Georgia Lawsuit Filed over E-Voting Questionability


By Kristina Cates, Staff Writer, Atlanta Progressive News

July 13, 2006


(APN) ATLANTA – Representatives from VoterGA filed suit this morning against Secretary of State Cathy Cox, the Georgia State Election Board, and Governor Sonny Purdue over the current electronic voting system as well as the audit trail pilot project.


VoterGA held a press conference to discuss the lawsuit this morning at a downtown hotel. Afterwards, Atlanta Progressive News joined activists in a procession to go file the suit.


VoterGA is representing the largest group of impacted citizens in Georgia legal history.


Plaintiffs include members from other voter rights organizations, such as Defenders of Democracy, and members of several political parties including the Libertarian, Green, and Constitution parties of Georgia. The plaintiffs are Garland Favorito, Mark Sawyer, Ricardo Davis, Al Herman, Freida Smith, Kathryn Weitzel, and Adam Shapiro.


Shapiro, a radio host of Current Events on 89.3 WRFG Radio Free Georgia, is blind, and is adding his own concerns about E-voting to the suit specifically related to his lack of eyesight.


There are seven counts being brought against the defendants, including five against the current system and two against the audit trail pilot project. The filing also states the court has jurisdiction over the matter as per the US Constitution.


“Plaintiffs are electors of the State of Georgia opposed to Georgia's use of Diebold Touch-Screen voting machines, hereinafter "DVMS", as currently used and configured,” a copy of the brief obtained by Atlanta Progressive News reads.


“Said DVMS are being used throughout the State of Georgia in its elections and referenda in derogation of Plaintiffs' legal and constitutional rights to have verifiable, auditable, and recount-capable election results available to them, to election officials, and to the public so as to properly safeguard the integrity, credibility, and reliability of the electoral process,” the brief says.


The suit alleges Georgia’s election process isn’t currently legal, as the elections process lacks a number of vital components named in the state’s election code.


For instance, the suit claims a true recount is impossible at present, as there is no way to determine voter intent or the integrity of the vote itself without a paper trail.


"What we're trying to do is protect the future voting rights of nine million people," Garland Favorito, one spokesperson for VoterGA, said in a previous press conference two weeks ago which discussed the plans for the lawsuit at that time.


"All direct physical evidence of voter intent has been removed from Georgia elections," Favorito said.


The lawsuit will not attempt to get an injunction to halt the upcoming Primary Election. The organization is hopeful a judge may decide to do that, though, Favorito told Atlanta Progressive News in a phone interview.


"We don't want to jeopardize the suit," Favorito said.


VoterGA ultimately wants a judge to issue an injunction that would force fair elections systems; however, they're just not specifying it needs to be by Tuesday’s Primary Election.


"This is more of a long-term issue. Georgians are going to have to hope and pray for fair elections," until VoterGA's proposals are adopted, Attorney Walker Chandler said on behalf of VoterGA.


"It's going to take expert witnesses who can explain to any court why the methods being used are not reliable," Chandler said.


The suit is not a vilification of E-Voting itself.


"We're not suing against E-Voting in general. We're just against implementing E-Voting that it can't be verified, audited, or recounted," Favorito said.


In fact, Garland Favorito, VoterGA Cofounder, believes the systems used before the 2002 transition were more than capable, he said today. At that time, 83% of voting was done with a combination of optical scanning and punch cards, a system that was easy to audit and to verify. It also ensured the ballot was secret, which is another very specific part of election law.


Those machines were replaced, of course, when the state purchased the $54,000,000 Diebold system currently in use. That system which has been rated by studies conducted at Stanford, MIT, and Johns Hopkins, among other studies, as having serious flaws in its programming and security.


The corruptibility of the software is the key fear. “Software can be changed to distribute 52% of the vote to Big Brother and the rest to Big Brother’s noble opponent,” Chandler said.


None of this is news to Georgians, however.


The past four years have seen Georgians being bombarded by the fact the current system lacks integrity, even being named last nationally by Free Congress in 2004.


So how is this action by VoterGA different from the rest?


For one thing, they aren’t accusing the state of fraud – yet.


Instead, the plaintiffs contend the lack of any paper ballot, along with the fallibility of the software and lack of random audits, makes fraud undetectable. And that’s the problem: that’s impossible to know.


"It's important in Georgia that we do not rely upon trust. Trust is not the issue. Integrity is the issue," Sawyer said.


Cox, who is now running for Governor, now says she supports a voter verifiable paper trail for electronic voting, but Diebold wants $17 million more to provide electronic voting systems that come with printers.


But here’s the weird part. The current machines already HAVE printers which are used at the beginning and the end of the day of the election. And it would only take programming and not so much money to get them to print a Voter Verifiable Paper Audit Trail, John Fortuin said at a screening of American Blackout at the First Iconium Baptist Church this evening.


VoterGA says there are three main themes to the changes they want to see to restore voter confidence and elections integrity:


(1) Implementing voting equipment that reads or writes real ballots.


(2) Implement procedures to ensure the machines counted votes accurately on election night.


(3) If discrepancies are found, allow a candidate a race recount at no charge to candidate or other parties.


Currently, the Diebold machines in use do not read or write ballots. Optical scan machines could do that, VoterGA said.


"You've got to be able to introduce an individual separate ballot. The word ballot is in the Constitution," Favorito said.


"Did the Framers think a 'ballot' is going to be an electronic record?" Favorito said.


And that’s the basis of the first count in the lawsuit. The Georgia Constitution requires a secret ballot. The Official Code of Georgia (OCGA) says this can be an electronic or printed record.


VoterGA says the code passed by the Georgia legislature is inconsistent with the Georgia Constitution.


Webster’s Dictionary has defined a ballot as “a ball, ticket, paper, or the like by which one votes” since the time the Constitutional law was written, the VoterGA lawsuit brief says.


"It's a matter of integrity. An honest administration might yield to a dishonest administration in the future," Chandler said.


"What about recounts?" Chandler exclaimed.


"We'll just plug in the machines and see what the machines say? That's what we got the first time." Chandler said.


Meanwhile, there’s the issue of the paper trail pilot system: the watered down compromise accepted by the Georgia Legislature in the most recent session.


Legislation did pass the Georgia State Legislature which establishes a 2006 audit trail pilot, VoterGA said. However, only three of over 3000 precincts would have the pilot and the pilot is self-repealing.


And there was another issues on people’s minds.


Secretary of Cathy Cox’s role continues to be under question since yet another press conference held by Defenders of Democracy discussed the matter a few weeks ago.


The suit is especially timely, as Georgia is on the verge of another unprecedented event: for the first time, a candidate running for governor will be responsible for verifying the results of her own election.


That’s right, come July 18th, and then possibly again in November, Cathy Cox will have to fulfill the responsibilities of her office and verify the election and thus the results of her own election.


Not that the folks at VoterGA are crying foul.


Mark Sawyer, plaintiff in the case and co-founder of Defenders of Democracy, is quick to point out the difference. “Conflict of interest is not evidence of wrongdoing,” Sawyer said. Still, the conflict of interest alone is enough to cause concern.


Atlanta Progressive News was recognized by VoterGA at today’s press conference for providing the most thorough coverage on this issue of any news organization. We will continue to follow the lawsuit through the judicial process.


This article includes some reprinting of material from a previous article in Atlanta Progressive News by Matthew Cardinale and Sarah Epting. More previous coverage of the E-Voting issue is available at


About the authors:

Kristina Cates is a Staff Writer at Atlanta Progressive News and may be reached at


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