Curling v. Raffensperger and California
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Georgia Court Decision on Electronic Voting Systems Has Implications for California and Other States
JANUARY 18, 2024 UPDATED FEBRUARY 3, 2024
by Team Hope Library’s Martha Scheeler and Lori Gardner
On November 10, 2023, Judge Amy Totenberg of the United States District Court of the Northern District of Georgia issued a 135-page decision on the defendants’ motions for summary judgment or, alternatively, adjudication of issues, in Curling v. Raffensperger, Case No. 1:17-cv-2989-AT. The court’s Opinion and Order can be accessed here. The Opinion lists a long cast of characters on page 7. Those who want to know more about voting systems would be wise to read the glossary of terms on page 13.
Joe Hoft emphatically declared this is a big deal in an interview with Paul Preston on American Exceptionalism News Network the week after the ruling. John Eastman was interviewed on the same show about California State Bar attempting to disbar him for asking questions about the 2020 election and his relationship with Donald Trump. Mr. Eastman also suggested that the Curling opinion was a significant development. This got our attention.
Team Hope, a small group of California patriots who have been requesting public election records for over 2 years, created this analysis oHohhto break down and summarize the 135 well-written pages of the case. This is not intended to substitute for professional legal analysis as we are just private citizens who asked for a lot of records and as a result, learned a lot about elections. We simply love our state and want to restore the freedoms that have been systematically stolen from us.
The defendant, Georgia Secretary of State, Brad Raffensperger, filed a Motion for Summary Judgment and this order was written in response to that motion. A summary judgment would have rejected the plaintiffs’ entire case without trial based on written witness declarations and legal argument. In this case, some issues were adjudicated (or decided) in the defendants’ favor, but the main issue of whether the election system violates the plaintiffs’ constitutional right to have their votes counted properly remains, and the case is set for trial on January 9, 2024.
The case was filed in 2017, before the 2020 election, when Georgia was using throughout the state a direct-recording electronic (DRE) voting system. DRE machines record votes using a touchscreen or buttons and the data is processed by computer. The digital records of the ballot selections are typically stored on memory devices and transported to a centralized location to tabulate the votes. According to sourcewatch.com, “Some machines have the capability to broadcast results over a modem-to-modem line.”
One issue that was of particular concern in this case was that the printout of the ballot had a QR code which the machine used to record the voter’s selections. The voter was able to look at the printed ballot to confirm selections, but the tabulator machine did not use that part of the ballot. The voter could not determine if the QR code reflected the same votes as had been selected.
Later, in response to the court’s order, that system was replaced with a ballot marking device (BMD) system. Since then, the court has issued various orders, and with each new election, new issues have arisen, resulting in amended complaints, new discovery, new requests for court orders, etc. Understanding what happened at each stage of the litigation is not as important as understanding how the legal and factual grounds for challenging the voting systems apply to voting systems used in California and in other states.
Although the case was filed in Georgia, the court relied on federal law that applies to all states, and the voting systems that are the subject of the case are also used in California as well as many other states.
We all want secure elections and many citizens throughout our country have discovered that our elections are not secure. When challenging the electronic systems or election procedures, concerned citizens will encounter many of the same issues addressed by the federal court in Georgia. In this article, we have included citations and links to topics and page numbers in the court’s opinion to help locate the parts that address problems you may have when challenging your county’s election system.
The Plaintiffs have standing.
Standing is the right of a particular plaintiff to bring a claim in a legal proceeding. In this case one plaintiff, the Coalition for Good Governance, was an organization, and the other eight plaintiffs were individuals. To have standing, it is not enough to be concerned that the defendants violated the law and want to see something done to correct that wrong. Each plaintiff must have been harmed by the defendants’ conduct. Individuals have standing if their rights have been violated and they have suffered harm. An organization has standing if its members have been harmed, or if the organization itself has been harmed (through costs of time or money incurred to address the harm the defendants caused.) p. 75
The trial court confirmed that the plaintiffs have standing. The 11th Circuit Court of Appeals already had ruled in their favor on this issue. The court acknowledged the harm caused to the Coalition for Good Governance by diversion of its resources and to the individual voters by the risk of not having their votes properly counted. This decision is consistent with the 9th Circuit Court’s decision in Election Integrity Project Cal. v. Weber No., 21-56061 (9th Cir. Nov. 3, 2022).
