Judge Amy Totenberg, U,S. District Court for the Northern District of Georgia (Courtesy photo)

A federal judge in Atlanta is allowing a lawsuit to go forward that would force the state of Georgia to replace electronic voting machines currently in use with a system based on paper ballots.

In a 61-page order issued Tuesday, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia rejected a motion by Georgia Secretary of State Brad Raffensperger to dismiss the case.

State attorneys argued that new legislation signed into law by the governor earlier this year to replace Georgia's obsolete electronic voting apparatus with an upgraded electronic version made the case moot.

Totenberg disagreed.

The judge determined that the plaintiffs—a nonprofit organization dedicated to election integrity and a return to paper ballots and a number of Georgia voters—“have plausibly and sufficiently demonstrated a legitimate concern that when they vote by [electronic voting machines], their vote is in jeopardy of being counted less accurately and thus given less weight than a paper ballot.”

“At the motion to dismiss stage,” she concluded, “plaintiffs' allegations that [the state of Georgia's] continued use of unsecure [electronic voting machines] infringe the plaintiffs' fundamental right to vote are sufficient to state a plausible due process violation.”

The case challenges the constitutionality of Georgia's continued use of electronic voting machines that the state purchased in 2002. The software that powers those machines and the electronic servers that tally the votes expired in 2014, according to testimony in a hearing before Totenberg last fall. Following that hearing, Totenberg ruled that the plaintiffs  demonstrated a likelihood they would prevail. But she said  their “eleventh-hour” request for an injunction ordering the state to conduct the 2018 election by paper ballot was unworkable on such short notice.

Totenberg said the plaintiffs' complaints about Georgia's obsolete voting system “emphasize current cybersecurity developments regarding election security and the heightened, legitimized concerns of election interference.”

The judge also said that, contrary to the secretary of state's characterizations, “Plaintiffs' allegations are not premised on a theoretical notion or hypothetical possibility that Georgia's voting system might be hacked or improperly accessed and used.”

“As this court recognized in its prior order, national security experts and cybersecurity experts at the highest levels of our nation's government and institutions have weighed in on the specific issue of [electronic voting] systems in upcoming elections and found them to be highly vulnerable to interference, particularly in the absence of any paper ballot audit trail,” Totenberg wrote. “Georgia's  system also originally was intended to include the capacity for an independent paper audit trail of every ballot cast, and this feature was never effectuated.”

The state's arguments, she added, “completely ignore the reality faced by election officials across the country … that electronic voting systems are under unceasing attack.”

David Cross, an attorney with Morrison Foerster in Washington, D.C., who is representing the plaintiff voters in the case, on Tuesday said Totenberg's order, “validates the serious constitutional concerns underlying our case and provides an opportunity to finally institute secure, reliable and transparent elections for Georgia voters.”

Atlanta attorney Bruce Brown, who represents the Coalition for Good Governance, couldn't be reached for comment  by press. A spokeswoman for the secretary of state also couldn't be reached.