Hb 316 - Voting System

• Jurisdiction: Georgia,United States
• Citation: Vol. 36 No. 1
• Publication year: 2019

HB 316 - Voting System

Beth K. Boatright

Georgia State University College of Law, bboatright1@student.gsu.edu

Andrew Smith

Georgia State University College of Law, asmith461@student.gsu.edu

[Page 81]

ELECTIONS

Elections and Primaries Generally: Amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, Relating to Primaries and Elections Generally, so as to Provide for Definitions; Provide for Uniform Election Equipment in this State; Provide for Ballot Marking Devices and Standards and Procedures for Such Devices; Provide for the Manner of Qualifying Presidential Elector Candidates for Independent Candidates for the Offices of President and Vice President of the United States; Provide for the Time for Filing Evidence of Nomination by Political Body Candidates; Clarify the Age for Voting; Provide for Audits of Election Results and Procedures Therefor; Revise and Clarify Procedures for Voter Registration and List Maintenance Activities; Authorize the Secretary of State to Become a Member of a Nongovernmental Entity for Purposes of Maintaining Electors Lists under Certain Conditions; Provide for Minimum Requirements and Form of Information on Electronic Ballot Markers; Provide for Confidentiality of Certain Records and Documents; Extend the Time Period Allowing for Public Comment on Precinct Realignments; Place Time Limits on Relocation of Polling Places; Provide for Additional Sites for a Registrar's Office or Place of Registration for Absentee Ballots; Provide for the Delivery of Absentee Ballots to Certain Persons in Custody; Provide for the Manner of Processing Absentee Ballot Applications and Absentee Ballots; Provide a Cure for an Elector Whose Absentee Ballot Was Rejected; Provide for the Form of Absentee Ballot Oath Envelopes; Provide for the Time for Advance Voting and Manner and Location of Advance Voting; Provide for Assistance in Voting; Provide for Ease of Reading Ballots; to Provide that a Voter Identification Card Is Valid Until an Elector Moves Out of the County in Which It Was Issued or Is No Longer Eligible to Vote; Provide for Notification Procedures for Status of Provisional Ballots; Provide for the Time for Certifying Elections; Provide for Precertification Audits; Provide for Entitlement to and Methods for Recounts; Provide for Conforming Changes; Provide for Related Matters;

[Page 82]

Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A §§ 21-2-2 (amended), -2.1 (new), -4.1 (amended), -7.1 (new), -18 (amended), -19.1 (new), -32.1 (new), 50 (amended), -132.1 (new), -172 (amended), -216 (amended), -220.1 (amended), -225 (amended), -230 (amended), -231 (amended), -232 (amended), -234 (amended), -235 (amended), -262 (amended), -265 (amended), -267 (amended), -286 (amended), -293 (amended), -300 (amended), -365 (amended), -367 (amended), -369 (amended), -372 (amended), -374 (amended), -375 (amended), -377 (amended), -379.21-.26 (new), -381 (amended), -382 (amended), -383 (amended), -384 (amended), -385 (amended), -386 (amended), -388 (amended), -409 (amended), -413 (amended), -417.1 (amended), -418 (amended), -419 (amended), -482 (amended), -493 (amended), -495 (amended), -498 (amended), -499 (amended), -566 (amended), -579 (amended), -580 (amended), -582 (amended), -582.1 (amended), -587 (amended)

Bill Number: HB 316

Act Number: 24

Georgia Laws: 2019 Ga. Laws 7

Summary: The Act authorizes and requires a new voting system be used in all elections, provides for auditing procedures, provides for updates to the voter list maintenance laws, and

[Page 83]

specifies additional revisions to election processes.

Effective Date: April 2, 2019

History

In 2016, Russia interfered with the 2016 United States (U.S.) presidential election "in sweeping and systematic fashion,"¹ sparking emotions ranging from mild concern to outrage from American voters.² Subsequent investigations found that Georgia, although not among the twenty-one targeted states, had several county election websites visited by Russian military spies seeking to identify vulnerabilities in Georgia's central voting system just weeks before the 2016 election.³ But identifying vulnerabilities in Georgia's central elections server, which has been maintained at Kennesaw State University (KSU) in the Center for Election Services (CES) since 2002, did not require foreign hackers or rogue spies seeking to infiltrate and tamper with the election outcome.⁴

In August 2016, months before Russia tried to subvert Georgia's election websites, professional cybersecurity expert Logan Lamb discovered the state's database containing 6.7 million voters and instructions and passwords for election supervisors to operate the direct-recording electronic (DRE) voting machines and access the central server.⁵ Lamb also uncovered software files for electronic poll

