Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 1 of 506 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DONNA CURLING, ET AL., ) ) Plaintiffs, ) ) CIVIL ACTION vs. ) ) FILE NO. 1:17-cv-2989-AT BRAD RAFFENSPERGER, ) ET AL., ) ) Defendants. ) COALITION PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION June 21, 2019 Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 2 of 506 Table of Contents I. INTRODUCTION: OVERVIEW OF RELIEF SOUGHT 1 II. FEASIBILITY OF THE RELIEF 6 A. “Most Widely Accepted Voting Method in the Nation” 6 B. Logistics 7 1. Sensible Timing 7 2. Availability of Printed Ballots 7 3. Training 8 4. Early Voting and Number of Ballot Styles 8 5. Long lines 9 C. Particular Issues with Counties and Municipalities 10 III. SUCCESS ON THE MERITS 12 A. Numerous Voters Experienced Problems in the 2018 Election 13 B. Voting System Reporting Issues and Discrepancies 20 1. Irregular DRE machine tape totals 20 2. DRE discrepancies 21 C. Extreme Undervote in Lieutenant Governor’s Race 21 D. DREs Violate Ballot Secrecy 25 1. Background 25 2. Plaintiffs Likelihood of Success on the Merits 30 i Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 3 of 506 3. Strong Public Interest in Protecting Ballot Secrecy 32 IV. ELECTRONIC POLLBOOK ACCURACY 34 A. Relief Initially Sought and Court’s Disposition 34 B. Vulnerability and Corruption of Electronic Pollbooks 34 1. Electronic Pollbook Problems in 2018 Primaries 35 2. Electronic Pollbook Problems in 2018 General 36 C. Disenfranchisement 36 D. Provisional ballot problems 37 E. Relief sought 37 V. AUDIT REQUIREMENTS 40 VI. DEFENDANTS HAVE NO EQUITIES 42 VII. CONCLUSION 46 ii Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 4 of 506 The Coalition Plaintiffs file this Brief in Support of their Motion for Preliminary Injunction. I. INTRODUCTION: OVERVIEW OF RELIEF SOUGHT This Motion seeks to protect the constitutional rights of Georgia citizens to vote and have their ballots counted in the 2020 elections, including the March Presidential primary, and the remaining 2019 elections. The Coalition Plaintiffs seek injunctive relief that will ensure that voters’ rights to a secret ballot will be protected immediately; that hand-market paper ballots with Accu-Vote scanners will replace DRE voting machines no later than October 1, 2019; that election results will be audited; and that the problems with the electronic pollbooks are promptly remedied and paper back-ups provided at polling locations. Unless injunctive relief is granted, the State will have no constitutionally acceptable voting system for the foreseeable future. The State’s new ballot marketing device (“BMD”) system, if ever deployed, will not be operational until, at the very earliest, the late March 2020 Presidential primaries, and will not address the constitutional violations at issue in this case. It is therefore imperative that the State be enjoined to replace the unconstitutionally defective DRE voting machines with hand-marked paper ballots so that Georgia voters have a constitutional voting Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 5 of 506 system for the balance of 2019 and for the 2020 Presidential primary, other primaries, and the general election. Coalition Plaintiffs continue to seek relief in this case relating to the DRE voting system and the electronic pollbooks, as sought in two prior Motions for Preliminary Injunction. (Docs. 258, 327). With respect to the DREs, the relief that the Coalition Plaintiffs seek is to replace only the DRE electronic voting machines, not the entire Deibold Accu-vote DRE certified election system. If this Motion is granted, the DRE voting machines would be sidelined,1 but the State would continue to use the Diebold/GEMS election management system, and the Diebold optical scanners until Georgia implements an another accountable voting system. If the Coalition Plaintiffs’ Motion is granted, the voter’s selection will no longer be made on unauditable DRE touchscreen machines and instead will be marked directly on a paper ballot and then scanned by the Diebold Accu-Vote optical scanners.2 The selections will be recorded on the scanner’s removable 1 The Coalition Plaintiffs’ Motion, by its terms, does not prohibit the use of electronic or other appropriate units for persons with disabilities. 2 Georgia law permits the paper ballot scanning to take place either at each polling location or centrally at the election office at the option of the county election board. O.C.G.A. § 221-2-483(a). As reflected in their Motion, Coalition Plaintiffs recommend leaving this choice to each county superintendent’s discretion based on local logistics, personnel and training considerations. 