Plaintiffs Ask Fourth Circuit to Consider Case against SC State Election Commission

Last evening, Protect Democracy and law firm Kramer Levin filed an appeal in Heindel v. Andino, a lawsuit seeking to stop the South Carolina State Election Commission (SEC) from continuing to use outdated voting machines that are vulnerable to cyber attack and malfunction.

The filing comes after a federal judge ruled on narrow technical grounds to dismiss the case in the U.S. District Court for the District of South Carolina. Larry Schwartztol, Counsel for Protect Democracy, issued the following statement:

“Our democracy cannot function properly without a secure and reliable voting system that enjoys the public’s trust. Unfortunately, the electronic voting system currently operated by the SEC suffers from chronic technical problems and breakdowns as well as documented security vulnerabilities. Federal courts have a key role to play in ensuring that all eligible votes are counted reliably and accurately, and that’s why we’re asking the court of appeals to review the district court’s ruling.”

A report issued in December by the League of Women Voters found that the 2018 midterm elections were marred by major voting system errors, including instances of votes being counted twice and votes being counted for the wrong contests. The same month, the SEC initiated a procurement for a new voting system that would include a paper record of each vote cast.

The lawsuit, brought last July by Mt. Pleasant businessman Frank Heindel and former state Senator Phil Leventis, aims to ensure that South Carolina’s paperless electronic voting machines, which have been in use statewide since 2006 and are at the end of their lifespan, be replaced with a more secure, auditable system in time for the 2020 elections. Their complaint describes in detail the serious vulnerabilities in South Carolina’s voting system, including flaws exposed over a decade ago in a public report by leading security researchers, that expose the system to a serious risk of hacking. These systemic vulnerabilities mean that Mr. Heindel and Mr. Leventis face the real risk that their votes won’t be counted. The lawsuit asks the court to protect their right to vote by requiring the SEC to replace the system with a more secure alternative.

South Carolina is one of only five states in the country that still relies on paperless electronic voting machines for all voters on Election Day. In 2016, an SEC report found that “[e]quipment issues and breakdowns are becoming more frequent. As a result, carrying out our mission and reflect[ing] the will of the electorate has become complicated and challenging.” That same year, the General Assembly’s Joint Voting System Research Committee found that “South Carolina’s next voting system must be secure, and instill confidence in the citizens that their votes will be counted, as they intended for them to be cast. A new voting system must include some type of audit function, or ‘paper trail,’ that would allow the voter to confirm his or her ballot, as it will be tabulated by the SEC.” The lawsuit seeks to make that “next voting system” a reality and protect the plaintiffs’ right to vote.

The appeal brief can be found here.

More information about the lawsuit is available at www.CountOurVotes.org.

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