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July 16, 2023

Georgia Political and Civic Leaders:

We at Coalition for Good Governance (“CGG”) have been receiving an escalating number of calls from local civic leaders seeking facts on the security issues inherent in the state’s voting system. We're happy to say that there are ready solutions for far more secure and transparent 2024 elections, awaiting voters' and election officials' action. We'll focus on those solutions in Part 1 today, and sort out the facts from the fiction in Part 2 in the near future.

Here we will cover:

--how to urge the State Election Board to act on our pending request to reduce touchscreen voting;

--how to request that your local county board take action to use hand marked ballots for 2024 elections; and

--how to request that your local municipality and county election board to use hand marked ballots in November 2023 municipal elections.

County election boards have considerable authority and responsibility to act to secure the election, as does the State Election Board. Georgia political and civic leaders can make their voices heard to insist that election boards act to secure upcoming elections despite the inaction from the Secretary of State’s office. While there are easily available solutions, implementing them requires mastery of the details and taking prompt deliberate action. We provide those steps and details below to achieve hand marked paper ballots, counted by scanner with outcomes tested by controlled hand count audits. For leaders who are committed to more secure elections, we urge you to turn your attention to what can be done now, and the  details of necessary actions to do it.

 June’s release of the July 2021 Halderman report continues to generate questions as the grave issues within the report about voting system vulnerabilities are more widely understood. We want to offer near term workable solutions to promptly achieve accountable evidence-based elections without the untrustworthy touchscreen BMDs. While we await trial in the Curling v Raffensperger case seeking the banning of the BMD touchscreen units on constitutional grounds, there are interim available solutions we recommend to counties and concerned citizens. 

IMMEDIATE SOLUTION OPTIONS:

 1. Dramatically reduce touchscreen voting by demanding secret ballots—urge State Election Board action. Georgia voters suffer the public display of their votes on large, upright bright touchscreens which violates Georgia’s constitutional guarantee of a secret ballot and federal Help America Vote Act requirement of privacy in voting. State statutes mandating electronic touchscreen BMDs cannot trump either of those higher-ranking laws. Read more here about CGG’s formal request to the SEB to reduce the use of touchscreens to only the number that can guarantee secrecy in voting, which will require hand marked paper ballot use (scanned in the precinct scanner) for the majority of voting stations. Individual voters should write a letter of support.  County boards of elections should write a letter on behalf of the county board to support the CGG rule change effort before their August 1 hearing.

This is voting without a secret ballot in Georgia:

2. Local county election officials can make decisions to use hand marked ballots because of “impossible and impractical” use of touchscreens.  The election code gives the local county election board (the “superintendent”) the authority to use hand marked paper ballots if the officials determine that the use of voting equipment is “impossible or impracticable or unusable.” The code does not tell the local authorities how to make that decision. Obviously, the BMD mandate statute doesn’t require the unconditional use of equipment no matter what problems the computerized components may be experiencing, although they technically may be “operating.” The election code currently include examples of avoiding use of problematic voting system equipment for issues such as power outages, malfunctioning machines, line times exceeding 30 minutes,  zero tapes showing tallies other than zero at start of election, or inability to display all candidates’ names on the screen. 

a. Ballot secrecy—impossible and impractical. Anyone who has spent time in polling places or tried to set up the touchscreen BMDs knows that it is virtually impossible to position them in ways to protect the voting screens from the view of other voters in the polling place. The blue panels do not interrupt the sight lines to the display screen, but illegally keep the backs of machines hidden, obstructing the legally authorized view of the touchscreen by the pubic and poll officers to monitor for tampering. The hoods and blue panels simply do not work. Given that federal law (HAVA) and the state constitution mandate secrecy in voting, in most polling places it is “impossible, impracticable” or “unusable” to use the touchscreens and comply with laws superior to the state statute for BMD use. (See our SEB request.) While ballot secrecy is a key component of our Curling case claims, the issue needs to be resolved for elections occurring before Curling goes to trial. County election officials have the authority to make this decision to comply with federal law and the state constitution (which is their duty), recognizing that it is impossible to comply with those superior laws if universal BMDs are used. BMDs should remain available for voters with disabilities.

Voters should not be forced to advertise their voting choices as they do now:

(1) County duties to protect ballot secrecy—Georgia law is clear that county officials must protect ballot secrecy as a priority. For example, they have a duty to “conduct all elections in such matter as to guarantee the secrecy of the ballot.” (O.C.G.A. §21-2-70(13)). Further they are prohibited from “adopting” or “using” touchscreen BMDs unless they provide for “voting in absolute secrecy so that no person can see or know any other elector’s vote…” (O.C.G.A. § 21-2-379.22) County officials have been hesitant to challenge State Election Board and the Secretary of State in order to comply with their duties under the law, but instead put ballot secrecy as a low priority while using BMDs. This is surprising given that it is a felony in Georgia to “disclose to anyone how another elector voted.” (O.C.G.A. § 21-2-568(a)(4))

It is certainly “impossible and impracticable” in most polling places to protect ballot secrecy and set up the required number of voting stations with BMDs. Counties need to put up only the number of BMDs they can operate in accordance with ballot secrecy laws and use hand marked balloting counted by the precinct scanners for the remainder of the needed voting stations. 

