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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.

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          Bruce Perrin Brown, Bruce P. Brown Law LLC, Atlanta, for Appellant.

         Joshua Barrett Belinfante, Vincent Robert Russo, Carey Allen Miller, Alexander Fraser Denton, Robbins Ross Alloy Belinfante Littlefield LLC, Atlanta, Annette M. Cowart, Russell David Willard, Christopher M. Carr, Andrew Alan Pinson, Department of Law, Atlanta, Patrise M. Perkins-Hooker, Kaye Woodard Burwell, Cheryl Melissa Ann Ringer, David Robert Lowman, Office of the Fulton County Attorney, Atlanta, Richard A. Carothers, Brian Richard Dempsey, Carothers & Mitchell, LLC, Buford, Bryan Paul Tyson, Frank B. Strickland, Bryan Francis Jacoutot, Bryan Paul Tyson, Taylor English Duma LLP, Atlanta, Edward H. Lindsey, Dentons U.S. LLP, Atlanta, for Appellees.

         Russell Todd Abney, Blake Todd Tanase, Ferrer, Poirot & Wansbrough, Sandy Springs, for Amicus Appellant.

          OPINION

         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.

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          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

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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 U.S.C. § 1983, alleged that the use of defective DRE machines violated Petitioners’ due process rights under the Fourteenth Amendment by

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infringing on their fundamental right to vote. And Count 3, another federal claim under 42 U.S.C. § 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

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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.

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          (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

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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 ...


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