Brad Raffensperger (left) and Bruce Brown (Photos: Michael Holahan/The Augusta Chronicle via AP and John Disney/ALM)

A nonprofit organization and voters battling the state for a return to paper ballots claim they have uncovered evidence that ballots cast on the state's obsolete electronic voting machines are not secret, according to court papers filed Friday.

In a new motion for a preliminary injunction, attorneys for the Coalition for Good Governance and several plaintiff voters have asked a federal judge in Atlanta to sideline use of the state's obsolete electronic voting machines after Oct. 1.

The plaintiffs claim that evidence obtained from state and county election officials revealed that a “unique identifier” is attached to each electronic vote cast on the 17-year-old machines. Those unique identifiers could enable “election insiders or malicious intruders” to connect each ballot to the voter who cast it, the motion contends.

The motion asks Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia to bar state election officials from using the current machines—which still operate on software that expired more than five years ago—because they create “a cast vote record (also called a ballot image) for each electronic ballot cast, recording the voter's selections on each race or ballot question.”

The motion contends that state and county election officials have admitted that ballot image reports maintained in their electronic databases and memory cards—when combined with other election records—contain enough information to identify who cast every electronic vote in Georgia. If proven, the practice would violate state and federal constitutional provisions requiring that all voter ballots be secret.

The Daily Report has contacted Georgia Secretary of State Brad Raffensperger's spokeswoman Tess Hammock and his outside counsel, Joshua Belinfante and Vincent Russo of Atlanta's The Robbins Firm and is awaiting a reply.

But in a motion to quash a subpoena seeking ballot images for the first five and last five votes cast at a Morgan County early voting center in the 2016 presidential election, Raffensperger lawyers argued that disclosure of those images of what should be anonymous ballots “would destroy the secrecy of the ballot mandated by the constitution of Georgia and recognized by the Supreme Court.”

“What the secretary of state is saying is that the state knows who everybody in the state voted for if they voted on an electronic machine,” said plaintiffs attorney Bruce Brown.  “Why would the secretary of state say that if it weren't true?”

Other Georgia counties have taken the same position, he said.

“These facts highlight, again, the danger of using computers to record votes,” Brown continued. “There's always a record. … It is disturbing enough to know that state officials and county officials know how everyone voted. But if they know, then we know that any  hacker sitting on his cell phone in New Jersey knows also.”

Plaintiff lawyers contend in the motion that voter ballot images are stored on 30,000 memory cards and 30,000 electronic voting machines, “making the protection of this unlawfully recorded data impossible.”

A declaration Brown filed with the motion contends that evidence produced by Rockdale County election officials demonstrated that, after one ballot was cast prematurely, the poll manager was able to retrieve that ballot and cancel it.

“This was only possible if there was a unique identifier on the ballot,” Brown said in his affidavit.

Gwinnett County election officials “confirmed in a public presentation that Gwinnett uses unique identifiers on ballots to retrieve ballots from voters who vote more than once,” according to the injunction motion.

The plaintiffs have asked for the injunction, even though attorneys for Raffensperger have argued the state obtained legislative approval earlier this year to replace the current electronic voting machines with upgraded equipment. Those machines, unlike the ones currently in use, include a paper trail, but the ballot results are encoded in a bar code.

The state's new system is not predicted to be operational until the 2020 presidential primary at the earliest, “and will not address the constitutional violations at issue in this case,” the plaintiffs lawyers allege. “It is therefore imperative that the state be enjoined to replace the unconstitutionally defective [electronic] voting machines with hand-marked paper ballots so that Georgia voters have a constitutional voting system for the balance of 2019 and for the 2020 presidential primary, other primaries, and the general election.”

Last week, Raffensperger scheduled the Georgia primary for March 24—three weeks after Super Tuesday. The 2016 primary took place March 1 on Super Tuesday where a dozen states, including Georgia, held primaries.

The injunction motion marks the third time the plaintiff voters and the Coalition for Good Government have sought an injunction that would force the state to abandon its current electronic voting system and return to paper ballots. Last September, Totenberg held that, while the plaintiffs had demonstrated a likelihood they would eventually prevail, she said the “eleventh-hour” injunction request that the state conduct the 2018 election by ballot was unworkable.

Totenberg issued a new order last month denying the state's motion to dismiss the litigation, saying that the suit paints “an unsettling picture of the vulnerabilities” of Georgia's current system that dovetails with “recent, increased, and real threats of malicious intrusion and manipulation of the system and voter data by nation states and cyber savvy individuals.”

Attorneys representing the secretary of state had argued unsuccessfully that a new law to replace the current electronic voting apparatus made the case moot.

Brown—joined by Atlanta attorney Cary Ichter, Seattle lawyer Robert McGuire, and John Michael Powers of the Lawyers Committee for Civil Rights Under Law in Washington, D.C.—are now asking Totenberg to direct the secretary of state to order a security evaluation of the servers in Georgia's 159 counties that are used in tabulating the vote, as well as electronic pollbooks used to confirm voter registration to determine whether malware has infected any of the systems or whether any have been erroneously programmed.

The motion also asks Totenberg to bar the state from bar use of its electronic voting equipment after Oct. 1 using handmarked paper ballots that would be counted by hand or by optical scanner.

The plaintiffs also asked Totenberg to direct the secretary of state to “disable, and instruct every [county election] superintendent to disable, any software applications that permits the recording of information on any electronic ballot, alone or in combination with other records and information” that may be used to identify the individual who cast that ballot.