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Martin v. Fulton County Board of Registration and Elections

Supreme Court of Georgia

October 31, 2019

MARTIN et al.
v.
FULTON COUNTY BOARD OF REGISTRATION AND ELECTIONS et al.

          WARREN, JUSTICE.

         In this case, Petitioners challenge the 2018 election for lieutenant governor-an election in which more than 3.7 million Georgians cast a vote-alleging that defects in electronic voting machines cast doubt on the election in which Geoff Duncan defeated Sarah Riggs Amico by 123, 172 votes.[1]

         Elections are critical to our democratic republic. We give great credence to the choices citizens make when they engage in the democratic process by voting to select their representatives. And because we place so much value on that exercise of democracy, we afford great weight to election results. Indeed, "[t]he setting aside of an election in which the people have chosen their representative is a drastic remedy that should not be undertaken lightly, but instead should be reserved for cases in which a person challenging an election has clearly established a violation of election procedures and has demonstrated that the violation has placed the result of the election in doubt." Hunt v. Crawford, 270 Ga. 7, 10 (507 S.E.2d 723) (1998).

         Georgia law nonetheless allows elections to be contested through litigation, both as a check on the integrity of the election process and as a means of ensuring the fundamental right of citizens to vote and to have their votes counted accurately. See OCGA § 21-2-520 et seq. But an election contest is, by statutory design, an expedited proceeding-and one that vests in trial courts broad authority to manage the proceeding, including to "proceed without delay to the hearing and determination of" the election contest. See OCGA § 21-2-525 (b). This system balances citizens' franchise against the need to finalize election results, which, in turn, facilitates the orderly and peaceful transition of power that is a hallmark of our government.

         As explained in more detail below, Petitioners claim that they placed in doubt the election for lieutenant governor (and thus established that a new election was required) by offering evidence of a few specific instances of electronic voting machine malfunction, and of statistical differences in voting patterns between the 2018 general election and prior general elections that they say show that Georgia's "profoundly vulnerable machines caused thousands of voters using electronic machines to either not vote for Lieutenant Governor or for those votes not to be counted."

         This Court has long held that "'the party contesting the election has the burden of showing an irregularity or illegality sufficient to change or place in doubt the result of the election.'" Meade v. Williamson, 293 Ga. 142, 143 (745 S.E.2d 279) (2013) (citation omitted). To prevail on such a claim, a party contesting an election must therefore offer evidence-not merely theories or conjecture- that places in doubt the result of an election. And although the technology our State has used to conduct elections has changed over time, the burden a party carries when challenging the result of an election has not. The Petitioners in this case have not carried that burden, and the discussion that follows explains why.

         In Division 1, we chronicle Petitioners' claims from the time they were filed in the days after the November 6, 2018, statewide general election, until the trial court granted a motion to involuntarily dismiss Petitioners' then-remaining state law election contest claim after trial in January 2019. In Division 2, we review Petitioners' four enumerations of error related to pre-trial discovery-including claims that the trial court did not allow reasonable time for discovery, did not permit needed discovery, and wrongly denied Petitioners' motion to compel and motion for continuance. We conclude that, given the Election Code's statutory mandates and the broad discretion trial courts are given to manage pretrial discovery, the trial court did not abuse its discretion. In Division 3, we review Petitioners' two enumerations of error related to the involuntary dismissal of their election contest claim-that the trial court made an erroneous factual finding about the number of potential illegal or irregular votes in the election for lieutenant governor, and that the trial court erred in its legal analysis of whether Petitioners met their burden of presenting sufficient evidence of irregularities related to electronic voting machines used in the 2018 general election. We conclude that, although the trial court made at least one clearly erroneous finding of fact, it reached the correct legal conclusion when it determined that Petitioners failed to meet their burden of presenting evidence that places in doubt the result of the election for lieutenant governor. Finally, in Division 4, we review and reject Petitioners' unsupported argument that the trial court erred by denying Petitioners' request for a jury trial. As a result, we affirm the trial court's dismissal of Petitioners' petition contesting the election for lieutenant governor.

