Crime & Courts

Judge tosses out lawsuit alleging S.C.’s old voting machines endanger voters’ rights

John Monk

A federal judge Friday tossed out a lawsuit alleging the state of South Carolina’s antiquated voting machines are so flawed that they put the constitutional rights of voters at risk.

U.S. District Court Judge Michelle Childs said imperfect voting machines may present “some conceivable risk” of the state being unable to accurately count votes. But, she added, the plaintiffs who filed suit failed to show there was a “substantial” risk that their right to vote could be jeopardized.

“A plaintiff ... must do more than merely assert that there is some conceivable risk that she will be harmed on account of defendant’s actions,” Childs wrote.

The summary judgment order means the plaintiffs failed to provide evidence showing serious enough grounds to proceed to trial to decide the merits of the lawsuit’s allegations.

The State Election Commission said it was “happy with the judge’s decision.”

“It is important that South Carolina have a secure, reliable and accessible voting system,” commission spokesman Chris Whitmiire said in a statement. “The State Election Commission continues working toward its goal of replacing the current system by Jan. 1, 2020, with a system that features a paper record of each voter’s voted ballot.”

Former state Sen. Phil Leventis, D-Sumter, and Mount Pleasant businessman Frank Heindel filed suit last July in Columbia’s federal court against the Election Commission and its executive director Mari Andino. The suit was supported by the national Protect Democracy group and the Columbia-based Nexsen Pruet law firm.

The suit alleged South Carolina’s roughly 11,000 voting machines, bought in the early 2000s, frequently break down, leave no paper trail of votes that can be audited and have “deep security flaws” that make them vulnerable to hacking by Russians and others.

State voting officials deny the machines have defects that could endanger an election. But, they acknowledge, the machines are imperfect. The Election Commission has requested millions more from the General Assembly to buy new voting machines in time for the November 2020 elections.

In January, Childs heard arguments from both sides. The plaintiffs argued S.C. voters likely will be harmed by the current voting machines. The Election Commission, represented by state Attorney General’s Office lawyer Wesley Vorberger, contended those claims were “speculative.”

That same month, the Election Commission formally asked the General Assembly to appropriate $60 million to buy new voting machines.

However, lawmakers have not decided on how much money for new voting machines to put in the new state budget, which takes effect July 1. Also, no decision has been made about the kind of voting machines to buy.

Childs’ ruling Friday could be appealed, an attorney for the plaintiffs said Friday.

“Unfortunately, the court ruled on narrow technical grounds to dismiss our case, and no finding was made about voters’ constitutional rights to a secure voting system,” said Project Democracy attorney Larry Schwartztol.

Just a day earlier, a three-judge panel of Atlanta’s 11th Circuit Court of Appeals ruled two similar lawsuits against the state of Georgia could proceed.

Like South Carolina, Georgia had sought to have that lawsuit thrown out.

As in South Carolina, the lawsuits argued Georgia’s aging touchscreen voting machines are vulnerable to hacking and provide no way to confirm that votes have been recorded correctly because there is no paper trail.

The Associated Press contributed
John Monk has covered courts, crime, politics, public corruption, the environment and other issues in the Carolinas for more than 40 years. A U.S. Army veteran who covered the 1989 American invasion of Panama, Monk is a former Washington correspondent for The Charlotte Observer. He has covered numerous death penalty trials, including that of the Charleston church killer, Dylann Roof.