EFF and FSFP to Court: When Flawed Electronic Voting Systems Disenfranchise Voters, They Should Be Able to Challenge That with Access to the Courts

Atlanta, Georgia—The Electronic Frontier Foundation (EFF) and Free Speech for People (FSPF) urged a federal appeals court today to hold that a group of Georgia voters and the organization that supports them have standing to sue the Georgia Secretary of State over the implementation of defective voting systems they say deprives them of their right to vote and have their votes counted.

EFF and FSFP filed an amicus brief siding with the plaintiffs in Curling v. Raffenberger  to defend Americans’ right to challenge in court policies or actions that disenfranchise voters.

The voters in the Curling lawsuit, originally filed in 2017, are seeking to block, or otherwise require protective measures for, Georgia’s new electronic voting, which has been found to have flaws that could block or deter some voters from exercising their right to vote and cause some votes to not be counted.

After reviewing a tremendous amount of evidence and testimony, a federal judge found that problems with the system’s scanners violate Georgians’ fundamental right to vote, and flaws in electronic pollbooks impose a severe burden on the rights of voters. The court ordered the state to take specific steps to fix the problems.

Lawyers for the Georgia Secretary of State’s office are appealing the orders and seeking to have the case thrown out. They argue that the voters lack standing to sue because they can’t show that they would be personally and individually harmed by the voting system and are merely speculating about potential harms to their voting rights. The Secretary of State went so far as to say the plaintiffs are, at best, “bystanders” making merely a general grievance about alleged harms that is not sufficient for standing.

In a brief filed in U.S. District Court of Appeals for the Eleventh Circuit, EFF and FSFP said the Supreme Court has long recognized that the right to vote is personal and individual. Directly depriving people of the right to vote is a concrete and particularized injury, and the Curling plaintiffs showed how the flaws both blocked voters from voting and scanned ballots from being counted.

“The plaintiffs in this case are seeking to vindicate their own rights to vote and have their votes counted,” said EFF Executive Director Cindy Cohn. “The fact that many other people would be harmed in a similar way doesn’t change that or negate the fact that the state’s choice of voting system can disenfranchise the voters in this case.”

EFF urged the court to look at the Ninth Circuit Court decision in EFF’s landmark case Jewel vs. NSA challenging dragnet government surveillance of Americans’ phone records. The court found that AT&T customers alleging the NSA’s spying program violated their individual rights to privacy had standing to sue the government, despite the fact that the program also impacted millions of other people, reversing a lower court’s ruling that their assertions of harm were just generalized grievances.

“When government or state policies cause personal harm, that meets the standard for standing even if many others are subject to the same harms,” said Houston Davidson, EFF public interest legal fellow.

EFF and FSFP also pushed back on Georgia’s attempt to minimize the problems with its systems as mere “glitches,” akin to a snowstorm or traffic jam on Election Day that do not require deep court review. They noted that the problems proven in the case are not minor but serious, preventable, and fundamental flaws that place unacceptable burdens on voters and jeopardize the accurate counting of their votes. Passing these problems off as minor, with unserious consequences for voters, can make it easier for Georgia to convince the court that it should not intervene.

Don’t fall for it, EFF and FSFP urged the court.

“It’s outrageous and wrong for Georgia to try to dismiss the flaws in the voting system as ‘glitches,’” said Davidson. “Technology problems in Georgia’s electronic pollbooks, scanners, and overall security are systematic and predictable. These issues jeopardize voters’ rights to cast their votes and have them counted. We hope the court recognizes the flaws for what they are and confirms the plaintiffs’ rights to hold the state accountable.”

For the EFF/FSFP brief:
https://www.eff.org/document/curling-v-raffensberg-amicus

For more on election security:
https://www.eff.org/issues/election-security