3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 1 of 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION ) ) ) ) Plaintiffs, ) ) v. ) ) MARCI ANDINO, Executive Director of ) the South Carolina State Election ) Commission, in her official capacity; ) BILLY WAY, JR., Chair of the South ) Carolina State Election Commission, in his ) official capacity; and MARK A. BENSON, ) MARILYN BOWERS, and NICOLE ) SPAIN WHITE, Members of the South ) Carolina State Election Commission, in their ) official capacities, ) ) Defendants. ) ) FRANK HEINDEL; and PHIL LEVENTIS, Civil Action No. 3:18-cv-01887-DCC Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment and Motion to Dismiss 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 2 of 40 TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................................. 1 II. FACTS ................................................................................................................................... 2 III. A. The Structure of South Carolina’s Election System ..................................................... 3 B. The iVotronic System Used Throughout South Carolina is Unnecessarily Vulnerable to Cyberattack and Other Failures ............................................................. 4 1. The iVotronic Machines Certified and Maintained by the SEC Have Been Proven Hackable for Over a Decade ..................................................................... 4 2. The Inherent Deficiencies of the iVotronic System are Exacerbated by Network Security Vulnerabilities Throughout South Carolina’s Election System ................................................................................................................... 6 3. The iVotronic Machines Are Obsolete and Prone to Error ................................... 7 4. Vote Results on the iVotronic Machines Cannot Be Tested by a Meaningful Audit .................................................................................................. 8 5. The Current Threat Environment Exacerbates the Inherent Vulnerabilities of the iVotronic System......................................................................................... 9 6. Plaintiffs Are Harmed by Defendants’ Certification and Maintenance of the iVotronic System ........................................................................................... 10 THE COURT SHOULD DENY DEFENDANTS’ MOTION TO DISMISS BECAUSE PLAINTIFFS HAVE PLAUSIBLY ALLEGED STANDING TO PURSUE THEIR CLAIM ................................................................................................... 10 A. Applicable Legal Standards ........................................................................................ 10 B. Plaintiffs Have Alleged that Their Right to Vote is Severely Burdened by Defendants’ Certification and Maintenance of the iVotronic System........................ 12 1. The Constitution Guarantees Each Voter’s Right to an Effective and Equal Vote ........................................................................................................... 13 a. The SEC’s Insecure and Outdated Voting System Substantially Burdens Plaintiffs’ Right to an Effective Vote .......................................... 14 b. The SEC’s Insecure Voting System Severely Burdens Plaintiffs’ Right to Vote by Subjecting Them to a Substantial Risk of Arbitrary and Disparate Treatment ............................................................................ 19 3:18-cv-01887-DCC C. Date Filed 08/28/18 Entry Number 14 Page 3 of 40 The Injury to Plaintiffs’ Right to Vote is Cognizable Because the Substantial Risk of Hacking or Machine Failure Render the iVotronic System Insufficiently Reliable to Guarantee an Effective and Equal Ballot........................... 22 1. Plaintiffs’ Complaint Sufficiently Alleges a Substantial Risk of Injury ............. 23 2. Plaintiffs’ Injury is Fairly Traceable to Defendants’ Conduct, and is Not Solely the Result of Third-Party Misconduct...................................................... 29 IV. DEFENDANTS FAIL TO MEET THE RULE 56 STANDARD ....................................... 31 V. CONCLUSION.................................................................................................................... 32 ii 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 4 of 40 TABLE OF AUTHORITIES Page(s) Federal Cases ACLU of N.M. v. Santillanes, 546 F.3d 1313 (10th Cir. 2008) ...............................................................................................24 Anderson v. Celebrezze, 460 U.S. 780 (1983).....................................................................................................13, 15, 16 Arcia v. Florida Secretary of State, 772 F.3d 1335 (11th Cir. 2014) .........................................................................................23, 24 Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................................10 Baker v. Carr, 369 U.S. 186 (1962)...........................................................................................................23, 28 Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002) .....................................................................20, 21, 26, 28 Bush v. Gore, 531 U.S. 98 (2000)........................................................................................................... passim Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013)......................................................................................................... passim Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347 (3rd Cir. 2014) ...................................................................................................31 Dunn v. Blumstein, 405 U.S. 330 (1972)...........................................................................................................14, 20 Fed. Elections Comm’n v. Akins, 524 U.S. 11 (1998).............................................................................................................27, 28 Gray v. Sanders, 372 U.S. 368 (1963).....................................................................................................13, 14, 20 League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ...................................................................................................27 Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013) .............................................................................................30, 31 iii 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 5 of 40 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).....................................................................................................11, 22, 31 Mass. Mut. Life Ins. Co. v. Hiller, No. 6:16-CV-01643-JMC, 2018 WL 3054935 (D.S.C. June 20, 2018) ..................................32 McCray v. Maryland Dep’t of Transp., Maryland Transit Admin., 741 F.3d 480 (4th Cir. 2014) ...................................................................................................32 Michigan State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935 (E.D. Mich. 2016), stay pending appeal denied, 833 F.3d 656 (6th Cir. 2016).............................................................................................................24, 25 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).................................................................................................................30 Mylan Labs., Inc. v. Matkari, 7 F.3d 1130 (4th Cir. 1993) .....................................................................................................11 N.C. State Conference of NAACP v. N.C. State Board of Elections, 283 F. Supp. 3d 393 (M.D.N.C. 2017) ..............................................................................23, 24 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 ............................................................................................................................10 Reynolds v. Sims, 377 U.S. 533 (1964)...............................................................................................13, 14, 15, 29 Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam).........................................................................25, 26 State of New York v. United States Dep’t of Commerce, 2018 WL 3581350 (S.D.N.Y. June 26, 2018) ...................................................................27, 28 Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), vac’d as moot by 473 F.3d 692 (6th Cir. 2007) .....17, 21, 25, 26 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).......................................................................................................11, 23 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).................................................................................................................13 United States v. Classic, 313 U.S. 299 (1941)...............................................................................................13, 14, 15, 29 United States v. Saylor, 322 U.S. 385 (1944).................................................................................................................15 iv 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 6 of 40 United States v. Weston, 417 F.2d 181 (4th Cir. 1969) ...................................................................................................14 Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003) .................................................................................................17 Wesberry v. Sanders, 376 U.S. 1 (1964).....................................................................................................................12 Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006) ...............................................................................................17 v 3:18-cv-01887-DCC I. Date Filed 08/28/18 Entry Number 14 Page 7 of 40 INTRODUCTION Plaintiffs Frank Heindel and Phil Leventis are South Carolina voters who seek to ensure that their ballots, and the ballots of all South Carolina voters, are counted fairly and accurately. They filed this lawsuit because Defendants, in their capacities administering the State Election Commission (“SEC”), have failed to provide South Carolina voters with an election system that lives up to that basic expectation. The shortcomings of the current election system are not speculative—they have been well established for over a decade and cut to the core of South Carolina’s democratic infrastructure. South Carolina voters use a voting system that Defendants certified in 2004. The system is purely digital—it produces no independent record of voter intent to confirm election results. Computer security experts have repeatedly published damning findings describing vulnerabilities that can be readily exploited by even a modestly skilled hacker. These vulnerabilities, hugely concerning when first publicized over a decade ago, have only become more pronounced over time, as the machines