State Election Board vs Paper Ballots in Athens-Clarke

A submission to the blog by former LP Georgia Chair and 2018 gubernatorial candidate Ted Metz. As of yesterday, Athens Clarke Country has been ordered to stop using hand-marked paper ballots and resume using voting machines, despite concerns about voter privacy and known vulnerabilities to manipulation and fraud. 

On March 11, 2020, the Georgia State Election Board (SEB) conducted an emergency hearing in Athens for witness testimony and oral arguments regarding the decision by the Athens-Clarke County Board of Elections and Registration (ACCBOE) to implement hand marked paper ballots (HMPB) in conjunction with the new scanning/tabulating system instead of using the new ballot marking devices (BMD).  ACCBOE board members voted to use Hand Marked Paper Ballots after it was discovered that the BMD deployment could not satisfy several legal requirements. The overarching rational for the HMPB decision was the concern for voter secrecy. The right to a secret ballot is spelled out in both the US and Georgia Constitution and written into myriad State and Federal codes and statutes. Due to the size and upright orientation of the new BMD’s, a voter’s choices can be seen from across the room. During the 4+ hours of testimony, all of the facts were entered into the record. During the two hours of oral arguments, the ACCBOE attorneys presented a logical, ethical, moral case, and the State’s attorneys plead as if it was a murder case with narrow sight, irrelevant cites, and loose interpretations of cases and code while disregarding the fundamental right of voters.

HB 316 was signed into law in April of 2019 to replace the electronic voting machines with BMDs that create a print out of a ballot and embed the votes in a computer bar code. According to the leading experts in computer security and voting integrity, the chosen system is flawed and has recently been banned from use in states. The bill was pushed through the House and Senate in 30 days, and none of the concerns expressed by the experts or the citizens testifying before the Committees was given consideration, not even the fact that Georgia Code requires expenditure bills to have a fiscal note, which HB 316 did not have. The SAFE Commission heard the same testimony from experts and concerned citizens, but ignored it in formulating the vendor bidding process which was not a transparent process in the least. The State selected Dominion as the supplier for the voting system. Curiously, Dominion has ties with people in the Governor/Secretary of State’s office. The State authorized $150 million in 20-year bonds to buy a system with a 10-year useful life instead of the Gold Standard HMPB system that only cost $40 million. On top of that, there are on-going yearly costs for interest on the bonds, software licensing, maintenance, supplies for the Dominion system that will end up costing Georgia taxpayers in excess of $350 million for a system that will need replacement in 10 years. That’s the back-story.

The testimony revealed that the ACCBOE Board members voted to abandon the BMDs  at their meeting on March 3rd, one day into Early Voting. On March 2nd, the Chairman witnessed issues with the arrangement of the BMD’s within a polling location. The new BMD’s have a larger footprint then the old machines, meaning fewer of them fit into floor space of many of Athens’ polling locations, but more alarming to the Chairman was that he could see the font on the BMD screen and immediately knew that the mandate of ballot secrecy could not be met, despite the fact that ACCBOE employees had spent 13 hours arranging the machines to fit into that space. Ensuring secret ballots was their primary concern however there were other considerations that lead to the decision for HMPBs. Under the new law, polling locations are required to have 1 BMD for every 250 voters, but many of the current polling locations in Athens lack the necessary floor space to place them in a manner that, first ensures secrecy, second, can reach an electrical outlet, third, remain under poll worker supervision. The option to move polling locations to larger spaces was not an option because Georgia Code mandates a minimum of 60 days notice and early voting for the next election begins April 27th. Here are some relevant excerpts from the Georgia Code: O.C.G. A. § 21-2-366 expressly authorizes county governing authorities to direct the use of optical scan equipment if they vote to do so.  O.C.G. A. § 21-2-300  requires only that the counties continue to use the same vendor and type of optical scan equipment that they already have. It does not preclude any county from conducting early voting and Election Day voting on the same type of equipment used for mail-in processing. In addition, O.C.G.A. § 21-2-334 and O.C.G.A. § 21-2-281 provide for the use of paper ballots when other types of voting is “impracticable”. It has always been impracticable to conduct elections on a system that cannot produce verifiable, audit-able and recount capable results. ( O.C.G. A. § 21-2-300 has been rewritten so you can use 366, 334 and 281. Also, if you have not voted you can do a declaration concerning the privacy issues or if you haven’t you can observe at the precinct and then submit a declaration.)

Counsel for the ACCBOE argued that the decision to switch to HMPBs was the correct decision based on the authority granted them in the Code and the time constraint prohibiting moving polling locations as the solution for guaranteeing the voters absolute secret ballots. having floor space for the required number of BMDs and meeting the requirement that the machines are “visible at all times” to the poll workers. The State attorneys argued that ACCBOE’s decision failed to surpass the State’s legal interpretation of “practicable” standard and therefore was in violation of  O.C.G. A. § 21-2-300 (a)(1) which mandates -The equipment used for casting and counting votes in county, state, and federal elections shall be the same in each county in this state and shall be provided to each county by the state, as determined by the Secretary of State. (2) ….and practicable for use. The State acknowledged the ballot secrecy point by suggesting that curtain enclosures could be used to provide privacy (even though 21-2-267,  says – “…the devices shall be arranged in such a manner as to ensure the privacy of the elector while voting on such devices, to allow monitoring of the devices by the poll officers while the polls are open,” and argued that the BMDs could be arranged to ensure privacy (even though the polling location floor plans and floor space was not verified). The State attorney further argued that the ACCBOE does not have statutory authority to switch to HMPDs unless there “was a power outage” and they could use HMPBs if the wait time to vote exceeded 30 minutes. Before resting the case, the State Attorney asserted that ACCBOE had violated the law and must be penalized and reimburse the State the cost of the investigation.

The SEB members began deliberations and floated ideas on action steps and penalties on the matter. The first suggestion was an immediate cease and desist order. Another member suggested a fine $5000 per day until they could prove that only BMDs were being used. Another asked what the investigative expense was and thought that billing ACCBOE for it was a spectacular idea. Much of the discussion among the board members was often bizarre as if they had not been paying any attention to the previous 7 hours of testimony and arguments which prompted several in attendance to guffaw at the inaccuracies of the statements being made, The SEB voted and approved a motion to issue a Cease and Desist for HMPBs, a motion to bill them for $2500 for the Investigative expenses, and a motion to fine them $5000 per day until they re-implement the BMDs which they agreed to waive if compliance could be proven within 24 hours.

An appeal on this matter will likely be filed with the Fulton County Superior Court shortly, asserting that the SEB is on the wrong side of this issue. The Chief Judge of the Southwestern Circuit, Rucker Smith, told the State that they needed to address the ballot secrecy issues with the BMDs post haste in an Emergency Hearing held February 26, 2020.  As more polling locations get ready for the upcoming primaries, such as floor space, electrical outlet requirements and privacy issues with the new BMDs will be uncovered and more law suits will be filed.