         * * *

         On November 6, 2018, a statewide general election was held to elect Georgia's next Governor and a number of other statewide officials, including (among others) Attorney General and Secretary of State.[2] 3, 780, 304 ballots were counted in the election for Georgia's Lieutenant Governor; candidate Geoff Duncan received 1, 951, 738 votes and candidate Sarah Riggs Amico received 1, 828, 566.[3]Duncan therefore won the election with a margin of victory of 123, 172 votes.

         On November 23, 2018, Petitioners-the Coalition for Good Governance (a nonprofit organization organized under Colorado law but apparently headquartered in North Carolina), Rhonda J. Martin (an "aggrieved elector"), Jeanne Dufort (an "aggrieved elector"), and Smythe DuVal (a voter and the Libertarian Party candidate for Secretary of State of Georgia in the November 2018 election)-filed a petition under OCGA § 21-2-520 et seq. contesting the election.[4]They sued the Secretary of State of Georgia; the Gwinnett, DeKalb, and Fulton County Boards of Registration and Elections; and then-Lieutenant Governor-elect Geoff Duncan ("Defendants"), requesting (among other things) that the lieutenant governor election be declared invalid and a new election ordered that did not use the direct-recording electronic ("DRE") voting system.

         After approximately seven weeks of motions practice, multiple hearings, accelerated discovery, and a two-day bench trial[5] the trial court granted Defendants' motion for involuntary dismissal of Petitioners' petition. See OCGA § 9-11-41 (b) ("After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief."). Arguing that the trial court abused its discretion and committed legal error when it dismissed the petition, Petitioners now appeal. Specifically, they contend that 159, 024 fewer ballots were cast for lieutenant governor than for governor in the 2018 general election-an undervote of approximately 4 percent-and that when compared to historical voting patterns-which they argue show only a 0.8 percent average undervote between elections for governor and lieutenant governor over the previous four general elections-the difference constitutes an "[e]xtreme [u]ndervote" that places in doubt the result of the election for lieutenant governor and requires a new election under OCGA § 21-2-527 (d). In its most basic form, Petitioners' argument is that the "proven vulnerability" of Georgia's electronic voting machines, coupled with this "[e]xtreme [u]ndervote" and with specific instances of voting machine malfunction, place in doubt the election result for the office of lieutenant governor.

         What follows below is a comprehensive review of the key events that transpired in this case leading up to trial, as well as a summary of the evidence presented at trial. Although these events occurred over the span of only a few months, there was-to say the least-a large volume of communications between the many lawyers on this case, motions made before the trial court, and legal briefing filed in the trial court (and later in this Court). A thorough recounting of those events and arguments is necessary to illuminate the record that was created before and during trial, and therefore constitutes the record we review today on appeal. In light of that record, the relevant statutes, and case law interpreting those statutes, and given our review of the trial court's factual findings and legal conclusions in this case, we affirm the dismissal of Petitioners' petition.

         1. Procedural and Evidentiary History.

         (a) The Petition and Other Post-Election Motions.

         Georgia held a statewide general election on November 6, 2018. On November 23, 2018, Petitioners timely filed a petition contesting the election for lieutenant governor, alleging three counts. Count 1, the state law election contest claim, alleged that the use of "defective, legally non-compliant, and malfunctioning DRE machines to conduct the Contested Election constituted 'misconduct' and 'irregularity' sufficient to change or place in doubt the result of the Contested Election" under OCGA § 21-2-522 (1), and that the "malfunctioning DRE machines rejected legal votes or received illegal votes sufficient to change or place in doubt the result of the Contested Election" under OCGA § 21-2-522 (3). Count 2, a federal claim under 42 USC § 1983, alleged that the use of defective DRE machines violated Petitioners' due process rights under the Fourteenth Amendment by infringing on their fundamental right to vote. And Count 3, another federal claim under 42 USC § 1983, alleged that use of the defective DRE machines violated Petitioners' equal protection right under the Fourteenth Amendment by treating electors who voted on DRE machines differently than other, similarly situated electors who used paper absentee ballots.