The Plaintiffs Prevailed on the Cybersecurity and Accuracy of Vote Counting Issues
The court made it clear that based on United States Supreme Court and other federal court authority that all qualified voters have a constitutionally protected right to vote and have the votes counted properly. p. 86 The United States Constitution protects not only against acts that interfere with efforts of qualified voters to cast ballots, but also protects against voting systems that create a risk of improper counting. Although the court did not address this issue, each time a noncitizen or other unqualified voter votes in our elections, that vote has the potential to cancel and eliminate the effect of qualified votes.
The plaintiffs succeeded in persuading the court that the Dominion ballot marking device system creates serious risks of corrupting our elections. The court quoted from its previous (October 11, 2020) injunction order: “The Plaintiff’s national cyber security experts convincingly present evidence that this is not a question of ‘might this actually ever happen?’—but ‘when it will happen’ . . ..” p. 90 The court made this finding even before Plaintiffs’ expert Dr. J. Alex Halderman issued his extensive report in July 2021. The Opinion and Order provided a “highly condensed summary” of the key vulnerabilities and main conclusions listed in the Halderman report, and then stated that report contains significantly more information. p. 39-44
The 7 key vulnerabilities are:
- The QR codes can be altered to change voter selections.
- Anyone with brief physical access to the machines can install malware.
- The smart cards the Ballot Marking Devices (BMD) system uses to gain access can be reprogrammed, and then used to install malware.
- If attackers execute arbitrary code with supervisory privileges, they can spread malware across an entire county or state.
- The BMD audit logs can be altered.
- Someone with brief access to a single BMD or to a single poll worker card and pin can get the cryptographic keys used to protect election results from unauthorized access.
- An election worker with brief access to the count scanner’s memory card can determine how individual voters voted.
The main conclusions are:
- The BMD system is not secure against cyber-attacks that can alter votes.
- The BMD system can be compromised as easily as, or more easily than, the Direct Recording Electronic (DRE) system that they replaced in response to an earlier court order in the same case.
- Malware can change individual votes and most election outcomes without detection.
- The vulnerabilities make it possible for cheating to be undetectable through an audit.
- Using the BMD system for every in-person voter (not just those who need special assistance) greatly magnifies the security risks.
- Because the BMD system was developed without enough attention to security to begin with, it would be extremely difficult to retrofit security into the system.
Although the challenge to the DRE system is for the most part not an open legal question because the system no longer is in use due to prior court rulings in this case. The court, however, ruled that the Plaintiffs may still challenge elements of the DRE system that were carried over to the BMD system. p. 109
In the summary adjudication proceedings, the Plaintiffs presented new evidence that the PollPads were connected to the internet using the investigation of the voting system in Coffee County. One of the Coffee County investigators stated in his deposition, that the Coffee County Elections Supervisor, Misty Hampton, “showed me that it [the PollPad] was connected to the internet during its operation and that they literally could go order Domino’s Pizza and have it delivered while it was connected to the internet.”
The court referred to the investigation at Coffee as a “breach” although the investigation apparently was authorized by the Coffee County Elections Supervisor, Misty Hampton, who assisted them during the investigation. It is important to remember that these were not bad actors trying to manipulate the outcome of an election. They were seeking to understand and document the vulnerabilities of the system.
The investigators gathered important information. Such investigations should be conducted before election systems are certified, or whenever there is reason to believe that voters rights are being violated by non-transparent voting systems that are able to be manipulated so as to violate the right to vote and have votes counted properly.
The public should have access to the findings. The excuse for not releasing the findings was that it could expose the voting systems to hacking. This argument all but admits they are hackable. If such investigations result in bad actors learning new ways to manipulate a voting system, the system subject to such manipulation should not be used at all.
Geogia requires all counties to the use the same voting system but allows the use of hand-marked paper ballots if the use of the ballot marking devices becomes “impossible or impracticable”. If the court finds at trial that the security issues cannot be resolved and that continued use of the BMD voting system will create a risk that some votes will go uncounted or be improperly counted, the court should under current Georgia law order use of hand-marked paper ballots.
However, the court expressed concern that this remedy would invade “the legislature’s sphere”, even though this remedy has been prescribed by the legislature. p. 102 The court is more inclined to require printed ballots, stop the use of QR codes, require broader and more frequent audits, or adopt other measure recommended by cyber security experts. p. 5
Defendants Obtained Summary Adjudication on Some Issues.
