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And so it begins.
Athens-Clarke County vs State Election Board
Bryan Sells addresses the SEB - updates that some polling places can fit the # of voting stations required, some do not.
Offers an alternate - put more stations per voter in some precincts than others.
Ryan Germany represents the SEB, begins by quoting the law requiring uniform voting system.
Says @dominionvoting system is being used in 158 counties.
Guess what - ACC is using the uniform system, following the Cobb pilot protocol, and the SEB's own emergency ballot procedure.
Germany quotes Supreme Court on "impracticable" - says it's mandatory and allows for emergency provisions. Misrepresents the basis for ACCs finding of "impracticable".
Says there is an emergency backup option, but you must try.
Sells up. BOER caught between a rock and a hard place.
1 voting station per 250 voters
Can't change polling places in under 75 days.
SOS did inspections too late to change.
BOER was threatened with lawsuit if it changed polling places quickly.
Sells: the early polling place did not protect ballot secrecy.
The BOER resolved the conflict by choosing #HandMarkedPaperBallots instead of the voting tablets and printers.
Preserving #BallotSecrecy , fitting the # of voting stations required, and preserving security.
Sells: who gets to decide what is impracticable?
The law says the Election Board gets to decide. And Judge Smith in Sumter says the Election Board must decide.
"No reasonable Board, faced with these circumstances, could find differently with these facts".
State Election Director Chris Harvey takes the stand.
Re privacy: old tablet allowed less chance to view. New tablet is bigger, brighter, and stands more upright.
Old setups had machines deployed around the wall, facing the center.
Harvey says security from tampering can be preserved with the machines turned around - says they can be inspected when voters aren't near them.
If you turned off security cameras unless your store was empty, would you be protected from shoplifting?
Germany asks if poll managers can keep people from standing in places where they could see ballot screens.
Harvey says yes.
Problem is "no one can see your ballot", including poll managers.
Harvey doubles down - says screens would be ok - as long as poll workers check when voting booths are empty.
Newsflash: tampering is a contact sport - the tablets and printers have data access ports...
Sells back, asking about privacy screens. Slide shows stand sold by Inclusion Solutions, with added curtains. Asks Harvey if he made counties aware of the product he is proposing as a solution.
Harvey is floundering.
Sells - is there a dispute about whether curtains prevent protection against tampering.
Harvey says "no problem"
Crowd erupts in laughter.
@GaSecofState cautions crowd to be quiet.
There are nearly 100 people here - mostly supporting ACC
Sells asks Harvey about rollout.
Voting tablets were allocated at the rate of 1 per 225 voters, to keep lines as short as possible.
When did ACC get equipment?
Harvey: I don't know.
Sells: did ACC receive BMDs in time to change polling places.
Harvey: I don't know.
@GaSecofState directs Sells to disrupt his planned presentation - and ask Harvey all questions now.
Sells to Harvey
What has your office done to try to address #BallotSecrecy
A: I've been trying to raise the issue.
Election Directors like to work in standard ways.
"additional challenges"
Euphemism for, we forgot to tell you, but they take up 50% more space, + you need 1/3 more
Sells to Harvey:
When did Counties get actual guidance.
When did you tell them "turn the machines around"?
Prior to Feb 13, can you point to any direction to ACC advising "turn the machines around"?
Harvey concedes that voter's bodies don't block screens.
He's right - and it's not the voter's duty to protect #BallotSecrecy , it's the duty of local election boards.
That is why ACC voted for #PlanB
Harvey: if you turn the BMDs around, you greatly decrease the chances of people seeing a voters choices.
If you have the space to separate the tables, you avoid one voter passing behind another.
Sells: does it concern you all that one voter can see another screen?
Harvey: it's a possibility.
Harvey rough sketched the proposed diagrams.
They are not to scale.
Doesn't show scanner/ballot box, provisional voting area, room for observers, poll workers, accessible voting.
Sells: what about a place for voters to mark emergency ballots?
Harvey: that could be set up also.
Side note: every county is required to print ballots for 10% of voters, to be used if equipment fails or lines are 30+min
Where will voters mark those ballots privately?
