Georgia

Looking for Voter Registration Information for Your State?


Project Vote Smart has prepared an excellent guide to voter registration rules, deadlines, and procedures in all 50 states. Click the link below, then select your state from the dropdown list:
http://www.votesmart.org/voter_registration_resources.php

Also check the [Your State] Voter Registration Information link below to read a detailed profile of your state's voter registration database and state-specific voter registration policies. The report is part of the 50-state national survey titled Making the List, researched by the Brennan Center for Justice.

Additionally, we recommend getting and sharing a copy of the book Count My Vote!, a voters' self-defense guide to voter registration, election regulations, and voter ID laws in all 50 states.

By arrangement with publisher AlterNet, EDA is offering these handbooks at a 40% discount, just $6.00 plus postage.
Available here: Count My Vote

Please inform voter registration and election protection organizations about this important guide.

VoterGA Seeks Summary Judgment June 9 in State E-Voting Lawsuit

May 27, 2008
Garland Favorito of VoterGA writes:

Mark your calendars now. At long last we will get our first day in court. On Monday June 9 Todd Harding, with assistance from our lead counsel, Walker Chandler, will make an oral argument in support of his motion for Summary Judgment to remove the unverifiable voting machines throughout Georgia.

The Defendants will argue their motion to dismiss all counts of the lawsuit. All motions are posted on the voterga.org web site under the legal suit tab [ http://voterga.org/more/index.cfm?Fuseaction=more_15725 ].
The arguments will take place at 9:00 am in Fulton Co. Superior Court. Judge Johnson is the presiding judge.

The motion for Summary Judgment seeks to ban the Diebold AccuVote TS-R6 from Georgia on the grounds that sole reliance on an electronic ballot cannot provide protection equal to that of an absentee paper ballot used in Georgia.

The motion also seeks to ban the Diebold GEMS servers that are currently used to count both the electronic and optical scan votes in Georgia on the grounds that the state has already admitted that they cannot detect fraudulent manipulation of the vote and thereby they abridge the right to vote.

The motion further seeks to ban the Diebold AccuVote TSX machines piloted in Georgia on the grounds that their sequentially rolled election results jeopardize secrecy of the ballot as required by the Georgia Constitution, a point already admitted in a report from the office of the current Secretary of State.

Should any or all of these counts be upheld most of the arguments can be used in other states so they will have a nationwide impact.

If you are a Georgian, WE NEED YOU THERE. I am asking everyone who can make it to please come out and show that you support the lawsuit to restore the integrity of Georgia voting. Please wear your VoterGa pins or other related badges of support. This is our chance to make an impression on the judge that we care. I would expect the oral arguments to run less than one hour.


Courthouse Map and Directions: http://sca.fultoncourt.org/superiorcourt/pdf/AreaMap.pdf

Click here for more detail


If you are not from Georgia, but this case can help you rid your state of unverifiable electronic voting, please help us win these oral arguments by making a contribution to offset the court costs and legal fees for the arguments.

You can click here to make a donation or mail your contribution to:

Voter GA
P.O. Box 808
Decatur, Ga. 30031

Please remember that all contributions are fully tax deductible and that your entire contribution goes to exclusively to offset legal fees because we are an all volunteer organization.

We expect to receive a ruling in July.

Garland

404 664-4044


For a detailed discussion of each facet of this lawsuit, see http://www.electiondefensealliance.org/voterga_lawsuit


A Georgia State Audit Trail Chronology

A Georgia State Audit Trail Chronology

In the November 2000 Georgia election, approximately 82% of Georgians cast ballots on optical scan or punch card systems while roughly 17% cast their ballots on lever machines.

January 2001 -- Former Secretary of State, Cathy Cox, produced a report entitled “The 2000 Election: A Wake Up Call for Change and Reform.”

February 2001 -- Sen. Jack Hill introduced SB 213, in pertinent part “…to authorize the Secretary of State to conduct a pilot project to test electronic recording voting systems during the 2001 municipal elections…” and “…to create the Twenty-first Century Voting Commission…”

March, 2001 -- Senate State and Local Government Operations Committee (SLOGO), State Senate, House Governmental Affairs Committee, State House passed substitute or amended versions. The bill was signed by the governor as Act 166 of the Georgia Legislature on or about April 18, 2001 and it included the provision that:

“Such voting systems shall be required to have an independent audit trail for each vote cast.”

June 2001 -- The Twenty-first Century Voting Commission authorized seven DRE vendors to participate in the pilot and the Office of Secretary of State entered into contracts with the six certified vendors to provide equipment and support for the pilots. The vendors were Diversified Dynamics, Election Systems & Software, Global Election Systems (Now Diebold), Hart InterCivic, Shoup Voting Solutions, and Unilect.

December 2001 -- The 21st Century Voting Commission issued a report that documented pilot project experiences and made recommendations for the future. (One recommendation was that such machines "have an independent paper ballot audit trail for each vote cast").

January 2002 -- The Georgia Technology Authority issued a Request for Proposal that was drafted by the office of Secretary of State. (It did not contain the 21st Century Voting Commission recommendation or the legal requirement for an independent audit trail of each vote cast.)

On or about February of 2002 -- Sen. Jack Hill introduced SB 414 in pertinent part “...to provide that the state shall provide a uniform system of direct recording electronic voting equipment for use by counties in the state by 2004...”

On or about February 7, 2002, the Senate Rules Committee referred SB 414 to the Senate Ethics Committee where SB 414 bill sponsor, Jack Hill, was vice chairman.

Between February 7, 2002 and April 12 2002, the Ethics Committee, State Senate, House Governmental Affairs Committee, and State House passed substitute or amended versions of the bill.

May 3, 2002 -- Former Secretary of State Cathy Cox and former Georgia Technology Authority Director Larry Singer, entered into a contract with Diebold.

May 9, 2002 -- The governor signed the SB 414 bill into law as Act 789 of the Georgia Legislature.

November 2002 -- Georgia became the only state in the U.S. to conduct statewide elections on electronic voting machines. (To this date no other state uses electronic voting machines produced by a single vendor statewide).

March 4, 2004 -- Vendors Avante and TruVote demonstrated their voter verified paper ballot audit trail (VVPAT) equipment to the Senate SLOGO Committee.

March 11, 2004 -- The Senate SLOGO Committee passed SB 500 in pertinent part “...to provide all electronic recording voting systems to produce a permanent paper record of the votes recorded on such systems for each voter; to provide that voters have an opportunity to verify such record after voting; to provide that such paper records be retained for use in recounts and election challenge proceedings ...." The legislature took no further action on the bill.

March of 2006 -- The State Election Board voted to acquire Diebold electronic poll books at a cost of approximately 17 million dollars, roughly the same amount of money that the former Secretary had estimated would be needed to outfit existing voting machines with VVPAT printers if Diebold would support such an addition.

On or about February 1, 2006 Sen. Bill Stephens introduced another SB 500 bill, LC 28 2814, in pertinent part
“...so as to require all electronic recording voting systems to produce a permanent paper record of the votes recorded on such systems for each voter; to provide that voters have an opportunity to verify such record after voting; to provide for certain storage devices for such systems; to provide that such paper records be retained for use in recounts and election challenge proceedings; to provide for procedures for voting on electronic recording voting systems; to provide for a pilot program during the 2006 November general election and any runoff therefrom in certain counties...”

On or about February 9, 2006 the Senate SLOGO Committee adopted an emended version, LC 28 2884S.

On or about February 22, 2006 the Senate Rules Committee withdrew a version of the bill from the calendar and recommitted it to the SLOGO Committee.

On or about February 28, 2006 the version that was presented to the committee had been modified to be self repealing and read in pertinent part:

“... so as to provide for a pilot program during the 2006 November general election and any runoff therefrom in certain counties; to require that all electronic recording voting systems used in such pilot project produce a permanent paper record of the votes recorded on such systems for each voter; to provide that such voters have an opportunity to verify such record after voting; to provide for certain storage devices for such systems; to provide that such paper records be retained for use in recounts and election challenge proceedings....” The SLOGO committee adopted an amended version, LC 28 2953S.

On or about March 21, 2006 the House Governmental Affairs Committee voted to pass a committee substitute bill, LC 28 3088S, providing in pertinent part for a randomly selected, public precinct audit of one race.

March 24, 2006 -- The Drenner amendment, AM 28 0708, that sought to restore SB 500 provisions in pertinent part “... to require all electronic recording voting systems to produce a permanent paper record of the votes recorded on such systems for each voter...” was defeated on the floor of the House by a vote of 91-63.

On or about March 27, 2006 the Senate disagreed with the House amended version of SB 500 and a conference committee was established.

On or about March 29, 2006 the Conference Committee voted to drop the precinct hand count language from the SB500 bill at the request of the author, Senator Stephens.

March 31, 2005 -- The General Assembly passed SB 500 by a vote of 49-1 in the Senate and 151-0 in the House. The Governor signed the self-repealing bill into law as Act 646 on April 28, 2006.

July 2006 -- A group of plaintiffs brought a complaint alleging five counts of legal, constitutional, or other voting rights violations against the current method of voting and two additional counts against the 2006 pilot.

After the 2006 elections, the plaintiffs sought to amend the suit by adding candidates to help ensure that the Plaintiffs had appropriate standing. During discovery, the plaintiffs determined that the violations they alleged were likely a result of the machines being acquired illegally. They also uncovered evidence that voting machines were improperly certified for a variety of reasons including the lack of certification reports.

The plaintiffs then requested to amend the suit a second time to add counts that challenge the legality of the acquisition and certification. While preparing the first Motion for Summary Judgment, the attorneys for the plaintiffs identified potential federal violations of due process and equal protection. The plaintiffs then amended their suit a third time to add those counts in conjunction with the motion.


NOTES:

On or about March 1, 2001 the Senate State and Local Government Operations Committee (SLOGO) passed SB 213; and on or about March 13, 2001 the House Government Affairs Committee passed the bill.

On or about March 21, 2001, the General Assembly passed the bill that was amended by the House, and it was signed by the governor as Act 166 of the Georgia Legislature on or about April 18, 2001.

On or about March 7, 2002 the Ethics Committee passed SB 414; on or about April 1, 2002 the House Governmental Affairs Committee passed the bill; and on or about April 12, 2002 the General Assembly passed the bill as amended by the House.

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Dubious Prosecution of Georgia Election Tech Dismissed

FOR IMMEDIATE RELEASE     January 18, 2009    

Contact: 
Garland Favorito
(404) 664-4044
garlandf@msn.com
http://www.voterga.org

Download Press Release                                                                                                                                                                   

Georgia Election Case Dismissed After Questionable Prosecution


ATLANTA, GA – All matters asserted against former Lowndes County elections technician, Laura Gallegos, were dismissed last Thursday during an administrative hearing. The State Election Board (SEB) had accused her of improper testing which led to the inclusion of 947 test votes in the 2008 Lowndes County election results. The case was investigated by the office of Shawn LaGrua, the Inspector General who reported to SEB chairwoman and former Secretary of State, Karen Handel.

The dubious allegations in Mrs. Gallegos’ case have attracted statewide attention that helped her garner assistance from civic organizations including the Georgia Voting Rights Coalition, the ACLU Voting Rights Project, Defenders of Democracy, Operation Restoration, Madison Forum, and VoterGA. VoterGA assisted her attorney, Converse Bright, in preparing the defense and offered expert witness testimony on her behalf.

Testifying for the SEB, Mr. James Long, a voting machine engineer hired from the federal Elections Assistance Commission to support Georgia’s state elections, provided technical background for the case that was prosecuted by Deputy Attorney General, Ann Brumbaugh. However, during cross examination, he concurred with points made by Mr. Bright in his opening argument, including that:

    * The voting machines will accept test votes while accumulating actual election night results;

    * None of the testing that Mrs. Gallegos allegedly skipped had anything to do with the inclusion of the 947 test votes into the live results on election night;

    * The 947 test votes were included when an unidentified election official loaded a memory card during vote accumulation and ignored a warning indicating the card had test votes;

    * There was no evidence that Mrs. Gallegos, who was not even present during the accumulation, committed any violation on election night;

    * The machine malfunction that Mrs. Gallegos discovered during testing caused it not to clear the test votes from that card;

    * The county elections supervisor, not Mrs. Gallegos, was responsible for matching the poll book totals to the recap of votes cast to detect potential discrepancies on election night;

Judge John Gatto dismissed the case after confirming another opening argument made by Mr. Bright. He determined from testimony by supervisor, Deb Cox that she had not properly sworn in Mrs. Gallegos as a voting machine custodian.

Evidence supporting all of these findings was previously delivered to the SEB in requests by Mrs. Gallegos and VoterGA. They sought to reopen her case due to lack of a proper hearing, as required by law. Their requests were denied in a December 2009 SEB meeting by Karen Handel.

Mrs. Gallegos’ saga is not over yet. She has filed a pending complaint to the State Inspector General’s office claiming that her investigation and prosecution were conducted to cover up a voting machine defect and as many as six or more potential violations committed by her supervisor. The verdict and admissions in her trial appear to corroborate her complaint.

Although absolved of any wrongdoing in court, Mrs. Gallegos spent thousands of dollars in attorney fees, her family has suffered a foreclosure, and she was terminated from her job.

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Georgia Supreme Court Rejects Challenge to DRE Machines

Source: AJC
http://www.ajc.com/news/georgia-politics-elections/court-upholds-touchscreen-voting-148666.html
Court Upholds Touchscreen Voting

By BILL RANKIN
The Atlanta Journal-Constitution    10:51 a.m. Monday, September 28, 2009

The Georgia Supreme Court on Monday upheld the use of touch-screen voting, rejecting claims the machines violate the right to vote.
GA-DRE In a unanimous ruling, the court turned back a challenge by a group of citizens who filed suit three years ago in Fulton County Superior Court. A judge had previously dismissed the suit, ruling in favor of state officials.

The group claimed their fundamental right to vote is harmed because the recording, counting and retention of their votes, unlike paper ballots, are not being properly protected, which can prevent fraudulent manipulation of the results.

