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Curling v. Raffensperger

Approximately two months before the 2018 Georgia state general election, this Court recognized in its first preliminary injunction order that the State had “stood by for far too long” in failing to address the “mounting tide of evidence of the inadequacy and security risks” posed by Georgia's Direct Recording Electronic voting system. Curling v. Kemp, 334 F. Supp. 3d 1303, 1307, 1327 (N.D. Ga. 2018). The Court at that time found that Plaintiffs were substantially likely to succeed on the merits of their claims that they faced an imminent threat of the diminishment and burdening of their First and Fourteenth Amendment rights to cast a vote that is properly counted. The Court, however, ultimately determined that the Plaintiffs' eleventh-hour request for an immediate rollout of paper ballots statewide would likely adversely impact the public interest in an orderly and fair election. But, with the 2020 elections looming, the Court advised the State Defendants that any new balloting system adopted by the State should address democracy's critical need for transparent, fair, accurate, and verifiable election processes that guarantee each citizen's fundamental right to cast an accountable vote. Following this decision, the State Defendants appealed to the United States District Court, N.D. Georgia, Atlanta Division. Following removal, voters moved for a preliminary injunction prohibiting defendants from using electronic voting mechanisms and requiring defendants to use hand-marked paper ballots in upcoming elections. The United States District Court, N.D. Georgia, Atlanta Division Court decided to grant in part and deny in part the voters' Motions for Preliminary Injunction. The Court denied voters’ request to enjoin the use of the GEMS/DRE system in the 2019 elections, but it granted voters’ motion to the extent that the Court prohibits any use of the GEMS/DRE system after 2019. Specifically the Court held that (1) municipalities that conducted their own elections were not necessary parties to the litigation; (2) voters had a substantial likelihood of prevailing on the merits of their claim; (3) with respect to future elections after the 2019 local and municipal elections, the balance of hardships and public interest supported a grant of preliminary injunction; but (4) with respect to upcoming 2019 off-year local and municipal elections, balance of hardships and public interest did not support grant of preliminary injunction. In short the old voting machines could be used for the imminent 2019 elections but not in any elections after that.