Sells asks Harvey about Jan 10 conference call, where he advised counties that the state was looking into providing blackout screens.
Harvey concedes the conversation, but denies he meant the state might provide them - just looking into feasibility.
Harvey: blackout screen refers to a film that shields the screen from others observing.
See the extended privacy screen? Sells asks Harvey, why would you want to extend the privacy screens you provided?
Harvey: I suppose it might enhance privacy.
Note: absolute #BallotSecrecy is the law, not "enhanced privacy"
The room is filled to overflow - close to 100 people.
Sells to Harvey: was the Cobb #HandMarkedPaperBallots Pilot an unauthorized use of the uniform system?
Harvey: it was court ordered, Cobb agreed to do it.
We did not produce a final report for that pilot.
Sells introduces the Executive Summary of Pilot Election findings.
Harvey says "our office" produced it, not him.
He read it.
He's the State Election Director!
The report says Cobb used the new system.
State call Frances Watson, chief investigator for the State.
She claims her investigators have been throughout the state, and not heard complaints about #BallotSecrecy
Bunch of photos being shown.
Sells: would this configuration comply with protection of ballot secrecy?
Watson: yes
Sells: can you see the window? And the person in the other room?
Watson: There may be blinds
Dominion rep takes the stand.
Germany asks about monitoring.
Ports are sealed, and machine freezes if any tampering happens. Does that include the data access card? What about that HP printer that's attached?
Incredibly, @dominionvoting guy says #BallotSecrecy has never come up?
State calls Melanie Frechette, former trainer for SOS.
Counties were instructed to review their polling places for practical set up problems.
I think it's very possible to set up polling places, there could challenges, but it's possible.
Frechette cannot recall any specific instructions, but it was discussed.
Sells: do you know when ACC received it's BMDs.
A: no
Q: I don:t remember the specifics.
"I said it's possible, not impracticable"
Q: How many BMDs could you fit in this room?
A: can't answer
Germany pushes back - does not want Frechette to answer:
Isn't it true that if GA law requires more BMDs than fit the space available, then it's impracticable.
A: I'm not comfortable answering the question.
The counties are responsible for that.
@GaSecofState says "move on"
Back from lunch break:
ACC Election Director Charlotte Sosebee takes the stand. She has been working in elections since 1988.
Equipment arrived Feb 3 - two demo BMDs came earlier.
Initial allotment of BMDs was 298 - 20 more due by May Primary.
Discussing value of BMDs.
Q: did you purchase other equipment?
A: 5 booths from Inclusion Solutions - allows 2 BMDs back to back. Just purchased what we needed for the election office early voting precinct.
A: ordered paper ballots for 100% of voters, last batch mid-February.
Sosebee: training from SOS did not include privacy. More procedure.
Q; did you develop a plan that would protect voter privacy.
A: yes. Presented concept plan to the ACC BOER.
Says Winterville and other precincts could work.
But not specifically as to how many booths would fit.
Sosebee says she told the Board she can protect #BallotSecrecy and fit the required # of voting booths.
It's the Million$$ question.
Let's see the to-scale drawings.
Sosebee says she did not tell the Board that she had drawings in process that would work. She was confident.
Early votes will be counted.
She had not received complaints about #BallotSecrecy from early voters.
Sosebee says more training will be necessary for poll workers, with the paper ballots.
Will need a secrecy sleeve, more pens, more ballots.
Old plan was 2 pens for a precinct, but emergency ballot procedure required 10% ballots ready.
Bad emergency plan if pens aren't available.
ACC Attorney Thomas Mitchell questions Sosebee:
Establishes staff went to polling places, not her.
Inclusion Solution booths are only for early voting.
Establishes most conference calls did not focus on #BallotSecrecy
Sosebee says she was waiting to hear if Privacy Screens could be certified.
Blockbuster: as of Jan 23, no measurements of polling places had been taken. Yet, she had specs, and was assuring BOER the BMDs would fit.
On Jan 23, @jessedavid1215 asked Sosebee to get Cobb Pilot plan procedure, and what was needed to implement.
On Jan 29, he asked to discuss electrical, delivery plan, #BallotSecrecy , space issues, projected turnout.
Sosebee: Jan 30 email from @jessedavid1215 "what methods will we use to protect #BallotSecrecy "
She replies, I planned to rely on the guidance of the state.
Feb 12 email with Chris Harvey - don't lay the machines down. Floorplans are coming.

