Georgia's Secretary of State Brad Raffensperger. (Courtesy photo)

Georgia Secretary of State Brad Raffensperger's decision to investigate three people who are challenging Georgia's election practices will backfire, said an attorney litigating the cases.

"Any citizen who dares criticize the secretary's stewardship of the state's election system is apparently a target," said Atlanta attorney Bruce Brown after Raffensperger's general counsel Ryan Germany notified him the office is investigating three people who monitored voting on the state's new ballot marking devices in six pilot locations on Election Day.

The new ballot marking devices, which the state contracted to purchase in late July and promises to have in place by the 2020 presidential primary next March, are at issue in an ongoing federal challenge to compel Georgia to return to paper ballots. Raffensperger is a defendant in the case.

Brown branded the investigation "breathtakingly stupid. … This may be an attempt to intimidate. It will not be successful."

But, he added, "This isn't the story. The story is whether the state will be ready to hold constitutionally acceptable elections in 2020. And apparently, anything that can distract the public from that crucial question is something the secretary is interested in."

The complaint identifies the targets of the investigation as Marilyn Marks, executive director of the Coalition for Good Governance; Richard DeMillo, a cybersecurity expert and former chief technology officer for Hewlett-Packard who is now a computing professor at the Georgia Institute of Technology; and DeMillo's wife, Rhonda J. Martin, a plaintiff in a case that challenged the validity of Lt. Gov. Geoff Duncan's election and a second case seeking to end the state's practice of rejecting absentee ballots and ballot applications over allegedly mismatched voter signatures.

Brown represents Martin, a former software engineer and a voter integrity advocate, and the coalition, an election transparency organization that has spearheaded the push to junk Georgia's obsolete electronic voting equipment since 2017. Brown said he also has relied extensively on DeMillo "as a nationally recognized expert … of unquestioned integrity" in the cybersecurity field.

In an August order, Judge Amy Totenberg, who is presiding over the paper ballot challenge in the U.S. District Court for the Northern District of Georgia, noted that the state said it would conduct pilot demonstrations of new electronic voting machines during the November election and also ordered a pilot demonstration using hand-marked paper ballots. Marks, DeMillo and Martin were among volunteer observers who monitored the demonstrations on Election Day.

The complaint initiating the investigation alleges that DeMillo, Marks and Martin "were all observed inside the enclosed space, without authorization," at a Paulding County polling location for more than 90 minutes. Filed by Adrick Hall, a Raffensperger investigator, it lists the complainant as the secretary of state.

Raffensperger's spokesman, Walter Jones, said Thursday that the secretary of state's office was notified that the trio were "interfering with voters by being in unauthorized areas" and were "in an area of the polling place where only voters and election officials are allowed to be."

The complaint makes no reference to any complaint by a voter, poll worker or county election official.

Jones said the trio "happen to be litigants against the people of Georgia." Only Martin is a litigant.

Jones also said the case was opened "based on comments we had gotten from other individuals." Jones wouldn't say whether those individuals were voters or election officials and how many there were. "It's an ongoing investigation," he said.

On Thursday, DeMillo, Marks and Martin confirmed they were at the Paulding County government complex in Dallas to observe how well the new ballot marking devices operated. All three said they introduced themselves to county election officials, asked where they could observe without interfering with voters, and went only where they were directed. They said no one complained to them that they were in an unauthorized location or otherwise interfering.

Marks, who was a certified poll watcher for the Libertarian Party in 2018, called the investigation "clearly an intimidation ploy."

"I think that the intended targets are actually several citizen volunteer observers who witnessed the new voting system pilot elections through early voting and also on Election Day," she said. "Officials are aware that these volunteers documented countless problems with poll books, defective machines, violations of secret ballots and voter privacy, scanner problems, and numerous other system failures. By making false claims of election law violation against those engaged in public observation, he may believe that he can keep those observers from testifying in court about the failures they saw."

DeMillo said he was at the Paulding polling center less than half an hour. While there, he said he did "venture into an enclosed area" where the new voting machines were set up but was escorted by the poll manager.

Martin said she was shocked to learn she is under investigation. "Every place I went to observe voting I first introduced myself to the poll manager and asked if there was a place they wanted me to be. I totally followed any instructions given to me," she said.

"To come back and say we had broken some kind of rules was pretty outrageous," she added. "When we left, the poll manager asked if there was anything else we needed. … We had absolutely no indication there was a problem with our presence or anything else."