ATLANTA — A federal judge will soon rule on whether Georgia’s hotly contested Dominion voting machines are vulnerable to hacking and violate voters’ constitutional rights, a decision that threatens to scramble the battleground state’s election procedures heading into the 2024 presidential campaign.
A sprawling six-year-long legal fight over the integrity of Georgia’s elections wrapped up in a federal courthouse in Atlanta on Thursday afternoon, teeing up a ruling that could shake voters’ faith in their electoral system and further fuel unfounded claims of fraud on the right.
The trial is not about the massive voter fraud former President Donald Trump claimed occurred there in 2020 — those lawsuits failed in the months after the election — and no actual fraud or malfeasance has been proved in this trial. Rather, the case is about whether the system is so fundamentally vulnerable to hacking and errors that it violates voters’ constitutional rights.
A good government group brought the suit in 2017, well before Trump started blaming Dominion voting machines for his 2020 loss. Still, the trial — and in particular the testimony of cybersecurity expert J. Alex Halderman, who demonstrated a dramatic machine hack in open court — has been seized on by his allies on the right as proof of election conspiracy theories.
In 2019, U.S. District Judge Amy Totenberg barred the state from using its last completely digital voting system over concerns about the security of the paperless system. The state purchased and implemented the existing Dominion system with a whopping $107 million contract, which includes ballot-marking devices that allow voters to make their choices on electronic voting machines. The machines then print receipts, with plain-text summaries of the voters’ choices and QR codes that the ballot scanners use to count the voters’ choices.
In closing arguments and at trial, plaintiffs argued the machines burdened voters and made fraud possible. The QR codes could hide a hacked election and that voters do not even check their ballot receipts to confirm their votes are being properly cast. The plaintiffs want the state to abandon the existing system in favor of hand-marked paper ballots, and urged the judge to replicate her previous ruling to ban the current system.
“They fundamentally do not understand election security, and it’s frightening,” said David Cross, an attorney for the plaintiffs.
The state has pointed to security measures it says make a hacked election practically impossible, election audits that review written results on the ballot, not the QR codes, and state rules that require poll workers to urge voters to check their ballots, too.
“We’re not saying it’s not possible, but the reason they won’t quantify the risk is because they can’t,” said Josh Belinfante, a lawyer for the defense.
Totenberg, who was appointed to the district court by President Barack Obama, wearily quipped in court Wednesday that the case has been going on “forever.” She made it clear in a ruling in November that she does not believe she has the legal authority to force the hand-marked ballot system the plaintiffs seek.
“The Court cannot order the Georgia legislature to pass legislation creating a paper ballot voting system or judicially impose a statewide paper ballot system as injunctive relief in this case,” she wrote then.
But she suggested that there is relief she could offer, like additional audits or ballots without QR codes.
Gabriel Sterling, the chief operating officer in the Georgia secretary of state’s office, testified Wednesday that overhauling an election system in an election year would be “nightmarish,” because of all the training and new policies and procedures the state would be forced to implement rapidly. (Georgia’s presidential primary is March 12.)
“You are going to disenfranchise — especially in Fulton County — thousands of people, and I don’t think anybody wants that,” he testified Wednesday, defending the state’s system as efficient and secure. Fulton County is home to Atlanta, Georgia’s largest city.
Hand-marked paper ballots led to a nearly eight-month battle over who won a Minnesota Senate seat in 2008, he added.
Whatever Totenberg rules could force the state to enter a contentious presidential election cycle with an election system a federal judge does not trust. Some on the right have already claimed the case itself is proof of fraud.
“I can take off my tinfoil hat, that’s what that judge said. We’re not a conspiracy theory guy anymore, praise the Lord,” MyPillow CEO Mike Lindell said on a podcast in November while wearing an actual tinfoil hat.
Lindell, a salesman of foam pillows and conspiracy theories about election fraud, is one of many on the right who have championed the claims and Halderman’s research in particular.
In court in January, Halderman used a borrowed pen to quickly bypass the election software and access the machine’s operating system within seconds, before he later flipped a vote on the machine from George Washington to Benedict Arnold, a Revolutionary War officer who defected to the British. The hack required limited and cheap supplies, he testified.
The state has sought to discredit Halderman’s research, arguing that real-world security measures would prevent the kind of hacks he testified about, which he developed after having spent three months with a Fulton County election machine.
In a statement, a spokesperson for Dominion defended its machines.
“Mr. Halderman’s experiment did not happen in the real world, and he had far more than a BIC pen. Under court directive, Halderman was given all the passwords, security cards, exact election files, and more — everything he would need to try to cause trouble. He also faced none of the numerous mandated physical and operational safeguards in place during actual elections,” the spokesperson said in part. “The US Cybersecurity and Infrastructure Security Agency has already concluded that all of Mr. Halderman’s assertions are mitigated by existing election procedures.”
Deidre Holden, the longtime supervisor of elections in Paulding County, echoed that sentiment, noting that she has poll workers supervise voter interactions with ballot-marking devices. But headlines about hacked machines fueled doubt in her work and reminded her of the elections in 2020 and 2021, when she and others received graphic, violent threats.
“The trial is only fueling the fire. It needs to be settled, and we need to move on,” she said.
Holden noted that election workers’ annual conference — which once focused on discussions about election best practices and provisional ballots — now includes active shooter training, briefings from the FBI and the Department of Homeland Security and instruction on how to administer Narcan in case a package with fentanyl is sent to election workers.
“That’s become our reality,” she said.
It is a reality in which having a conversation about election integrity is complicated at best and when election systems are portrayed as completely safe or unsafe.
“We tend to think of driving as safe not because nothing bad ever happens in automobiles, but because we know how to manage that risk. And when people think about election technology in the same way, we will all be better off,” said Mark Lindeman, the policy and strategy director at Verified Voting, a group that promotes responsible use of technology in elections.
Risks can be managed, he stressed. “Georgia isn’t hurtling off a cliff towards certain doom. Nothing here is all that terrifying. But yeah, Georgia probably can do better.”