         Five days later, on November 28, 2018, Petitioners filed a "Motion for Clarification and to Request Setting of Trial Date," in which they noted that they would "be filing a motion to inspect a sample population of the suspect electronic voting equipment to determine whether there is . . . extant electronic evidence of the causes of the election machine malfunctions"; requested that the already-set hearing date of December 6, 2018 be "a preliminary hearing or status conference . . . to address preliminarily issues related to the trial of the matter, including stipulations, evidence, discovery, necessary parties, etc., as well as any special issues raised under the election contest laws"; and asked the trial court to "fix a date for the trial itself, for two days no earlier than the week of December 10, 2018, and taking into consideration realistic dates for necessary forensic examination and submission of pre-trial briefing."

         The next day, Petitioners filed an "Emergency Motion for Inspection of Electronic Election Equipment and Production of Documents" ("motion for inspection"). In that motion, Petitioners argued that they needed an "expert forensic examination" of electronic voting equipment and of related election records, including the internal memory of electronic voting machines as well as paper records that could provide evidence of voting irregularities (and their causes) in the November 6 election. Specifically, Petitioners requested the "inspection, sampling and copying of the electronic election equipment and related election records" for

[a]ll DRE machines used in the November 6, 2018 election that . . . [were] taken out of service, temporarily or permanently[;] . . . for which voter complaints were received regarding "vote flipping" or "slipping"[;] . . . reported as not permitting the voter to review the summary screen and press the final review/cast vote target area before the machine cast the ballot[;] . . . reported as not displaying the Lieutenant Governor's race on the initial voting screen[;] . . . reporting one or more blank ballots[; and] . . . for which the public counter number on the machine tape is different than the total ballots cast on the machine tape.

         Petitioners also requested the same type of discovery for a list of select DRE machines from various precincts in 20 different counties across the state and all the DRE machines from 20 different precincts[6]; "additional equipment, information or programming necessary to make the electronic equipment operative, such as a/c power, internet connections, voter cards, supervisor cards, passwords, etc."; and that their "representatives . . . be permitted to make copies of any of the electronic files associated with the electronic equipment that is being inspected." Petitioners argued that a forensic examination of the DRE machines' internal memory was required because "critical electronic information" regarding "programming errors, machine malfunction, malicious manipulation, or viruses . . . may be available only in the internal memory of the DRE machine," and that the "electronic records of the presence and introduction of unauthorized or irregular programs or data are most likely to be located through forensic examination of unaltered internal memory data, not merely selected files of ballot images, ballot programming or tallies." (Emphasis in original). Finally, Petitioners argued that "[s]upporting and related electronic equipment and paper records are also required in order for voting system computer experts and forensic scientists to identify the sources of the problems causing the irregularities."

         That same day-November 29, 2018-the case was reassigned to the Seventh Judicial Administrative district; Senior Superior Court Judge Adele Grubbs was appointed to preside over the case on November 30, 2018.[7]

         (b) Motions to Dismiss.

         On December 4, 2018, the Secretary of State moved to dismiss the petition, arguing (among other things) that the Secretary was an improper party to the state election contest claim; the Coalition lacked standing to bring a state election contest claim; Petitioners failed to state a claim for their state election contest claim; Petitioners failed to name other county election superintendents, who were necessary parties; and Petitioners failed sufficiently to allege federal claims.

         The trial court held a status conference the next day and set a December 20, 2018 filing deadline for motions; a January 9, 2019 hearing date for motions; and a January 17, 2019 trial date. Petitioners did not object to that timeline, which set the trial date more than a month after the date Petitioners had originally requested.

         On December 20, 2018, three other defendants-the Gwinnett and Fulton County Boards and Lieutenant Governor-elect Duncan-also moved to dismiss the petition. Various of those defendants joined the Secretary of State's motion in full or in part, and they separately contended, among other things, that Petitioners failed to serve properly all of the defendants. In a written response, Petitioners conceded that the Coalition for Good Governance-the lead petitioner in the case-lacked standing to bring a state election contest claim, but maintained that the Coalition had standing to bring the two federal claims and that, as "'electors' under the statute," the other individual petitioners were proper parties under OCGA § 21-2-521 to bring the state law election contest claim. On December 27, 2018, the trial court granted Petitioners' motion to voluntarily dismiss the DeKalb County Board of Registration and Elections as a defendant. At that point, there still remained Petitioners' single state law election contest claim and two federal claims against defendants the Secretary of State, the Gwinnett and Fulton County Boards, and Lieutenant Governor-elect Duncan.