approach or exceed their expected lifespan and increasingly fail due to age and machine error. All of these deficiencies in the system’s ability to function reliably are magnified by the current threat environment: A unanimous chorus of intelligence and national security leaders have sounded the alarm that sophisticated adversaries seek to attack America’s democratic infrastructure—particularly state-level election systems—through hacking and other cyber-aggressions. In light of all this, Defendants have failed to provide a sufficiently reliable voting system, thereby violating Plaintiffs’ constitutionally guaranteed right to vote. Defendants do not question the constitutional significance of providing voters, such as Plaintiffs, an adequately reliable voting system. Rather, they ask the Court to dismiss Plaintiffs’ claims on the grounds that they lack standing. For the reasons explained below, however, Defendants’ motion must fail. It relies on an incorrect description of standing doctrine, 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 8 of 40 dismissing Plaintiffs’ allegations as “hypothetical” and “speculative.” But Plaintiffs suffer an immediate injury because Defendants have deprived them of a reliable voting system, providing instead one subject to technical failures as well as malicious manipulation. Moreover, by arguing that the chances of a cyberattack are uncertain, Defendants ignore well-established case law recognizing that a substantial risk of harm is sufficient to establish an injury-in-fact. Finally, though styled as a Motion for Summary Judgment, Defendants’ motion purports to invoke Federal Rules of Civil Procedure 12 and 56. See Defs’ Mot. for Summ. Judgment, ECF No. 5. But to the extent Defendants intend to move for summary judgment, their motion is plainly premature and procedurally deficient under Rule 56. It fails to identify any undisputed facts and mischaracterizes key disputed factual issues as undisputed. Defendants’ motion to dismiss, though meritless, is the procedurally appropriate vehicle for Defendants’ request that the court make a dispositive ruling in their favor. Accordingly, the bulk of this brief is directed at that facet of their motion. II. FACTS Defendants maintain an outdated and unnecessarily vulnerable voting system. It is structured around the ES&S iVotronic Direct Recording Electronic (“DRE”) machines, which all in-person South Carolina voters must use. Leading academics and computer scientists demonstrated over a decade ago that the iVotronic system was susceptible to cyberattacks that could disrupt or undermine an election. Compl. ¶¶ 2-3, 5-6. South Carolina is one of only five U.S. states that use paperless DRE machines statewide; only a handful of states still employ these aged and hackable machines at all. Id. Defendants’ principal argument regarding the significance of these vulnerabilities—that they were identified by studies commissioned by other states and conducted in 2007, Defs’ Br. at 2, 12-13—is a strange one, since the studies focused on the same machines that Defendants had contemporaneously deployed in South Carolina (the 2 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 9 of 40 machines still in use today). Compl. ¶ 53. Defendants’ continued use of these machines in the face of persistent and increasing cyber threats constitutes a failure to provide a reliable voting system for the state’s citizens. Id. ¶ 6. A. The Structure of South Carolina’s Election System The SEC has sole responsibility for selecting, purchasing, and certifying the election machines utilized across the state, as well as certifying software and firmware upgrades. Id. ¶¶ 21-23. All polling places in South Carolina use iVotronic machines purchased between 2004 and 2006. Id. ¶¶ 21-23. The iVotronic system consists of several components, including (i) voting terminals, which are computers with touchscreens that produce no paper record; (ii) personalized electronic ballots (“PEBs”), which are utilized primarily to open and close machines and to load ballots during Election Day; and (iii) compact flash cards that store image files and event logs for each machine. Id. ¶ 24. South Carolina’s election system utilizes two different programs: firmware that runs on the iVotronic machines, and software called Unity that runs on the SEC and county networks and is used, among other things, to prepare election ballots and process election data. Id. ¶¶ 25-26. The SEC must certify every firmware and software version, including upgrades, before it may be used by a polling place. Id. ¶¶ 25, 31. The SEC also hires poll managers, who staff and supervise polling locations on Election Day. Id. ¶ 32. The SEC guidelines governing poll-worker staffing require only that the poll workers be registered voters, but otherwise do not provide for or require poll worker vetting. Id. Moreover, poll managers do not always maintain secure control over PEBs, which as discussed below are a primary and easy vector for hacker installation of malware onto iVotronic machines. Id. ¶ 34. The SEC also fails to provide guidance on common machine malfunctions that impact the collection of election data. Id. ¶ 35. 