Sosebee: did not want to use the curtains, citing security, voters taking photos, color.
Sosebee reviewing sketches for possible floor plans - at the heart of this case.
Reminder: law requires 1 voting station per 250 registered voters, set up to protect absolute #BallotSecrecy and preserve observation of equipment to protect from tampering.
Winterville precinct is under discussion now - where @GovKemp votes.
Asks if the diagram is consistent with SOS plan.
Sosebee says yes, but sketch shows tablets facing center of room.
And only 5 voting stations, where 12 are required by law.
Correct that - 11 are required in Winterville - but only 5 fit per Sosebee's drawing.
She says we'll be creative, and we have confidence.
Re: early voting location - wanted 10 voting booths, she and staff spent 11 hours over 2 days - 8 was the most that could fit.
This struggle to fit equipment is throughout GA.
The new BMDs require 50% more space, and the law requires 1/3 more.
Setting up the flawed tablets to protect #BallotSecrecy requires pulling them away from the wall, spreading them out.
Sosebee testimony complete. State rests.
Defense calls election assistant Lisa McGlaun
She's talking about assessing polling places. On Nov 13, she exchanged emails with @dominionvoting rep. By December Conference, concerns about electrical became clear.
McGlaun - worked with contractors to resolve electrical deficiencies.
She looked at drawings yesterday - drawings are not final. When we get into the space, there will be changes.
Shows a note from 10/17 - privacy concerns with BMDs.
2/13 webinar with Harvey - BMDs face wall.
A pattern is becoming clear: the State is saying "maximize privacy" instead of protect absolute #BallotSecrecy , electronics can be protected from tampering when you only see them with votes not near them, and # of voting stations can be compromised.
"Best possible voter security within the small space that we have"
Election staff have been working tirelessly to overcome the myriad problems created by the choice of the @dominionvoting system.
Yet State Election Board is blaming ACC for making choices that protect voters.
Lanie Lessard, staffer with a background in interior design, was tasked with creating the scale plans for every precinct.
Mar 5 sent preliminary drawings.
Remember, Feb 4 BOER tasked Sosebee with completing drawings b4 Mar 4.
Winterville drawing is under discussion again. The #s are clearer - 7 voting stations, not the 11 required. And facing the wall - not #BallotSecrecy
Remember, this is @GovKemp home precinct.
10 poll workers are assigned here.
Drama - going over precinct drawings where the maximum voting booths that will fit are not enough to comply with the law.
Attorney asks - did you have this problem with the old system?
A: no
When will scale drawings be finalized?
By March 18.
Laura Camacho takes the stand - Athens voter, voted Monday Mar 2, at the ACC early voting precinct.
Did you have privacy concerns?
A: it didn't feel like a private situation. If more people were there, it would have been a real problem.
Ann Marie Zemeri - ACC voter, voted Tuesday 3/24, in the early voting location.
It was clear I would have been able to see other voters. Had to pass 3 booths to get to my booth.
Also had trouble with the scanner.
Quick break - now on the stand - ACC Election Board Chair @jessedavid1215
Teaches government civics.
2018 we had merged precincts and long lines.
That can be a form of #VoterSuppresion
In Jan 2020, we finally had a solid discussion about unmerging precincts.
@Georgia_NAACP and other groups objected to the timing of the proposed precinct changes, close to the Presidential primary, with a Jan 21 letter.
Establishes the fact that precinct changes to accommodate equipment was also not an option.
People began approaching @jessedavid1215 with concerns about the new equipment and #BallotSecrecy in Nov 19. At same time, staff brought concerns about fitting more and larger equipment in existing polling places.
BOER got focused with staff by early 2020.
@jessedavid1215 On Feb 4, BOER asked staff for scale drawings for each precinct, supplied prior to Mar 3 meeting.
I teach civics. It's the law.
And I'm familiar with #VoterSuppression
#BallotSecrecy is part of that.
I didn't want that here.
Q: by the start of early Voting on Mar 2, had the BOER received the plans for every precinct?
A: No
Now @jessedavid1215 is describing his visit to the early voting precinct at the election office - could see BMDs.
Absolute #BallotSecrecy means no one - not staff, not Board members, no one - can see who you vote for.
@jessedavid1215 is eloquent and passionate in his defense of fair elections.
These slides are being shown now, and @jessedavid1215 is walking State Election Board members through what he saw on Mar 2.
When voting stations are side by side, you can see the BMD tablets as you walk by.
"Staff assured the BOER there would be no #BallotSecrecy violations in early voting locations.
When I saw it on Mar 2, I knew we needed to act to protect voters."
@jessedavid1215 chairs the ACC Election Board.
Board met on Mar 5 - scale plans for each precinct were not ready.
We voted to stop the #BallotSecrecy violation immediately, and adopt the Cobb pilot.
Q: as of the time the BOER made the decision, no scale drawings or hand sketches were made available.
A: we had no evidence we could protect #BallotSecrecy, provide the required # of voting stations, and protect electronic equipment from tampering.
Bombshell: diagrams were provided to @jessedavid1215 over the weekend.
Only 3 comply with the # of voting stations, and even those do not protect the other 2 laws.
Note: if it could be done, it would have been done by now.
Out of 20 diagrams, not a single one complies with all 3 laws, per @jessedavid1215
If we saw it could be done - if we had evidence, we would reconsider our decision.
Lawyer from Attorney General questioning @jessedavid1215 now.
Q: did Sosebee assure the Board she could do it?
A: yes
Q: why didn't you trust her
A: I saw the violation with my own eyes, I've been to polling places, and from my experience over 4 years.
When the facts aren't on your side, bark.
Appears to be the position of the AG attorney.
She is badgering @jessedavid1215 about why the Board did not trust staff.
Asking what the county attorney advised on Mar 2.
Asking about Jesse's understanding about the Sumter case.
A: in his decision, it's up to local officials to make that decision. They have to protect #BallotSecrecy while protecting security and other laws.
@jessedavid1215 I've read the relevant statutes. Used it on March 3, when we took the vote.