Voters would be able to mark their ballots in private:

(2) County boards can also request that the State Election Board act to protect ballot secrecy by approving CGG’s formal request to adopt rules to reduce the use of touchscreens to only the number of touchscreens that offer full secrecy in voting, (likely a small number per polling place.) State Election Board rules can offer protection from potential recriminations from the Secretary of State for counties that undertake their duties to protect ballot secrecy. 

To date, no one has found a product that has federal EAC approval that can be applied to or attached to the BMD touchscreens to provide the required privacy in voting. After 3 years of complaints, it is time for the SEB and county boards to act!

b. QR code violation of Georgia law—“impossible, impractical, and unusable touchscreens.”

Using QR coded votes which the voter cannot read before they cast their ballot is a violation of federal law (HAVA) and state law requiring that the voter be able to verify and correct their vote before casting it in the scanner. As is now well understood, particularly after the Halderman report, the information-only human readable text may differ from the QR code which embeds the actual official vote. See the legal violation explained in the Honorable Judge Amy Totenberg’s opinion in our Curling case. Federal law (HAVA) also requires a verifiable vote mark, which Georgia’s QR code ballot simply does not do. Federal law requires the system to permit the voter to “verify the votes selected by the voter on the ballot before the ballot is cast and counted,” 52 U.S.C. § 21081(a)(1)(A)(i), and to “to change the ballot or correct any error before the ballot is cast and counted,” 52 U.S.C. § 21081(a)(1)(A)(ii). 

As in the case of ballot secrecy above, the county boards can reasonably reach a board determination that it is impossible and impracticable to use a touchscreen system that cannot meet federal and state law, and therefore paper ballots counted by scanner are required. Obviously, federal law trumps state law that machines must be used, which includes the provision “unless otherwise authorized by law.” Federal law not only requires verifiable votes but must take priority over state law. State law permits the board’s discretion to use paper ballots if they decide “for any other reason” that the system is “not practicable” to use. (O.C.G.A. § 21-2-334).

A hand marked secret ballot looks like this:

c. System vulnerability and compromise—“impossible, impracticable and unusable” touchscreens.

There is justifiably significant concern about the vulnerabilities Professor Halderman documented in the touchscreen portion of the Dominion system in 2021.  While the information is new to the public in the last several weeks, the Secretary and the State Election Board have had access to the damning information for two years but have refused to take action, insisting instead, without evidence, that they know more than the nation’s cybersecurity experts, and “everything’s fine, nothing to see here.” County boards of elections should consider taking action to use hand marked ballots not only because of ballot secrecy concerns but because of the proven election security vulnerabilities.

(1) As in the case of ballot secrecy above, the county boards can reasonably reach a board determination that a provably insecure system is “unusable” and unsafe to use, and therefore paper ballots are required. The law permits the board’s discretion to use paper ballots if they decide “for any other reason” that the system is “not practicable” to use. (O.C.G.A. § 21-2-334).

(2) Again, the county officials can urge the SEB to adopt such rules, although they claimed in their June 21 meeting that their hands are time when they heard our petition to use hand marked ballots in emergency balloting rules when a system has been compromised as Georgia’s has been.  The SEB strangely took the position that despite many previous rules they have issued to avoid use of suspect system components in the past, including even permitting emergency balloting when lines are over 30 minutes, they had no authority to address a compromised voting system, and it must be unconditionally used for voting. Obviously this was not the lawmakers intent.  Counties can write to the SEB to urge them to reconsider their decision of June 21. 

3. County and municipal officials can use hand marked paper ballots for the November municipal elections. State law requiring use of electronic BMDs do not apply to municipal elections. The municipalities can contract with the counties to conduct hand marked paper ballot elections counted by the precinct or high volume scanners currently in place. (Hand count testing in audits can be undertaken to determine that correct winners are declared.) 

This decision needs no approval by Secretary of State or any deliberation by the county board that the system is “impossible or impracticable.” It is a simple way to get started using hand marked paper ballots counted by the current scanners. 

Why Machine and Hand Counting are Both Required

There is a popular movement among conservatives to promote hand counting of ballots without using the advantages of scanner tabulators. Hand count elections (without machine use) are appropriate only in very small elections. Large multi-contest elections require machine counting with hand count audit testing whether the right outcomes were declared. Full hand counts of large elections are notoriously inaccurate, slow, and chain of custody is easily lost over the days and weeks of counting required, inviting mischief. Recounting of many batches is often required because of routinely high error rates of hand counting. The problematic hand counting of the DeKalb commissioner’s race in May 2022 is an example of why accuracy and transparency often fail in large hand counts. 

Instead, CGG recommends using the scanner tabulators to generate the election night counts and then use risk limiting hand count audits to test the outcomes (not counting every ballot). Save precious manpower for testing races of high interest, not counting millions of votes in uncontested races and landslide races. 

Summary 

We urge Georgia leaders to take steps to request that county and state officials to immediately use their authority to act to adopt hand marked papers counted by current scanners and tested with robust audits for upcoming elections. The legislature in 2024 session can respond to the needs and conflict in the laws requiring BMD touchscreens, while the officials act now to protect the 2024 elections with decisions to use hand marked paper ballots. 

Part II of this communication will focus on the facts about the voting system and the misinformation being promoted by the Secretary of State’s office. 



In the meantime, please reach out to us if you have questions

Thank you for your interest. 

Marilyn Marks

Executive Director

Coalition for Good Governance

Marilyn@uscgg.org

704.292.9802

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Coalition for Good Governance is a nonpartisan, nonprofit organization focused on election security, integrity, and transparency.