Judge Amy Totenberg, U.S. District Court for the Northern District of Georgia. (Photo: John Disney/ALM)

A federal judge in Atlanta has agreed to stay ongoing litigation over alleged vulnerabilities in Georgia's antiquated electronic voting system until Secretary of State Brian Kemp's appeal has been resolved.

In a five-page order issued Tuesday, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia granted the stay, even though she said Kemp's counsel “have not provided a sound legal basis” that she erred in not dismissing the lawsuit.

However, Totenberg added she was “not prepared to declare the defendants' position wholly frivolous,” even as she acknowledged the case “presents evolving circumstances and cyber issues affecting the integrity of the voting process (and results) at this particular moment in history.”

Totenberg said she arrived at the decision “despite the unfortunate mischaracterizations of the proceedings, complaint allegations, and rulings that pepper the state defendants' brief in support of their motion.”

The defendants, which include Kemp and members of the state Board of Elections, are represented by former Georgia Gov. Roy Barnes and law partner John Salter Jr., both of The Barnes Law Group in Marietta.

Last month, Kemp and the election board scored a win when Totenberg decided not to issue an injunction directing the state to junk its electronic voting machines and return to paper ballots for the midterm election. Early voting began Oct. 15. The lawsuit was filed jointly by several Georgia voters and the Coalition for Good Governance, a nonprofit organization.

The defendants promptly appealed, asking the U.S. Court of Appeals for the Eleventh Circuit in Atlanta to overturn Totenberg's refusal to dismiss the case and her ruling that state election officials are not entitled to immunity.

Kemp, who is running for governor on the Republican ticket, is a defendant in three other federal lawsuits involving the state's “exact match” policies regarding voter registration applications and paper absentee ballots.

Totenberg's decision also stays any ruling on a new injunction motion filed by Atlanta attorney Bruce Brown for the coalition. Taking a cue from Totenberg, who said Georgia's current voting system “poses a concrete risk of alteration of ballot counts,” Brown asked her to consider mandating the state to undertake interim measures that would have instituted audits of paper ballot tallies, mandated paper backup voter registration rolls in every precinct in the state and stopped the state from discouraging county election boards from converting to paper ballots without a court order.

Totenberg's decision to stay the case also pauses a motion by David Cross—an attorney at Morrison & Foerster in Washington, D.C., who represents the plaintiff voters.

Cross moved to sever his clients' claims from those made by the Coalition for Good Governance on Oct. 8. Cross cited “harmful delays and waste of resources” that resulted from “being tied to the coalition plaintiffs.” He also suggested that delays in seeking a preliminary injunction that would have mandated paper ballots for the midterm election were “due to strategic choices” made by the coalition that he claimed “needlessly slowed this case.”