But the state high court, in a ruling written by Justice George Carley, found the use of touchscreen voting systems does not severely restrict the right to vote. 

Download the Court Ruling
 
 
photocredit: eyspahn
Georgia's Supreme Court upheld a lower court ruling
affirming state's right to use electronic voting machines

VoterGA Response to Today's Ruling

VoterGa Supporters,

The Georgia Supreme Court ruled today that our current form of un-auditable voting does not infringe upon the fundamental right to vote and to have our vote counted. This ruling essentially gives the state a license to pretend to conduct elections.

Not one of the 100+ million votes that have been cast on the machines since 2002 can be audited for accuracy and correctness of vote recording. Georgia  law in 2001 and 2002 required that any new machines have an independent audit trail of each vote cast.

The state’s own witnesses have acknowledged that the specific type of electronic voting machines we purchased and use do not have such an independent audit trail. The machines can only internally recreate selections that may or may not have been shown to voter. Without an independent audit trail, it is impossible to determine whether the actual ballots cast on Election Day were recorded correctly. Auditable electronic voting machines were available for purchase in 2002 as they are today.

When one or two officials can commit the state of Georgia to a $ 54 million purchase of voting equipment that was illegal at the moment of purchase, there must be some mechanism of accountability. Otherwise, public officials can operate above the law.

In this particular case, the previous boss of former Secretary of State Cox, who signed the purchase agreement, was the lobbyist for Diebold, the voting machine vendor. When the people have no recourse even for a standard trial of evidence , they become slaves to their government rather than the masters of it.

The Georgia Supreme Court also upheld the remarkable lower court decision that no trial is warranted on any count of the 13-count legal suit. The Georgia Supreme Court declined to overturn that lower court decision in spite of 17 disputes of facts cited in lower court conclusions and 41 disputes of facts cited against claims made by the state to Georgia Supreme Court.

Several of these disputes involved claims that were directly contradicted by the evidence in the record and clearly cited. Summary judgment dismissals, such as the one that the Georgia Supreme Court has just upheld, are rare in this type of case because standard procedures for any court in America require the court to hear the evidence in order to determine the facts before reaching a conclusion.

Now that the state has proven not to  be unable to rule against itself on any count, some Constitutional parts of the case could be appealed to the U.S. Supreme Court. While offering a more substantive decision than the lower court, the Georgia Supreme Court did not cite U.S. Supreme Court rulings related to ballot counting and recounting to corroborate its decision. All such U.S. Supreme Court rulings confirm that ballot counting and recounting requires strict scrutiny.

On the contrary, the Georgia Supreme Court decided that the state need only have a rational basis for implementing the voting systems. Even so, there is no rational basis for implementing a voting system that violates the law.

--Garland Favorito
www.voterga.org

P.S. I will send a follow-up e-mail on possible  next steps once we have had time to analyze the decision.

Download the Court Ruling

.

VoterGA Considering U.S. Supreme Court Appeal

VoterGA, the Georgia election integrity coalition that carried a landmark, constitution-based challenge to computerized voting through the Georgia court system, only to have the Georgia Supreme Court dismiss the case in disregard of undisputed points of evidence, has issued the following public letter to outline case issues and prospects, and to gauge public support, as they consider whether to file an appeal with the U.S. Supreme Court. VoterGA is seeking pledges of financial commitment to see this case through. Initiating the appeal will cost $20,000 to $25,000.

U.S. Supreme Court Appeal Considerations

VoterGA Supporters,

We now are at the most significant crossroads in the history of our landmark voting rights case.  We must quickly make a decision whether or not to appeal the Constitutional arguments of the case to the U.S. Supreme Court. I have tried to assemble the facts with as little bias as possible for your consideration. Some major areas for your consideration are:

    ·    The Georgia Supreme Court Ruling
    ·    The Basis for a U.S. Supreme Court Appeal
    ·    Appeal Costs
    ·    Appeal Benefits
    ·    Appeal Risks
    ·    Other Federal Alternatives
GA Supreme Court Ruling:
In considering whether or not to appeal, it is important to have an understanding of the Georgia Supreme Court decision. The decision had no dissenters and was slightly more substantial than the state superior court ruling but it still had the same basic flaws:

    ·    The court denied our normal right to a trial on all 13 counts of the lawsuit although we factually disputed 41 assertions made to the court by the Attorney General’s office and cited 17 lower court conclusions that had no basis in case evidence;

    ·    The court defied all U.S. Supreme Court case law for ballot counting and recounting by refusing to apply strict scrutiny to our fundamental right of voting;

    ·    The court instead applied a minimal standard of scrutiny and ruled that the former Secretary had a rational basis for implementing the machines in spite of the evidence we presented showing:

    a.    The machines do not have an independent audit trail of each vote cast as the law required. That law was in effect when the machines were procured, evaluated, allegedly certified and purchased;

    b.    The office of the Secretary of State was warned in advance of the need for voter verification, recount retention and audit controls by numerous governmental and public sources including a State Senate Committee, the head of Fulton County Elections and the 21st Century Voting Commission Report;

    c.    There was no compelling need for the Secretary to commit $54 million of taxpayer funds to replace many auditable voting machines with a statewide implementation of voting machines that cannot be properly audited.

    ·     The opinion written by Justice George Carley was cleverly worded to ignore nearly every shred of evidence that we presented, just as the lower court order did.

    ·    The opinion made conclusions with no basis in fact such as: “However, the undisputed evidence shows that the touch screen machines accurately record each vote when they are properly operated.” No such evidence was ever submitted in the case and it is technically impossible to produce the evidence without an independent audit trail.

    ·    The opinion made unsubstantiated conclusions that were in direct conflict with the facts in the case record such as:  “…uncontroverted evidence shows that the Secretary of State has properly certified the DRE voting system pursuant to O.C.G.A. 21-2-379-2.” That code section requires the Secretary of State to produce a “report."  We explained that the certification reports were never produced for the current equipment. Only certificates were provided for them.

In addition, no reports or certificates of any kind were produced for machines used in the 2001-2002 time period. Thus it is impossible for the evidence to be uncontroverted. Furthermore, we showed that the tabulation servers can never be certified according to federal guidelines, as secretary of state policy requires, because the servers cannot prevent fraudulent vote manipulation as the guidelines require.

 In summary, we did everything we needed to do to win this case in the Georgia Supreme Court:

·    Our briefs clearly presented the evidence and case law while refuting all material assertions made by the opposition;
·    Walker did what we believed to be a very good job at the GA Supreme Court oral arguments;
·    Todd followed up with a letter at the request of the Court that clearly applied all U.S. Supreme Court case law to our case and refuted the exact case law presented by the opposition because it was unrelated to ballot counting and recounting.

The court had everything it needed to make a decision based on the merits of the case but chose to ignore those merits. Since the case law and evidence we presented was never refuted by either court, I can only assume that the courts made a biased decision to protect state interests or those involved.
The Basis for a U.S. Supreme Court Appeal:
The basis for a Supreme Court appeal would be essentially similar to the two fold appeal filed in the Georgia Supreme Court. The most likely avenues of appeal are:

    ·    The court failed to apply strict scrutiny to the fundamental right to vote, as required by all U.S. Supreme Court case law concerning ballot counting and recounting. There was not even a rational basis for implementing the voting machines;

    ·    The court violated due process of the 14th amendment by unjustly denying our normal right to a trial on the 13 counts of the suit, after we factually disputed 41 assertions made to the court by the state attorney general’s office, and cited 17 lower court conclusions that had no basis in case evidence;

    ·    The court violated equal protection clauses of the 14th amendment by unjustly requiring all Election Day voters to cast absentee ballots in order to ensure that their votes could be properly verified, audited, and retained for recounts. This places an unnecessary burden on the people to determine how to obtain an absentee ballot, where to obtain it, when to obtain it, when to return it, where to return it, and how to return it. 
U.S. Supreme Court Costs:
At this time we are financially at a breakeven point with no debt incurred but very little available cash. The appeal is a two-step process. We must first file a writ of certiorari requesting that the case be heard. The cert must be filed within 90 days of the ruling and the court will likely take another 90 days or so to decide whether or not to hear it. If the U.S. Supreme Court agrees to hear the case we must then file a brief within about 90 days and present an oral argument in Washington D.C. in another 90 to 120 days.

To file the initial writ of certiorari we would need to immediately raise $20,000 to $25,000. If the court decides to hear the case we would need to raise another $25,000 to $30,000 to prepare the brief and make the oral argument in Washington D.C. Only the funds to file the writ would have to be raised immediately. To raise this much money we would need support from some major donors.
U.S. Supreme Court Appeal Benefits:
    ·    The U.S. Supreme Court has little or no vested interested in protecting the state of Georgia and its officials; therefore, they are more likely to rule on the merits of the case;

    ·    If the case is decided on merit we should either win outright because of previous U.S. Supreme Court case law that unanimously supports our position, or win a trial with instructions from the U.S. Supreme Court to the state court that would make it difficult for a court to rule against us;

    ·    If we were to win the case it would set another U.S. Supreme Court case law precedent that could be used in all other states;

    ·    As long as an active appeal in pending before the U.S. Supreme Court, unverifiable statewide voting will continue to be a significant issue in the 2010 campaigns thus impacting the elections. This would influence candidates running for both Secretary of State  and Governor, since the current Secretary is a gubernatorial candidate;

    ·    If the court decides to hear the case, the state may want to settle the case rather than to risk a judgment against it;
U.S. Supreme Court Risks:
    ·    The chances are significantly greater that the U.S. Supreme Court would decide not to hear the case than the chances are of them hearing it, thus we could be out the initial $25,000. They currently only hear about 1% of the cases requested although our chances are much higher because of the widespread impact of the issue;

    ·     If we were to lose the case it would set a U.S. Supreme Court case law precedent that could be used against other states;

    ·     We have no guarantee that the U.S. Supreme Court would rule on the merits of the case any more than the Georgia Supreme Court did;

    ·     If the court decides to hear the case and we cannot raise the additional funds needed we will have to withdraw it.
Other Federal Alternatives:
There is another possibility that we could introduce our evidence into federal court in another case that has documented hard evidence of wrongdoing. The Plaintiff in that case would like to make a similar challenge in the federal court system where it would more likely receive an impartial decision. Even with this approach we would still probably need to raise $10,000 to $20,000 for that case. We also may encounter a situation where the recent GA Supreme Court decision could be used against us.
What's Needed to Continue the Fight:
To appeal this case to the U.S. Supreme Court or even to get the evidence into a case in federal court, we need to immediately raise about $25,000 in major donations or pledges. I am reluctant to begin collecting money when we do not have assurance that we have the resources to proceed.

Therefore, I am requesting everyone to make a pledge only at this time and help seek major donors so we can gauge how much financial support we have to continue. We first need pledges and donors for work on the initial phase of filing the writ. We also need pledges to ensure that we can complete the appeal if the court agrees to hear the case.

Please E-mail me any amount that can be pledged for these work efforts. I will report back to you in a week or two and let you know if we have made enough progress in regards to securing the resources to continue the fight. If successful, I will then request the pledges be honored.

As always, VoterGA is an all-volunteer 501C3 organization so 100% of all donations are tax-deductible and go directly to offset legal costs. Thank you for all of the support you have given to get us this far.

Garland Favorito                               
(404) 664-4044

Georgia Supreme Court To Hear VoterGA Suit, July 13

Editor's Note:

The VoterGA lawsuit challenging the constitutionality of Georgia's all-DRE voting system, is one of the most important election integrity legal cases in the nation.  After years working its way through the Georgia courts, this case is coming before the Georgia Supreme Court for an oral argument hearing this coming Monday, July 13th.

The VoterGA coalition is seeking donations to cover at least some of the considerable legal expenses they've incurred.
Please consider sending VoterGA a donation .

Also please forward this article to others, using the 
"Send to Friend" and "Share This" links at the foot of this article (see more at Read More).

Thank you --  Election Defense Alliance

==========================

A Message from Garland Favorito and VoterGA

Hello All VoterGA Supporters,

This is the final reminder about the oral argument hearing on Monday July 13th at 10:00 am in the Georgia Supreme Court.
This is a great chance to be a part of history, experience a rare opportunity and make a good impression on the court.

The hearing will be primarily for the lawyers to make brief comments and the justices to ask questions. The arguments are more of a formality since the case will be decided by the content of the briefs, not what is said in the courtroom. We do not expect a written opinion. That will likely come later when a ruling is issued.

There are three possible outcomes, I can think of, two of them good:
  1.  The court may uphold the lower court rulings;
  2.  The court may grant us a trial with instructions to the lower court based on the 17 errors of fact and conclusions that we disputed in the lower court’s findings; or
  3.  The court may overturn the denial of our original Summary Judgment motion and grant us a victory which cannot be appealed by the state.

We have reviewed the Appellees brief and will dispute over 40 claims in their Statement of Facts, Summary and Arguments. We plan to file a supplemental document outlining these areas of dispute if the court allows. When facts are in dispute, a trial must be granted to us as the Appellants.

The Appellees identified a couple of additional cases that partially support their claims to deny our Motion for Summary Judgment, but the bottom line is this: All U.S. Supreme Court case law requires strict scrutiny of counting and recounting complaints. Strict scrutiny shifts the burden of proof to the state, and they cannot bear such a burden in light of the evidence collected.

Nevertheless, it may be somewhat difficult to get the state to rule against itself in spite of the law and evidence we present in our written arguments. Should we still receive an unfavorable ruling we have the option of taking a subset of the case to the U.S. Supreme Court.

The Georgia Supreme Court is located across the street and around the corner from the state Capitol.
The address is:
40 Capitol Sq SW # 507
Atlanta, GA 30334


Courthouse Map and Directions: http://sca.fultoncourt.org/superiorcourt/pdf/AreaMap.pdf

Click here for more detailed map


On a final note, although Walker and Todd are working for a fraction of what this suit really should cost, we are still a couple of thousand dollars short in the effort to pay the legal costs of the Georgia Supreme Court appeal.

It would be tremendous if we could collect enough to cover this deficit by Monday, the day of the hearing.

