Amy Totenberg testifies during her confirmation hearing to be a judge on the U.S. District Court for the Northern District of Georgia. Sept. 15, 2010. (Photo: Diego M. Radzinschi/ALM)

A federal judge in Atlanta has issued an injunction barring Georgia from using its obsolete voting system after 2019 in an order reflecting her alarm about election security heading into the 2020 presidential race.

In a 153-page order, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia agreed on Thursday to allow the state to use the 18-year-old electronic voting machines, which still operate on software that expired more than five years ago and have no paper trail, one last time in statewide municipal and county elections scheduled for November.

But Totenberg ordered Georgia Secretary of State Brad Raffensperger to develop a plan for the March 2020 presidential primary and beyond, if the state fails to put in place a new system it just contracted to purchase on July 29. That contingency plan must provide for the use of hand-marked paper ballots in coordination with optical ballot scanners and other equipment the state has said is included in its new electronic voting system purchase contract.

“The long and twisting saga of Georgia’s non-auditable … voting system–running on software of almost two decades vintage with well-known flaws and vulnerabilities and limited cybersecurity–is finally headed toward its conclusion,” Totenberg said.

Lawyers representing two groups of Georgia voters and the Coalition for Good Governance, a nonprofit organization dedicated to election integrity and transparency that has long sought a return to paper ballots, called the ruling a “significant victory.”

Atlanta attorneys Bruce Brown and Cary Ichter of Ichter Davis joined with Seattle attorney Robert McGuire and a team of lawyers led by John Powers from the Washington, D.C.-based Lawyers for Civil Rights Under Law on behalf of the coalition and a group of voters.

David Cross, a partner at Morrison & Foerster in Washington, heads a team of lawyers on behalf of a second group of voters. Cross’ team includes Atlanta attorneys Adam Sparks and Halsey Knapp of Krevolin Horst.

“Today’s historic decision is a major win for Georgia’s voters and a significant step forward in the fight to ensure election integrity,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

The opinion underscores the “cavalier” attitude the state had toward the problems with its aging electronic system, she added.

Said Cross: “The court ordered Georgia to finally take critical steps it has long refused to take to protect elections against interference and voters against disenfranchisement.”

Raffensperger said the order “endorsed the policy decisions of the state’s elected officials” to adopt a new voting system and that his office is moving to implement that system in time for next year’s presidential primary.

“While we fully expect these activists and their attorneys to incessantly use scare tactics to try to undermine Georgia elections, their own experts admitted under oath that there is no evidence of Georgia’s voting machines ever being compromised or not accurately counting the votes of our citizens,” he said.

Raffensperger is represented by  a team of lawyers from the Robbins Firm led by Joshua Belinfante and Vincent Russo, and by Bryan Tyson of Taylor English Duma. The lawyers have appointments as special assistant state attorney generals.

Totenberg withheld her approval of the new system  that will replace the antiquated machines. She noted the state’s own expert is not a fan of  the new devices chosen by Georgia for its new $106 million election system and that the accuracy of those  ballots still cannot be verified by individual voters.

“The past may here be prologue anew,” she added.  “It may be “like déjà vu all over again.”

The judge also said in her order that the state “minimized, erased, or dodged the issues underlying this case” and “have been slow and poorly equipped in tackling the security and functionality challenges afflicting its current voting system.”

She also called out the state for “inconsistent candor with the court” about the security of the election system servers, voting security issues and the discovery by a cybersecurity expert in August 2016 that confidential voter and election information was publicly accessible via the internet.

Marilyn Marks, executive director of the Coalition for Good Governance, said that the coalition plaintiffs plan to  file a legal challenge to the state’s new voting system that she said “is just as insecure and un-auditable as the current system.”

Totenberg said her order is intended to ensure the state’s obsolete voting system “is not resorted to as a stopgap default system in the event the secretary of state and its contractor are unable to fully and properly roll out the new … system in time for the 2020 presidential preference primary or any of the ensuing elections.”

Totenberg said she was doing so because, while the state maintains its planned new voting system will be rolled out in time for the March primary, “The Court has reason to doubt that.” Totenberg said that dates and details supplied by the secretary of state’s attorneys in court pleadings and during a court hearing last month “have been a moving target.”

Totenberg directed the state to implement a pilot election in November using hand-marked paper ballots along with optical ballot scanners and voter-verifiable, auditable ballot records as part of the 2020 default plan.

She ordered the secretary of state to develop the default plan no later than Jan. 3. She also directed the state to put in place procedures to be undertaken to address errors and discrepancies in the state’s voter registration database that may cause eligible voters to be omitted from electronic poll books distributed to every precinct, receive the wrong ballot, be assigned to the wrong precinct in the poll book or be otherwise be prevented from casting a ballot in their properly assigned precinct.

Totenberg also required the state to furnish each precinct with at least one paper printout of the voter registration list for that precinct.

Totenberg also ordered the secretary of state to work with its consulting cybersecurity firm to conduct an in-depth review to address concerns raised by the previous exposure to the public of the voter registration database.