CURLING v. RAFFENSPERGER TRIAL
ATTORNEY DAVID OLES’ ON BEHALF OF PLAINTIFF RICARDO DAVIS
APPROXIMATE OPENING STATEMENT TRANSCRIPT

January 9, 2024

We are here today in hopes of rectifying a dilemma that began in 2002 when Georgia’s Secretary of State Cathy Cox purchased a statewide paperless Direct Recording Electronic (DRE) voting system. That purchase was made over objections from voters, legislators, election officials and even the Fulton Co. Elections Director. The paperless system produced secretly counted results that were unverifiable to the voter, not auditable by election officials and not recount capable for candidates.

Before the system was purchased, the Georgia legislature removed the legal requirement that any voting system have “an independent audit trail of each vote cast.”  I make this point to illustrate that Georgia voters cannot be confident that the Georgia legislature will protect their Constitutional rights.

My client, Ricardo Davis, was aware of the voting system problems back then because he helped install the system for his county. He later co-founded an organization named VoterGA that filed a lawsuit in state court much like this one on behalf of Georgia voters. But the Georgia Supreme Court ruled in favor of the state. I make this point to illustrate that Georgia voters cannot rely on the Georgia judicial system to protect their Constitutional rights either.

In August of 2019, this honorable court upheld many of the claims made back then and found the old DRE system Constitutionally deficient. At the same time, the court responded to excuses from the Secretary’s office about a 2017 breach that occurred in the Center for Election Systems at Kennesaw State University.  The Center’s server that prepared the files for all elections for all Georgia counties was found to be exposed for anyone in the world to hack. The election server was wiped days after this lawsuit was filed in 2017 without mitigating the risk of that potential breach. This court rejected the Secretary’s excuses and found that, “Given the entire course of events described here, the Defendants’ contention that the servers were simply ‘repurposed’ and not intentionally destroyed or wiped is flatly not credible.” I make this point to illustrate that Georgia voters cannot rely on the Secretary of State’s office to protect their Constitutional rights either.

We are still in this dilemma because the Secretary has purchased another voting system the Plaintiffs contend is similarly deficient. This court even found that this new Dominion Ballot Marking Device (BMD) system violates Georgia laws. The court’s October 11, 2020 Order quoted Georgia law stating a voting system must “…print an elector verifiable paper ballot” and “…produce paper ballots which are marked with the elector’s choices in a format readable by the elector.” The court then found that: “Plaintiffs and other voters who wish to vote in-person are required to vote on a system that does none of those things.”

In spite of the clear, plain text of the court’s order and acknowledgement of the court’s findings by voters throughout the state, the Secretary, Georgia legislators and county election boards have ignored this court’s findings as well as Georgia law. So, this Honorable Court is one of the last lines of defense for Georgia voters in their quest to protect their constitutional rights.

Page 4 of the court’s November 10, 2023 order sets the issues for this trial by explaining that “the Court has the legal authority to identify constitutional deficiencies with the existing voting system.” The record is awash with various types of security vulnerabilities exposing those deficiencies that severely impede our Constitutional right to vote.

The deficiencies are not limited to BMDs and not simply speculative as Defendants have claimed. Dr. Halderman has already explained the Dominion scanners accept duplicate ballots and Dr. Stark and others have confirmed over 2,800 duplicates were counted in the Fulton Co. 2020 election alone. Dr. Halderman’s security analysis explains that malware can be delivered from the state’s centrally programmed election preparation server through the county Election Management Servers to county system components like the BMD. The record shows a state election preparation server has already been exposed to the internet and has always been vulnerable to a single point of attack. The state’s server can infect any county election system in any election without detection.

Depositions in the record state that Dominion personnel wirelessly accessed the Coffee Co. system on the night of the January 5, 2021 U.S. Senate runoff. The record indicates that Dominion personnel adjusted mail-in ballot scanner settings to address a partisan ballot rejection problem without ever touching the equipment. Such wireless access conflicts with claims by the Defendants and the vendor that the system has no remote access capability.

Dr. Halderman explained that Dominion failed to pay “sufficient attention to security during design, software engineering, and testing” and “it would be extremely difficult to retrofit security into a system that was not initially produced with such a process.” So, it is in the best interest of Georgia voters for the court to grant Plaintiffs relief: Declare the entire Dominion BMD system constitutionally deficient, enjoin the state from using the system and prohibit the state from enforcing any laws requiring use of the system.

But what would prevent the state from buying another constitutionally deficient system that produces secretly counted election results? Would Plaintiffs would then have to go back to court for the third time?  We ask the court to consider that elections without transparency are also by nature, constitutionally deficient.

The court noted on Page 114 of its November 10, 2023 order that “…settled precedent allows for suits based on the argument that ‘state officials’ inaction allegedly harms constitutional rights.” The  court’s concern is justified because Georgia’s electronic election landscape is littered with inactions and inappropriate actions taken by the Defendants:

• in 2017, the Defendants allowed the central election preparation server to be wiped days after this lawsuit was filed;
• in 2019, the Defendants lack of candor with the court caused the court to find the Defendants “flatly not credible”;
• when 2020 Coffee Co. machine recounts added 39 votes with no change in ballots cast and then failed to count votes on 185 more ballots, the Secretary did not help;
• in 2021, the Secretary filed an amicus brief attempting to prevent other Plaintiffs from looking at ballots that senior poll managers swore were counterfeit;
• in 2022 when the Dominion system declared the wrong winners in DeKalb District 2 Commission primary, the Secretary refused to allow full race hand counts for any other races to ensure statewide elections were correct [SEB2022-348]
• now, in 2023-2024 the Secretary of State refuses to testify under oath in this case.

The record shows the Defendants currently employ wholly inadequate audit procedures, relying on secret electronic vote counts while maintaining legally sealed ballots beyond the 2-year legal seal requirement. These inactions and others have left Georgians with no reasonable means to verify election results or to detect counterfeit ballots that the system can accept. These types of inactions are also constitutional deficiencies in the overall election system. We urge the Court to declare these actions as Constitutionally deficient along with the complete Dominion BMD system. Georgia voters must reply on this court is one of the last lines of defense in their quest to secure future elections.