         (c) January 9, 2019 Hearing and Related Rulings.

         On January 9, 2019, the trial court heard argument on Petitioners' motion for inspection and on Defendants' motions to dismiss.

         (i) Motions to Dismiss.

         At the hearing, the trial court orally granted in part, denied in part, and reserved ruling on in part Defendants' motions to dismiss, informing the parties that it would deny Defendants' motions to dismiss for failure to state a claim on the state law election contest count but grant Defendants' motions to dismiss the Secretary of State as a defendant. The trial court entered an order dismissing Petitioners' two federal counts for failure to state a claim later that afternoon and issued rulings on the remainder of Defendants' motions to dismiss as part of the January 11 discovery order discussed more fully below in Division 1 (d).[8] The trial court's various rulings left Martin, Dufort, and DuVal as the remaining petitioners, with only a state law election contest claim against three defendants: Lieutenant Governor-elect Duncan and the election boards of Fulton and Gwinnett Counties.

         (ii) Motion for Inspection.

         In support of their motion to inspect, Petitioners argued at the January 9 hearing that they wanted a "full forensic examination" of DRE machines from the various precincts and counties listed in their motion. According to Petitioners, this would require "computer experts to look at the internal memory and programming" of the DRE machines. Petitioners also requested "general discovery of documentary evidence relating to the programming of the machines," including "discovery of the GEMS databases."[9] Defendants, in turn, objected that Petitioners were requesting "unfettered access to highly sensitive information about the state voting machines," and that although "the data from the GEMS is public record," "the source code and the means of accessing the GEMS . . . is highly confidential." Citing "security concerns," Defendants urged the trial court to tailor any inspection it granted and to ensure that "whatever access is occurring is done in a way in coordination with the Secretary of State's office . . . to make sure that nothing is altered with the machines themselves" and that other necessary security precautions were taken. After hearing argument on the motion, the trial court expressed concern that Petitioners' requested discovery sounded like a "fishing expedition" and announced that it would grant Petitioners' request in part, but limit inspection and production to certain DRE machines and to GEMS servers in certain counties. The trial judge emphasized that going forward, she was "not going to give continuances" and specifically told the parties: "if you run up on a stumbling block" during the discovery process, "you can always [handle] it by emails to me and I will email you back." After the parties could not agree on language for a proposed order memorializing the trial court's rulings, both sides emailed proposed orders and additional written argument from January 10 to January 11 for the trial court's consideration.

         (d) January 11, 2019 Order.

         On January 11-six days before the scheduled trial date-the trial court entered a written order granting in part Petitioners' motion for inspection. But shortly before it did, Petitioners emailed the trial judge and the parties to provide advance notice that they "anticipate[d] filing" that afternoon a request for "continuance of the trial." Less than one hour later, the trial judge responded by email and informed the parties that "[t]here will b[e] no continuance" because of the "expedited" nature of the "election contest." The trial judge again stated that if there were "issue[s] as the Plaintiffs conduct[ed] . . . discovery," she would "take them up by e[-]mail or conference call if necessary."

         Shortly thereafter, the trial court entered an Order on Pending Motions, which included rulings on Petitioners' motion for inspection. Granting in part Petitioners' motion, the trial court permitted two categories of inspection. First, it permitted the remaining Petitioners "to inspect the 'GEMS' reports or complete electronic copies thereof for the November 2018 elections that are maintained by the Gwinnett County Board and the Fulton County Board," and specifically, the "a. Base Precincts With Races Report[;] b. Ballot Image Report[;] c. Vote Center With Cards Report[;] d. Statement of Votes Cast Report[; and] e. Summary Report." It also restricted the examination by permitting "[o]nly personnel of the Secretary of State or Fulton or Gwinnett Counties [to] access the GEMS servers directly in connection with this inspection."

