Breaking: Federal District Court Allows Suit Against Georgia’s Use of Unsecure DRE Machines without a Paper Trail to Go Forward, Partially Denying Motion to Dismiss

Important opinion and order in an important case:

In sum, the Plaintiffs have alleged that Defendants were aware of serious security breaches in the DRE voting system and failed to take adequate steps to address those breaches. Notably, even after Mr. Lamb first alerted the State about his access of the voting system, he and another cybersecurity expert were able to access the system again about six months later. (Curling Complaint, Doc. 70 ¶ 47.)

Plaintiffs allege that Defendants have failed to take action to remedy the DRE system’s vulnerabilities. (Id. ¶¶ 46, 61, 62, 72.) And they allege that this failure, in turn, impacts the integrity of the voting system and their ability as citizens to rely upon it when casting votes in this system. (Id.)

At the motion to dismiss stage, Plaintiffs’ allegations that Defendants’ continued use of unsecure DREs infringe the Plaintiffs’ fundamental right to vote are sufficient to state a plausible due process violation. Duncan, 657 F.2d at 702-3 (“the federal courts have not hesitated to interfere when state actions have jeopardized the integrity of the electoral process” and when “confronted with an officially-sponsored election
procedure which, in its basic aspect, was flawed”).

Here, Plaintiffs have adequately alleged that their Fourteenth Amendment rights to Due Process and Equal Protection have been burdened – i.e., that the State’s continued reliance on the use of DRE machines in public elections likely results in “a debasement or dilution of the weight of [Plaintiffs’] vote[s],” even if such conduct does not completely deny Plaintiffs the right to vote. Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds, 377 U.S. at 555). Accordingly, the Court DENIES Defendants’ Motions to Dismiss Plaintiffs’ due process and equal protection claims.

Footnote:

The Court recognizes that the Georgia legislature passed Act No. 24/House Bill 316, signed by the Governor on April 2, 2019, and approved funds for a new system of voting technology slated to go into effect in 2020. As the state has yet to choose which specific vendor’s proposal will be selected and implemented, how these issues will play out in the context of new voting technology remains an open question. Nonetheless, a number of elections are anticipated to take place using the current DRE system in 2019.

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