2 Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 6 of 506 memory card for transfer to the GEMS server for consolidation and tabulation of vote totals, as mail and provisional ballots are processed today. Though modest in scope, the relief sought by the Coalition Plaintiffs remedies the core defect in Georgia’s current system configuration for in-person voters: the absence of “a paper trail or any other means by which to independently verify or audit the recording of each elector’s vote, i.e., the actual ballot selections made by the elector for either the elector’s review or for audit purposes.” (May 21, 2019 Order, Doc. 375, at 4). If the motion is granted, there is an independent record of voters’ selection in the form of the voter-marked paper ballots. See Curling v. Kemp, 334 F. Supp. 3d 1303 , at 1328 (N.D. Ga. 2018) (a new balloting system in Georgia “should address democracy’s critical need for transparent, fair, accurate, and verifiable election processes”). The key to the feasibility of this remedy is that Georgia has long used this system for processing paper ballots. In the November 2018 elections, the State processed over 250,000 hand-market paper ballots using the same certified Diebold components and processes that it would use to count virtually all the votes if Coaltion Plaintiffs’ injunctive relief were granted. In fact, if Coalition Plaintiff’s requested injunctive relief is granted, the State would need to make only minimal if any changes to procedures for ballot layout, paper ballot procurement, counting, 3 Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 7 of 506 and reporting paper ballots; the counties would merely order more paper ballots from printers and, instead of giving voters a voter access card to enable the DRE voting machines, pollworkers will issue paper ballots. In contrast to the relief sought by the Coalition Plaintiffs, the Curling Plaintiffs seek relief in their Proposed Order that would immediately replace not only the DRE touchscreen voting machines, but the entire “Diebold AccuVote DRE voting system.” (Doc. 387-8 at 2). While the Coalition Plaintiffs agree that the entire system should be replaced over the next few years, the State does not have the resources or the equipment necessary to purchase and mobilize new machines in time for the November 2019 elections, or the 2020 elections. Under the current circumstances, the only feasible relief is the relief proposed by the Coalition Plaintiffs, using the hand marked paper ballot system already in place in Georgia augmented by robust post-election audits. Even with the change to hand-marked paper ballots, rigorous post-election audits are essential. “Thorough post-election auditing is essential and must be taken seriously in all elections, but this is especially true when using an outdated and vulnerable Diebold system.” (A. McReynolds Supp. Decl. ¶ 28 (Doc. 413 at 229-30)). For this reason, the Coalition Plaintiffs in their Motion seek an order requiring Defendant State Election Board and Plaintiffs to confer and file with this 4 Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 8 of 506 Court a proposed plan for a pre-certification audits of the paper ballot tabulations, and to apply applicable audit techniques to DRE components until paper ballot elections are fully implemented. As the Coalition Plaintiffs have documented in prior filings and with this Motion, Georgia voters continue to be subjected to disenfranchisement because of malfunctioning electronic pollbooks. The Coalition Plaintiffs therefore also seek relief relating to the remediation of the electronic pollbooks. In this Brief, the Coalition Plaintiffs will focus primarily on new evidence. Part II will address the feasibility of the relief sought: cost, training, provisioning equipment, management of early voting, and particular issues relating to counties and municipalities. In Part III, the Coaltion Plaintiffs will address new evidence substantially strengthening the likelihood of success on the merits, including scores of first-hand accounts of the malfunctioning DREs in the November 2018 elections, the discrepancies in vote totals, the extreme undervote in race for Lieutenant Governer, and the new evidence confirming that the DREs violate ballot secrecy. In Part IV, the Coalition Plaintiffs will address the additional evidence establishing the immediate need for relief relating to electronic pollbooks. In Part V, the requirement for post-election audits is explained. In Part VI, the Coalition Plaintiffs will show that the Defendants have no equities whatsoever: 5 Case 1:17-cv-02989-AT Document 419-1 Filed 06/21/19 Page 9 of 506 even after this Court’s September 2018 order, Defendants have taken no discernable action to address the constitutional infirmitiues of the State’s DRE voting system. Finally, in Part VII, the Coalition Plaintiffs will explain that granting injunctive relief now will provide a safe, sensible, constitutional alternative to, and contingency for, the State’s planned deployment of the BMD system in 2020.