3 3:18-cv-01887-DCC B. Date Filed 08/28/18 Entry Number 14 Page 10 of 40 The iVotronic System Used Throughout South Carolina is Unnecessarily Vulnerable to Cyberattack and Other Failures 1. The iVotronic Machines Certified and Maintained by the SEC Have Been Proven Hackable for Over a Decade More than a decade ago, the Ohio Secretary of State commissioned leading computer scientists and academics to analyze the security of the iVotronic machines—the same machines used in South Carolina. Id. ¶ 39. The alarming results of their analysis were published in “EVEREST: Evaluation and Validation of Election-Related Equipment, Standards, and Testing” (the “EVEREST Report”). The EVEREST Report revealed multiple and often easy points of access to install malware into the iVotronic machines that alter the machine’s calibration and tabulation, and, ultimately, the election results. See, e.g., id. ¶¶ 39-40. The EVEREST Report authors concluded that the iVotronic system “lack[s] the fundamental technical controls necessary to guarantee a trustworthy election under operational conditions” and reported that “[e]xploitable vulnerabilities allow even persons with limited access—voters and precinct poll workers—to compromise voting machines and precinct results, and, in some cases, to inject and spread software viruses into the central election management system.” Id. ¶ 40. Specifically, the EVEREST Report found that the iVotronic’s hardware, by virtue of its poor design, was vulnerable to tampering or intrusion at polling sites: “Access to the iVotronic DRE configuration is protected by several hardware and password mechanisms, all of which can be defeated through apparently routine poll worker (and in some cases voter) access.” Id. ¶¶ 4142. For example, the researchers were able to use PEBs and, more alarmingly, commercially available personal handheld devices configured as counterfeit PEBs to change data stored on the iVotronic machines. Id. ¶¶ 42, 51. Passwords were easily bypassed with actual or forged PEBs. Id. The iVotronic’s software quality was found to be so poor as to lead to “a buggy, unstable, and exploitable system.” Id. ¶ 43. One such bug was a “buffer overflow,” which allows a virus 4 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 11 of 40 to enter the system through a single machine at a polling location, and potentially spread to other machines and even back to the central election server—without the system ever connecting to the Internet. Id. ¶¶ 2-3, 44, 50, 52, 55-56. Equally concerning, the EVEREST researchers “found exploitable vulnerabilities that allow an attacker to replace or alter the firmware and software of virtually every component of the [iVotronic] system, either by circumventing access controls or by triggering software errors.” Id. ¶ 45. Lastly, the researchers found that the machines had ineffective cryptography and data authentication, especially on the removable hardware such as the flash drives and PEBs. Id. ¶ 46. The researchers engaged in simulated attacks, identifying and replicating multiple types of hacks that would exploit all of these system and machine vulnerabilities. Id. ¶ 52. Each of these security failures is itself a critical vulnerability and could compromise the entire South Carolina election system. Taken as a whole, the EVEREST Report is devastating—and crystal clear. Id. ¶ 47. It concluded that “the security failures in the [iVotronic] system are of such magnitude and depth that . . . procedural change alone [is] unlikely to meaningfully improve security.” Id. ¶ 48. Just after the EVEREST Report’s publication, the Florida Department of State commissioned a study (“FSU Report”) that included examination of the iVotronic, and its authors identified significant vulnerabilities in the iVotronic architecture and firmware. Compl. ¶ 54. Just like the EVEREST researchers, authors of the FSU Report called attention to a number of attack vectors available to hackers to impact any election conducted on an iVotronic machine. Id. ¶ 55. Specifically concerning the buffer overflow bug, the authors wrote that an attacker could “inject malicious code,” then “transfer program control to her own malicious code,” and thus “control the machine.” Id. The FSU Report concluded that a “highly motivated 5 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 12 of 40 and skilled lone individual could probably do everything needed to exploit the vulnerability” and as such the “threat cannot be ignored.” Id. ¶ 56. The EVEREST Report and FSU Report’s alarming findings were discussed in a report published by the South Carolina General Assembly’s Legislative Audit Commission (the “LAC Report”) in 2013. Id. ¶ 58. Yet following the LAC report, the SEC took no steps to address the flaws the LAC Report identified in the iVotronic system. Id. ¶ 66. A 2015 study, also commissioned by the South Carolina General Assembly, recognized 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.” Id. ¶¶ 59-60. Yet another third-party study from the 2017 DEFCON Hacking Convention confirmed that the vulnerabilities in the iVotronic machines persist—and, once again, the SEC appears to have taken no meaningful steps to update its statewide antiquated and insecure system. Id. ¶¶ 63-66. Defendants seek to dismiss the import of the EVEREST and FSU Reports on the grounds that they were commissioned by officials in other states. Defs’ Br. at 2, 12-13. But who commissioned the studies is of no moment: the same machines are in use in South Carolina today. Id. ¶ 66. Similarly unpersuasive is Defendants’ assertion that the studies are irrelevant because they were conducted “more than ten years ago.” Defs’ Br. at 2. Indeed, that is precisely the point: The SEC maintains a voting system in South Carolina consisting of the same essential features that over a decade ago were exposed as dangerously vulnerable and unreliable. 