Totenberg is presiding over a lawsuit filed in 2017 by election integrity advocates and individual voters who alleged that the state's outdated touchscreen voting machines and election management system, in use since 2002, were not secure and were vulnerable to hacking.
The state bought a new election system last year following specifications approved by the Republican-led state legislature, and state officials have said it will be fully implemented for the March 24 primaries. In a ruling shortly after the new system's selection was announced, Totenberg prohibited the state from using its old system past the end of 2019 and said it would have to use hand-marked paper ballots if the new system wasn't ready by March.
Meanwhile, the critics who had sued shifted their focus. They challenged the new system, which includes touchscreen machines that print a paper ballot with a human-readable summary and a barcode that is read by a scanner to tally the votes. They argue it has many of the same security vulnerabilities as the old system and that voters can't be sure that the barcode read by the scanner accurately reflects their selections.
Lawyer Vincent Russo, representing Secretary of State Brad Raffensperger, told the judge that some counties already have the new election management system and voting machines. All counties will receive the election management system by Feb. 1 and will have the voting machines by mid-February, he said. Every county has had two of the new voting machines since October for training and demonstrations, he said.
Multiple factors have made it difficult to set hard dates, he said, including the fact that many counties have limited storage space and can't accept delivery of the new machines until they've gotten rid of the old ones.
“This is a fluid schedule, but the state is on track,” Russo said.
Lawyer David Cross, who represents some of the individual voters who filed the lawsuit, said even if the state meets its planned dates, that leaves only about two weeks for installation, testing and training before early voting begins March 2. A concrete backup plan for the statewide use of hand-marked paper ballots also needs to be ready in case the state fails to meet those dates, he argued.
Totenberg asked state lawyers to provide an update on the status of the delivery of the whole system on Feb. 4. The following day, she wants them to provide a backup plan for using hand-marked paper ballots, including how many paper ballots counties should have on hand and plans for the distribution of those ballots if necessary.
Lawyers for the Coalition for Good Governance, an election integrity advocacy group, and individual voters pushed the judge to allow them to demand more information from the state on the plans for implementing the new system. But Totenberg shot that down, saying that would be intrusive and disruptive as the state tries to focus on the rollout.
Everyone recognizes that the statewide implementation of a voting system in a matter of months is a “remarkable undertaking,” Totenberg said. She added that any number of factors could cause complications, whether they're the fault of state officials or not, but she said she wanted to move delicately to allow the state a fair chance to get things in place.
“It may end up being a mess," she said. "But that's on their heads at that point.”