Many of you have already taken up the challenge and become sustaining members of this effort. I am asking that everyone spend a few minutes this weekend to contact someone you know who cares about this issue and try to personally solicit a donation.

As always, contributions to VoterGA are tax deductible and we are an all-volunteer organization with no paid staff, so that 100% of all donations goes directly to offset the legal expenses to restore the integrity of elections in Georgia.

Please click here to make a donation or mail your contribution to:

Voter GA
P.O. Box 808 Decatur, Ga. 30031

Thank you,
Garland
404 664-4044
=====================

Motions & Case Information: www.voterga.org

Additional articles on the evolution of this lawsuit:  http://electiondefensealliance.org/georgia



Georgia Voter Registration Information

Attached is the Georgia Voter Registration Information as set forth in Making the List, Database Matching and Verification Processes for Voter Registration as published by the Brennan Center for Justice at New York University on March 24, 2006. This document contains available information about voter regtistration current as of the date of publication.

Federal law now requires, as of January 1, 2006, that states create and maintain statewide databases to serve as the central source of voter registration information. Citizens’ ability to get on the rolls (and thus their ability to vote and have their votes counted) will now depend on the policies and procedures governing the use of these databases in the voter registration process. Evidence demonstrates that poor policy and procedure choices could result in the unwarranted disenfranchisement of millions of eligible citizens attempting to register to vote. The new statewide databases, and their role in the voter registration process, are poorly understood, but extremely consequential.

This report, issued just as the state databases begin to come online, presents the first comprehensive catalog of the widely varying state database practices governing how (and in some cases, whether) individuals seeking to register will be placed on the voter rolls.

The report covers the state’s voter registration process, from the application form up through Election Day - including the intake of registration forms, the manner in which information from the forms may be matched to other government lists, the consequences of the match process, and any opportunity to correct errors. Each variation at each step of the process has tangible consequences for voters seeking to register and vote in 2006 and beyond.

IMPORTANT:  Because of the possibility that voter information may differ from database to database (abbreviations, street designations, etc.) or because of data entry errors, valid voter registration data may be rejected. Individual voters are urged to contact their county clerk or local election board to determine that they are properly registered. Many such election authorities maintain online services for this purpose, other will require a telephone call or perhaps a written inquiry to determine the voter's eligibility.

As an addendum to this state report, a fill-in form for voter registration is presented which can be completed, printed and sent to the appropriate registratrar of voters (generally the county Clerk or local election board). The proper form of submission and location is included on the registration form.

AttachmentSize
Georgia_VoterReg.pdf493.89 KB

HB 790 Precinct Audit Superior to Standard Random Audits

Advantages of HB 790 Precinct Audit Over Standard Random Audits

*Note: HB 790 from the prior legislative session has been updated and divided into two related bills, HB 858 and HB 859, addressing DRE and optical scan voting systems.
See below for full text of each.

The following discussion of HB 790 provides context for the successor bills 858 and 859.

The proposed Georgia state audit bill, HB790, is unique in that it provides audit protection beyond normal voter-verified paper trail provisions in current federal and state electronic voting law. In addition to standard features such as requiring a voter-verified permanent paper record, and designating that paper record as the “official” ballot for audit, recount, count verification and election challenges, the bill also includes a unique, precinct-level approach to auditing. This precinct audit provision offers a more public, localized, comprehensive, and extensive audit practice than what has been available in any other electronic voting legislation to date.

The precinct audit provision stipulates that each precinct will conduct a public manual count on a contested race selected randomly at the precinct on election night.

Any discrepancies are to be posted on the door at the precinct, included with the precinct election results, and posted publicly on county web sites and reported to the state. These instant audit checks would allow 3000+ Georgia precincts to randomly verify every election race count multiple times while avoiding the burden on poll workers to hand count all races at each precinct -- (a concern of legislators). Here is a comparative overview of the HB 790 precinct audit methodology vs. standard random audits that some states currently employ:

Standard Random Audits:

A standard random audit for an electronic voting machine implementation might typically hand count 5% of the precinct ballots. There are several major problems with this approach.

• Only about 5% of the actual races may be audited leaving the other 95% unprotected and open to errors or fraud.

• The decision as to what precincts are audited can be predetermined by one person.

• One audit controller and one election programmer can collude to control the outcome of an election.

• The auditing typically takes place at state or country tabulation centers without public participation.

• The audit results are typically produced after original results have been reported and, in several cases, they have never replaced original erroneous results.

HB790 Precinct Audits:

The HB790 precinct audits eliminate problems associated with standard random audits in several ways.

• Georgia, having just over 3,000 precincts and an average of 300 total contested races in an election, would audit every race on an average of twice in every county.

• The decisions as to what races to hand count are made publicly at the precinct and cannot be controlled by one individual.

• The hand count is performed in full public view at the precinct on election night and cannot be altered.

• Discrepancies are publicly posted at the precinct and on the county web site for future verification.

Conclusion:

The HB7980 random audit provision is a bold, historic move to return a key part of the election process back to the citizens. (Georgians had already ceased counting ballots at the precincts years before the introduction of electronic voting). HB 790 provides auditing that is far superior to what is implemented in other states. If HB 790's provisions are implemented in any Georgia bill, that would serve as a foundation to make Georgia the national model for electronic voting legislation.



Updated Versions of the Precinct Audit Proposals fr the 2008-2009 Legislative Session

Opti Scan:
http://www.legis.state.ga.us/legis/2007_08/sum/hb858.htm

A BILL to be entitled an Act to amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to elections and primaries generally, so as to provide for the duplicating of certain damaged optical scan ballots; to provide for certain recounts; to provide for additional grounds for challenging an election; to provide for a random hand count of optical scan ballots at the precinct; to provide procedures for such count; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.


07 LC 28 3282

House Bill 858

By: Representatives Geisinger of the 48th, Lindsey of the 54th, Setzler of the 35th, Coan of the 101st, Powell of the 29th, and others

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to elections and primaries generally, so as to provide for the duplicating of certain damaged optical scan ballots; to provide for certain recounts; to provide for additional grounds for challenging an election; to provide for a random hand count of optical scan ballots at the precinct; to provide procedures for such count; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to elections and primaries generally, is amended by revising Code Section 21-2-483, relating to counting of optical scan ballots, as follows:
"21-2-483.

(a) In primaries and elections in which optical scanners are used, the ballots shall be counted at the precinct or tabulating center under the direction of the superintendent. All persons who perform any duties at the tabulating center shall be deputized by the superintendent, and only persons so deputized shall touch any ballot, container, paper, or machine utilized in the conduct of the count or be permitted to be inside the area designated for officers deputized to conduct the count.

(b) All proceedings at the tabulating center and precincts shall be open to the view of the public, but no person except one employed and designated for the purpose by the superintendent or the superintendent´s authorized deputy shall touch any ballot or ballot container.

(c) At the tabulating center, the seal on each container of ballots shall be inspected, and it shall be certified that the seal has not been broken before the container is opened. The ballots and other contents of the container shall then be removed, and the ballots shall be prepared for processing by the tabulating machines. The ballots of each polling place shall be plainly identified and cannot be commingled with the ballots of other polling places.

(d) Upon completion of tabulation of the votes, the superintendent shall cause to be completed and signed a ballot recap form, in sufficient counterparts, showing:

(1) The number of valid ballots, including any that are damaged;
(2) The number of spoiled and invalid ballots; and
(3) The number of unused ballots.

The superintendent shall cause to be placed one copy of the recap form and the defective, spoiled, and invalid ballots, each enclosed in an envelope, in the ballot supply container.

(e) For any election for which there is a qualified write-in candidate, the feature on precinct count and central count tabulators allowing separation of write-in votes shall be utilized. If any vote cast on the write-in ballot in combination with the vote cast for the same office on the ballot exceeds the allowed number for the office, the vote cast for that office only shall not be counted. In the discretion of the superintendent, either a duplicate ballot shall be made on which any invalid vote shall be omitted or the write-in ballot and the ballot shall be counted in such manner as may be prescribed by State Election Board rules, omitting the invalid vote.

(f) If it appears that a ballot is so torn, bent, or otherwise defective that it cannot be processed by the tabulating machine, the superintendent or the poll manager, as appropriate, in his or her discretion, may order the proper election official at the tabulating center or precinct to prepare a true duplicate copy for processing with the ballots of the same polling place, which shall be verified in the presence of a witness. The damaged ballot shall be given a unique serial number which shall be written on the ballot. All duplicate ballots shall be clearly labeled by the word 'duplicate,' shall bear the designation of the polling place, and shall be given the same serial number as the defective ballot. The defective ballot shall be retained.
(g)(1) The precinct tabulator shall be programmed to return to the voter at the time that the voter inserts the ballot any ballot on which an overvote is indicated, along with any ballot that cannot be processed by the tabulator for reevaluation or correction or spoiling of the ballot, and a new ballot shall be issued if the voter desires to vote another ballot in order to correct mistakes, overvotes, or other problems.

(2)(A) The central tabulator shall be programmed to reject any ballot, including absentee ballots, on which an overvote is detected and any ballot so rejected shall be manually reviewed by the vote review panel described in this Code section to determine the voter´s intent as described in subsection (c) of Code Section 21-2-438.

(B) In a partisan election, the vote review panel shall be composed of the election superintendent or designee thereof and one person appointed by the county executive committee of each political party and body having candidates whose names appear on the ballot for such election, provided that, if there is no organized county executive committee for a political party or body, the person shall be appointed by the state executive committee of the political party or body. In a nonpartisan election, the panel shall be composed of the election superintendent or designee thereof and two electors of the county, in the case of a county election, or the municipality, in the case of a municipal election, appointed by the chief judge of the superior court of the county in which the election is held or, in the case of a municipality which is located in more than one county, of the county in which the city hall of the municipality is located. The panel shall manually review all ballots rejected by the tabulator under subparagraph (A) of this paragraph and shall determine by majority vote whether the elector´s intent can be determined as described in subsection (c) of Code Section 21-2-438 and, if so, said vote shall be counted as the elector intended. In the event of a tie vote by the vote review panel, the vote of the election superintendent or designee thereof shall control.

(h) The official returns of the votes cast on ballots at each polling place shall be printed by the tabulating machine. The returns thus prepared shall be certified and promptly posted. The ballots, spoiled, defective, and invalid ballots, and returns shall be filed and retained as provided by law.

(i)(1)(A) In primaries and elections in which precinct based optical scan tabulating equipment is used, a random sample of the optical scan ballots shall be counted at each precinct under the direction of the poll manager.

(B) After processing all optical scan ballots and printing the results tapes from the tabulating machines, the poll manager shall randomly select one contested race from the ballot for a hand count. Such selection shall be made by listing all of the contested races on the ballot individually on uniform sized slips of paper, uniformly folding such slips of paper such that the name of the race cannot be seen, placing the slips of paper into a container and mixing the slips thoroughly, and then drawing from the container one slip of paper. Upon drawing the slip of paper, the manager shall then announce the race that will be hand counted. The slips of paper shall be available for examination by any member of the public who desires to do so.

(C) After randomly selecting the race for a hand count, the manager or a poll officer under the direction of the manager shall unlock the ballot boxes containing the optical scan ballots. The poll manager shall then proceed to count the votes cast in the randomly selected race as shown on the ballots. Such count shall be performed in the same manner as for paper ballots as provided in Code Section 21-2-437 for the randomly selected race. Upon the conclusion of the count, the manager or a poll officer under the direction of the manager shall record the results of the hand count on the return sheet and shall compare the results for the race to the results shown on the tapes from the tabulating machine for such race. In the event of a discrepancy in the count between the totals for such race, the manager or a poll officer under the direction of the manager shall post the results of the hand count and one set of return tapes from the tabulating machine, noting any discrepancies found, at the polling place for the information of the public.

(D) After performing the hand count of the race or races, the manager shall cause the optical scan ballots to be securely sealed in the ballot box and shall seal the return sheets, tally sheets, one set of return tapes, and other completed forms in an envelope for transfer to the election superintendent.

(2)(A) In primaries and elections in which central count optical scan tabulating equipment is used, a random sample of the optical scan ballots shall be counted at the tabulating center at each precinct under the direction of the superintendent.

(B) After processing all optical scan ballots and printing the results reports from the tabulating machines, the superintendent shall randomly select one contested race from the ballot for a hand count. Such selection shall be made by listing all of the contested races on the ballot individually on uniform sized slips of paper, uniformly folding such slips of paper such that the name of the race cannot be seen, placing the slips of paper into a container and mixing the slips thoroughly, and then drawing from the container one slip of paper. Upon drawing the slip of paper, the superintendent shall then announce the race that will be hand counted. The superintendent shall then randomly select a number of precincts constituting at least 10 percent of the precincts in the county for the hand count. Such selection shall be made by listing all of the precincts individually on uniform sized slips of paper, uniformly folding such slips of paper such that the name of the precinct cannot be seen, placing the slips of paper into a container and mixing the slips thoroughly, and then drawing from the container one slip of paper at a time until the appropriate number of precincts has been selected. Upon drawing the slip of paper, the superintendent shall then announce the race that will be hand counted The slips of paper shall be available for examination by any member of the public who desires to do so.

(C) After randomly selecting the race for a hand count, the superintendent shall cause the selected race on each ballot cast in the selected precincts to be hand counted as provided in this paragraph. Such count shall be performed in the same manner as for paper ballots as provided in Code Section 21-2-437 for the randomly selected race. Upon the conclusion of the count, the superintendent shall record the results of the hand count on the return sheet and shall compare the results for the race to the results shown on the reports from the tabulating machine for such race. In the event of a discrepancy in the count between the totals for such race, the superintendent shall post the results of the hand count and one set of return tapes from the tabulating machine, noting any discrepancies found, at the tabulating center or the office of the superintendent for the information of the public.

(j) In the event of a discrepancy between the hand count totals from the precincts and the totals from the tabulating machines, the superintendent shall use the hand count totals as the official results. The superintendent shall immediately make the public aware of any such discrepancy by posting notice of such discrepancy at his or her office for the information of the public and on the official website of the county or municipality on which the county or municipality posts election returns if the county or municipality has such a website. The superintendent shall note on the official returns for the primary, election, or runoff, as appropriate, the vote totals that are based, in whole or in part, on hand counts as a result of a discrepancy between the hand count and the machine totals."

