Atlanta Progressive News

(APN) ATLANTA — The Georgia Supreme Court, in their recent ruling against VoterGA upholding electronic voting in the State of Georgia, implicitly acknowledged that E-voting results cannot be independently audited. At the same time, they emphasized that it’s the voter’s choice to vote electronically, when paper ballots are available through the absentee process.

“In deciding to forego the privilege of voting early on a paper ballot, voters assume the risk of necessarily different procedures if a recount is required,” Judge George Carley ruled, with all justices on the panel concurring, on September 28, 2009.

As previously reported by Atlanta Progressive News, VoterGA has sued the State of Georgia regarding E-voting, arguing that it is unconstitutional under state and federal law because it violates the Equal Protection and Due Process clauses of the Constitution of the US.

As for equal protection, VoterGA has argued that Georgia has created two separate classes of voters: one who has the right to a meaningful recount of their vote if they use a paper ballot to vote absentee, and another who does not have the right to a meaningful recount if they vote electronically on Election Day.

“Appellants argue that electronic voters are treated differently from those voters who cast absentee ballots on paper, as the procedures for and accuracy of any recount would differ. As the trial court found, however, Appellants and all other Georgia voters have the option of casting an absentee ballot or using the touch screen electronic voting machines on election day. Under Georgia law, every eligible voter in Georgia can make a decision to vote utilizing absentee ballots,” Judge Carley wrote.

“Appellants argue that this option ends the week prior to an election day. However, in deciding to forego the privilege of voting early on a paper ballot, voters assume the risk of necessarily different procedures if a recount is required,” Judge Carley wrote.

“Therefore, absentee voters ‘have not been treated differently from the polling place voters, except in a manner permissible under the election statutes’ and as a result of their own choice,” Judge Carley wrote.

“If you are assuming that risk, then that’s a violation of equal protection,” Garland Favorito, VoterGA co-plaintiff, told Atlanta Progressive News. “There should be no risk that you are forced to assume, so I think they just made the case for us.”

“We’re not arguing that the state cannot have two different classes, absentee balloting and electronic voting, but the voter should not be required to vote by absentee ballot if they want their vote to be properly verified, audited, and recounted,” Favorito said.

Favorito also said that most voters are not aware that E-voting is not independently auditable or verifiable, nor do they understand that they are waiving their rights to a meaningful recount by E-voting.

In addition, the court’s ruling “assumes the voter knows where to go to get a [absentee] ballot, how to get it, when to get it, where to submit it, and how to submit it. Most voters don’t know that. They just know where to go to vote on election day,” Favorito said.

In the meantime, Favorito urges voters to educate themselves about the ability to vote with absentee ballots, which are counted on Election Day.

“I would recommend statewide, everybody cast absentee ballots,” Favorito said. “You have more protection. It’s not foolproof, but it’s much safer.”

APN has covered the VoterGA case and all its twists and turns since it was filed in 2006, after a number of irregularities reported in the Primary Election loss of former US Rep. Cynthia McKinney (D-GA) to US Rep. Hank Johnson (D-GA). Congressional candidate and former State Sen. Donzella James–who incidentally is now in a run-off for her old State Senate seat, being vacated by Kasim Reed–is one of the plaintiffs on the VoterGA case.

VoterGA first filed the case in July 2006. It took the case three and a half years to be heard by the Fulton County Superior Court, which ruled against VoterGA in February 2009.

VoterGA filed its first brief in appeal to the Georgia Supreme Court on July 1, 2009.

Now that the Georgia Supreme Court has ruled against VoterGA, they are deciding their next steps which will either include appealing this case directly to the Supreme Court of the US, or taking some federal action, which could possibly include a new case that would be filed directly in federal court.

“We are not giving up that easy. We are not gonna let the Georgia Supreme Court ignore all the evidence and the facts and all the US Supreme Court case law and just essentially protect the public officials and a corrupt process. We’re not gonna let that die,” Favorito said.

“We think that the Georgia courts had a vested interest in protecting Georgia and could not rule impartially. Therefore, we will almost assuredly take the evidence and the case into the federal jurisdiction in one way or another,” Favorito said.

Favorito added that a new case could possibly include evidence of several failures of E-voting machines in Georgia, including new evidence gathered since 2008. In 2006, APN reported about several Georgia voters, including some who completed affidavits, who watched the E-voting machines flip their votes before their very eyes.

Favorito said that in Bibb County, Georgia, in 2004, “there were a lot of voting machine discrepancies between the number of votes in the poll books versus what the machines recorded.”