2. The Inherent Deficiencies of the iVotronic System are Exacerbated by Network Security Vulnerabilities Throughout South Carolina’s Election System The inherent unreliability of the iVotronic system is made worse by pervasive, sometimes critical, flaws in the network security related to South Carolina’s election system. Compl. ¶¶ 75-82. In 2008, the SEC conducted a security audit that revealed numerous security risks 6 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 13 of 40 across the state. Id. Yet, eight years later, on the eve of the 2016 presidential election, various state and federal agencies engaged by the SEC to test their systems found numerous security issues, some of which were declared critical. Id. ¶ 76. Indeed, a county-by-county review, conducted by the South Carolina National Guard Defensive Cyber Operations Element a month before the election, found that 20 of 46 counties had “critical” vulnerabilities related to the Unity software and that 21 counties had physical security vulnerabilities. Id. ¶ 77. Other vulnerabilities identified by the Department of Homeland Security were also categorized as “critical” and “high”—with certain vulnerabilities taking over three weeks to remedy. Id. ¶ 79. These vulnerabilities were not related to the iVotronic’s inherent cybersecurity defects discussed above, but to other system and precinct issues. Id. ¶¶ 78-82. While it appears the SEC may have addressed many of the identified system vulnerabilities, heavy redactions on documents released pursuant to the South Carolina’s Freedom of Information Act (FOIA) make confirmation impossible. Id. ¶¶ 79-82. Even if specific flaws were remediated, the pervasiveness of the deficiencies suggests a more systemic failure to ensure suitable cybersecurity of the state’s election infrastructure. 3. The iVotronic Machines Are Obsolete and Prone to Error The iVotronic’s inherent security failures are exacerbated by the age of South Carolina’s machines. Many have been operating since 2004. Id. ¶ 67. Five years ago, the LAC Report identified numerous problems with the aging machines not related to hacking, including widespread machine breakdowns in two counties that severely delayed elections and incidents in another county where initial electronic vote counts were more than triple the actual votes. Id. ¶ 68. In the recent 2018 primary elections, voting machine malfunctions were widespread, causing lines at polls and delaying election results. Id. ¶ 74. For example, in Greenville County, thirtythree machines in four precincts stopped working entirely. Id. 7 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 14 of 40 The SEC has conceded that their machines have reached the end of their expected lifespan. Id. ¶¶ 61, 71. In a 2015-16 fiscal year report, for example, the SEC admitted that “[e]quipment issues and breakdowns are becoming more frequent” and as a result “carrying out our mission and reflect[ing] the will of the electorate has become complicated and challenging.” Id. ¶ 70. One local election official described the iVotronic machine as a “dinosaur” that forced county officials to “maintain[] and wring[] out whatever life remains.” Id. ¶ 72. For these reasons, Defendants’ assertion that there is “no dispute” that the iVotronic machines perform properly is simply incorrect. Defs’ Br. at 8. The Complaint repeatedly alleges machine failures caused by age and mechanical failure. See, e.g., Compl. ¶¶ 67-74. Such failures only compound the remarkable security deficiencies inherent to even brand-new iVotronic machines. 4. Vote Results on the iVotronic Machines Cannot Be Tested by a Meaningful Audit The risk that Plaintiffs’ votes will not be accurately counted is further compounded by the absence of any manual recount or audit procedure that could detect interference with the software-provided vote count and provide a subsequent remedy. Id. ¶¶ 83-93. The reason for this is simple: The SEC maintains a system that cannot be meaningfully audited, because the iVotronic produces no software-independent vote record. Id. ¶¶ 85-86. Any review of the digital record generated by the system will necessarily be limited to a comparison of various components of the system to one another, a useless exercise if the system has been hacked. Id. ¶¶ 89-92. Even Defendant Andino has publicly recognized the need for a paper audit trail for any new election machines that the state may purchase in the future. Id. ¶ 88. Without a paper audit trail, the SEC cannot conduct a meaningful audit on any South Carolina election. Id. ¶¶ 8486, 89. South Carolina’s failure to provide for a meaningful post-election audit, taken together 8 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 15 of 40 with the security vulnerabilities endemic to the iVotronic system, compounds the risk that Plaintiffs’ votes will not be counted accurately. Id. ¶ 93. 