Attorneys representing Georgia voters who want to force the state to conduct future elections with paper ballots, have asked a federal judge to sanction the secretary of state and order him to pay nearly $300,000 in legal fees and costs for allegedly obstructing discovery.

In a motion filed late Friday, attorney David Cross of Morrison & Foerster in Washington, D.C., contended that Georgia Secretary of State Brad Raffensperger "obstructed and delayed discovery" of the state's obsolete election management server and databases for months based on "a falsehood."

In the motion, Cross contends sanctions are warranted because Raffensperger's counsel—three of whom are special assistant state attorneys general—falsely claimed in multiple court pleadings and teleconferences that the Global Election Management System used by the state since 2002 is so unique, confidential and sensitive that even the plaintiffs' cybersecurity experts couldn't be trusted with copies in highly secure environments. Known as GEMS, the server and databases include ballot templates and vote tabulations for every election and are used to program memory cards for Georgia's electronic voting machines.

The plaintiffs have fought to examine the GEMS server and databases to determine whether they were infected with malware or otherwise compromised while they were left open on the internet for an undetermined period of time before and after the 2016 presidential election. At that time, Georgia was one of several states targeted by Russian intelligence officers allegedly seeking to interfere with the U.S. presidential election.

Raffensperger's lawyers have argued the state's election equipment remained secure from hackers and that the plaintiffs raised "only spectral fears" that the voting apparatus could be hacked and votes miscounted. 

After Georgia's GEMS databases were turned over, Cross said their cybersecurity experts discovered they are exactly like publicly available GEMS databases from other jurisdictions and contain virtually no confidential information.

Cross said in his motion that plaintiffs counsel also learned at a July hearing that, although the state vigorously fought against turning over the GEMS databases to the plaintiffs' experts, citing potential security breaches, the same databases used in the 2018 election were created by three offsite contractors in their homes without verifiably secured conditions or confidentiality agreements to safeguard them.

"The state engaged in what looks to be a concerted campaign to mislead us, the court, and the public about the fact that Georgia's election management system is neither unique nor confidential," Cross said Monday. "This included repeated misrepresentations to us and the Court, which persisted even after we specifically directed the state to other GEMS databases available online—including from Cobb County—that readily debunked their claims."

"It's unclear what the state was trying to hide, but we wasted hundreds of thousands of dollars fighting their obstruction and wasted many hours in the weeks leading up to the preliminary injunction hearing," he continued. "In the end, the state indicted its own election system by arguing that the GEMS database structure provides a 'roadmap' to hack Georgia's elections—and the state ultimately was forced to admit that that 'roadmap' has been publicly available on the internet for years. We're entitled to recover our wasted fees and costs from the state, and the Court should send a compelling message that such misconduct is not appropriate and will not be tolerated."

Cross, a team of Morrison & Foerster lawyers, and Atlanta attorney Halsey Knapp of Krevolin & Horst represent three Georgia voters who are lead plaintiffs in the suit. Cross was joined in the motion by Atlanta attorneys Bruce Brown and Cary Ichter, and Seattle attorney Robert McGuire, who represent several other Georgia voters and the Coalition for Good Governance, a nonprofit organization dedicated to election transparency. 

Attorneys Joshua Belinfante and Vincent Russo of Atlanta's The Robbins Firm and Bryan Tyson of the Atlanta offices of Taylor English Duma are defending Raffensperger, along with the secretary's general counsel, Ryan Germany. Belinfante was not available for comment. Russo, Tyson, and two  representatives for Raffensperger couldn't be reached for comment.

Cross said in his motion that the costs to the plaintiffs were significant. Cross bills at $1,065 an hour, and three associates bill at hourly rates ranging from $650 to $800. Brown bills $650 an hour, and David Brody, counsel and senior fellow with the Lawyers' Committee for Civil Rights Under Law, who is also working for the coalition plaintiffs, bills at $400 an hour. Nearly $100,000 in requested fees are for the plaintiffs' election cybersecurity experts, according to the motion.

The sanctions motion follows one filed by the plaintiffs' lawyers asking for $5.6 million in legal fees and expenses following U.S. District Judge Amy Totenberg's August order barring Georgia from using its paperless, 17-year-old electronic voting equipment after Jan. 1. The state is purchasing a new electronic system that Raffensperger is promoting across the state as including a paper ballot feature.

Raffensperger has objected to any award of fees and costs to the plaintiffs lawyers until the court has entered a final judgment. Totenberg's August order was a preliminary injunction that allowed the state leeway to let local elections go forward in November using the current equipment.

State lawyers also claimed that the plaintiffs lawyers did not provide sufficient documentation to support their request for fees and expenses, and that costs associated with their experts exceeded per diem limits for federal witnesses.

State lawyers also objected to more than $26,000 the plaintiffs paid the secretary of state to produce public records, arguing there is "no evidence"  the records were necessary, and that discovery would have been a less costly way of obtaining the same records.