‘A recipe for violence’: Election officials on edge for ruling from federal judge

Forcing changes so close to the November ballot “is a recipe for unrest and potentially violence,” said Sara Tindall Ghazal, the lone Democrat on Georgia’s State Election Board, which is a defendant in the case.

The civil trial kicked off on Jan. 9 in an Atlanta district court and arguments are expected to wrap Wednesday. Totenberg — who will decide the case without a jury — is expected to issue a ruling in the coming weeks.

That means public confidence in the 2024 election in a key swing state rests to an unusual degree on this one judge — who must make shrewd judgments about the increasingly thin line between real Election Day risks and hyped-up harms.

And while fears of Russian election interference were high at the time of Totenberg’s earlier ruling, the stakes this time are much more concrete. The people and technology at the heart of the court battle are now at the center of former President Donald Trump’s continued allegations that the 2020 election was stolen.

Totenberg — an Obama appointee — is known among those close to the case for her intensity and work ethic, and as a quick study on the finer points of election technology. A Harvard Law graduate, she joined the federal judiciary in 2011 after stints in private practice and as in-house counsel to Atlanta’s school system. Totenberg’s name already resonates in Beltway judicial circles, but mostly due to her elder sister, Nina, an NPR legal affairs correspondent.

The arguments she has heard in the last few weeks are the latest twist in the same case she first ruled on in 2019, but it now centers on the replacement voting machines Georgia purchased from Dominion Voting Systems for roughly $100 million that year.

“There are thousands of Georgians who take Mike Lindell seriously,” Tindall Ghazal said, referencing the millionaire My Pillow CEO who has helped Trump spread those debunked claims.

Dominion has defamation lawsuits pending against four Trump allies who accused it of flipping votes to Joe Biden, and it reached a $787 million settlement
for a similar case against Fox News last April. And it was Georgia Secretary of State Brad Raffensperger — a defendant in the long-running case, known as Curling v. Raffensperger — who famously
refused Trump’s pressure to “find” enough votes to throw the state to him in January 2021.

The plaintiffs in the trial, which include a nonprofit called the Coalition for Good Governance that advocates for the use of hand-marked paper ballots, are trying to persuade Totenberg that the Dominion devices used across the state are so liable to sabotage, it threatens Georgians’ constitutional right to vote.

They have drawn support from some of the country’s leading voting machine security experts, and they argue Totenberg must step in from the bench because state officials like Raffensperger aren’t taking those risks seriously enough.

“There is probably no good time to do this,” said Gregory Miller, the co-founder and chief operating officer at the Open Source Election Technology Institute, which is not a party to the case. But Totenberg deserves credit because “somebody is at last bringing to light the need to take more seriously the casting, counting and auditing of ballots.”

Totenberg declined to be interviewed for this story. Still, she has signaled she understands the choice facing her today is fraught in a way her 2019 decision wasn’t — and perhaps shouldn’t even be in her hands.

In a November ruling ordering the trial, she reminded the parties that she had consistently urged them to compromise outside court because it would better suit the public interest.

After opening arguments on the first day of the trial, she flicked at her struggles weighing the controversial case. “It is an abundance of intellectual riches from all of you designed to try to confuse me at the same time as illuminate all the issues,” she said.

In the courtroom, she often leans the side of her head deep into her palm, her eyes barely peeking out at witnesses and trial lawyers from behind long hair. She patiently studies any documents that get passed to her, projecting a determination to weigh the sensitive case with care.

Totenberg has not indicated she would bar the state’s current voting machines — known as ballot marking devices — like she did in 2019. But she has said the machines put the state at real risk of a hack, and has floated ordering “reasonable fixes” to the way Georgia uses them.

A likely reason for that lighter touch is that those ballot marking devices do something their fully electronic predecessors didn’t: They print voters’ choices onto a piece of paper, which can be used to audit the vote.

The Coalition argues that the design of Dominion’s systems remains ripe for abuse since votes are recorded on the print-out as a barcode, which humans can’t verify. To count the vote, that barcode is then scanned by a separate machine.

Raising the stakes, an independent audit produced for the court in July 2021 and
unsealed last summer concluded that Dominion’s machines were rife with software flaws.

And through the trial, the Coalition also uncovered evidence that alleged pro-Trump activists improperly accessed Dominion equipment in a rural Georgia county just one day after the Jan. 6th capital riot, theoretically providing a roadmap for hackers to craft malware for their machines in the future.

“As long as you have 100,000 pieces of equipment floating around in the hands of bad actors, you have no way of controlling the system,” said Richard DeMillo, a Georgia Tech computer science professor who previously served as an expert witness for the plaintiffs.

Election officials counter that the paper print-out from Dominion machines — which also record votes as readable text — can help spot tampering after the fact.

They also assert the risk of an election-changing hack is overblown since hackers would need physical access to a Dominion device to sabotage it. The machines are largely isolated from each other, and not connected to the internet.

The arguments against Georgia’s voting machines are “off-kilter” and not “a valid legal way” to assess the security of elections, argued Cathy Cox, Georgia’s former Secretary of State.

Cox, a Democrat who served from 1999 to 2007, said the plaintiffs were ignoring the many layers of security that go into protecting the vote, such as pre-election technical tests, physical security, post-election audits and intense public scrutiny.

Milton Kidd, the director of elections and voter registration in Douglas County, Georgia, agreed that forcing fixes on Georgia now would be a costly overreaction.

Mandating changes from the bench “is a foolish thing to do before a major election season,” Kidd said.

Totenberg could opt to let Georgia implement any changes she orders after November. Or, the state could send her ruling to the 11th Circuit Court of Appeals, which has already batted down some of her prior rulings in the case.

Still, election officials fear the optics of such a step could reverberate in other states using voting machines.

A ruling against the state could “open the door to potentially a great number of frivolous legal challenges ahead of 2024,” said Kim Wyman, a Republican who served as Washington’s top election official for eight years and later headed the election security portfolio at DHS’s Cybersecurity and Infrastructure Security Agency.

There’s a basis for those concerns.

Trump and his allies have repeatedly weaponized Totenberg’s opinions on Dominion’s machines in their legal and rhetorical challenges to the 2020 election, twisting her language on potential risks to buttress their debunked allegations of fraud.

And inside the courtroom, her trials this month have been attended by roughly a half-dozen members of a local voting rights group, VoterGA, which
has been tied to
multiple failed efforts to uncover fraud in the 2020 election.

The group’s supporters hang on each word of the trial, shaking their head or guffawing each time the state’s witnesses make claims they deem improbable.

Earlier this month, they showed up in court with custom T-shirts, which made a fundraising plea on the back. How to donate?

Scan the barcode printed on the back of the shirt.