In a previous injunction hearing, the court had found that the defendants improperly used scanner settings that would prevent in person votes from being counted but left open the question of what settings should be used. In this ruling, the court decided that the Plaintiffs should take this issue to the State Election Board or a state (as opposed to federal) court. p. 122
The court rejected the claim that the Dominion BMD system deprived them of ballot secrecy. In-person voters had said that they felt uncomfortable using a large screen visible to others, but there was no evidence of actual harm. p. 124
Although there was enough evidence that the PollPads were connected to the internet to defeat defendants’ motion on this issue, the court granted the defendants’ motion for summary judgment on another issue related to poll books: the plaintiffs’ demand that
backup paper copies of the voter database be updated after the initial printing (within a week of the election). p. 123 The court could not defy the 11th Circuit Court of Appeals’ opinion cancelling its preliminary injunction without new evidence.
Can California Citizens (and Citizens of Other States) Work to Solve Problems Addressed in the Georgia Case?
Based on the evidence and judicial review, we need to eliminate the problems with election systems and procedures in our state.
Of the 58 counties in California using electronic voting systems, 40 use Dominion Voting Systems including Dominion ballot marking devices. 18 counties use other systems, such as Hart Verity, ES&S or VSAP (Los Angeles only). To determine what voting system is in use, you can go to this list of voting technologies in use by county. Of special note, Dominion Voting Systems leases ballot adjudication software to all counties using Hart Verity or ES&S. We do not know whether Los Angeles County has a lease with Dominion for the VSAP system, which is a modified version of a Smartmatic system.
As in Georgia, in California PollPads are connected to the internet. Until November 3, 2020, the PollPads were considered part of the voting system and required certification. By this definition, PollPads, are not excluded.
California Election Code Section 362 defines “voting system.”
“’Voting system’ means a mechanical, electromechanical, or electronic system and its software, or any combination of these used for casting a ballot, tabulating votes, or both. ‘Voting system’ does not include a remote accessible vote by mail system.”
Regardless of what election officials claim, they are part of the California voting system and not expressly excluded. Although remote accessible vote-by-mail is expressly excluded, it should not be. It is also part of the voting system. There is no reasonable basis for excluding them from the certification process. What they have in common is that they are connected to the internet and continue to present security risks. The California Secretary of State removed PollPads from their published list of electronic voting systems when citizens began to raise awareness that the system was connected to the internet.
In California and other states, the logic and accuracy tests applied before certification of the components of the system do not address the types of security risks documented in the Curling case. Greater scrutiny must be applied so that we can trust our elections again. We should strongly consider the hand counting of votes which we will cover in part two if this series “Decades of Serious Issues with Electronic Voting Systems.”
Can we ever trust machine counting of ballots? The answer is in Professors Bishop and Wagner’s 2007 article. The answer is no. We cannot trust machines to count ballots, “The security vulnerabilities we found highlight the importance of election auditing: without audits, there may be no way to rebut suspicion of tampering.”
We believe that the best way to assure that tabulation actually represents the will of the voter is to hand count the ballots. All ballots must correspond with a legally registered voter who provides verification with voter ID to register and to vote. Mail in ballots must be just for those who have provided the paperwork for absentee voting with chain of custody from the moment they are delivered to the election’s office. They must be guarded, surveilled and unopened until election day and then signatures compared on site to voter registration.
Computer science pioneer, Adam Osborne, warned us, “Using computers to count votes makes the vote counting process a little cheaper and a little faster. Is it worth it? I think not. To give the public election results on the night of the election, rather than the following morning, hardly constitutes an achievement for which it is worth jeopardizing the security of the ballot. And counting votes by hand is not so very expensive. The ballot is the basis for democracy. Let us involve as many people as possible in the voting process, and do everything in our power to make vote rigging harder not easier. The use of computers in ballot counting must be banned.”
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Discussion: This photo left more questions to be answered, but denied opportunity to return to ask.
The cyber election team tech saw shelves of sorted ballots in this ballot storage room.
However, this pallet of ballots was separate from the ballots on the shelves, and dated 12/15/20 on the outside of the plastic wrap around the ballot.
Warehouse workers have full and unsupervised access to ballot storage room.
