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Judge Rules to Uphold on Electronic Voting, Appeal Expected

By Alice Gordon, Staff Writer, The Atlanta Progressive News (October 10, 2008)

This article contains additional reporting by Matthew Cardinale, News Editor

(APN) ATLANTA – On September 8, 2008, Judge Michael Johnson heard the case filed in 2006 by Voters Organized for Trusted Election Results in Georgia (VoterGA) challenging the State of Georgia on the use of electronic voting machines in Superior Court of Fulton County. VoterGA lost the case.

VoterGA in their lawsuit had requested "a statewide external audit trail capability for any voting machines used" as well as "a public audit of at least one randomly selected race at the precinct on election night," as previously reported by Atlanta Progressive News.

The Judge said the case had no merit and the voting machines were constitutional.

Thus, Georgia will continue to use machines in Georgia which have been banned in other states.

"The machines they use in Georgia are the AccuVote-TS R6. Georgia is the only state that has state-wide unverifiable voting except for Maryland and Maryland has the same type of machines. Their legislature has voted to throw all of them away after this election and back to an optical scan. So Georgia will be the only state in the union which will have statewide unvertifiable voting at the end of this year," Garland Favorito of VoterGA told Atlanta Progressive News.

"These kind of machines were decertified 3 times in California; they were decertified in Ohio and Nevada; and basically they are being thrown out of Maryland. They have been decertified in practically every state they were used except Georgia," Favorito said.

After hearing one hour of oral presentation by the State’s attorney and a 20 minute presentation by VoterGA’s attorney, Judge Johnson declared after a few minutes of deliberation that the machines were Constitutional and that the case challenging their use had no merit.

The judge gave no detailed explanation verbally in court for his decision but said he would issue a written statement by the end of that week. However, Atlanta Progressive News inquired with the Judge’s office and learned the write-up of the decision had not yet been released.

An appeal is expected although Favorito told APN the court is "dragging their feet." An appeal cannot be filed until a transcript is provided along with a statement by the Judge, Favorito said. To date neither is available.

VoterGA presented their arguments first, APN observed. Attorneys Walker Chandler and Todd Harding presented the case for VoterGA. The primary argument was that the "smart cards" used by electronic voting machines cannot provide proof each vote was "correct and accurate" as required under Georgia law.

The smart card makes recounts, guaranteed under Georgia law, impossible because actual ballots cannot be counted to verify there is no tampering, VoterGA argued. The smart card reports only vote totals but not individual votes.

At the time the machines were obtained, Georgia law required a ballot, which the machines do not produce, and therefore they were illegally certified, VoterGA argued.

Therefore, ultimately, VoterGA contended that equal treatment of all votes--a right given by the Georgia Constitution--is not being given to absentee voters who vote by paper, which can be counted, and those using the direct recording machines.

The State did not respond to the claim about equal treatment, instead focusing on their argument that there was no evidence of fraud.

The State also argued that voters had the option to complete an absentee ballot if they were uncomfortable with the electronic voting machines. "We believe the law is clear that it doesn't matter, because if you have two classes and you have unequal rights, it doesn't matter if you have the option," Favorito said, adding that there are unique obstacles to voting absentee. "You have to know where to go to get the ballot, when to file it, where to turn it back in."

VoterGA filed a Summary Judgment Motion on March 19, 2008. The State then filed a Motion to Dismiss on March 20, 2008.

In response, VoterGA filed a response to the Motion to Dismiss, and attached a Disputation of Defendant Facts prior to the hearing, on April 21, 2008, according to copies of the documents obtained by Atlanta Progressive News.

Previously, on August 10, 2006, Atlanta Progressive News exclusively reported affidavits and testimony obtained from numerous voters who said they encountered errors with the electronic voting machines.

Genie Armour wrote in an affidavit obtained by APN that her vote was flipped by the machine and that another person reported the same problem. Albert Scott wrote that the machine voted on its own and he was told he could not vote again.

Activists Dianne Mathiowetz and Frieda Smith both told APN in 2006 that their votes flipped before their very eyes as well.

VoterGA decided, however, not to present evidence of any of these problems in their case.

"We didn't think we need to prove that the machines have those kinds of problems. It's pretty obvious. Even if they worked perfectly they're still violating our rights. It was immaterial to our basic premise, voting rights violations. There are quite a few cases where that's happened, and I don't think the state would deny that that happened. They would only say it was immaterial to the case."