And in a recent vote in Cobb County regarding a one billion dollar tax assessment which had to be approved by voters, 285 votes were recorded with no selection and that was the only item on the ballot, according to Favorito. “285 people took the time to go all the way to the polls, got the card, and decided not to cast any vote. The whole race was decided by only 114 votes.”

The Georgia Supreme Court also made a states’ rights argument in defending their decision not to apply “strict scrutiny” to Georgia’s E-voting. To be sure, the US Constitution allows states to determine the place, time, and manner of elections. Courts try not to weigh in on areas of state discretion regarding elections, the ruling argues, unless there is evidence that some fundamental right is being violated.

Judge Carley quotes a California case, Weber v. Shelley, in arguing, “the use of touchscreen voting systems is not subject to strict scrutiny simply because this particular balloting system may make the possibility of some kinds of fraud more difficult to detect.”

“Rather, the question is whether using a system that brings about numerous positive changes… but lacks a voter-verified paper ballot, constitutes a ‘severe’ restriction on the right to vote. We cannot say that use of paperless, touchscreen voting systems severely restricts the right to vote. No balloting system is perfect,” Carley quoted.

“Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, ‘hanging chads,’ and other mechanical and human errors that may thwart voter intent. Meanwhile, touchscreen voting systems remedy a number of these problems, albeit at the hypothetical price of vulnerability to [certain types of fraud],” Carley quoted.

“The unfortunate reality is that the possibility of electoral fraud can never be completely eliminated, no matter which type of ballot is used… It is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing,” Carley wrote.

Favorito disagreed with the Georgia Supreme Court’s decision and said that the court ignored several US Supreme Court rulings cited by VoterGA which show that strict scrutiny must be used.

Favorito agreed that paper ballots have their own problems, but “it’s not material to our case. Our case was not about paper ballots, but that they removed all audit capabilties. Regardless of what type of system you have, voters should have assurance their vote is being counted accurately; and they don’t; and that is an infringement on our right to vote and have our vote counted.”

“According to Supreme Court case law… in ballot counting cases and recounting cases, the court should apply strict scrutiny because it’s a fundamental right. They refused to apply strict scrutiny until after we had proven our right had been infringed. But how could we prove our right had been infringed if they were not willing to apply strict scrutiny to the evidence?” Favorito asked.

THE PROBLEMS WITH E-VOTING

Favorito has previously discussed the problems with E-voting with APN several times.

In a July 2009 interview, Favorito said, “The electronic-only voting cannot provide equal protection in terms of voter verification, investigation of discrepancies, recount completeness, and production of evidence for contested elections. Absentee ballots [which are paper] can protect the voters because the ballot that is directly created is retained as physical evidence of their vote.”

VoterGA’s appeal stated that Georgia’s Diebold machines “do not produce independent paper ballots or tangible records at the actual time of voting but rather ‘report’ electronically compiled, accumulated votes later when called upon to do so.”

“The chain of custody has been broken between the voter and their ballot,” Favorito said. “What you see on the screen disappears. Those votes may or may not have been recorded in the machine and on the memory card that accumulates the votes.”

“In a recount all they do is reprint the previous unverifiable results. Prof. Britton Williams [of Kennesaw State University, an expert witness for the State] admitted that the reprint will always provide the same totals as the original. Therefore, it subverts the intent of a recount,” he added.

“And the recount is not as complete as with paper ballots, which starts with what the voter verified. Mr. Ray Cobb [also of KSU] admitted that a recanvass of electronic votes starts with the votes on the memory card,” he said.

In Fulton County Superior Court’s previous ruling on the case, Judge Michael Johnson argued that “following the election, each voter’s ballot can be displayed and printed.”

“The touch screen voting machines also have a paper printout (internal to each machine) which records the votes cast,” Johnson ruled. “The paper trail created by each voting machine allows their results to be physically audited, as does the electronic information from CES servers, voter cards, and PCMCIA cards.”

VoterGA says that many of the claims made by Johnson in his argument, however, are simply not true.

“We disputed that. There’s no evidence the defendants entered to show that whatever is printed is the candidate the voter actually selected and in fact that would be impossible. You can recreate the images but there is no evidence that the images recreated and reprinted actually contain what the voter selected,” Favorito said.

“The machines do have a paper printout (in addition to the so-called votes it records), but they only contain the total, they don’t contain the original ballots that were cast. The ballot was not captured independently before the vote’s cast. The audit was simply a reprinting… produced internally from the machine, not independently,” he explained.

About the author:

Matthew Cardinale is the News Editor for Atlanta Progressive News and is reachable at matthew@atlantaprogressivenews.com.

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