VoterGA Gives One Year Update on E-Voting Lawsuit (UPDATE 1)


“VoterGA Lawsuit: Background” Section includes material from APN archives, with prior reporting by Kristina Cates, Matthew Cardinale, and Sarah Epting.


Photograph by Jonathan Springston

(APN) ATLANTA — Members of VoterGA held a press conference on August 01, 2007, at the Georgia Capitol, to update the public on a pending seven-count lawsuit filed one year ago in Fulton County Superior Court over Georgia’s current electronic voting system and the State’s Voter Verified Paper Audit Trail (VVPAT) Pilot Program.

Former Secretary of State Cathy Cox recently gave a deposition in the case but stated she did not know the answer to many questions, Atlanta Progressive News has learned.

Also, the current Secretary of State Karen Handel released a report on the VVPAT Pilot program on April 11, 2007, which support the premises of counts six and seven of the VoterGA lawsuit concerning the pilot paper audit trail.

The Georgia Legislature had considered a full statewide paper trail last year, but gave in to some Members’ concerns about the cost of a statewide paper trail, and decided on limiting the trail to a three precinct pilot project.

“The sequential printing of the VVPAT paper ballots does not guarantee voter anonymity as required by Georgia law,” one finding of Handel’s report stated.

“The manual audits, while successful in verifying the accuracy of the electronic vote count, proved very costly, time-consuming, and prone to human error,” the report also stated.

VoterGA did not agree that the VVPAT as conducted ensured such accuracy on Election Day.

“Our lawsuit specifically states the chosen Diebold pilot technology jeopardizes the ballot secrecy requirement of the Georgia Constitution and makes it impractical to ensure the accuracy of each vote cast at the time of use on Election Day,” Garland Favorito, Founder of VoterGA and a plaintiff in the lawsuit, said.

The first five counts of the lawsuit contend Georgia’s current electronic voting system is unconstitutional. The last two counts point out the state’s VVPAT Pilot Program was not only ineffective but also unconstitutional.

SB 500–the watered down compromise signed into law by Governor Perdue in April 2006–required one precinct in Bibb, Camden, and Cobb Counties would serve as pilots for the Diebold AccuVote TSX, the only voting machines produced by Diebold capable of producing a VVPAT, during the November 2006 Elections.

Georgia, which spent $54 million implementing its current electronic voting system in 2002, uses the Diebold R6 and TSX models, neither of which is equipped with a VVPAT printer attachment.

“The Elections Division chose the most error-prone, time-consuming tallying approach conceivable,” Mark Sawyer, Co-founder of Defenders of Democracy and another plaintiff in the VoterGA lawsuit, said of the Diebold equipment chosen for the pilot program.

Former Elections Director Kathy Rogers insisted upon using that technology while working for Cox. Rogers later left her post to go work for Diebold.

“Clearly, we need to continue to evaluate paper audit trail technology, and in the meantime, pending budget approval, we will move forward with an independent, outside audit of our existing equipment and policies to obtain unbiased data regarding the security of our equipment and to identify additional procedural improvements and audit policies,” Secretary Handel said in an April press release.

Since the release of the report on the VVPAT Pilot Program, both sides have been in negotiations over possibly dropping counts six and seven.

Favorito told Atlanta Progressive News that plaintiffs would agree to drop these counts if the State agrees never to use the technology used in the VVPAT Pilot Program again and to make Secretary Handel’s report on the VVPAT Pilot Program the official position of the State on the matter.

“By now, there have been over a dozen very credible studies showing there are defects in these [electronic voting] systems but we continue to use them,” Bev Harris of renowned election integrity group, Black Box Voting, said at the press conference.

“There’s been a large movement to explain to the people how the vote can be disrupted and changed without detection,” Favorito told APN.

VoterGA will continue to gather more evidence to support their arguments made in the lawsuit.

“By the end of September, we should have prepared our case for summary judgment,” Favorito told APN. “We will make our case to the judge,” and the State will try to have the suit dismissed, he added. Although, it is unlikely the suit will be dismissed, Favorito said.

“It’s my hope the judge that hears this case will allow [the lawsuit] to go forward and have its day in court because the people of the State of Georgia have the right to see what went on behind the scenes in the procurement of the [current election] system,” Harris said.

VoterGA plaintiffs are hoping for a ruling by the end of this year, Favorito said.


The VoterGA lawsuit was filed on July 13, 2006. Original plaintiffs are Garland Favorito, Mark Sawyer, Ricardo Davis, Al Herman, Frieda Smith, Kathryn Weitzel, and Adam Shapiro. Defendants are the Board of Elections, Cox, and Governor Perdue.

Three candidates in questioned elections later joined the lawsuit, including Donzella James, 2006 challenger to US Rep. David Scott (D-GA).

The suit alleges Georgia’s election process isn’t currently legal, as the elections process lacks a number of vital components named in the state’s election code.

For instance, the suit claims a true recount is impossible at present, as there is no way to determine voter intent or the integrity of the vote itself without a paper trail.

“What we’re trying to do is protect the future voting rights of nine million people,” Favorito said at the time of the filing.

“All direct physical evidence of voter intent has been removed from Georgia elections,” Favorito said.

The plaintiffs contend the lack of any paper ballot, along with the fallibility of the software and lack of random audits, makes fraud undetectable. And that’s the problem: that’s impossible to know.

“It’s important in Georgia that we do not rely upon trust. Trust is not the issue. Integrity is the issue,” Sawyer said.

Currently, the Diebold machines in use do not read or write ballots.

“You’ve got to be able to introduce an individual separate ballot. The word ballot is in the Constitution,” Favorito said.

“Did the Framers think a ‘ballot’ is going to be an electronic record?” Favorito said.

And that’s the basis of the first count in the lawsuit. The Georgia Constitution requires a secret ballot. The Official Code of Georgia (OCGA) says this can be an electronic or printed record, since it was recently amended to allow E-voting.

VoterGA says the code passed by the Georgia legislature is inconsistent with the Georgia Constitution.

Webster’s Dictionary has defined a ballot as “a ball, ticket, paper, or the like by which one votes,” since the time the Constitutional law was written, the VoterGA lawsuit brief says.

“What about recounts?” attorney Walker Chandler exclaimed.

“We’ll just plug in the machines and see what the machines say? That’s what we got the first time.” Chandler said.

VoterGA says there are three main themes to the changes they want to see to restore voter confidence and elections integrity:

(1) Implementing voting equipment that reads or writes real ballots.

(2) Implement procedures to ensure the machines counted votes accurately on election night.

(3) If discrepancies are found, allow a candidate a race recount at no charge to candidate or other parties.

CORRECTION: The original version of this article stated, “VoterGA did not agree that the VVPAT as conducted ensured such accuracy.” This version corrects to add the words “on Election Day,” to the end of this sentnce.

About the author:

Jonathan Springston is a Senior Staff Writer for The Atlanta Progressive News and may be reached at

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