Vote was just for the Presidential Primary.

Q: what about the May Primary

A: as long as we can follow all 3 laws, we haven't made a decision.
Q: will unmerging precincts help?

A: maybe, maybe not. We need to see the to-scale diagrams showing its possible.

Now she's asking about #PlanB
@jessedavid1215 explains that #PlanB was the backup plan, if using the BMDs was impracticable.

Did not ask specific permission to use #PlanB from the county attorney
State Election Board members have some questions.
David Worley starts.
Q: asks why he waited one day after observing the #BallotSecrecy violation.
A: my past experience with staff.
SEB member Anh Le asks if the current early voting setup is similar to past setups. What's different?
@jessedavid1215 DREs were smaller, poorly lit, sat at an angle
Very different situation.
@GaSecofState asking same question as Worley - why did you wait a day before addressing the early voting #BallotSecrecy violation?
A: I was more comfortable addressing this as a board, not an individual.
SOS misrepresents what @jessedavid1215 just testified.
"with all due respect to county attorneys, they are there to advise. It's our decision".

Worley again pestering him, why did you change the voting system for all Clarke County voters, rather just ask staff to fix one polling place?

A: staff had assured us.
Staff worked 13 hours, and this was their best work.
- @jessedavid1215

In any of their businesses, if staff had 30 days and a hard deadline to produce a critical report - and missed the deadline - the boss would still have to make a decision.
How many extra chances?
Closing argument

State attorney puts uniform system rule above all other laws.

Claims Director produced a privacy plan, which the BOER ignored.

Claims "impracticable" as used by ACC was inconvenient or policy choice.
She mis-characterizes the Sumter County decision.

Says absentee vote by mail is an option for any voter with privacy concerns.

Says ACC violated the election code.

SEB can order cease + desist, public reprimand, pay investigative costs, impose civil penalty. $5k per violation.
Bryan Sells for ACC

#HMPB - use of paper ballots is allowed when voting machines are impracticable. Cites prior case law.

#BalllotSecrecy is the law, and in the constitution. It's the duty of the BOER to protect it.

ACC has not said BMDs can never be used.
Bryan Sells wrap up

There are at least 6 polling places that simply cannot be set up in any way that complies with the law.

There may be other counties with this problem - but this is about ACC and the polling places we have.

This was not a hasty decision.
SEB has to find that NO reasonable BOER could make the determination.

Then you leave it up to courts to decide these things.

BOER is willing to work with the SOS to find a technical solution.
SEB member Anh Le

Concerned about the disconnect between ACC BOER and staff.

Characterizes it as miscommunication.

Room for board and staff to figure it out.

By that standard, I don't see it as impracticable.
SEB member Mashburn
Hypothetical - no actual harm.
Board had the burden of proof - they have not met it.
"no evidence" that it's "impossible or impracticable"
SEB member Worley
Don't think the ACC board has been reasonable.
They should have believed Director Sosebee.
Board is not being reasonable by making a wholesale change in every precinct.
Board did violate the law.
Order cease and desist, defer other penalties.

Praises integrity of election officials.
Recommends they work collegially
ACC has not provided clear and convincing proof.
Wants to send ACC invoice for investigation costs.
Cease and desist.
Wants BMDs by Friday - Charlotte says tomorrow.
SOS attorney Germany

Proposes fine that can be suspended.
Wants costs reimbursed.

Worley wants to know costs before assessing them. Moves for cease and desist.

SEB member Mashburn pushing for administrative costs.

Worries about the citizens of ACC who want to vote on electronic devices cannot.

ACC put away equipment bought by GA taxpayers.

Germany says costs should be assessed. Don't want to punish ACC commissioners. Fine of $2500.
Moved to fine $2500
Passed 4-1

Plus cease and desist.

New fine $5k per day, can be waived. Passed.

It's a club to make them comply tomorrow.
Final thoughts

@jessedavid1215 and the ACC Board of Elections put the law and voters first.

GA elections have a sordid history, and today's kangaroo court added one more chapter.

The fight for #BallotSecrecy and election integrity is not over
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