Bruce Brown (left) and David Cross. (Photos: John Disney and Diego M. Radzinschi/ALM)

Attorneys representing Georgia voters and an election transparency organization battling state election officials for a return to paper ballots have asked a federal judge to award them an estimated $5.6 million in legal fees and expenses. 

Judge Amy Totenberg, of the U.S. District Court for the Northern District of Georgia

The fee requests cited orders by Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia—one last month and one last year—as proof the fees are warranted and that the litigation has already resulted in "fail-safe alternatives" to protect the security and validity of Georgia elections, beginning Jan. 1. The motions also cited Totenberg's refusal to dismiss the case last May.

The fees stem from a 2017 suit against the secretary of state and the state elections board claiming that Georgia voters have a constitutional right "to cast a vote that is properly counted." The state's use of paperless electronic voting machines and its reliance on a computerized voting system powered by obsolete software with a demonstrated vulnerability to hackers violates that right, the suit contends. 

A team of lawyers representing the nonprofit Coalition for Good Governance and several plaintiff voters is seeking approximately $1.6 million in fees and expenses. The lawyers include Atlanta attorney Bruce Brown, Cary Ichter of Atlanta's Ichter Davis, Seattle attorney Robert McGuire and John Powers and Ezra Rosenberg of the Washington, D.C.-based Lawyers' Committee for Civil Rights Under Law. 

Attorneys for a second group of voter plaintiffs have asked for nearly $4 million in fees and expenses. They include a team from the Washington, D.C., offices of Morrison & Foerster led by partner David Cross and two attorneys with Atlanta's Krevolin & Horst. 

The motions also warn that the plaintiffs' lawyers may seek additional fees and expenses associated with enforcing last month's injunction by Totenberg or litigating the fees. 

Tess Hammock, a spokeswoman for Secretary of State Brad Raffensperger, said he "will work to protect taxpayers from these demands" and "will continue to move forward" with implementing a new system the state has purchased.

Coalition lawyers said in their motion that Totenberg's injunction "already constitutes success on the merits," thus entitling them to reasonable legal fees and expenses. 

"Over the course of this litigation, the plaintiffs amassed mountains of evidence and expert testimony proving the defective operation of the DRE [direct-recording electronic] voting system and the inadequacy and security risks it posed," they contend. 

Totenberg's Aug. 14 order barred Georgia from using its paperless voting equipment after Jan. 1. The judge also ordered Raffensperger to develop a plan for the use of paper ballots during the March 2020 primary and beyond if the state fails to fully implement a new system that it just contracted to purchase in July. 

Totenberg gave the state a Jan. 3 deadline to develop the default plan. She also ordered the secretary of state to select a number of jurisdictions to conduct elections with hand-marked paper ballots, optical scanners and "voter-verifiable, auditable ballot records" during the November 2019 election.  

Last September, Totenberg declined to order the state to use paper ballots during the 2018 election, although she held that the plaintiff voters and the coalition were "substantially likely to succeed on the merits of their claims." But the judge said in her order that she feared an immediate rollout of paper ballots statewide likely would adversely impact an orderly, fair election. 

She warned the state at the time that any new balloting system must address the need for "transparent, fair, accurate, and verifiable processes" guaranteeing the fundamental right "to cast an accountable vote." 

She also warned the state that any further delays in junking the current system "would be intolerable." 

In her August order, Totenberg said the secretary of state and state election officials "have been slow and poorly equipped" in tackling the challenges and deficiencies of the state's current system. The judge also criticized state election officials and their lawyers for "inconsistent candor with the court" over the security of the state's voting system servers and the discovery that confidential information from the state voter registration database was publicly accessible for at least six months while it was housed at Kennesaw State University's Center for Election Systems, which then had a contract with the secretary of state. 

Totenberg also said that evidence introduced during the litigation "demonstrates the perilous vulnerability and unreliability of the state's electronic voter registration system as well as its burdening of Georgia citizens' right to cast a vote that reliably will be counted."