         Second, the trial court permitted inspection of certain DRE machines in "post-election mode." Specifically, it authorized Petitioners to inspect DRE units "using post-election memory cards that were used in the voting locations" identified in paragraphs 40, 41, 44, 45, and 46 of the Petitioners' petition-i.e., DRE machines in specific polling places in Fulton, Henry, and Worth Counties. The trial court ruled that Petitioners could "examine the Internal memory storage of each such DRE unit," but made clear that Petitioners were "not to in any way damage the DRE machines or the information contained therein." The trial court also prohibited Petitioners from "copy[ing], imag[ing], sav[ing], or retain[ing] the DRE machines or the information contained therein" and from "upload[ing] or introduc[ing] any information into the DRE machines," and also ruled that "[d]estructive testing shall not be permitted." Finally, the trial court required the parties to "enter into an appropriate protective order preserving the confidentiality of confidential information, if any, obtained in this discovery prior to the commencement of any inspection authorized under this Order."

         (e) Production and Inspection of DRE Machines and the GEMS Database.

         Following the January 9 hearing and the trial court's January 11 order, the parties communicated about-and disagreed about- the proper protocol for conducting DRE machine inspections. Notwithstanding these disagreements, representatives of the Fulton County Board and the Secretary of State agreed to meet with Petitioners' retained expert on Monday, January 14, to conduct an examination of the County's voting machines.[10] In an email sent later that day, Petitioners' expert told Petitioners' counsel that Defendants gave him a compact disc containing "all reports" required by the trial court's discovery order except for most of the Ballot Image Reports; only 2 out of 2, 084 Ballot Image Reports were copied onto a CD at the time.

         But Petitioners later complained that they were "unable to conduct any examination or investigation of the DRE machines or their internal memory" because Defendants did not make "a complete and accurate electronic copy . . . of the internal memory," did not allow Petitioners' expert "to instruct County personnel on how to make the copy . . . without damage to the files or machine," and did not make electronic election records available. To that end, Petitioners' expert recounted in a January 14 email to Petitioners' counsel that Defendants were unwilling to implement (without first consulting with their counsel) a proposal to copy the internal memories of selected DRE machines by physically removing the outside cases from the machines, accessing the machines' motherboards, and then inserting either a chip or an adapter into the machines-a process that Petitioners' expert acknowledged could create a "security vulnerability." Petitioners' expert therefore determined that he was unable to conduct an inspection of the DRE machines and left. According to Petitioners' motion for continuance filed later that night, "Plaintiffs' expert left the premises without having been able to examine the internal memory of the DRE machines, which review has to precede any other examination of the DREs."

         (f) Motion for Continuance; Motion to Compel and for Additional Discovery; and Demand for Jury Trial.

         Later that night, Petitioners filed a motion to continue the January 17 trial to a later date.[11] They made two main complaints: first, that Defendants were "delay[ing] in making the electronic election records and voting equipment available for examination"; and second, that even if Defendants "were immediately to comply with the Court's Order on Pending Motions and start copying the selected DRE machines' memory onto laptops," it would take so long to copy and analyze the internal memories that Petitioners would not be ready to present their case by the scheduled trial date. According to Petitioners' motion for continuance, "it will physically take days before the copying is complete and it will require several weeks before the memory can be analyzed to produce evidence that can be presented meaningfully in court." Petitioners thus requested that the trial date be reset "to no earlier than three weeks after the date when the Defendants make available for inspection and examination all the electronic election records and equipment."

         The remaining Defendants and the Secretary of State filed responses in opposition to Petitioners' motion for continuance the next day, arguing that the Secretary's proposed protocol for DRE machine inspection complied with the trial court's January 11 order-but that when Defendants "offered to allow Plaintiffs to inspect the DRE machines as the Secretary suggested, Plaintiffs refused." Noting that Petitioners did not object to the "expedited calendar" when the January 9 hearing date and January 17 trial date were initially set, Defendants argued that Petitioners ignored the trial court's instructions to bring discovery issues to the court's attention by email or conference call and that they instead filed a motion for continuance as an "attempt to delay" the trial date, even though Petitioners' "discovery needs were known to them" when they filed their petition in late November.

