GEORGIA SUPREME COURT BRIEF ORAL ARGUMENTS SET 

MONDAY JULY 13, 2009 at 10:00am Click Events for details

___

LEGISLATORS & ELECTION BOARD MEMBERS NOW HAVE EVIDENCE & ADMISSIONS OF:

• ILLEGAL ACQUISITION, 
• IMPROPER CERTIFICATION AND
• VOTE TAMPERING VULNERABILITY

INVOLVING GEORGIA'S UNVERIFIABLE VOTING EQUIPMENT.

THEY HAVE RECEIVED LETTERS AND ATTACHMENTS SIMILAR TO THE FOLLOWING:

 _____

January 20, 2009

Dear Sec. Handel,

Thank you for your previous public reports such as the 2006 Basics report, that express the need to restore standard verification, audit and recount capabilities for voting here in Georgia.

Georgia is now the only state in the union that still expects to conduct statewide elections in 2010 on unverifiable voting equipment. The only other state that attempted to do the same was Maryland and their legislature voted overwhelmingly to replace their nearly identical Diebold AccuVote TS voting machines with optical scan equipment for the upcoming elections. The Attorney General of Maryland has also filed a $8.5 million dollar lawsuit against Diebold, which now goes by the name of Premier Election Systems.

Other states with Diebold machines nearly identical to ours have had similar experiences. California received over $2.5 million in a settlement with Diebold and has decertified their systems for the third and final time. Ohio filed for punitive damages against Diebold after election officials found accumulation discrepancies and Diebold admitted to a "critical programming error that can cause votes to be dropped while being electronically transferred from memory cards to a central tallying point".

In spite of all this and a dozen or more academic and state commissioned reports that we have submitted in our voting rights lawsuit or personally delivered to the former Legal Affairs Council of the office of the Secretary of State, our Elections Division continues to operate as if no such problems exist here. Nevertheless, we have determined that our current unverifiable electronic voting systems were implemented by ignoring the law, a recommendation from the 21^st Voting Commission and documented warnings including those from a SLOGO Committee Senator, a County Board of Elections Chief, a computer professional and the general public.

In 2004, just two years after the state squandered 54 million dollars of tax money on equipment that was obsolete at time of purchase, the Free Congress Foundation rated Georgia as having the worst voting systems in the country for “reliability of equipment and verifiable recount preparedness”.

In 2006, as Secretary of State elect, you published a “Basics” report stating that:

• “The electronic voting machines currently used in Georgia’s elections are already obsolete… ”
• “Procedures must be established for audits of elections to verify that the electronic vote totals are accurate.”
• “The paper audit trail should be the determining factor in discrepancies in the vote and should be the ballot of record.”

We concur with your assessment and know that the majority of the legislature does as well. We urge you to move forward with an appropriate solution to restore Georgia elections that can be properly verified, audited and recounted. This has become an even more urgent matter in light of the new evidence we have identified during discovery in our voting rights law suit. We believe that admissions from state’s witnesses and documents produced in this case clearly show beyond any reasonable doubt that

1. Our voting systems were piloted, certified & procured illegally;

Section 21-201 (b) of the Georgia election code required electronic voting systems to have an independent audit trail of each vote cast. The state’s expert witness has admitted that: “I am not aware of any audit trails that are independent of the equipment” since, as you know, the systems have no such audit capability.

2. Our voting systems can flip votes between candidates in a race without detection;

The professor who conducted the evaluations of the voting equipment in 2002 has admitted as a state’s witness that: “If a machine itself was reporting inaccurately on a given election, nobody would know it”. 

3. County database totals can be fraudulently manipulated in any race without detection;

The professor who conducted the evaluations of the voting equipment in 2002 has admitted as a state’s witness, that the county level Gems database of election results can be altered without detection. (No provision exists for precinct managers to ensure their results are incorporated into county totals correctly)

4. Our voting systems were improperly certified, illegally patched and cannot be properly tested.

Some examples of improper certification in previous statewide elections are:

·         No documentation at all was ever produced for any of the six machines that were evaluated in 2001 and allegedly certified, nor for the systems that were purchased and implemented in 2002;

·         The professor who evaluated the voting equipment in 2002 admitted as a state’s witness that the voting systems were patched prior to the 2002 election and not recertified as required by law;

·         A Dec. 3, 2002 letter from the SOS office to Diebold’s president proves the SOS was still awaiting an  impact analysis of the patch and proper certification confirmation AFTER the election was conducted

This evidence that was collected during discovery in our voting rights civil suit filed in Fulton County Superior Court, case #2006cv-119719. The case is pending appeal to the Georgia Supreme Court or the Court of Appeals once Judge Michael Johnson issues the written order that is now four months past due. Our attachment, entitled Supporting Discovery Evidence, provides details on the above points. It references corresponding documents produced and deposition page/line numbers where admissions occurred. This material is readily available through the Attorney General’s office or VoterGA.org web site and we will be glad to provide any information you desire.

