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Georgia Judge Rules To Count Provisional Ballots, Delay Election Certification

The ruling is a boon for Democrat Stacey Abrams, who is within one percentage point of a runoff election for governor next month.
Photograph courtesy of CNN

Photograph courtesy of CNN

Yesterday, U.S. District Judge Amy Totenberg ruled in a lawsuit filed by Common Cause Georgia that the Georgia Secretary of State's Office must count provisional ballots in the ongoing governor's election, citing "substantial likelihood" that Republican candidate and former Secretary Brian Kemp failed to “properly maintain a reliable and secure voter registration system.” The ruling also ordered that Secretary Robyn Crittenden not certify the election before this coming Friday at 5:00 PM at the earliest, which falls before the state-mandated deadline of November 20th.

This is a huge boon for Democrat Stacey Abrams, who as of this writing lags behind Kemp by only 59,000 votes. Abrams needs 19,000 more votes to force a statewide recount, and 21,000 to move Kemp's share below 50%, forcing a mandatory runoff election on December 4th.

Common Cause's lawsuit was originally filed on November 5th, the day before the election, after a Democratic volunteer forwarded an email expressing concerns over the security of the state's database to Georgia Tech cybersecurity experts. In response, Kemp opened an investigation into the Democratic Party of Georgia, saying that they " hack the state’s voter registration system," despite there being no evidence of wrongdoing

Georgia has some of the most lax cybersecurity of any state with regards to voting. Its electronic voting system, the AccuVote TS, can be easily hacked into, and a lawsuit filed last year, Curling v. Kemp, alleged that the state database was laid bare for eight months between 2016 and 2017, which could have allowed hackers to meddle with the sanctity of the state's elections. 

Some states, like Virginia, have moved to a paper ballot system entirely, but Kemp has refused to protect the voters, making Georgia one of only five states to vote purely with electronic machines and have no paper trail. “There is no ‘paper-ballot fairy,'" his office stated this summer, "who, with a magic wand at the ready, can save plaintiffs’ half-baked ‘plans’ from devolving into a fiasco." Kemp won in Curling, but in her opinion, Judge Totenberg criticized him and other state election officials, writing that:

"[Their] posture in this litigation - and some of the testimony and evidence presented - indicated that [they] had buried their heads in the sand. A wound or reasonably threatened wound to the integrity of a state's election system carries grave consequences beyond the results in any specific election, as it pierces citizens' confidence in the electoral system and the value of voting."

These cybersecurity lapses led to many voters' names missing from the database when they showed up to the polls last Tuesday, so they had to fill out provisional ballots. Voters testified that they had to make repeated efforts with poll workers in order to receive the ballots at all. Totenberg cited that many polling places did not have enough provisional ballots to provide to voters, another example of voter intimidation on Kemp's part. All in all, more than 21,000 provisional ballots were cast in this election, as opposed to only about 12,000 in the 2014 midterm.

As part of her ruling, Totenberg ordered the Georgia Secretary of State's office to set up a hotline for voters to check on the status of their provisional ballots, review their registration, and receive updates from the state government as to why many of them were required to fill provisional ballots rather than regular ones. 

“I am fighting to make sure our democracy works for and represents everyone who has ever put their faith in it," Abrams has said. At the moment, her campaign is filing their own lawsuit on behalf of voters who cast provisional ballots, preventing counters from rejecting ballots with minor discrepancies like mismatching birth dates and addresses. The suit could potentially restore thousands more uncounted votes