         Early on the morning of January 16, the trial court emailed the parties and once again stated that the case would not be continued, and later that morning, the trial court entered a written order denying Petitioners' motion. But between the time the trial court had informed the parties that the case would not be continued and entry of a written order denying Petitioners' requested continuance, Petitioners filed a "Motion to Compel and for Additional Discovery," arguing that Defendants had refused to allow Petitioners to examine the internal memory of the DRE machines (as required by the January 11 order), and again requesting production of the entire Gwinnett and Fulton County GEMS databases, as opposed to reports generated from those databases. Later that afternoon, Petitioners also filed a demand for a jury trial under OCGA § 21-2-526 (a).

         Defendants opposed both motions, contending that they had complied with the trial court's discovery order; that Petitioners were not entitled to relief; that Petitioners were employing "attempts to delay" the proceedings; and that Petitioners were actually seeking reconsideration of the trial court's January 11 discovery order requiring production of certain GEMS reports from Gwinnett and Fulton Counties.

         On January 17, 2019-the day trial was scheduled to begin- the trial court addressed the parties' outstanding motions from the bench before starting trial. The court denied Petitioners' motion to compel and for additional discovery, struck Petitioners' demand for a jury trial, and denied another request for additional discovery that Petitioners made orally that morning. The trial began as scheduled on January 17.

         (g) The Evidence Offered at Trial.

         Over the course of trial, Petitioners presented documentary evidence as well as testimony from seven lay witnesses and one expert witness in support of their claim that the state's electronic voting system was so defective that it cast doubt on the election for lieutenant governor and required the election to be overturned.

         One of Petitioners' lay witnesses was a poll watcher who testified that she had personally observed one DRE machine that would not print the poll tape after the election and that a precinct poll manager had stated that "there were multiple technical issues" on election day.[12] She also observed one voter having a problem with a DRE machine, and then learned from the poll manager that the DRE machine initially "self-cast" the voter's ballot before she made a selection for lieutenant governor and another candidate. The poll watcher acknowledged, however, that the machine was immediately placed out of service and that the voter did not complain that her vote had been improperly recorded.

         Petitioners also called a voter who testified that when she voted on a DRE machine, the lieutenant governor's race did not initially appear on her electronic ballot. But the voter also testified that when she went back to the beginning of the ballot, she was able to find that race and cast her vote for Amico.

         Petitioners also called Michael Barnes, Director of the Center for Election Systems in the Secretary of State's Office, a lay witness who testified primarily about DRE machines and ballot design. With respect to the accuracy of DRE machines, Barnes testified that in all of the pre-election-mode and election-mode tests of DRE machines that he had "been involved with" since 2001, he "never encountered a situation where [he] put in one particular vote and . . . it came out differently in the report." Specifically, for the 2018 election, the pre-election and election-day testing showed the DRE machines were properly counting votes, including for the lieutenant governor's race. He also testified that Georgia's electronic voting system was a "closed system" that could not be "hack[ed]" remotely, and that although the Secretary of State's Office had not conducted a "forensic analysis" of the DRE voting systems either before or after the 2018 election, it did conduct a "recertification" of the voting system in 2017-and examined the equipment in several counties- and identified no problems. Moreover, the Secretary of State's Office ran reports for the Fulton and Gwinnett County Boards that confirmed that the lieutenant governor's race "appeared on every electronic ballot" in those counties, and that "all memory cards that were created that would have collected . . . votes [had] been uploaded and accounted for by GEMS."