SECTION 2.

Said chapter is further amended by adding new subsections (e) and (f) to Code Section 21-2-495, relating to procedure for recount or recanvass of votes, to read as follows:

"(e) Any other provision of this Code section to the contrary notwithstanding, a candidate may petition the Secretary of State, in the case of a candidate in a race which is voted upon by electors in more than one county, or the election superintendent, in the case of races voted upon by electors in one county or a portion of one county, for a hand recount of the optical scan ballots in a county when it appears that there is a discrepancy in a precinct in such county between the hand count of a randomly selected race pursuant to subsection (i) of Code Section 21-2-483 and the results for the same race as shown on reports from the tabulating machines. Upon receiving a proper petition, the Secretary of State or the election superintendent, as appropriate, shall order a hand count to be conducted of all of the optical scan ballots for such race in such county. Such hand count shall be held at any time prior to the certification of the consolidated returns by the Secretary of State. The hand count shall be conducted by the appropriate superintendent or superintendents in the manner and pursuant to the procedures otherwise provided in this Code section for counting paper ballots. The petition pursuant to this Code section shall be in writing and signed by the person or persons requesting the hand count. The petition shall set forth the discrepancies and any evidence in support of the petitioner´s request for a hand count and shall be verified. The result of such hand count shall then become the official result of such primary, election, or runoff. The cost of such recounts shall not be charged to any candidate, political party or body, or elector.

(f) Any other provision of this Code section to the contrary notwithstanding, a candidate or ten or more electors who cast ballots in the race in which the candidate ran may petition the Secretary of State, in the case of a candidate in a race that is voted upon by electors in more than one county, or the election superintendent, in the case of a candidate in a race that is voted upon by the electors of one county or a portion of one county, for a hand recount of the optical scan ballots in all precincts when it appears that there are similar discrepancies in more than one precinct between the hand count of a randomly selected race pursuant to subsection (i) of Code Section 21-2-483 and the results for the same race as shown on the reports from the tabulating machines. Upon receiving a proper petition, the Secretary of State or the election superintendent, as appropriate, shall order a hand count to be conducted of all of the optical scan ballots for such race in all precincts. Such hand count shall be held at any time prior to the certification of the consolidated returns by the Secretary of State or the election superintendent, as appropriate. The hand count shall be conducted by the appropriate superintendent or superintendents in the manner and pursuant to the procedures otherwise provided in this Code section for counting paper ballots. The petition pursuant to this Code section shall be in writing and signed by the person or persons requesting the hand count. The petition shall set forth the discrepancies and any evidence in support of the petitioner´s request for a hand count and shall be verified. The result of such hand count shall then become the official result of such primary, election, or runoff."

SECTION 3.
Said chapter is further amended by revising Code Section 21-2-522, relating to grounds for contesting an election, as follows:
"21-2-522.
A result of a primary or election may be contested on one or more of the following grounds:
(1) Misconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result;
(2) When the defendant is ineligible for the nomination or office in dispute;
(3) When illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result;
(4) For any error in counting the votes or declaring the result of the primary or election, if such error would change the result;
(5) When there is an unexplained discrepancy between the results of a hand count of a race pursuant to subsection (i) of Code Section 21-2-483 and the results of such race as shown by the tabulating machine tapes or reports in a precinct in which the person filing the contest was a candidate and such discrepancy places the results of such race in doubt; or
(5)(6) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election."

SECTION 4.
This Act shall become effective on January 1, 2008.

SECTION 5.
All laws and parts of laws in conflict with this Act are repealed.


VVPAT:
http://www.legis.state.ga.us/legis/2007_08/sum/hb859.htm

07 LC 28 3248

House Bill 859

By: Representatives Geisinger of the 48th, Lindsey of the 54th, Coan of the 101st, Powell of the 29th, Meadows of the 5th, and others

To amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, so as to provide a definition; to require all electronic recording voting systems to produce an elector verified, permanent paper record of the votes recorded on such systems for each elector; to provide that electors shall have an opportunity to verify such record after voting; to provide for reexamination and recertification of direct recording electronic voting systems under certain circumstances; to authorize the use of certain printers and printer interfaces; to authorize the use of alternative means of voting under certain circumstances; to provide for certain recounts; to provide for additional grounds for challenging an election; to provide that such paper records be the official record of the votes in an election for use in recounts and election challenge proceedings; to provide for a random hand count of the permanent paper records at the precinct; to provide procedures for such count; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

A BILL TO BE ENTITLED

AN ACT to amend Chapter 2 of Title 21 of the O.C.G.A

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating to primaries and elections generally, is amended by adding a new paragraph (21.1) to Code Section 21-2-2, relating to definitions, to read as follows:
"(21.1) 'Permanent paper record' means the paper copy record of an elector´s vote that is printed by a direct recording electronic unit and is deposited or caused to be deposited by the elector in a ballot box or similar container. Such permanent paper records shall be the official records of the votes cast in a primary, election, or runoff in the case of a discrepancy between the votes shown on such paper records and the votes shown on the DRE units and for the purposes of recounts and election contests under this chapter."

SECTION 2.
Said chapter is further amended by adding new paragraphs (6.1) and (6.2) to Code Section 21-2-379.1, relating to requirements for use of electronic recording voting systems, to read as follows:
"(6.1) It shall produce an elector verified, permanent paper record with a manual audit capacity for such system which shall be available as an official record for any recount conducted under Code Section 21-2-495 or for any election challenge under Article 13 of this chapter involving any primary or election in which such system is used;
(6.2) It shall provide the elector with an opportunity to review and verify the permanent paper record before casting his or her vote on the system and to change his or her ballot or correct any error in such record or vote;".

SECTION 3.
Said chapter is further amended by revising subsection (f) of Code Section 21-2-379.2, relating to review of manufacturer´s electronic recording voting system by Secretary of State, as follows:
"(f) When a direct electronic recording recording electronic voting system has been so approved, no each improvement or change that does not impair its accuracy, efficiency, or capacity to a direct recording electronic voting system, whether related to hardware or software, shall render necessary a reexamination or reapproval of such system, or of its kind."

SECTION 4.
Said chapter is further amended by revising subsection (b) of Code Section 21-2-379.10, relating to procedure for electors using DRE units, as follows:
"(b) After the summary screen is displayed and the elector desires to make no further changes to his or her votes, the elector shall be notified that he or she is about to cast the ballot. The Prior to the elector casting his or her vote on the unit, the unit shall produce for the elector´s review a permanent paper record of the elector´s votes to be cast. The elector shall then review such permanent paper record and, if such record is correct, the elector shall then press the appropriate button on the unit or location on the screen to actually cast his or her ballot and cause such votes to be recorded, and to allow the permanent paper record to be deposited in a ballot box or other secure container. If the elector discovers an error or errors in the votes shown on the permanent paper record, the elector shall advise the poll officers who shall take such steps as necessary to allow the elector to correct such error or errors in the elector´s votes on the DRE unit and to produce a corrected permanent paper record. The incorrect permanent paper record shall be voided and treated in the same manner as a spoiled ballot. After pressing the appropriate button on the unit or location on the screen to cast the ballot, the elector´s vote ballot shall be final and shall not be subsequently altered. The permanent paper records shall be secured in locked ballot boxes or similar secure containers at all times in a manner similar to paper ballots under this chapter and such ballot boxes or containers shall not be opened nor shall such permanent paper records be counted until the close of the polls. In the event that the DRE unit cannot produce a correct permanent paper record of the elector´s votes, such unit shall be shut down and sealed and the superintendent and the Secretary of State shall be immediately notified of such problem."

SECTION 5.
Said chapter is further amended by revising Code Section 21-2-379.11, relating to procedure for tabulation of votes, as follows:
"21-2-379.11.
(a)(1) In primaries and elections in which direct recording electronic (DRE) voting equipment is used, the ballots a random sample of the permanent paper records created by the direct recording electronic units shall be counted at the each precinct or tabulating center under the direction of the superintendent poll manager.
(2) All persons who perform any duties at the a precinct or tabulating center shall be deputized by the superintendent and only persons so deputized shall touch any ballot, container, paper, or machine utilized in the conduct of the count or be permitted to be in the immediate area designated for officers deputized to conduct the count.
(b) All proceedings at the tabulating center and precincts shall be open to the view of the public, but no person except one employed and designated for the purpose by the superintendent or the superintendent´s authorized deputy shall touch any ballot, any DRE unit, or the tabulating equipment.
(c) After the polls have closed and all voting in the precinct has ceased, the poll manager shall shut down the DRE units and extract the election results from each unit as follows:
(1) The manager shall obtain the at least three results tape tapes from each DRE unit and verify that the number of ballots cast as recorded on the tape tapes matches the public count number as displayed on the DRE unit; and
(2) If a system is established by the Secretary of State, the poll manager shall first transmit the election results extracted from each DRE unit in each precinct via modem to the central tabulating center of the county; and
(3) The manager shall then extract the memory card from each DRE unit.
(d) Upon completion of shutting down each DRE unit and extracting the election results, the manager shall cause to be completed and signed a ballot recap form, in sufficient counterparts, showing:
(1) The number of valid ballots;
(2) The number of spoiled and invalid ballots;
(3) The number of provisional ballots; and
(4) The number of unused provisional ballots and any other unused ballots.
The manager shall cause to be placed in the ballot supply container one copy of the recap form and any unused, defective, spoiled, and invalid ballots, each enclosed in an envelope.
(e) The manager shall collect and retain the zero tape and one of the results tape tapes for each DRE unit and place such tapes with the memory card for each unit and enclose all such items for all of the DRE units used in the precinct in one envelope which shall be sealed and initialed by the manager so that it cannot be opened without breaking the seal.
(f)(1) After collecting the tapes from the DRE units, the manager shall randomly select one contested race from the ballot for a hand count. Such selection shall be made by listing all of the contested races on the ballot individually on uniform sized slips of paper, uniformly folding such slips of paper such that the name of the race cannot be seen, placing the slips of paper into a container and mixing the slips thoroughly, and then drawing from the container one slip of paper. Upon drawing the slip of paper, the manager shall then announce the race that will be hand counted. The slips of paper shall be available for examination by any member of the public who desires to do so.
(2) After randomly selecting the race for a hand count, the manager or a poll officer under the direction of the manager shall unlock the ballot boxes containing the permanent paper records and shall count the number of records in such ballot boxes which number shall then be entered onto a recap sheet and compared to the number of persons shown as having voted on the electors list, the numbered list of voters, and the voters´ certificates. Any discrepancy shall be duly noted.
(3) After completing the count of the number of permanent paper records contained in the ballot boxes, the manager shall then proceed to count the votes cast in the randomly selected race as shown on the records. Such count shall be performed in the same manner as for paper ballots as provided in Code Section 21-2-437 for the randomly selected race. Upon the conclusion of the count, the manager or a poll officer under the direction of the manager shall record the results of the hand count on the return sheet and shall compare the results for the race to the results shown on the tapes from the DRE units for such race. In the event of a discrepancy in the count between the totals for such race, the manager or a poll officer under the direction of the manager shall post the results of the hand count and one set of return tapes from the DRE units, noting any discrepancies found, at the polling place for the information of the public.
(4) After performing the hand count of the race or races, the manager shall cause the permanent paper records to be securely sealed in the ballot box and shall seal the return sheets, tally sheets, one set of return tapes, and other completed forms in an envelope for transfer to the election superintendent.
(g) The manager and one poll worker shall then deliver the envelope ballot boxes and envelopes to the tabulating center for the county or municipality or to such other place designated by the superintendent and shall receive a receipt therefor. The copies of the recap forms, unused ballots, records, and other materials shall be returned to the designated location and retained as provided by law.
(g)(h) Upon receipt of the sealed envelope containing the zero tapes, results tapes, and memory cards, the election superintendent shall verify the signatures on the envelope. Once verified, the superintendent shall break the seal of the envelope and remove its contents. The superintendent shall then download the results stored on the memory card from each DRE unit into the election management system located at the central tabulation point of the county in order to obtain election results for certification.
(i) In the event of a discrepancy between the hand count totals from the precincts and the totals from the DRE memory cards, the superintendent shall use the hand count totals as the official results. The superintendent shall immediately make the public aware of any such discrepancy by posting notice of such discrepancy at his or her office for the information of the public and on the official website of the county or municipality on which the county or municipality posts election returns if the county or municipality has such a website. The superintendent shall note on the official returns for the primary, election, or runoff, as appropriate, the vote totals that are based, in whole or in part, on hand counts as a result of a discrepancy between the hand count and the machine totals."

SECTION 6.
Said chapter is further amended by adding new Code Sections 21-2-379.12 and 21-2-379.13 to read as follows:
"21-2-379.12.
Until the federal Elections Assistance Commission established pursuant to the federal Help America Vote Act of 2002 adopts standards for printers attached or connected to direct recording electronic voting equipment and used for the purpose of providing elector verified, permanent paper records with a manual audit capacity for the votes cast by each individual voter on such equipment and until printers designed or authorized for use with the direct recording electronic voting equipment in use in this state have been certified under such standards, no provision of this chapter nor any rule or regulation of the Secretary of State or the State Election Board shall prohibit the use of direct recording electronic voting equipment that utilizes such printers for such purpose on the basis that such printers or printer interfaces have not received certification or that such direct recording electronic voting equipment has not been certified for use with such printers or printer interfaces in primaries and elections from an independent testing authority that tests and certifies voting equipment or other certifying body or entity.

21-2-379.13.
If 20 percent or more of the direct recording electronic units at a precinct become inoperative for whatever reason during a primary, election, or runoff, the superintendent shall provide alternative means of voting at such precinct. Provisional ballots may be used for such purpose, but shall be deemed to be regular ballots for which the provisional ballot procedures shall not be applicable unless the elector casting the ballot qualifies as a provisional voter under Code Section 21-2-418, in which case the ballot shall continue to be handled as a provisional ballot."