[Page 84]

books and executable programs that could infect the central system with vote-changing malware, all of which were accessible on the CES's public website.⁶ It was later determined that the server had been unsecured and exposed to the cyber world since 2014.⁷ Although Lamb immediately reported his unnerving discovery to the Director of CES, one of Lamb's colleagues, Christopher Grayson, was able to locate and access the same unsecured server again in March 2017, at which time Grayson notified a KSU faculty member and the University Information Technology System (UITS), which was able to establish a protective firewall to isolate the server that same day.⁸

Although DRE voting machines have been almost entirely abandoned in the U.S. because of vulnerabilities like the ones Lamb exposed in August 2016,⁹ Georgia had once been on the cutting-edge of voting technology when it became the first state to adopt a DRE system in 2002.¹⁰ Prompted by Florida's mishandling of votes in the 2000 presidential election,¹¹ Senator Jack Hill (R-4th) sponsored legislation in February 2001 that among other things created the 21st Century Voting Commission to evaluate voting equipment alternatives and make quick recommendations to the General Assembly.¹² In 2002, after the Commission issued a final report later

[Page 85]

that year recommending DRE voting machines for in-person voting and an optical scan system for absentee voting by mail,¹³ Georgia became the first state in the country to use DRE voting machines.¹⁴ Over seventeen years later, however, Georgia was one of the last five states to still use the antiquated and highly vulnerable DRE system.¹⁵ The discoveries by Lamb and Christopher Grayson in 2016 and 2017—bolstered by concerns about Russia's interference in the 2016 presidential election and an alarming increase in reports of the insecurities of DRE voting machines that generate no auditable paper trail—brought Georgia's continued use of the DRE system to the forefront of both legislative and judicial attention.¹⁶

In July 2017, several voters and an election integrity advocacy organization filed a lawsuit against then-Secretary of State Brian Kemp (R) and other elections officials in state court to enjoin any future use of DRE voting machines in Georgia.¹⁷ Additional lawsuits against Kemp and various elections officials ensued, challenging a range of state elections practices including both the use of DRE voting machines as well as the "exact match" rule.¹⁸

[Page 86]

Shortly after Curling I was filed, the Georgia House of Representatives Committee on Science and Technology met to discuss suggestions for new voting machines.¹⁹ Two bills, House Bill (HB) 680 and Senate Bill (SB) 403, were introduced in the following 2018 legislative session seeking to eliminate Georgia's use of DRE voting machines before specified election years; however, despite a general consensus that DRE voting machines were outdated and vulnerable to hacking,²⁰ the state legislature failed to agree on legislation updating the state's election system prior to the closely contested 2018 gubernatorial election.²¹ This failure prompted the Curling plaintiffs to seek a preliminary injunction in August 2018 that would have required the state to switch to paper ballots at the eleventh hour.²² Although a federal judge denied the preliminary injunction, she found that the state's continued reliance on the DRE system "likely results in 'a debasement or dilution of the weight of

[Page 87]

[Plaintiffs'] vote[s],'"²³ and warned the State defendants that "further delay is not tolerable in their tackling the challenges before the State's election balloting system."²⁴

Simultaneously, the Secure, Accessible & Fair Elections (SAFE) Commission, commenced in April 2018 by Kemp, was meeting to evaluate options available to replace DRE voting machines and set guidelines for the General Assembly to adopt a new system in the 2019 legislative session, noting time constraints imposed by the pending Curling lawsuit.²⁵ Of the SAFE Commission's eight recommendations, the one point on which the Commission was not unanimous was also its most significant—that the state should adopt ballot-marking devices (BMDs) with verifiable paper ballots.²⁶ The lone cybersecurity expert on the Commission, Dr. Wenke Lee, strongly dissented on that point, maintaining that not only are hand-marked ballots much more secure than ones marked with BMDs, but also that no studies support that voters actually verify their ballots before submitting them, which is of paramount importance in any device-generated ballot.²⁷

Over criticism from various cybersecurity experts and election systems professionals, SAFE Commission Co-Chair and State Representative Barry Fleming (R-121st) introduced HB 316.²⁸ In accordance with the Commission's recommendations, the bill sought to authorize and require the State to adopt a new voting system as soon as possible that would be conducted on an electronic ballot-marking device that generates a printed, human readable paper

[Page 88]

ballot for scanning.²⁹ HB 316 also sought to address issues of voter...