Tuesday, November 14th, the Grady County Board of Commissioners granted us a Paper Please Workshop to present on going to Emergency Paper Ballots under Georgia O.C.G.A. 21-2-324 and Rules and Regulations 183-1-12-.11(2)(c)&(d). Unfortunately, we were not successful at convincing them. Watch the proceedings here and feel free to use our presentation below.
On November 10th, federal court Judge Amy Totenberg issued a 135 page order in the Curling vs. Raffensperger case for a bench trial scheduled for January 9, 2024. She had previously declared that the QR code that is printed on the ballot selection summary was in violation of Georgia O.C.G.A. 21-2-300, which states “electronic ballot markers shall produce paper ballots which are marked with the elector’s choices in a format readable by the elector.” Yes, there is a printed summary of your selections but only the QR code is utilized in the tabulation. We will be watching this case closely as it proceeds to trial. You can read the full order below.
On November 1st, the Georgia Senate Ethics Committee met in Atlanta. The purpose was to inquire why the Secretary of State had not initiated an upgrades of the electronic voting software and other cybersecurity risks. There was also a packed room of election integrity advocates, some ready to speak during public comment portion. The meeting started with approximately 14 state senators to hear from the SOS office and representatives from Dominion. Secretary of State Raffensperger was notably absent. By the time the public comment portion started, 10 of the state senators had left, as well as the representatives from the SOS office. If one of your senators is on the Senate Ethics Committee, you might want to inquire if they stayed to hear from the public or if they left and why. You can watch the proceedings here. Or, scroll down below in the top left to the 11/1/2023 Ethics video.
RECOMMENDED MOTION FOR HAND COUNT TO GRADY COUNTY BOC
No bank would allow a teller to close out their money drawer until all the money had been counted and the debits/credits balanced. Why should we treat our votes (property) any differently? In addition, we wouldn’t allow our vote to be counted in secret in a back room. That’s what is happening NOW in a black box with software that is not transparent to the public.
Many times, it has been addressed to this board that 21-2-300 requires the use of machines. But you can’t just apply part of the law, you have to apply the whole law. 21-2-300 also says that the ballots shall be in a format readable by the elector. The QR code is not humanly readable, it is being tabulated by proprietary software. The QR creates a spoiled ballot. Continuing to utilize this system is injuring the voters of Grady County. It is depriving us of our property which is knowing our vote is counted as desired.
The Election Superintendent is required per oath of office to “make a true and perfect return of such primaries and elections, …”. So, how is just transferring the numbers from a machine tabulator tape to a reporting document sufficient to verify that the count is true and perfect enough for certification?
I recommend a member of the Board of Commissioners make a motion to pass a resolution so that the Board of Commissioners go on the record they support using Emergency Paper Ballot procedures per Georgia Rules & Regulations 183-1-12-.11(2)(c)(d) and performing a hand count of the physical paper (absentee/emergency) ballots at the precinct as allowed by 21-2-334 for a proper certification in addition to the tabulator scanning. And, that a copy of the official vote be immediately forwarded to the Secretary of State.
This provides you with an affirmative defense that you are concerned about the security and integrity of the voting machine equipment and that you are taking appropriate steps to provide a true and perfect return.
GEORGIA CODE CITATIONS
GA Code § 21-2-300 (2022)
As soon as possible, once such equipment is certified by the Secretary of State as safe and practicable for use, all federal, state, and county general primaries and general elections as well as special primaries and special elections in the State of Georgia shall be conducted with the use of scanning ballots marked by electronic ballot markers and tabulated by using ballot scanners for voting at the polls and for absentee ballots cast in person, unless otherwise authorized by law; provided, however, that such electronic ballot markers shall produce paper ballots which are marked with the elector’s choices in a format readable by the elector.