The State did not contest several of the assertions made by VoterGA in their filings and testimony, according to Favorito. For instance, the State did not dispute there were other options besides Diebold for electronic voting machines, Favorito said. Originally, former Secretary of State Cathy Cox said in a 2007 deposition that Diebold was the only option and no other machines could be delivered in a timely manner.

Short of the preference of then-Secretary of State Cathy Cox for Diebold machines to be ready in time for the 2002 election, which was not in any way required, there was no reason to choose Diebold over the other machines available.

Additionally, Prof. Britain Williams, of Kennesaw State University, a witness for the State, admitted that server results were subject to undetectable manipulation by county officials, Favorito said. Similar vulnerabilities have been demonstrated in studies conducted in Maryland and Ohio.

Previously, however, the State had claimed that Georgia had a unique combination of hardware and software for their machines that meant the reports from other states did not apply. However, Williams's testimony indicated that the same vulnerabilities did exist in Georgia, despite minor differences in Georgia's software.

Favorito added that the ruling "can only be upheld if none of the facts for each of the 13 counts are in dispute." Thus, because many facts appear to still be in dispute, an appeal should be possible on multiple counts.

However, VoterGA is still waiting to read the Judge’s actual ruling before deciding whether to appeal. It is not expected that any further action will be possible prior to next month’s General Election in Georgia, including for President of the United States and one US Senate seat.

The State had also previously maintained that the voting machines were stored and maintained with a high level of security.

However, several incidents have called such claims of security into question.

For instance, former Secretary of State Cox admitted that in 2002, in Bibb County, Georgia, machines were stolen from a hotel, according to VoterGA’s filing.

Moreover, the State Election Board heard testimony in March 2007 that 2,700 voting machines were left improperly secured under tarps in a DeKalb County Building with a partially open roof, according to the VoterGA filing.

The State Election Board also heard that 40 DeKalb County voter access cards and some ballot encoders were auctioned on the Internet, VoterGA stated. The Secretary of State had considered fining the County but instead referred the case to the State Attorney General.

The State also claimed in their oral arguments that of course the votes are accurate because the voter gets to check his or her own selections afterwards and confirm that they were correct.

However, VoterGA pointed out in their filing that having a voter confirm his or her choice on the screen does not mean the machines record accurately, or, in other words, that what appears on the screen matches the way the tally in the "smart box" is effected.

"Todd Harding [VoterGA attorney] based his case on one issue: that the DRE voter does not have the same protections as an absentee voter. He thought it was immaterial whether voter fraud had occurred," Favorito said.

"Stefan Ritter, attorney for the State, argued at length about how the state had committed no fraud, which had nothing to do with the case," Favorito said.

"At one point Harding rebutted that this hits to the core issue: you can't tell if fraud has been committed under the present system. Stefan Ritter argued that the machines were certified by the state and this assured the rights of the voters were protected," Favorito said.

"The burden of proof should have fallen on the State" that no fraud was possible, Favorito said, responding to the State’s argument that VoterGA could not prove any fraud had occurred.

"No Georgian has been denied the right to vote by our voting systems, and our systems must pass a rigorous testing and certification process," current Secretary of State, Karen Handel (R-GA), said on her website.

"It's very unfortunate because we are a month away from a very important election. The whole State of Georgia uses a voting system that produces results that can't be verified. I think there are really very few options in Georgia that are going to make a difference for this election. An appeal is going to be absolutely necessary but I have no idea the speed at which that can happen," Emily Levy of Velvet Revolution told APN.

Electronic voting machines have caused numerous problems not only in Georgia, but across the country in the last few years that they have been in use.

In Tarrant County, Texas, 100,000 more votes were counted than were actually cast, Rolling Stone magazine reported in 2006.

In Volusia County, Florida, electronic voting machines subtracted more than 16,000 votes from Al Gore when he was actually ahead by 13,000 votes.

In Ohio, 100 voters reported they pushed "Kerry" and "Bush" came on the screen. "At least twenty machines had to be recalibrated in the middle of the voting process for flipping Kerry votes to Bush," Rolling Stone reported.

Atlanta Progressive News also reported in September 2006 on two Diebold whistleblowers, Chris Hood and Rob Behler, who stated they were instructed by Diebold to install a mysterious, unapproved patch in 2002 on the machines, without any knowledge or involvement by the State.

Velvet Revolution recently interviewed Hood in a video available at: http://www.youtube.com/watch?v=SKnIghBsU58

About the author:

Alice Gordon, Staff Writer, is reachable is alice@atlantaprogressivenews.com

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