Senior Judge Adele Grubbs (Photo: Zachary D. Porter/ALM)

Senior Superior Court Judge Adele Grubbs has tossed a lawsuit contesting the election of newly-minted Georgia Lt. Gov. Geoff Duncan after little more than a day of testimony, much of which she discounted, struck or refused to admit as evidence.

In dismissing the suit Friday morning that sought to void the race in favor of a do-over, Grubbs said the plaintiff voters who filed it shortly after the November midterm election were attacking the state's outdated electronic voting system but had not proven any illegal votes were cast or that any legal votes were rejected.

Attorney Edward Lindsey, a partner at the Atlanta office of Dentons who defended Duncan, applauded Grubbs whom he said “found no credible evidence that there was a systemic problem with the electronic voting in Georgia and that the results of the election of Geoff Duncan could not be in dispute.”

Atlanta attorney Bruce Brown, counsel for the plaintiffs, filed a notice of appeal Friday afternoon, according to Marilyn Marks, executive director of the Coalition for Good Governance, a nonprofit organization that spearheaded and financed the case but was denied standing by Grubbs.

Marks said the plaintiffs—who also include the Libertarian Party's 2018 candidate for secretary of state—are appealing because, “from a public policy standpoint, it is absolutely crucial that the voters of Georgia know what happened here because what happened was not permitted to come out in court.”

The lawsuit rested on claims of a significant undervote in the lieutenant governor's race and allegations that the state's continued use of 16-year-old electronic voting machines operating on 19-year-old software were at the root of the problem.

But Grubbs said to Brown, “Your attack is on the whole system. And I respect that. And there is authority, scientific authority that says the [electronic voting] system is terrible. I am very aware of that. But what I am here on is one race. Just one race.”

Grubbs said there was “absolutely nothing” to show that votes were cast illegally or that legal votes were rejected.

“There is a legal presumption that election returns are valid,” she said. “The plaintiff has the burden of showing irregularities or illegality sufficient to change of place in doubt the results of the election.”

Grubbs made her ruling even though the plaintiffs never examined the internal memory of electronic voting machines in Fulton, Gwinnett or Henry counties, where people had reported problems with efforts to vote for the lieutenant governor. Although the judge allowed limited discovery a week before the trial in an order that allowed plaintiffs' cyber expert to inspect the internal memory of some electronic voting machines, the general counsel for the secretary of state established protocols that drastically limited the inspections. Those protocols came after the secretary of state was dismissed from the lawsuit.

The protocols, according to an affidavit filed by plaintiffs' expert Matthew Bernhard, would have altered the memory and internal data that he wanted to inspect. As a result, the plaintiffs did not inspect the machines.

Grubbs denied a motion to compel and a motion for continuance tied to the dispute over the aborted inspections and the involvement of the secretary of state. She also repeatedly forbade Brown from questioning Bernhard about issues involving the electronic workings of the voting machines—which left plaintiffs bereft of any way of definitively proving their theory that the voting machines were flawed and had created an undervote of more than four percentage points.

Lindsey contended while questioning witnesses that there were other factors that could just as easily have resulted in an undervote in the lieutenant governor's race. Vote tallies showed that people skipped voting for lieutenant governor more than any other statewide race, including down-ballot races for attorney general and public service commissioner—but only if they voted electronically. Absentee and provisional paper ballots did not reflect a similar undervote, prompting the plaintiffs' expert to suggest a computer programming error or malware might be the cause.

Duncan beat Democratic challenger Sarah Riggs Amico by 123,172 votes. Nearly 3.8 million ballots were cast.

Lindsey said the defendants, which also included Fulton and Gwinnett county election officials, were prepared to present testimony that the configuration of the electronic ballot could have created confusion among voters. He said the races for governor and lieutenant governor were side by side, and voters may have assumed that the candidates were running as a team and only voted for governor rather than casting a ballot in both races. “We know from situations around the country that sometimes how ballots are arranged can have an impact on whether or how voters vote,” he said.

Lindsey said the defense had witnesses “involved in the campaign that would be able to testify that this was a frequent question that came up.”

Kaye Burwell, Fulton County's deputy attorney who defending county election officials, asked Grubbs for the directed verdict. Burwell contended there was “no evidence of impropriety and no evidence of any tampering related to the undervote.”  Instead, she argued that the plaintiffs were relying solely on a mathematical anomaly.

Brown said Grubbs's decision “renders an election contest based upon irregularities in the electronic voting system impossible ever to win, because the court did not allow the petitioners discovery to prove the system irregularities that she held were necessary to sustain a claim.”

After staying discovery for more than a month, Grubbs granted limited discovery and gave plaintiffs a week to obtain the evidence they sought from the electronic voting machines and prepare for Thursday's trial. The defendants, at the urging of the secretary of state's general counsel, “refused access to the systems” in any meaningful way that wouldn't compromise the data, Brown said.

“If you are challenging an electronic system,” he continued, “the only way you can prove the system is malfunctioning is to examine the system.”

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