be permitted to cast a regular ballot and therefore suffer disenfranchisement from the voting process. Plaintiff seeks an injunction on the basis that the State’s existing provisional balloting scheme: (1) infringes upon the fundamental right to vote and imposes an undue burden on eligible voters in violation of the due process clause of the Fourteenth Amendment; and (2) violates the Help America Vote Act (“HAVA”) requiring the State to count provisional ballots if voters are eligible to vote.

However, Plaintiff seeks this relief if there is a statistically significant increase2 in the percentage of the provisional ballots cast, relative to the total number of votes in the 2018 elections as compared to prior elections. Currently pending before the Court is Plaintiff’s Motion for Temporary Restraining Order and Expedited Discovery [Doc. 15] filed the day after the general election on November 7, 2018.3 In the motion, Plaintiff requests that the Court enter a temporary restraining order (“TRO”) enjoining the rejection of any provisional ballots cast during the 2018 general election on the basis that the voter’s name was not found on the voter registration list, pending a decision on the permanent relief requested in this case. In the hearing, Plaintiff clarified that the TRO request seeks very limited relief for an order preventing the final rejection of provisional ballots for the narrow class of persons whose information was not shown in the State’s registration database during the State’s two-week election certification timetable provided in O.C.G.A. § 21-2-499(b).

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