 We would also like to address some of the excuses we have heard over the years for doing nothing. They are.

·         No Reported Fraud – Fraud will always be undetectable with our current systems because all accountability for verifying Election Day results  has been removed from the systems and procedures;

·         Lack of Funds – Money was no object when the state committed $54 million in tax dollars to disenfranchise us with statewide unverifiable voting even though Georgia had no assurance of reimbursement. In fact, optical scan systems including a ballot marker for the visually impaired in each precinct could be implemented for slightly more than half of what we paid for unverifiable voting equipment in 2002 and save the state roughly $5 million per 2 year election cycle in testing, training, certification and logistical costs;

·         Federal Regulations – The U.S. Constitution grants the power to conduct elections to the states. Federal guidelines are voluntary and suggest “manual audit procedures”. There is no federal law that prevents Georgia from implementing auditable voting and there obviously will never be one.

We are appreciative of the bi-partisan legislation that has been introduced in previous sessions such as HB790 and SB591 in 2006 and HB858 and HB859 in 2008. Although passage of any of these bills would have solved the problem for Georgia and prevented our voting rights lawsuit from ever being filed, none have made it to the floor for a vote. We will continue to pursue our suit until we get a documented ruling based on the law and facts of the case. In the meantime we believe that the board should have this evidence and be afforded every opportunity to demonstrate its commitment to restore the integrity of Georgia voting.

                                                                                           Sincerely,

                                                                    Plaintiffs           Garland Favorito (404) 664-4044

                                                                                           Ricardo Davis

                                                                                           Mark Sawyer

  ---

SUPPORTING DISCOVERY EVIDENCE

 1.  Our voting systems were piloted, certified & procured illegally

Defendant’s claim of fact:

They “have not failed to perform a mandatory duty”, “the law has been consistently adhered to”

The Law:

In 2001, O.C.G.A. 21-2-301 (b) was signed into law by the Governor as Act 166 on April 18, 2001 and in effect until May 9, 2002 when it was replaced by Act 789.

The law stated: “Electronic recording voting systems used in the pilot program shall meet the requirements contained in Part 5 Article 9 of this chapter and shall have been certified by the Secretary of State as provided in Code Section 21-2-379.2. Such voting systems shall be required to have an independent audit trail of each vote cast”.

Documents Produced:

The report of the 21^st Century Voting Commission, dated December 2001, explains that electronic voting systems including those from Diebold, formerly Global Election Systems, were procured certified and piloted in 2001 pursuant to the implementation of Act 166.

Former Sec. of State, Cathy Cox, entered the state of Georgia into a contract with Diebold Elections systems to purchase 54 million dollars of voting equipment on May 3, 2002 (exhibit I)

Admission:

When asked to “describe any audit trail that is independent of the voting equipment that's being used…” the state’s expert witness, Ray Cobb, stated: ”I'm not aware of any audit trails independent of the equipment.  All the audit trails are on the equipment. (pg 33, ln 13)

Conclusion:

The Diebold Accuvote TS R6 voting machines were certified, procured, piloted and acquired illegally because they did not have an independent audit trail as the law required at those times

Supporting Exhibits (Warnings):

On August 24 2001, the Board of Registrations and Elections for Fulton County, Georgia’s most populous county, in response to a letter from Defendant Cox stated: “paper ballots are vital and necessary for a recount” (Exhibit L)

On March 13, 2002 in a Senate State and Local Government Operations Committee hearing for HB1213. former State Senator Rusty Paul requested according to meeting minutes “that a paper trail be established in case of system failure” (Exhibit D)

On February 7 2002, Plaintiff Favorito Emailed Asst Elec. Dir. Barnes warning that the electronic voting machines under evaluation “…have no external audit trail for voters to ensure that their vote is electronically recorded for the candidates they actually chose.”

 <