A Diebold Election Systems Inc. electronic voting machine (Photo: Elijah Nouvelage/Bloomberg)

Seven national election security experts are urging Georgia's Supreme Court to overturn a trial judge's dismissal of a lawsuit challenging Lt. Gov. Geoff Duncan's election.

The experts were joined by the National Election Defense Coalition, a nonprofit national network that includes academics, cybersecurity professionals and policymakers that presses for adequate cybersecurity protections for the country's election infrastructure. The state Supreme Court is scheduled to hear oral arguments Tuesday.

The coalition experts urged the high court to remand the case for “adequate electronic records discovery,” citing statistical anomalies in the race that were reflected in the electronic, but not the paper ballots, and multiple reports that some electronic voting machines malfunctioned.

“Given the threat of covert cyberattacks that can change the election outcomes from the choices Georgia's voters had made, the scientific literature that documents the ease of tampering with the GEMS [Global Elections Management Systems] vote tabulation database in largely undetectable ways, Georgia election officials may not have defended against or detected such incursions,” the amicus brief said.

The GEMS database, which operates on software that expired in 2013, “fails to conform to fundamental database design principles and software industry standards for ensuring accurate data,” the brief continued. “Thus, in election tabulations, aspects of the GEMS design can lead to, or fail to protect against, erroneous reporting of election results.”

Georgia Attorney General Chris Carr.

Georgia Attorney General Chris Carr also weighed in with an amicus brief for current Secretary of State Brad Raffensperger after successfully arguing the secretary of state should be dismissed as a defendant. Carr and special assistant attorney general Joshua Belinfante, a partner at Atlanta's The Robbins Firm, defended Senior Superior Court Judge Adele Grubbs' decision in January to dismiss the case in a directed verdict from the bench.

Carr and Belinfante contend the secretary of state, while no longer a party, maintains an interest in the case because Raffensperger “will be required to assist local boards of election in the unlikely event that a new election [is] ordered,” and because the state actually owns the voting machines and servers used by Georgia's 159 counties to tabulate the vote.

After the secretary of state was dismissed, lawyers representing the office intervened at a scheduled inspection by the plaintiffs of some of Fulton County's electronic voting machines in January. The secretary's counsel claimed ownership of the machines slated for inspection and provided a list of protocols severely limiting what the plaintiffs could do, triggering a standoff over how the machines' internal memory could be accessed without damaging or altering the data.

Brad Raffensperger

Grubbs subsequently denied the plaintiffs' motion to compel discovery as well as a motion to continue the trial.

The plaintiffs include the Coalition for Good Governance, a nonprofit focused on election integrity that seeks a return to paper ballots; Smythe Duval, the Libertarian Party's 2018 candidate for secretary of state; and voters from Fulton and Morgan counties. Atlanta attorney Bruce Brown is their counsel. Duncan's Democratic challenger, Sarah Riggs Amico, is not a party to the contest.

The lawsuit mirrors a complaint Amico made to the secretary of state immediately following the November election. Amico cited an undervote rate in her race that was 6.5 times greater that the governor's race and appeared to impact Democratic-leaning counties more heavily—but only in the electronic ballot tabulations, not in the paper absentee ballots cast.

Carr's amicus brief defended the secretary of state's intervention that ultimately halted inspection of Fulton County's electronic voting machines. Carr claimed the intervention was necessary because the plaintiffs' expert “proposed a radically different” and allegedly more intrusive inspection method, which Carr contended could have altered the internal data and permitted the plaintiffs to copy critical files, information from past elections, and other sensitive data.

Carr also argued the plaintiffs failed to put forth a “specific need” for the “sensitive information” they requested. He also contended the plaintiffs “still could not prove their case,” even if granted the discovery they seek.

But the election experts claim that “myriad election computer malfunctions and aberrational statistical evidence” that the plaintiffs collected prior to trial “cannot be investigated or explained without a forensic examination of the electronic records of the computers involved in the 2018 election process.”

“The nature of software-based voting machines permits covert election cheating,” they argued. “Unless the courts exercise sufficient oversight via the discovery process, malefactors may view Georgia's election computers as offering 'open season' for tampering.”