Vincent Robert Russo (left) and Bryan Tyson. (Courtesy photo)

Georgia Secretary of State Brad Raffensperger’s office denies it destroyed evidence in a legal fight seeking to force the state to conduct future elections with paper ballots.

Lawyers defending Raffensperger and the state Board of Elections called last week’s allegations that state personnel destroyed evidence “a desperate attempt to distract the court and the public” from what they claim is “a complete lack of evidence of any actual compromise of Georgia’s election system.”

The two-year-old lawsuit challenges the security and accuracy of Georgia’s obsolete electronic voting system as a constitutional violation of the right to vote. Plaintiffs lawyers have battled for months to examine the internal memories of voting machines and other electronic data in an effort to show the state’s voting infrastructure may be compromised by hackers—a contention state officials have repeatedly rejected.

Gov. Brian Kemp waged his 2018 gubernatorial campaign while he was secretary of state and Georgia’s chief elections officer.

State officials, including Kemp and Raffensperger, are adamant that Georgia’s election system is and always has been secure, despite threats flagged by the federal government that Georgia was a Russian target. A heavily redacted report released by the U.S. Senate Intelligence Committee last week stated that Russian hackers targeted the election systems of all 50 states in 2016. While the committee “found no evidence that vote tallies were altered or that voter registry files were deleted or modified,” it also said insight was limited.

A federal indictment secured by special counsel Robert Mueller accusing 12 Russian military officers of multiple attempts to interfere with the 2016 presidential election identified Georgia as one of three states where the operatives visited websites “to identify vulnerabilities,” a Georgia election official said in a 2018 memo.

Raffensperger’s lawyers insist that the plaintiffs “have put forward no evidence that the web server or any other information was ‘crucial’ to their ability to prove their case.”

They also contend in their response that a server and a backup server housed at Kennesaw State University’s Center for Elections were “repurposed” by the university without the knowledge of the secretary or his staff. The center housed election registration, ballot building and election management and training programs under a contract with the secretary of state until December 2017.

State lawyers also said the plaintiffs “did not raise any claims related to any election in which the [Center for Election Services] web server was in use until well after the server and its backup were repurposed.”

The state brief also said the defendants “have done nothing to remove election information” from electronic voting machines or their reusable memory cards which they argued would not be altered, even if repeatedly deployed. The brief also contends that, when the lawsuit was originally filed, the state “could not have reasonably anticipated that the webserver and its backup would need to be preserved.”

The brief was signed by special assistant state attorneys general Vincent Russo and Joshua Belinfante, who are leading a team of lawyers from Atlanta’s The Robbins Firm. Bryan Tyson, a partner at Taylor English Duma, also a special assistant state AG, signed the brief, too.

Atlanta attorney Cary Ichter, who wrote the spoliation brief and is co-counsel for the nonprofit Coalition for Good Governance and number of plaintiff voters—said “Our definition of repurposed is ‘spoliated.’”

“The state ‘repurposed’ these computers by wiping them clean, much like shredding documents ‘repurposes’ the documents into trash,” Ichter said.

Ichter and co-counsel Bruce Brown also contend that election server data was destroyed despite numerous requests, notifications and discussions emphasizing the need for preservation.

They also claim the state failed to preserve memory cards used to program electronic voting equipment or make forensic images of that data before reusing the cards in subsequent elections. They also contend the state didn’t preserve data contained in the internal memories of the electronic voting machines before redeploying them.

The state’s lawyers say the evidence sought by the voters and the coalition still exists and “remains available … in the normal course of discovery.”

Their brief also claims memory cards and the internal memories of each electronic voting machine are not written over or altered by subsequent use. “As a result, there was no need to stop using existing memory cards or [electronic voting machines] because all past information remained available for continued examination,” the brief states.

State lawyers also said the FBI retained an image of the KSU servers and that the state has requested a copy that it will provide “in response to discovery requests.” But they also said the FBI has not given the state a copy.

The FBI opened an investigation in 2017 after a cybersecurity expert first notified KSU prior to the 2016 election that he was able to access key election system files online, including voter registration files with driver’s license numbers, birthdates and home addresses, according to court records. That expert, Logan Lamb, also submitted affidavits saying he could publicly access at least 15 counties’ election management databases that were used to create ballots, program voting machine memory cards, tally and report votes.

In March 2017, despite his warnings, Lamb discovered the data was still publicly available and notified KSU a second time, according to court records.

Ichter said a central issue in the case is whether the state has addressed the impact of leaving its election server open on the internet for months.

“The state, by wiping the server clean, destroyed the only evidence of what was exposed to the world,” he said. “That the state would destroy this evidence, change its story about what happened, and then deny the relevance of the evidence, is further proof that it cannot be trusted to run elections on electronic machines and the only hope for preserving election integrity in Georgia is to hold elections using hand-marked paper ballots, which can be audited and recounted if necessary.”

Washington, D.C., lawyer David Cross, a Morrison & Foerster partner who also represents a number of Georgia voters in the suit, called the state’s response “their latest effort to revise history.” Cross said the state brief ignored comments Kemp made to the Gainesville Times in January 2018 that wiping the KSU election servers was “undeniable ineptitude” and “really incompetence.”

“Even he acknowledged that what they did with the servers was not normal operating procedure or otherwise appropriate,” Cross said.