         With respect to the ballot design, Barnes testified that after the election, there was some concern that the ballot design could have "been confusing, especially for new voters," and caused voters inadvertently to skip the lieutenant governor's race because they thought they were "voting for a ticket" that included the governor's race. He contrasted the 2018 general election with general elections conducted in Georgia in 2010 and 2014, testifying that in the 2018 general election, the DRE machines were programmed to display only the candidates for governor and lieutenant governor on the first screen, and that the two sets of candidates appeared side-by-side with the Democratic and Republican candidates for each race positioned horizontally across from each other. By contrast, in 2010 and 2014, the lieutenant governor's race did not appear side-by-side with the governor's race on the same DRE machine screen; instead, a "U.S. Senate race and the governor's race [were] on the first page" and "the race for lieutenant governor and other" races were on the next page. Barnes testified that although election officials had "been very pleased with the two-column ballot," there was "a possibility that it could have been confusing" in the 2018 general election, "especially for new voters that are voting for the first time in the state of Georgia . . . [who] may feel like because the Republican candidates are line[d] up and the Democratic candidates are lin[ed] up that you make one selection and you're voting for a ticket," like in "many states" other than Georgia.[13] Additionally, Barnes confirmed that-unlike the layout of the electronic ballots cast on DRE machines-the paper ballots cast in the 2018 general election did not include only the governor's and lieutenant governor's races on a single page; instead, the candidates for those races, along with candidates for other offices, were listed one below the other, rather than side-by-side. He also testified that the certified returns from Fulton, Gwinnett, and DeKalb Counties showed that "the highest number of write-ins cast for statewide office was in the lieutenant governor's office."

         Petitioners also called as a lay witness the Fulton County Director of Registration and Elections, who testified that Fulton County did not examine its GEMS database or memory cards for malware after 2016, review its GEMS database for coding errors prior to the 2018 election, or examine the DRE machines in Fulton County after the 2018 election. On cross-examination, he clarified that Fulton County conducted "logic and accuracy tests" on all of its DRE machines before the 2018 election, that all of the DRE machines passed those tests, and that Fulton County had never experienced software issues or viruses with its DRE machines or GEMS system.

         Petitioners also called Marilyn Marks, Executive Director of the by-then-dismissed petitioner Coalition for Good Governance, who also served as a poll watcher for Georgia's 2018 general election. Petitioners attempted to qualify Marks as an expert in "DRE machines generally and their use in Georgia and the practices and procedures of the State of Georgia for paper ballots and for electronic ballots," but-after Defendants conducted a voir dire about Marks's experience and credentials-the trial court denied Petitioners' motion, allowing Marks to testify only as a lay witness. Among other things, she testified that she observed three DRE machine malfunctions in which the screen displayed "vote cancelled" and a "big red warning sign" before ceasing to work.

         Also testifying for Petitioners was Christopher Brill, a political consultant whom Petitioners twice tendered as an expert qualified to discuss "under-voting and the particular reasons for under-voting," including the reasons or possible reasons for the "under-vote" in the contested election, but whom the court twice refused to qualify as an expert because opinion regarding the "reasons why" there was an undervote was not "an area of expertise."[14] Though not qualified as an expert, Brill was permitted to offer lay testimony that in the election for "lieutenant governor, the under-vote was about 4 percent lower than the total that was cast for governor"; that he calculated the average undervote for the four prior lieutenant governors' elections in Georgia as "around 0.8 percent"; and that the four percent undervote in the November 6, 2018 election for lieutenant governor was higher than in the previous four general elections. He also testified that, if the "historical trend of .8 [percent] were applied" to the 2018 contested election, "the under-vote assumption" would result in a total number of under-votes of "around 31, 532."[15]

         Brill also testified about the difference in undervotes between votes cast electronically and those cast on paper absentee ballots. He testified that "paper voting" for lieutenant governor "had only a 1 percent under-vote" compared to the "electronic" voting, which "had over 4 percent," and that a differential of that magnitude did not appear in the races for Secretary of State or Attorney General, where the undervote percentages of electronic and paper voting were "relatively even" and "consistent." Brill testified that he had "never seen a type of under-vote where voters" skip one race but then vote at higher rates for other races farther down the ballot. On cross-examination, however, Brill agreed that Georgia's 2018 general election was "a very high turnout election," admitted that he did not consider the number of new voters in 2018 when he compared that election to prior elections, and ...


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