A major election integrity decision came down Friday evening out of Atlanta.
We covered the live hearing in court last Monday. In short, a local chapter of the Georgia GOP (DeKalb County) attempted to convince an Atlanta trial court judge that he should issue a “writ of mandamus” – essentially a court order ordering an official to do their job – ordering Georgia’s Republican elected Secretary of State, Brad Raffensperger, to ensure that Dominion voting systems are secure.
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As we covered at the time, the most notable thing about Raffensperger’s lawyerly and procedure-based defenses was that at no time did Raffensperger’s team even attempt to argue that Dominion voter machines were, in fact, secure.
Expert testimony was given that explained that the master encryption keys are stored in an easily accessible portion of a database stored on the machines. Raffensperger’s lawyers offered no expert testimony of their own to contradict the claim. And their cross-examination of the DeKalb GOP’s experts also did not even attempt to poke holes in this claim.
The problem for election integrity activists, though, is that a writ of mandamus is, as the judge said in the first sentence of his decision released Friday evening, “extraordinary.” Judges are not typically in the business of ordering executive branch officials to do their jobs. It sets off their instinctive fear of violating the separation of powers and going beyond their role. However, the remedy does exist in the law for something, and the DeKalb GOP did make a compelling case in front of the judge.
So compelling, in fact, that Judge Scott McAfee (by coincidence, the same judge who has presided over Fani Willis’ now-tortured Trump RICO prosecution), in issuing his opinion, gave election integrity activists a bit of a victory disguised as a loss.
For sure, the judge declined to issue a mandamus, full stop. The DeKalb GOP was certainly hoping for a mandamus to be issued. But what was most interesting in the 8-page opinion (which may be viewed in full below) was how Judge McAfee dismissed the petition for a writ.
Raffensperger had attempted to have it dismissed through one of two non-substantive, procedural objections – claiming that either DeKalb GOP took too long to file the case or, in the alternative, they should have sued by other means. Judge McAfee quickly and efficiently declined to bail Raffensperger out in such easy fashion.
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That led McAfee to take the issue head-on. In the end, he found that Georgia statute 21-2-300(a)(2) – which states that Raffensperger must certify that machines are “safe and practicable for use” – by the letter of the law only requires that such certification be done before the machines are put into use. In this case, that was 2019. Bringing this issue up in 2024 does not change the fact that the machines were, in fact, declared safe – rightly or wrongly – by the appropriate officials in 2019. Nor does it matter that those officials were unaware of this potential vulnerability.
What is implied in this reasoning behind the dismissal? Most significantly, Judge McAfee found no reason to question the testimony offered by DeKalb’s experts (Clay Parikh and Ben Cotton). He is impliedly, in a judicial finding, saying that, yes, there is compelling, uncontroverted evidence that Dominion’s voting machines contain the master encryption key – allowing access to all functions, including vote tabulations – in plain sight within the machines.
Likely understanding the significance of his implied finding, Judge McAfee said this in his third-to-last line: “[…] this matter is currently one that must be deferred to the policymaking branches.”
Point taken, Judge McAfee. Now the question becomes: Where is the Georgia GOP legislature? Why are they not walking in to the halls of the legislature today and introducing a bill requiring the Secretary of State to certify that these machines are currently secure? Dominion is the second largest provider of machines in the United States.
Why aren’t all Republican jurisdictions rushing to get this potential security threat addressed, or at least acknowledged? Hopefully some Republicans will have to face questioning on this.
