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

The U.S. Court of Appeals for the Eleventh Circuit affirmed a federal judge's finding that a lawsuit seeking to force Georgia to return to paper ballots will likely succeed.

An appellate panel that included Circuit Judges William Pryor of Alabama, Robin Rosenbaum of Florida and U.S. District Chief Judge Michael Moore of the Southern District of Florida on Thursday held in a joint ruling that Georgia Secretary of State Brad Raffensperger and members of the state's election board are not entitled to immunity from liability. The Eleventh Circuit issued its ruling just a week after hearing oral arguments.

Former Georgia Gov. Roy Barnes and law partner John Salter of The Barnes Law Group are defending the election board and the secretary of state. Last September, they appealed U.S. District Judge Amy Totenberg's order declining to dismiss pending claims against state election officials. The lawsuit named then-Secretary of State Brian Kemp, now Georgia's governor, among others.

Totenberg, of the Northern District of Georgia, also rejected arguments that state officials had immunity. Salter could not immediately be reached for comment.

The plaintiffs—Georgia voters and the Coalition for Good Governance, a nonprofit organization dedicated to election transparency and a return to paper ballots, had sought a court order barring the state from using the electronic voting system during the midterm election. They contended it created “an unacceptable risk” that voters' ballots would not be accurately counted because hackers could intercept or modify them.

The Eleventh Circuit ruled that enjoining Georgia's use of electronic voting machines would not run violate state sovereignty because, “Suits are permitted when the plaintiff alleges that state election officials are conducting elections in a manner that does not comport with the Constitution.”

“Moreover,” the appellate court ruled, “plaintiffs do not seek a court order directing the precise way in which Georgia should conduct voting. Instead, [they] seek only injunctive and declaratory relief against a system that they decry as unconstitutionally unsecure.”

The court also determined that state officials “cannot claim legislative immunity because plaintiffs did not challenge legislative acts. Instead, [they] challenged the state defendants' implementation and execution of a state law and policy.”

“Moreover,” the panel added, “plaintiffs did not challenge the mere enactment of the law or election rules, they contended only that the state defendants' enforcement of that law in the future will burden their right to vote.”

Totenberg initially found on Sept. 17 that Georgia's current voting system posed “a concrete risk of alteration of ballot counts” that could affect the midterm vote. But she said “the eleventh-hour timing” of the request to immediately return to paper ballots “could just as readily jeopardize the upcoming election, voter turnout, and the orderly administration of the election.”

Totenberg promised at the time that if she were affirmed, she will put the case on an expedited schedule since “the 2020 elections are around the corner.”

Michael Qian, a Morrison & Foerster associate in Washington, D.C., who argued the appeal for the Georgia voters, applauded the Eleventh Circuit for its quick action “in rejecting defendants' arguments on appeal, which enables us to finally move forward with our case on the merits for the benefit of all Georgia voters.”

Coalition executive director Marilyn Marks and counsel Atlanta attorney Bruce Brown said they look forward to expedited discovery.

“It's time to get long overdue answers to the questions about systemic irregularities that occured in the November 2018 and prior elections,” Marks said. “Such information will greatly benefit voters, election officials and lawmakers as they must overhaul the state's voting system and reject unauditable electronic ballots.”