SECTION 7.
Said chapter is further amended by adding new subsections (e) and (f) to Code Section 21-2-495, relating to procedure for recount or recanvass of votes, to read as follows:
"(e) Any other provision of this Code section to the contrary notwithstanding, a candidate may petition the Secretary of State, in the case of a candidate in a race which is voted upon by electors in more than one county, or the election superintendent, in the case of races voted upon by electors in one county or a portion of one county, for a hand recount of the permanent paper records in a county when it appears that there is a discrepancy in a precinct in such county between the hand count of a randomly selected race pursuant to subsection (f) of Code Section 21-2-379.11 and the results for the same race as shown on the DRE units. Upon receiving a proper petition, the Secretary of State or the election superintendent, as appropriate, shall order a hand count to be conducted of all of the permanent paper records for such race in such county. Such hand count shall be held at any time prior to the certification of the consolidated returns by the Secretary of State. The hand count shall be conducted by the appropriate superintendent or superintendents in the manner and pursuant to the procedures otherwise provided in this Code section for counting paper ballots. The petition pursuant to this Code section shall be in writing and signed by the person or persons requesting the hand count. The petition shall set forth the discrepancies and any evidence in support of the petitioner´s request for a hand count and shall be verified. The result of such hand count shall then become the official result of such primary, election, or runoff. The cost of such recounts shall not be charged to any candidate, political party or body, or elector.
(f) Any other provision of this Code section to the contrary notwithstanding, a candidate or ten or more electors who cast ballots in the race in which the candidate ran may petition the Secretary of State, in the case of a candidate in a race that is voted upon by electors in more than one county, or the election superintendent, in the case of a candidate in a race that is voted upon by the electors of one county or a portion of one county, for a hand recount of the permanent paper records in all precincts when it appears that there are similar discrepancies in more than one precinct between the hand count of a randomly selected race pursuant to subsection (f) of Code Section 21-2-379.11 and the results for the same race as shown on the DRE units. Upon receiving a proper petition, the Secretary of State or the election superintendent, as appropriate, shall order a hand count to be conducted of all of the permanent paper records for such race in all precincts. Such hand count shall be held at any time prior to the certification of the consolidated returns by the Secretary of State or the election superintendent, as appropriate. The hand count shall be conducted by the appropriate superintendent or superintendents in the manner and pursuant to the procedures otherwise provided in this Code section for counting paper ballots. The petition pursuant to this Code section shall be in writing and signed by the person or persons requesting the hand count. The petition shall set forth the discrepancies and any evidence in support of the petitioner´s request for a hand count and shall be verified. The result of such hand count shall then become the official result of such primary, election, or runoff."

SECTION 8.
Said chapter is further amended by revising Code Section 21-2-522, relating to grounds for contesting an election, as follows:
"21-2-522.
A result of a primary or election may be contested on one or more of the following grounds:
(1) Misconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result;
(2) When the defendant is ineligible for the nomination or office in dispute;
(3) When illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result;
(4) For any error in counting the votes or declaring the result of the primary or election, if such error would change the result;
(5) When there is an unexplained discrepancy between the results of a hand count of a race pursuant to subsection (f) of Code Section 21-2-379.11 and the results of such race as shown by the DRE units in a precinct in which the person filing the contest was a candidate and such discrepancy places the results of such race in doubt; or
(5)(6) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election."

SECTION 9.
This Act shall become effective on January 1, 2008.

SECTION 10.
All laws and parts of laws in conflict with this Act are repealed.

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hb859.pdf157.43 KB

History of Georgia's Electronic Elections and VoterGA

VoterGA History

We Will Defend Your Voting Rights in Court
to Seek Relief from E-voing that Cannot Be
Verified, Audited, or Recounted.

How It Happened:

In 2002, Georgia implemented electronic voting that cannot be verified, audited, or recounted. In 2004, just 2 years after a $54 million electronic voting “revolution”, Free Congress Foundation ranked Georgia dead last nationally in voting systems and procedures. The reasons are simple:

* No Georgia voter can verify that their ballots were cast correctly;
* No poll worker can verify that any voting machine counted votes correctly and;
* Recounts are now impossible since we can only reprint previous unverifiable results;

When the machines were evaluated, several computer professionals and concerned citizens who are now in our organization explained both verbally and in writing to state election officials including Professor Britain Williams who headed the evaluation that:

* Voting machines can be accidentally or intentionally programmed in a variety of ways to count differently on election night then than during a certification;
* The machines selected for evaluation had no external audit trails to verify their accuracy;
* At least two other machine vendors offered external web based or printed ballot audit trails;

In spite of our concerns, the Secretary of State (S.O.S.) installed these systems against our will. Once implemented, the new procedures:

* Removed all direct physical evidence of voter intent from Georgia elections;
* Reduced the percentage of auditable ballots cast in Georgia from about 82% to 0% and;
* Allowed fraud and errors to become virtually undetectable statewide.

The Diebold AccuVote TS series machines they purchased have been the subject of scathing reviews by universities and state reports nationwide. For example, Johns Hopkins found that the software had “gross design and programming errors” and the Nevada Electronic Sys. Div. Chief reported to the S.O.S. that they were “a legitimate threat to the integrity of the election process”. California, Ohio, Nevada and Maryland have officially concluded that machines and procedures similar to those used in Georgia are inadequate to conduct elections in their states.

What Has Been Done So Far:

We have tried executive and legislative branch options to preserve the integrity of Georgia elections since these machines were under evaluation and after they were selected. The brief history of the actions and responses from both Democrat and Republican leaders is astounding:

* In 2002, S.O.S. Cathy Cox ignored the 21st Century Voting Commission recommendation that: “the chosen system should have the capability to produce an independent paper audit trail of every ballot cast”;

* Cox and Elections Director Rogers still adamantly oppose voter verified paper ballot audit trails (VVPBAT) and election night verification at the legislature while they publicly claim to support them;

* The State Elections Board bought eletronic poll books with the $17,000,000 that could have been used to purchase the secure printers the S.O.S. claimed were needed for external audit trails;

* In 2006, legislative leaders chose SB500 a 3 precinct self repealing audit trail pilot over our SB591 and HB790, bi-partisan bills with external audit trails and vote count protection procedures that gained the support of 10 civic organizations and independent parties;

* Gov. Perdue recently deferred inquiries to the S.O.S. in response to our direct appeal to eliminate unverifiable voting by executive order.

Without citizen action, the future of Georgia elections looks extremely looks dim:

* For the 3 precinct SB500 pilot, Rogers insisted on purchasing newer Diebold equipment that still cannot produce an easily auditable ballot because they roll voting results into a sealed canister instead of cutting them into ballots like grocery store or gas pump slips.

* House and Senate Conference Committee members refused to dictate appropriate technology for the pilot and ignored our contention that newer Diebold machines are just as inappropriate for use now as the unverifiable voting machines were in 2002.

If the government officials we entrust will not protect one of our most precious rights, we are left with no choice but to file suit so that Georgia citizens can have the assurance that their vote was counted correctly and accurately.

What We Must Do Now:

The good news is that key portions of the Georgia Constitution and Georgia Election Code protect our rights. There are also several state and federal precedents on our side as well as equal protection provisions. But we must file suit to protect our freedom. Our suit will seek three basic objectives that most any Georgia voter would expect in an election. These are to:

* Require that any technology used in Georgia must either be able to read or produce ballots as required by the Georgia Constitution;

* Provide for public, precinct level counting of votes to ensure that the machines tallied the votes correctly as required by Georgia Election Code.

* Stipulate in the event of similar discrepancies across precincts in a given race, that the state manually recount that race at no cost to the candidates or parties involved

If these principles cannot be achieved, then we must cease using electronic voting machines altogether. We urge you to join us in the fight to save Georgia by restoring the integrity of Georgia elections. Georgia needs your immediate help so that we can take appropriate legal action to restore voting that can be verified, audited and recounted.

Freedom is not free.
Please click the Donation button to contribute or mail your contribution to:
Voter GA P.O. Box 808 Decatur, Ga. 30031

Justice in Georgia? A History of the Voter GA Lawsuit

Voter GA Case History

by Garland Favorito.  9.3.09

Our Georgia Supreme Court case is picking up some national attention and as a result, several people have asked for a brief history of the case and its status so here it is: In 2002, Georgia became the first (and now only) state to conduct statewide elections with unverifiable voting equipment that has no means to the audit vote recording of actual ballots cast on Election Day.

Unbeknownst to us, the law at the time required that any new voting machines “shall have an independent audit trail of each vote cast”. None of the voting machines procured, piloted, allegedly certified, and acquired with $54 million of tax money had any form of audit trails that are independent of the vote recording process such as standard Voter Verified Paper Audit Trails that were available even at that time.

Prior to the acquisition, the need for audit capabilities, voter verification and recount retention had already been documented in Senate meetings, by the Fulton County Elections chief, in the state’s 21st Century Voting Commission report, by the general public and in plaintiff Emails that were authenticated under oath by the former Assistant Elections Director. Therefore, the acquisition could not have been a mistake.

In July of 2006, after attempts fell short to resolve the problem through the legislature, a politically diverse group of plaintiffs filed a voting rights suit against former Secretary of State Cathy Cox and other officials. The Plaintiffs chose to file the case in Fulton County Superior State Court rather than federal court because there were more obvious violations of state law than federal law.

The lawsuit challenged the legality and constitutionality of the Diebold AccuVote TS R6 voting machines, state election procedures and Georgia Election Code laws used to conduct the elections. During the discovery period as the parties received documents and admissions from each other, more potential violations of law were identified, including those that involved both the Georgia and U.S. Constitutions. The suit was eventually expanded to include 13 counts. Some of the key Constitutional counts include:

•    Failure to require elections by ballot according to the Georgia Constitution;
•    Violation of Constitutional due process by not protecting the vote count;
•    Failure to provide protection equal to that for absentee voters in regards to voter verification, recount completeness and discrepancy investigation.

Two of those counts were filed to prevent the state from purchasing AccuVote TSX machines temporarily used in a 2006 audit trail pilot because, as the current Secretary’s own 2007 Voter Verified Audit Trail report admitted: “the sequential printing of the VVPAT paper ballots does not guarantee voter anonymity as required by Georgia law”. Those machines rolled up elections results sequentially into a sealed canister rather than cutting the ballots and dropping them into a secured ballot box.

The lawsuit was drawn up so that if the Plaintiffs won any single other single count against the currently used voting machines, procedures and election code, the state would be enjoined from using all of the machines and any procedures that violated the rights of the voters. When deposing the Defendants’ witnesses during the extensive discovery period, the Plaintiffs obtained key admissions that were over and above what was expected. Therefore, In March of 2008, the Plaintiffs filed a Motion for Summary Judgment on five of the counts, contending that there was no need for a trial since the Defendant’s own witnesses had admitted key elements of the case as necessary for a favorable judgment.

Immediately afterwards, the Defendants also filed a Motion for Summary Judgment requesting that all counts be dismissed without a trial. If a court is to uphold any such motion by either side there must be no dispute of material facts.

Oral arguments were eventually scheduled for September 8, 2008. These arguments are a formality since a judge’s decision must be based on the briefs that were previously submitted. That day, Judge Michael Johnson denied our Motion for Summary Judgment and upheld the Defendant’s motion to dismiss all counts. He also stated in court that he would produce a Final Order stating the rationale for his decision by the end of that week.

For the next few months Plaintiffs, media representatives, interested parties and even a state legislator repeatedly contacted the Judge’s staff attorney, Steven Jones, to get a copy of the order. During that time, Judge Johnson was reelected to another term while running unopposed. On February 20, 2009, one hour after a legislator called the judge’s office for the second time, the order was released.

After a quick review of the fairly simplistic order we were amazed to find that the court:

•    Never considered in its order, a shred of the extensive evidence we provided;
•    Made at least 6 conclusions that were in direct conflict with the evidence we presented in the case;
•    Made at least another 9 conclusions citing facts that were actually in dispute and thus should have required the court to conduct a trial;
•    Never ruled on nearly all of the arguments we presented;
•    Failed to rule or even understand several counts of the case;
•    Repeatedly lacked rationale as to why our arguments were invalid;
•    Misinterpreted key case law that confirms our constitutional arguments;

Because of this bizarre ruling, we have never been able to publicly present our evidence in an open court of law. Since there were Constitutional issues at stake, we prepared an appeal straight to the Georgia Supreme Court.

The appeal that was filed on June 1, 2009 cites two main thrusts of errors committed by the lower court. These are:
•    The court unjustly denied our right to a trial when it upheld the Motion to Dismiss and made 17 conclusions that were not supported by, or in direct conflict with, the evidence of the case.
•    The Court misapplied case law when it denied our Motion for Summary Judgment and ruled in conflict with all U.S. Supreme Court case law for ballot counting and recounting.

On June 30, 2009 the Defendants (known as Appellees) filed their response. On July 13, 2009, exactly three years after our initial filing, the Georgia Supreme Court heard oral arguments. At that hearing, we provided a supplemental brief, filed on July 17, 2009, citing 41 disputes of facts that were contained in the Defendants’ Supreme Court brief.

During the hearing, one of the justices requested a letter from the Defendants to detail a ballot access case that they cited as a U.S. Supreme Court ruling in their favor. We responded with our own letter explaining that:

•    The case cited was immaterial because it was not about ballot counting;
•    The Defendants have yet to cite a single U.S. Supreme Court ruling regarding ballot counting that is in their favor;
•    Virtually all U.S. Supreme Court case law regarding ballot counting and recounting is in our favor.

The Georgia Supreme Court is now in a difficult position. To rule against us, the justices will have to conclude that:

•    None of the 41 factual disputes that we have cited are valid;
•    All U.S. Supreme Court case law that strictly scrutinizes the fundamental right of ballot counting and recounting does not apply to this case;

We will soon learn if there is any justice left in Georgia

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Summary Judgement Hearing 9/8/08 in VoterGA Lawsuit

[Notice from Garland Favorito of VoterGA, announcing court date in the often-postponed summary judgement hearing in the statewide lawsuit challenging the legality of Georgia's all-DRE voting system. -- Ed.]