GA Code § 21-2-334 (2022)
If a method of nomination or election for any candidate or office, or of voting on any question is prescribed by law, in which the use of voting machines is not possible OR practicable, or in case, at any primary or election, the number of candidates seeking nomination or nominated for any office renders the use of voting machines for such office at such primary or election impracticable, or if, for any other reason, at any primary or election the use of voting machines wholly or in part is not practicable, the superintendent may arrange to have the voting for such candidates or offices or for such questions conducted by paper ballots. In such cases, paper ballots shall be printed for such candidates, offices, or questions, and the primary or election shall be conducted by the poll officers, and the ballots shall be counted and return thereof made in the manner required by law for such nominations, offices, or questions, insofar as paper ballots are used.
Comment: Impossible ≠ Impracticable: the Georgia code section states, possible OR practicable, which means there are 2 different meanings and 2 different standards.
§ Impossible: “The fact or condition of not being able to occur, exist or be done.” (Black’s Law Dictionary)
§ Impracticable: contract law: excessively difficult, expensive, or harmful condition that excuses a party to the contract from performing. The condition or act is possible, but not feasible to perform at a loss.
GA Code § 21-2-366 (2022)
The governing authority of any county or municipality may, at any regular meeting or at a special meeting called for the purpose, by a majority vote authorize and direct the use of optical scanning voting systems for recording and computing the vote at elections held in the county or municipality. If so authorized and directed, the governing authority shall purchase, lease, rent, or otherwise procure optical scanning voting systems conforming to the requirements of this part.
Comment: If the county has the authority to authorize and direct the use of optical scanning voting systems for recording and computing the vote at elections, then it follows they have the right to not use or use in conjunction with the emergency procedures.
Georgia Rules & Regulations 183-1-12.11(2)(c)(d)
(c) If an emergency situation makes utilizing the electronic ballot markers impossible or impracticable, as determined by the election superintendent, the poll officer shall issue the voter an emergency paper ballot that is to be filled out with a pen after verifying the identity of the voter and that the person is a registered voter of the precinct. Emergency paper ballots shall not be treated as provisional ballots, but instead shall be placed into the scanner in the same manner that printed ballots in the polling place are scanned. The election superintendent shall cause each polling place to have a sufficient amount of emergency paper ballots so that voting may continue uninterrupted if emergency circumstances render the electronic ballot markers or printers unusable. For any primary or general election for which a state or federal candidate is on the ballot, a sufficient amount of emergency paper ballots shall be at least 10% of the number of registered voters to a polling place. The poll manager shall store all emergency ballots in a secure manner and ensure that all used and unused emergency ballots are accounted for. All unused emergency ballots shall be placed into a secure envelope and sealed such that the envelope cannot be opened without breaking such seal.
(d) If an emergency situation exists that makes voting on the electronic ballot markers impossible or impracticable, the poll manager shall alert the election superintendent as soon as possible. The existence of an emergency situation shall be in the discretion of the election supervisor. However, if a poll manager is unable to contact the election superintendent after diligent effort, the poll manager shall have the ability to declare that an emergency situation exists at the polling place. The poll manager shall continue diligent efforts to contact the election superintendent, and shall inform the superintendent as soon as possible of the situation at the polling place. The election superintendent, in his or her discretion, shall either overrule or concur with the declaration of emergency circumstances. While the determination of an emergency situation is in the discretion of the election superintendent, the types of events that may be considered emergencies are power outages, malfunctions causing a sufficient number of electronic ballot markers to be unavailable for use, or waiting times longer than 30 minutes.
On October 3, 2023, a number of Georgia citizens attended the State Election Board meeting in Atlanta. During the public comment period, a resolution signed by them was read and hand delivered to the board members. This resolution, a copy of which is enclosed, calls for the State Election Board to provide clarity to election boards and superintendents of their authority under the law to utilize emergency hand marked paper ballots rules and procedures per Georgia Rules & Regulations 183-1-12-.11(2)(c)&(d). This is needed due to the reasons outlined in the enclosed resolution.
We ask that the Secretary of State and the State Election Board come together on this matter for the good of the people of this state. A hand marked paper ballot will show full voter intent and a hand count of all races in conjunction with the tabulator count will help restore transparency and trust in Georgia’s elections.
For links to all cited code and reports, download this original PDF. Feel free to repurpose and present to your local Board of Commissioners, Board of Elections and/or Election Superintendents.