VoterGA Supporters,

At long last our court date has been rescheduled for Mon. Sept. 8 at 2:30pm.
Todd Harding, with assistance from our lead counsel, Walker Chandler, will make an oral argument in support of his motion for Summary Judgment to remove the unverifiable voting machines throughout Georgia. The Defendants will argue their motion to dismiss all counts of the lawsuit. All motions are posted on the voterga.org web site under the legal suit tab. The arguments will take place in courtroom 8B of the Fulton Co. Superior Court at 185 Central Ave. approximately two blocks south of the Underground Atlanta and the Five Points Marta station.

The motion for Summary Judgment seeks to ban the Diebold AccuVote TS-R6 from Georgia on the grounds that sole reliance on an electronic ballot cannot provide protection equal to that of an absentee paper ballot used in Georgia.

The motion also seeks to ban the Diebold GEMS servers that are currently used to count both the electronic and optical scan votes in Georgia on the grounds that the state has already admitted that they cannot detect fraudulent manipulation of the vote and thereby the abridge the right to vote.

The motion further seeks to ban the Diebold AccuVote TSX machines piloted in Georgia on the grounds that their sequentially rolled election results jeopardize secrecy of the ballot as required by the Georgia Constitution, a point already admitted in a report from the office of the current Secretary of State.

Should any or all of these counts be upheld most of the arguments can be used in other states so they will have a nationwide impact.

The Defendants will argue to have all counts dismissed so if you are a Georgian, WE NEED YOU THERE. I am asking everyone who can make it to please come out and show that you support the lawsuit to restore the integrity of Georgia voting. Please wear your VoterGa pins or other related badges of support. This is our chance to make an impression on the judge that we care. I would expect the oral arguments to run about one hour.

Even if you are not from Georgia, this case can help you rid your state of unverifiable electronic voting. Please help us win these oral arguments by making a contribution to offset the court costs and legal fees for the arguments. You can click here to make a donation or mail your contribution to: Voter GA P.O. Box 808 Decatur, Ga. 30031. Please remember that all contributions are fully tax deductible and that your entire contribution goes exclusively to offset legal fees because we are an all-volunteer organization.

Garland Favorito

404 664-4044

Three Candidates Added to VoterGA Lawsuit as Plaintiffs

Press Release: Tuesday, Nov. 21, 2006

Media Contact:
Garland Favorito
(404) 664-4044

2006 Election Candidates Join E-Voting Rights Suit

ATLANTA, GA – VoterGA, a diverse non-partisan coalition that organized an E-Voting rights lawsuit filed in Georgia during July of this year, announced today its intent to enjoin three 2006 election candidates as plaintiffs to the suit. Included are a Democrat, Republican and an independent write-in candidate who are questioning the 2006 primaries, run-off and general election, respectively.

Mary Wilhite, a Republican who took first in a House District 22 primary but was edged in a run-off by 35 votes, stated she was offered a recount that could not truly be performed. “Our Cherokee County Elections Director agreed to a recount because the victory margin was only 1% but state procedures simply re-accumulate previous totals. No ballots were ever recounted because no ballots actually exist. The process was completed in about a half hour with no change in results.”

Woody Holmes, independent write-in candidate for Georgia House District 65, stated that on the day his election was certified, Fulton County reported he had only two votes. After he questioned the results, the next day the county changed the total to 217 but Holmes believes he got that many votes in a single precinct. He explained: "Our campaign went door-to-door and collected signatures of support from over 800 voters, we distributed 250 yard signs, mailed 4000 campaign pieces to homes in the district, operated a phone bank to get out the vote as well as using automated phone calling to reach out to voters. My message was grounded on issues important to the voters in the district, noting the differences between me and my opponent who was the only named candidate on the ballot."

Former Democratic State Senator, Donzella James, who ran for the 13th U.S. Congressional District, questioned the results of her primary. “There is no way for candidates to truly determine if they won or lost. We must insist on machines and procedures to ensure that every vote is recorded accurately just as it was cast. Even if there is little that can be done about our races this year, all Georgia voters and future candidates will benefit from restoring accountability to our elections.”

The landmark lawsuit challenges the legality and constitutionality of Georgia’s current voting method including the audit trail pilot. It charges that recounts are not currently possible, ballots and people were unconstitutionally removed from elections, electronic voters are not afforded the equal protection given absentee voters and that machine accuracy cannot be determined on Election Day with or without the pilot. The lawsuit can be viewed at the web site, http://www.voterga.org.

VoterGA Lawsuit: Favorito v. Cox, Perdue, and Georgia State Election Board

IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE NO.

GARLAND FAVORITO, MARK SAWYER,
RICARDO DAVIS, AL HERMAN, FRIEDA SMITH, KATHRYN WEITZEL, ADAM SHAPIRO, and CATHIE CALABRO,
Plaintiffs,

VS

CATHY COX, SECRETARY OF STATE OF GEORGIA
SONNY PERDUE, GOVERNOR OF GEORGIA
GEORGIA STATE ELECTION BOARD,
Defendants.

COMPLAINT
Come now the Plaintiffs, above-named, and show this Honorable Court the following:

INTRODUCTION

1.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. 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.

JURISDICTION and VENUE

2.This case arises under the Constitution and the laws of the State of Georgia. This Court has jurisdiction based upon O.C.G.A. §9-4-1 et sequitur to grant both declaratory and injunctive relief.
Venue, under O.C.G.A.§ 9-10-30, is appropriate in Fulton County as at least one of the Defendants against whom substantial relief is prayed has his principal residence there.

PLAINTIFFS

3.Plaintiff Garland Favorito is an elector of the State of Georgia and a resident of Fulton County. He is an independent computer consultant and serves as Elections Director of the Constitution Party, a registered political body under the laws of the State of Georgia.

4.Plaintiff Mark Sawyer is an elector of the State of Georgia and a resident of DeKalb County. He is a curriculum coordinator and board member of Defenders of Democracy, hereinafter “DOD”, an unincorporated organization that represents approximately 2000 concerned citizens who want to restore the integrity of elections in Georgia.

5.Plaintiff Ricardo Davis is an elector of the State of Georgia and a resident of Cherokee County. He is a business systems computer analyst and current Chairman for the Constitution Party of Georgia, a registered political body under the laws of the State of Georgia.

6.Plaintiff Al Herman is an elector of the State of Georgia and a resident of DeKalb County. He owns and operates a video production business, is a former write-in candidate for the U.S. House Of Representative Seat for the 7th Congressional District of Georgia. He is Treasurer of the Georgia Green Party, a political body under the laws of Georgia.

7.Plaintiff Frieda Smith is an elector of the State of Georgia and a resident of Cobb County.

8.Plaintiff Kathryn Weitzel is an elector of the State of Georgia and a resident of Cobb County. She is a waitress and homemaker and co-founder of the Libertarian Action Network.

9.Plaintiff Adam Shapiro is an elector of the State of Georgia and a resident of the City of Atlanta in Fulton County. He is a visually impaired voter and co-chair of the Georgia Green Party, a political body under the laws of Georgia.

10. Plaintiff Cathie Calabro is an elector of the State of Georgia and a resident of the City of Atlanta in Fulton County. She has been a life long Democratic Party campaign worker and is a writer, editor and scholar.

DEFENDANTS

11.Defendant Cathy Cox is the Secretary of State of Georgia, in which capacity she is responsible for the orderly and accurate administration of the electoral processes of the State of Georgia. She is an Election Officer under the provisions of 42 U.S.1973e and is responsible under the Official Code of Georgia Annotated to uphold the laws of Georgia in regards to its electoral processes. She is sued in her capacity as Secretary of State as well as in her capacity as Chairperson of the State Election Board.

12.Defendant Sonny Perdue is the Governor of Georgia, and as such is responsible for the proper enforcement of the laws of Georgia and is likewise chargeable with the duty to protect and defend the laws and Constitutions of the State of Georgia.

13.Defendant Georgia State Election Board is an official state board created under the provisions of O.C.G.A. § 21-2-30. Among its other duties, it is responsible to supervise and coordinate the work of the office of the Secretary of State, and to formulate, adopt and promulgate such rules and regulations consistent with law as will be conducive to the fair, legal, and orderly conduct of primaries and elections.

GENERAL OVERVIEW

14.With the consent and knowledge of Defendant State Election Board and the General Assembly of Georgia, Defendant Cox, in her official capacity as Secretary of State, promoted and implemented electronic voting by the use of Diebold Touch Screen Voting Machines [DVMS] throughout Georgia beginning in 2002. Virtually all election day voting in Georgia as well as most early voting is now done by DVMS. Absentee ballots and some early voting are done via paper ballots.

15.During the voting machine evaluation and selection process, public comments were solicited. From the response to these solicitations, Defendants and/or their subordinates received numerous easily verifiable warnings that the problems and shortcomings hereinafter set forth concerning the proposed usage of DVMS were reasonably to be anticipated with the adoption of the DVMS system.

16.Notwithstanding such warnings, and ignoring other verifiable voting systems on the market, the Defendants:

A. Adopted the use of DVMS;
B. Entered into a contract to acquire and distribute same, and to replace the voting systems of Georgia with such DVMS at the cost to the taxpayers of Georgia of more than 54 Million dollars;
C. Did not implement procedures necessary to preserve the audit controls, verifiability, and recount capabilities comparable to those of optical scan and punch card systems that were in place in Georgia at the time of the DVMS purchase.

17.The Defendants could have evaluated and selected electronic voting machines which produce votes that can be verified, audited, and recounted or the Defendants could have continued to use optical scan punch card equipment that produces votes that can be verified, audited, and recounted.

COUNT ONE

The Definition of “Ballot” Set By O.C.G.A. § 21-2-280 is Unconstitutional

18.Each and every allegation set forth each of the foregoing paragraphs of this Complaint is incorporated by reference herein.

19.Article II, Section 1, Paragraph 1 of the Georgia Constitution provides as follows:

Method of Voting

Elections by the people will be conducted by secret ballot and shall be conducted in accordance with procedures required by law.

20. O.C.G.A. § 21-2-280 states as follows:
All primaries and elections in this state shall be conducted by ballot, except when voting machines are used as provided by law.

21. O.C.G.A. § 21-2-280 attempts to exclude elections conducted by the use of voting machines from the Constitutional requirement that the election be conducted by secret ballot. This exclusion conflicts with Article II, Section 1, Paragraph 1 of the Georgia Constitution. State law cannot legally provide for exceptions to the Georgia Constitution, which requires that elections must be conducted by secret ballot.

22. O.C.G.A.§ 21-2-280 further states: “A ballot may be electronic or printed paper”.

23. The aforesaid code section’s attempt to redefine the term “ballot” to include an electronic record if only electronic is being relied upon is also unconstitutional in that an electronic record breaks the custody and control that voters have typically enjoyed over their own ballots and that the framers of the Constitution would obviously expect. Such redefinition of the term ballot deprives the voters of their heretofore generally accepted rights and privileges as follows:

A. The voter cannot touch or even see his own alleged electronic record that has been defined as a “ballot”;
B. The voter cannot verify that his ballot selections were recorded correctly because he cannot see the selections as allegedly recorded or tabulated in the vote counting process;
C. The voter cannot confirm that a ballot was ever actually cast because he has no access to the electronic record that the Georgia Code claims is a ballot;
D. The DVMS procedures only produce and tally alleged voting machine totals and do not provide for any manual count of any ballots;
E. Election results cannot be audited because no tangible external physical evidence of individual voter intent is ever produced;
F. Elections cannot be recounted because only reprints of previous unverifiable results are possible with the current machines and implementation.

24. The Constitution was framed in an era of paper ballots. Current, widely referenced definitions of ballot that are historically applicable and would have been generally accepted at the time the Constitution was framed are:

A. A ball, ticket, paper, or the like by which one votes and which gives no indication of who the voter is.
B. A sheet of paper or a card used to cast or register a vote, especially a secret one .
C. A document listing the alternatives that is used in voting.
Each of the foregoing definitions indicate that a ballot provides direct, physical evidence of voter intent that the voter can see, cast, and count as necessary. The characteristics of an electronic record are inconsistent with these generally accepted definitions.

25. The characteristics of a standard ballot referenced in the Georgia Constitution are so unlike those of an electronic computer record that it creates a further conflict between the current unconstitutional definition of a ballot in the Georgia Election Code and the obvious intent that the framers of the constitution implied by the term “ballot”.

26. Plaintiffs are entitled to have the Court declare that the attempted redefinition of the term ballot in O.C.G.A. § 21-2-280 violates the terms of the Georgia Constitution.

COUNT TWO

Use of DVMS Deprives The People from Conducting Elections by Unconstitutionally Delegating Critical Election Functions to Machine Processes that Cannot be Verified or Audited by the People

27.Each and every allegation set forth in each of the foregoing paragraphs of this Complaint is incorporated by reference herein.

28.Prior to the 2002 Georgia DVMS implementation, approximately 83% of Georgia election day voters used optical scan and punch card equipment to cast ballots that could be verified and/or audited by the people or their representatives. The 2002 DVMS implementation broke the traditional chain of custody between the election day voter and his ballot, thus reducing the percentage of non-absentee ballots that could be verified, and/or audited by the people from approximately 83% to 0%.

29. Under the current DVMS implementation:

A. The DVMS chooses ballot selections for the voter and places them in an internal electronic record that the voter is never allowed see and is not able to see;
B. The DVMS does not permit voters to directly cast their ballots but instead claims to cast the ballot for the voter without providing any protection for the voter to physically confirm that the ballot was ever cast,
C. The DVMS produces totals of the votes for each candidate or referendum issue without allowing involvement by people in counting any votes or auditing the counts.

30. At the time the framers of the Georgia Constitution included the phrase elections by the people, there was a standard bond between the people and their ballots because the traditional chain of custody was in place throughout most of Georgia. The framers of the Georgia Constitution expected that:

A. The People would directly choose their own candidate selections and verify the selections on their ballots;
B. The People would directly and physically cast their ballots to ensure that the votes on the ballots cannot be manipulated; and
C. The People could be involved in counting the ballots to determine election results.

31. The current implementation of the DVMS method of voting in Georgia is in violation of Article II, Section 1, Paragraph 1 of the Georgia Constitution in that people have been removed from the three key elements of the electoral process, to wit, choosing the candidates, casting the ballots, and counting the results. The DVMS implementation is incapable of providing the voter or election officials with tangible, recorded evidence of individualized voter intent and thus deprives the people from conducting credible elections by unconstitutionally delegating critical election functions to machine processes that cannot be verified or audited by the people or their representatives.

32. O.C.G.A.21-2-379.11 (b) states in pertinent part:
“All proceedings at the tabulation center shall be open to the view of the public but no person except one employed and designated for the purpose by the superintendent of the superintendent’s authorized deputy shall touch any ballot, any DRE (see footnote 1) unit or the tabulating center.”

33. The transfer of the rights and duties of counting election results from the people or their representatives to others, to wit, private company programmers using secret proprietarial source codes and aftermarket “patches”, has resulted in the erection of a shroud of secrecy around the vote counting process. Plaintiffs contend that on several occasions, since the implementation of DVMS, observers have been refused the right to view counting at the county tabulation centers. Refusal to allow such observers to view counting processes at the tabulation centers is a violation of the aforesaid law.

34. O.C.G.A. 21-2-584 provides in pertinent part:

“If any manager refuses or willfully fails to administer the oath to the poll officer in the manner required by this chapter, or if any poll officer shall knowingly act without being first duly sworn, or if any person shall sign the written form of oath without being duly sworn, or if any manager or any other person authorized to administer oaths shall certify that any such person was sworn when he or she was not, he or she shall be guilty of a misdemeanor.”

35. The transfer of the rights and duties of counting election results from the people or their representatives to others (i.e. programmers) has resulted in access to election results by unelected and unsworn individuals or companies. The source code for the DVMS is a proprietary code created, manipulated, and controlled by Diebold employees or others of the Diebold Company’s choosing with no common elector review, comprehension, or verification, either before, during, or after the election process. Diebold representatives have repeatedly been utilized on election nights since 2002 to assist various counties within the State of Georgia to produce election results.

36. O.C.G.A. 21-2-99 provides in pertinent part:

(a) The election superintendent shall provide adequate training to all poll officers and poll workers regarding the use of voting equipment, voting procedures, all aspects of state and federal law applicable to conducting elections, and the poll officers? or poll workers? duties in connection therewith prior to each general primary and general election and each special primary and special election; provided, however, such training shall not be required for a special election held between the date of the general primary and the general election. Upon successful completion of such instruction, the superintendent shall give to each poll officer and poll worker a certificate to the effect that such person has been found qualified to conduct such primary or election with the particular type of voting equipment in use in that jurisdiction. Additionally, the superintendent shall notify the Secretary of State on forms to be provided by the Secretary of State of the date when such instruction was held and the number of persons attending and completing such instruction. For the purpose of giving such instructions, the superintendent shall call such meeting or meetings of poll officers and poll workers as shall be necessary. Each poll officer shall, upon notice, attend such meeting or meetings called for his or her instruction.

(b) No poll officer or poll worker shall serve at any primary or election unless he or she shall have received instructions, as described in subsection (a) of this Code section; shall have been found qualified to perform his or her duties in connection with the type of voting equipment to be used in that jurisdiction; and shall have received a certificate to that effect from the superintendent; provided, however, that this shall not prevent the appointment of a poll officer or poll worker to fill a vacancy arising on the day of a primary or election or on the preceding day.

37. Diebold representatives do not take the required oath to serve during elections nor do they receive the required certificate even though their activities included electronically connecting to county servers for real-time monitoring of election results, repeatedly transmitting inaccurate county results, and handling voting machines that contained memory cards with completed absentee ballots.

38. O.C.G.A. § 21-2-94 provides in pertinent part:

“The following shall be the form of the oath to be taken by each manager: 'I, _______________, do swear (or affirm) that I will as manager duly attend the ensuing election (or primary) during the continuance thereof, that I will not admit any person to vote, except such as I shall firmly believe to be registered and entitled to vote at such election (or primary), according to the laws of this state, that I will not vexatiously delay or refuse to permit any person to vote whom I shall believe to be entitled to vote as aforesaid, that I will use my best endeavors to prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of the said election (or primary), and that I will at all times truly, impartially, and faithfully perform my duties therein to the best of my judgment and ability.'”

39. The transfer of the rights and duties of counting election results from the people to others has also resulted in an unlawful delegation of administration responsibilities to Diebold representatives who are not sworn to uphold the election laws of Georgia. Participating in the conduct of an election without being properly sworn to the oath of office is a violation of O.C.G.A. § 21-2-584.

COUNT THREE

The Current DVMS Implementation Does Not Comply With O.C.G.A.§ 21-2-379.1

40. Each and every allegation set forth in each of the foregoing paragraphs of this Complaint is incorporated by reference herein.

41. In support of the proposed change to electronic voting, the General Assembly passed O.C.G.A.§ 21-2-379.1, Requirements for Use of Electronic Voting Systems, which states:

No direct electronic recording voting system shall be adopted or used unless it shall at the time satisfy the following requirements:

within which paragraph (8) reads as follows:
It [any electronic voting machine] shall when properly operated record correctly and accurately every vote cast.

42. Electronic voting using DVMS was implemented by Defendant Cox without a procedure to ensure that the machines can “record correctly and accurately every vote cast” on the days of elections when said machines are actually used as required by law. Defendant Cox implemented no procedure to test or audit the alleged results and tallies after elections.

43. The current procedures that call for machine certifications in lieu of election night audits are unlawful because O.C.G.A.§ 21-2-379.1 requires that the machines record correctly and accurately every vote cast at the time of use.

44. Academic, institutional, and official state-commissioned reports from throughout the country have exposed serious design and security defects that have led to the rejection, decertification, halt of deployment, or legislative action to replace the DVMS systems in the states of Nevada , California , Ohio and Maryland . Each of these states concluded in official capacities that machines and procedures similar to those used in Georgia are dangerous to the integrity of the elective process.

45. United States Supreme Court decisions have consistently recognized the right of citizens to have their votes counted and to have those rights protected. In Reynolds v. Sims, 377 U.S. 533 it stated: "It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote . . . and to have their votes counted". In United States v. Mosley, 238 U.S. 383, the Court wrote: [it is] "as equally unquestionable that the right to have one's vote counted is as open to protection . . . as the right to put a ballot in a box".

46. Diebold representatives, Defendant Cox, and others representing the office of Defendant Cox have acknowledged that uncertified electronic “patches” were made to the DVMS after said DVMS were certified for the 2002 elections and prior to those elections. Diebold representatives and Defendant Cox. contended that those patches were limited to the operating system of the DVMS.

47. O.C.G.A. 21-2-379-2 (f). states in pertinent part:
“When a direct electronic recording voting system has been so approved, no improvement or change that does not impair its accuracy, efficiency or capacity shall render necessary a reexamination or reapproval of such system or of its kind”

48. Operating system patches can affect efficiency, accuracy or capacity of the DVMS and thus render a reexamination necessary as required by law. Defendant Cox and vendor, Diebold, conducted no such reexamination after the uncertified patches were installed on the DVMS and therefore, violated O.C.G.A. 21-2-379-2 (f). Such violations are capable of repeated future occurrences.

49. As a result of this violation of law, the DVMS were never properly certified for the 2002 elections. No records exist in the Office of the Secretary of State regarding a certification letter certifying the software version used on election days for the 2002 Elections.

50. For the aforesaid reasons, Plaintiffs are entitled to have the Court declare that the Defendants are unable reliably to comply with the verification requirements of O.C.G.A._21.2.379.1 (8) or with their obligations to certify election results under the provisions of O.C.G.A. 21-2-499 (b) and/or U.S.§ 42 U.S.1973e, or to protect the rights of the people to honest and open elections guaranteed them by the Georgia Constitution. The Plaintiffs are entitled to have Defendants enjoined from using the DVMS in its present configurations.

COUNT FOUR

The DVMS, As Configured, Deny Candidates and their Supporters
Their Rights to Fair Recountings of Votes in Close Elections

51. Each and every allegation set forth in each of the foregoing paragraphs of this Complaint is incorporated by reference herein.

52. The Georgia Election Code provides conditions by which a candidate “shall have the right to a recount of the votes cast”. For example, O.C.G.A. 21-2-495 (c) provides in pertinent part:
“…any such candidate or candidates receiving a sufficient number of votes so that the difference between his or her vote and that of a candidate declared nominated, elected or eligible for a runoff is not more than 1 percent of the total votes cast, within a period of two business days following the certification of the election results, shall have the right to a recount of the votes cast if such request is made in writing by the losing candidate.”

53. The existing DVMS implementation is capable only of recounting the original alleged electronic records that were initially reported by the DVMS machines and do not provide direct physical evidence of individualized voter intent of votes directly and physically cast by voters. The electronic records relied upon during the recounting process are mere allegations or summations of the DVMS machines. The original vote-casting reported by the machine was never actually visible to the voter so the voter had no way to verify whether or not his selections were accurately recorded by the DVMS in the first place.

54. Direct, physical evidence of voter intent is essential to the integrity of the election process, and it is necessary for poll officials to be able to maintain custody over the records of voter intent and that such records be kept safely in a ballot box or other safekeeping device prior to tallying, and for the people to maintain custody over the process of counting and recounting votes as well as the occasional auditing of machine performance to provide evidence of integrity and reliability as well as to detect and prevent election fraud.

55. Plaintiffs are entitled to have the court enjoin the use of the current DVMS implementation and to mandate that other systems of vote capture and preservation be instituted or reinstituted so that recounts provided for by O.C.G.A. 21-2-495 (c) but actually occur.

COUNT FIVE

Use of DMVS Denies Equal Protection for Electronic Voters vs. Absentee/Pre-election Voters

56. The allegations set forth in all of the foregoing paragraphs of this Complaint are incorporated by reference herein.

57. Article 1 Section 1 Paragraph 2 of the Georgia Constitution provides that:
No person shall be denied the equal protection of the laws.

58. Absentee and many pre-election Ballots have the obvious characteristics of a ballot that the framers of the Georgia Constitution intended. Such ballots provide that:

A. The voter can see the selections that are on the ballot;
B. The voter can cast the ballot at designate receiving locations if the voter chooses;
C. The people of Georgia, including officials sworn to uphold the laws of the state, can physically count the ballots;
D. The ballots represent direct physical evidence of voter intent and are retained for recount purposes which they are fully capable of fulfilling

59. While voters who cast absentee or written pre-election ballots are afforded these protections, while voters who cast votes on regular election days in Georgia must cast their votes on the DVMS and thereby are not afforded any of these privileges under the current laws of the state and cannot reliably hope that they enjoy equality of treatment either in elections or recounts with those whose votes have been preserved by physical means.

60. Plaintiffs are entitled to have the Court declare that use of DVMS in its current form violates the Georgia Constitution’s equal protection guarantees of those voters using DVMS vis-à-vis the selections made by those who vote by written ballots and to mandate that the Defendants implement a system or systems which will adequately safeguard the rights of the users of voting machines and assure that as to elections and recounts that they shall stand on an equal footing with those who have voted by using standard ballots.

COUNT SIX

Georgia’s Audit Trail Pilot Project to Comply with Voting Accuracy and Correctness Law Cannot Safeguard the Rights of the People or Provide Assurances Against Future DVMS Failures

61. Each and every allegation set forth in each of the foregoing Paragraphs is incorporated by reference herein.

62. Because the General Assembly was worried about the same issues raised in this Complaint, it passed O.C.G.A. § 21-2-379.12 which provides as in pertinent part as follows:

The Secretary of State shall implement a pilot program providing for the use of direct recording electronic (DRE) voting equipment equipped and configured with an elector verified, permanent paper record of the votes cast by each elector on each DRE unit in one precinct each in the Counties of Cobb, Bibb, and Camden in the 2006 November general election and any runoff from such election.”

63. For the purpose of the three-precinct pilot project, the Elections Division of the office of the Secretary of State has chosen to purchase and implement a newer version of the Diebold AccuVote series machines that are currently used throughout Georgia. That model that is frequently referred to as the AccuVote TSX, that the Elections Division intends to implement in the pilot precincts for the 2006 elections do not produce individually separated ballots but instead roll all alleged election results captured by the voting machine into a sealed canister.

64. During the 2006 House Government Affairs Committee hearings for SB500 and HB790, SB500 author Sen. Bill Stevens and Elections Director Kathy Rogers expressed concern that it could take at least 33 hours and possibly up to 66 hours for a precinct to hand count even a single race on election night with the selected technology. Consequently, the law enacted as a result of the passage of SB500, O.C.G.A.21-2-379.12 (c), provides in pertinent part that:

“…the Secretary of State shall cause a complete manual audit to be performed on each DRE unit used in the pilot project for voting within 30 days following the 2006 November general election and within 30 days of any runoff of such election.”

65. O.C.G.A. 21-2-499 (b) provides in pertinent part that:

“Not later than 5:00 P.M. on the fourteenth day following the date on which such election was conducted, the Secretary of State shall certify the votes cast for all candidates described in Subparagraph (A) of paragraph (4) of Code Section 21-2-497 and upon all question voted for by the electors of more than one county and shall no later than that same timed lay the returns for presidential electors before the Governor.” And that: “The Governor shall certify the slates of presidential electors no later than 5:00 P.M. on the fifteenth day following the date on which such election was conducted.”

66. The testimony referenced in the foregoing Paragraphs regarding the selected technology renders it impossible for the Elections Division to determine that the voting machines did “record correctly and accurately every vote cast” when the technology was used on Election day or the evening thereof. Furthermore, the newly implemented law allows the manual audit for accuracy to be completed after election results are certified as described in the foregoing Paragraph.

67. Even if the altered DVMS used in the pilot project can show they accurately recorded votes, the project cannot be relied upon by the State of Georgia to bolster any contention that the DVMS machines were reliable in the past, are reliable in the current election cycle, or henceforth will be so reliable as to assure Plaintiffs, the Court, and the people of Georgia that the concerns set forth in this entire Complaint are without merit or legal justification.

68.Plaintiffs are entitled to have the Court declare that the so-called pilot project mandated by O.C.G.A. § 21-2-379.12 can in no way be relied upon to validate or legalize the use of the DVMS as currently implemented and that the pilot project’s and any future election’s use of the DVMS roll-up system is itself is violative of the prompt certification and reporting of vote results required by O.C.G.A. 21-2-499 (b) and similar prompt-reporting statutes.

COUNT SEVEN

The Audit Trail Pilot Project, Unconstitutionally Underminesthe Affected Voters’ Rights To a Secret Ballot

69. Each and every allegation set forth in each of the foregoing paragraphs of this Complaint is incorporated by reference herein.

70. The Georgia Constitution’s explicit guarantee of a secret ballot necessarily includes the requirement that a recapitulation of voter activity cannot indicate for whom a given voter voted.

71. The new Diebold Accuvote TS machines with printed roll-up vote/ballot tabulation cannot fulfill said Constitutional requirement of a secret ballot because the machines list voter results in the sequence that the voters came into the polling place, thus giving indication of who the voter might be and how he voted.

72. Determining the identity of the voter could be even easier once recently-purchased electronic poll books that can record date and time of voter appearance are implemented in Georgia. No assurances can be obtained that such information is not captured because the vendor, Diebold, has already contended in election-related cases that the data structures of their products are of a proprietary nature and cannot be revealed to the general public.

73. Plaintiffs are entitled to have the Court declare the so-called pilot project unconstitutional and to enjoin the state or its political subdivisions from using DREs that make printed sequential records of individual voting choices.

COUNT EIGHT

Mandamus

74. The allegations set forth in the foregoing paragraphs of this Complaint are incorporated by reference herein.

75. Plaintiffs are entitled to relief by mandamus as provided for by O.C.G.A. § 9-6-24 which reads:
Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.

76. The Court has full and complete power to fashion mandate relief by virtue of O.C.G.A.§ 9-6-20, which reads:

Enforcement of official duty; inadequacy of legal remedy

All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance, if there is no other specific legal remedy for the legal rights.

WHEREFORE Plaintiffs pray:

a) That summons and process issue;
b) That the Court inquire into the issues of this case;

DECLARATORY RELIEF SOUGHT

c) That the Court use its legal authority to declare the following:

1. That the current implementation of Diebold AccuVote TS (R6) voting machines cannot meet the requirements of O.C.G.A.§ 21-2-379.1 (8) since the machines provide no practical means for verification to ensure that they did“ record correctly and accurately every vote cast” when they are used on Election Day

2. That the current system of use of Diebold Equipment (DVMS) does not adequately provide direct physical evidence of voter intent;

3. That the current system of use of Diebold System (DVMS) does not adequately insure the right of candidates and the voting public to a recount where such is allowed by law;

4. That the current system of use of Diebold (DVMS) does not provide a means to audit the veracity or otherwise physically recount votes cast so as to assure the integrity of the electoral process;

5. That O.C.G.A.-21.2.280 is unconstitutional and is in violation of Article II, Section 1, Paragraph 1 of the Georgia Constitution in its attempt to redefine the Constitutional meaning of a ballot to an internal electronic record that the voter cannot see or touch, that neither the voter nor a voter registrar can verify was cast, and that provides no direct physical evidence of voter intent which can be relied upon at a recount;

6. That the current use of the Diebold AccuVote TS (R6) voting machines is unconstitutional in that such use violates Article II, Section 1, Paragraph 1 of the Georgia Constitution in that it is unable to produce a ballot that the voter can see or touch, that the voter can verify was cast, or that provides direct physical evidence of voter intent as to elections or recounts;

7. That voters who cast electronic records during an election on the currently employed Diebold AccuVote TS (R6) voting machines are denied equal protection under the Georgia Constitution relative to those votes cast by absentee ballots and/or early written ballots that can easily be verified, audited, and recounted;

8. That the planned implementation of the Diebold AccuVote TSX voting machines for the 3 precinct pilot cannot meet the requirements of O.C.G.A.§ 21-2-379.1 (8) since the machines provide no practical means for verification to ensure that they did “record correctly and accurately every vote cast” at the time they are used on Election Day;

9. That the pilot project can in no way be determinative of past, present or future DVMS accuracy;

10. That the planned implementation of the Diebold AccuVote TSX voting machines for the precinct pilot cannot meet the ballot secrecy requirements of the Georgia Constitution since the machines produce voter results in a paper roll that represents the exact sequence in which the voters cast their ballots;

11. That any f computer codes and devices used in DRE’s should be available for inspection upon reasonable request and not be held as proprietary information or infringe upon other relevant rights of the public to inspect and know the public business.

INJUNCTIVE RELIEF SOUGHT

d) That should the Court find and declare that the DVMS voting machines and their system of employment is violative of state statutory or constitutional protections that it:

1. Enjoin the State of Georgia from using any electronic voting systems that do not produce simultaneous, individualized, physical printouts or non-sequential memoranda of direct voter intent;

2. Enjoin the State of Georgia from using any electronic voting systems unless and until procedures are implemented for the precincts to verify that the machines used actually counted votes correctly on election night prior to the posting of election results;

3. Enjoin the Defendants from destroying any materials (including documents, software, data,) relating to the primaries and elections of 2002, 2004, and 2006 until the disposition of this case is complete.

4. Enjoin the State of Georgia from purchasing any additional electronic voting equipment that does not comply with Georgia statutory and Constitutional requirements.

5. Enjoin the State of Georgia from using any electronic voting systems that have secret source codes and/or electronic “patches” that are not available for reasonable public scrutiny before, during, and after elections.

MANDATE RELIEF SOUGHT

e) That should the Court, find and declare the DVMS voting machines and their system of employment is violative of state statutory or constitutional protections that it:

1. Require that the Office of Secretary of State implement procedures to ensure that any voting machines used in Georgia “record correctly and accurately every vote cast” at the time they are used on election days as required by O.C.G.A.§ 21-2-379.1 (8), and:

a. Mandate that for a ballot to be designated as an official ballot in Georgia, that ballot must be must be viewable to the voter, physically verifiable by the voter as being cast, and retained as direct physical evidence of voter intent for audit and recount purposes;

b. Require public, manual vote counting of official ballots in at least one contested race or referendum selected publicly and randomly at each precinct and conducted by the precinct on election night immediately after the polls close and before precinct results are posted;

c. Require posting of any discrepancies found between machine counts and manual counts at the precinct prior to the publication of results and include those discrepancies as part of the official election results and posting of those discrepancies on any county web sites that contain election results;

d. Require procedures where a candidate or ten electors can petition for an automatic recount at no charge to the candidate or other parties involved if discrepancies span precinct boundaries.

e. Mandate that the State of Georgia make available to the public upon reasonable request any and all source code used to operate voting machines, county tabulation servers, and the state tabulation center.

2. Direct that any and all relief granted in these prayers be fashioned to ensure that the need of all visually impaired voters, as well as voters with other disabilities, to continue to vote independently with any special equipment that may be necessary to achieve the relief sought.

3. Require Defendants to turn over any and all relevant materials to the Court or its authority so the Court can determine whether any person or persons did willfully neglect his, her, or their duties during the 2002 implementation and subsequently of DVMS voting in Georgia.

e) Award reasonable attorneys fees to Plaintiffs for the prosecution of this action;
f) That the Court order that a jury trial be had as to any contested facts;
g) That the Court grant such other and further relief as it may deem appropriate.

Respectfully submitted,

Law Office of Walker Chandler

___________________________
Walker Chandler, Attorney for Plaintiffs
Georgia Bar. No. 120675

15 Jackson Street
P.O. Box 7
Zebulon, Georgia 30295
(770) 567-3882
(770) 567-0225 Fax

IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE NO.

GARLAND FAVORITO, MARK SAWYER,
RICARDO DAVIS, AL HERMAN, FREIDA SMITH, KATHRYN WEITZEL, ADAM SHAPIRO, and CATHIE CALABRO,

Plaintiffs,
vs.
CATHY COX, SECRETARY OF STATE OF GEORGIA
SONNY PERDUE, GOVERNOR OF GEORGIA
GEORGIA STATE ELECTION BOARD,
Defendants.

ACKNOWLEDGEMENT OF SERVICE

I, Dennis R. Dunn, Deputy Attorney General of the State of Georgia hereby acknowledge service of a copy of the Complaint and Summons by and on behalf of each of the following named Defendants, to wit:
Cathy Cox, Secretary of State of the State of Georgia
Sonny Perdue, Governor of the State of Georgia
State Election Board, State of Georgia

I also hereby acknowledge that I have received the copy of the Complaint that is to be served on the Office of the Attorney General as required by O.C.G.A. § 9-4-7
This _______ day of July, 2006.

_____________________________
Dennis R. Dunn
Deputy Attorney General
Sworn to and subscribed before me
This _____ of July, 2006.

___________________________
Notary Public

IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE NO.

GARLAND FAVORITO, MARK SAWYER,
RICARDO DAVIS, AL HERMAN, FREIDA SMITH, KATHRYN WEITZEL, ADAM SHAPIRO and CATHIE CALABRO,

Plaintiffs,
VS
CATHY COX, SECRETARY OF STATE OF GEORGIA
SONNY PERDUE, GOVERNOR OF GEORGIA
GEORGIA STATE ELECTION BOARD,

Defendants.

VERIFICATION

Upon oath duly deposed, I hereby state upon oath that the facts and allegations contained in the foregoing Complaint are true and correct to the best of my knowledge and belief.
This _____ day of July, 2006.

___________________________________ ___________________________________

Sworn to and subscribed before me Sworn to and subscribed before me
the day and year above written. the day and year above written.

______________________________________. ______________________________________.
Notary Public Notary Public
My Commission expires:___________. My Commission expires:___________.

___________________________________ ___________________________________

Sworn to and subscribed before me Sworn to and subscribed before me
the day and year above written. the day and year above written.

______________________________________. ______________________________________.
Notary Public Notary Public
My Commission expires:___________. My Commission expires:___________.

___________________________________ ___________________________________

Sworn to and subscribed before me Sworn to and subscribed before me
the day and year above written. the day and year above written.

______________________________________. ______________________________________.
Notary Public Notary Public
My Commission expires:___________. My Commission expires:___________.

___________________________________ ___________________________________

Sworn to and subscribed before me Sworn to and subscribed before me
the day and year above written. the day and year above written.

______________________________________. ______________________________________.
Notary Public Notary Public
My Commission expires:___________. My Commission expires:___________.



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VoterGA and the Lawsuit to Reclaim Georgia's Elections

Source: VoterGA homepage, http://www.voterga.org

About VoterGA and the Statewide Lawsuit


On July 13, 2006 a group of Georgia citizens, organized by VoterGA.org, filed suit on behalf of all nine million current and future Georgia voters contending that our current electronic voting method is illegal and unconstitutional according to state law. The charges may seem overstated to an uninformed observer but this overview of the 7 legal counts reveals the unreported detail:

Machine Accuracy – Georgia law requires that electronic voting machines “…record correctly and accurately every vote cast…” at the time they are used. No procedure was ever implemented to ensure that the machines record the votes accurately on election night when they are used.

Recount Ability – State law provides conditions when candidates are entitled to a recount of votes. Georgia E-Voting made recounts impossible because it removed all direct physical evidence of voter intent from our elections. Voter verified ballots were replaced by voter inaccessible electronic records. Only reprints of previous unverifiable results are now possible.

Ballot Requirement – The Georgia Constitution requires all elections to be conducted by ballot. When E-Voting was implemented in 2002, Georgia law was modified to state that elections “shall be conducted by ballot except when voting machines are used…” State law cannot override a Constitutional requirement. Elections must be conducted by ballot, not by electronic record.

People Participation - The Georgia Constitution defines our “method of voting” as “elections by the people”. Currently, the people cannot see the selections on their own ballots, cannot confirm that their ballots were cast and cannot participate in counting the votes to determine election results. All critical functions of “elections by the people” were unconstitutionally removed from the people.

Equal Protection – The Constitution also states: “No person shall be denied the equal protection of the laws.” Georgia absentee voters cast votes on standard ballots that can be verified, audited and recounted. Georgia Election Day voters do not have those same privileges and are denied equal protection of the laws stated above.

The lawsuit also claims the audit trail pilot project is unconstitutional and illegal as follows:

Ballot Secrecy – The Constitution requires that elections “must be conducted by secret ballot” so that no one can identify candidates that the voter chose. The newer Diebold pilot project machines roll election results sequentially into a sealed canister. This technique can allow a poll worker or observer who accesses the results to determine precisely what candidates each voter selected.

Machine Accuracy – The newer Diebold pilot machines also cannot meet time of use accuracy requirements because they do not produce individually separated ballots that can be quickly counted and audited once the polls close. The new pilot project law even allows for machine results to be audited AFTER the election results are certified.

The basic relief that the lawsuit will seek could have been implemented in 2002 including:

* Statewide external audit trails for all electronic voting machines;
* A public audit of at least one randomly selected race at the precinct on election night;
* An automatic race recount if similar audit count discrepancies are found across precincts.

Instead, citizens like those in VoterGA who have already spent thousands of hours and dollars on this issue now must file suit to restore voting that can be verified, audited and recounted. As you can see, all seven counts of the suit are very strong. We need to win only one of the first five counts to win the case against current E-voting and just one of the last two counts to win against the pilot project. Georgia needs your immediate help so that we can take appropriate legal action to restore voting that can be verified, audited and recounted. Freedom is not free. Please click the Donation button to contribute or mail your contribution to:

VoterGA P.O. Box 808 Decatur, Ga. 30031

We are a volunteer organization so all money that you give will directly offset the legal expenses of preparing, filing and arguing this suit to preserve the principles of democracy in Georgia. See the Contribute page for information about special gifts for donors. Thank you.


Also See These Related Articles:

http://www.electiondefensealliance.org/GA_electronic_elections_history_v...

http://www.electiondefensealliance.org/georgia_state_audit_trail_chronology

http://www.electiondefensealliance.org/GA_HB_790_Precinct_Audit


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