5. The Current Threat Environment Exacerbates the Inherent Vulnerabilities of the iVotronic System The security risks inherent in the iVotronic system are made even more acute by the current threat environment. Id. ¶ 94. The nation’s leading intelligence officials unanimously agree that nation-state adversaries are actively and persistently targeting U.S. election infrastructure—and specifically state-level elections systems. Id. ¶¶ 95-114. Multiple federal and congressional reports issued in the past two years document concerted and successful foreign nation-state activities meant to undermine the United States’ election process, including by exploiting cyber vulnerabilities in state election systems. Id. ¶¶ 95-111. Indeed, the SEC itself has acknowledged that events leading up to the 2016 election, including the breaches of other states’ voter registration systems, “created an election-security environment that was very different” than it has been in the past. Id. ¶ 94. The well-established risks of election hacking are not merely hypothetical. South Carolina Senator Lindsey Graham, who co-sponsored federal legislation to help combat cyber threats to the United States’ election infrastructure, has stated: “The Russians have been trying to break the backs of democracies all over the world.” Id. ¶ 113. South Carolina is acutely vulnerable as a result of its continued use of outdated and severely vulnerable iVotronic machines. Id. ¶ 112. As former CIA director James Woolsey said, “If I were a bad guy from another country who wanted to disrupt the American system . . . I think I’d concentrate on messing with the touch screen voting systems.” Id. ¶ 114. Defendants maintain exactly this kind of voting system—and, as described above, Defendants’ system is not only aging but also remarkably exposed to numerous forms of cyber-attack. 9 3:18-cv-01887-DCC 6. Date Filed 08/28/18 Entry Number 14 Page 16 of 40 Plaintiffs Are Harmed by Defendants’ Certification and Maintenance of the iVotronic System Plaintiffs are South Carolina voters who are forced to rely on Defendants’ iVotronic system when casting their votes. Compl. ¶¶ 12, 13. Plaintiff Leventis is a former longtime state senator who regularly votes in person on an iVotronic machine at his Sumter County polling location. Id. ¶ 13. Plaintiff Heindel is a registered voter in Charleston County, South Carolina, where he regularly votes in person on an iVotronic machine. Id. ¶ 12. Both Heindel and Leventis bring this litigation because flaws in the voting system maintained by Defendants— namely, the aging and insecure iVotronic system—have compromised their right to cast an effective ballot. In addition, Plaintiff Heindel has expended considerable time and money trying to identify and correct the serious security flaws detailed in Plaintiffs’ Complaint. Id. ¶ 12. He has filed and negotiated numerous state FOIA requests at his own expense and conducted an indepth study of South Carolina’s November 2010 election results. Id. Plaintiff Heindel reasonably absorbed these costs because of the objective, substantial risk that South Carolina’s voting system lacks the reliability needed to consistently and accurately record and count his vote. Id. III. THE COURT SHOULD DENY DEFENDANTS’ MOTION TO DISMISS BECAUSE PLAINTIFFS HAVE PLAUSIBLY ALLEGED STANDING TO PURSUE THEIR CLAIM A. Applicable Legal Standards To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court must “accept[] all well-pled facts as true and construe[] these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th 10 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 17 of 40 Cir. 2009; see also Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (stating that the court “should view the complaint in the light most favorable to the plaintiff”). To establish standing under Article III, a plaintiff must satisfy three elements: First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotation marks omitted). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Id. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Defendants challenge Plaintiffs’ Complaint on the first and second Lujan elements. For the reasons described below, neither challenge has merit. As an initial matter, Defendants’ failure to provide a reliable voting system injures Plaintiffs by burdening their right to vote. As explained below in Section III.B, the iVotronic system’s vulnerability to hacking and failure burdens Plaintiffs’ right to cast an effective ballot and subjects the effectiveness of their ballots to arbitrary disparities. To the extent Defendants argue that Plaintiffs’ injury is “hypothetical” rather than “real,” see Defs’ Br. at 7-8, those arguments are simply inconsistent with wellestablished standing principles, including the principle that a “substantial risk” of future harm constitutes an injury-in-fact, as the Supreme Court recently reaffirmed in Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). See Section III.C.1, below. Finally, Defendants contend that Plaintiffs’ injuries are not “fairly traceable” to their conduct because third-party 11 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 18 of 40 hackers may play a role in vitiating Plaintiffs’ votes. But as explained in Section III.C.2, that argument is unavailing because the source of Plaintiffs’ injury is Defendants’ failure to provide a voting system that can function reliably in the face of the (predictable) challenges and threats facing state election systems. B. Plaintiffs Have Alleged that Their Right to Vote is Severely Burdened by Defendants’ Certification and Maintenance of the iVotronic System Plaintiffs’ standing to pursue the claims in this litigation is rooted in the injury they suffer by virtue of having to cast their ballots using the highly vulnerable, deeply deficient voting system Defendants certified and maintain in South Carolina. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).1 Defendants acknowledge, as they must, the primacy of these constitutional principles, which are at the heart of this lawsuit. Despite their characterization of these principles as “platitudes,” Defendants agree that “[a]t an irreducible minimum, [the right to vote] means ensuring that the machinery of democracy has the capacity to record and count each vote consistently, fairly, effectively, and accurately,” and that “[t]he reliability of that basic element of democracy is under extraordinary stress across the country as election systems face threats posed by hackers, who may seek to gain unauthorized access to data or computer systems to mount cyberattacks aimed at manipulating, damaging, or destroying those systems.” Defs’ Br. at 4-5 (quoting Compl. ¶ 1).2 1 Defendants’ statement that “[a]bsent a violation of federal law, states retain authority to regulate their elections,” Defs’ Br. at 3, is generally accurate but irrelevant. The claim at the heart of this litigation is that Defendants are violating the U.S. Constitution. 2 Though their brief is arguably ambiguous on this point, it also appears that Defendants concede the proposition that the surging cyber-threats facing election systems are “especially acute in South Carolina.” See Defs’ Br. at 5 (“We do not challenge these basic precepts here.”) (quoting, inter alia, Compl. at ¶ 1). 12 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 19 of 40 Defendants’ attack on Plaintiffs’ standing ignores these foundational constitutional principles. As the Complaint alleges in detail, Defendants have burdened Plaintiffs’ voting rights by certifying and maintaining an election system that fails to assure a reliable counting of every South Carolinian’s vote. At this stage, where Plaintiffs’ allegations must be taken as true and inferences drawn in their favor, Defendants cannot ignore the injury they have imposed on Plaintiffs. 1. The Constitution Guarantees Each Voter’s Right to an Effective and Equal Vote In emphasizing the unique importance of the right to vote, the Supreme Court has drawn on several constitutional provisions that supply its meaning, including the Equal Protection Clause, see, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders, 372 U.S. 368 (1963); Bush v. Gore, 531 U.S. 98 (2000); the Due Process Clause, see, e.g., Anderson v. Celebrezze, 460 U.S. 780, 787 (1983); the First Amendment, see Anderson, 460 U.S. at 789; Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986); and Article I, Section II, see United States v. Classic, 313 U.S. 299, 315 (1941). The Court has emphasized that these various provisions, working singly and in concert, constitute the right to vote. Indeed, in one of its most canonical voting rights cases, the Court cited a conglomeration of constitutional provisions and other foundational texts from which the right to vote emerges, noting that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” Gray, 372 U.S. at 381. Because the right to vote emerges from several sources, a state’s actions may burden the right to vote in numerous ways. Two are relevant here: (1) the right to vote is burdened when the effectiveness of a voter’s ballot is undermined or diluted by a state’s policy, and (2) the right to 13 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 20 of 40 vote is burdened where a voter is subject to policies that may create arbitrary disparities rendering certain votes more effective than others. First, the Constitution guarantees each voter the right to cast an effective vote—that is, a ballot that is counted correctly towards the outcome of the election. As the Supreme Court stated in Classic, “[o]bviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted . . . . This Court has consistently held that this is a right secured by the Constitution.” 313 U.S. at 315. The right to vote is not satisfied by simply allowing a voter to place a ballot in a ballot box or enter selections on a touchscreen; a voter is entitled to have his vote accurately counted so that it contributes to the final result. Second, a state may not impose unjustified disparities in the voting power of citizens. Such equality-based burdens may arise from classifications distinguishing different groups of voters, see Dunn v. Blumstein, 405 U.S. 330 (1972), or policies that render voting power unequal based on geography, see Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders, 372 U.S. 368 (1963). Most significantly for purposes of this case, even where such categorical distinctions are not imposed, a state may not subject voters to arbitrary disparities in the effectiveness of their votes. See Bush, 531 U.S. at 104-05 (“Having once grated the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over another.”). a. The SEC’s Insecure and Outdated Voting System Substantially Burdens Plaintiffs’ Right to an Effective Vote The effectiveness of every vote is an indispensable part of the right to vote. See Classic, 313 U.S. at 315; Gray, 372 U.S. at 380 (“‘[T]he right to have one’s vote counted’ has the same dignity as ‘the right to put a ballot in a box.’”) (quoting United States v. Mosley, 238 U.S. 383, 386 (1915)); United States v. Weston, 417 F.2d 181, 183 (4th Cir. 1969) (“The right to vote 14 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 21 of 40 necessarily includes the right to have one’s vote counted and counted at its full worth.”). A long line of cases emphasizes the requirement that states provide an effective right to vote, not merely the formal promise of such a right. Indeed, this principle animates the Court’s reasoning in Classic, a foundation of modern voting rights doctrine. In Classic, the Court reviewed criminal convictions of state officials charged with conspiracy to violate the constitutional rights of voters by altering ballots and falsifying the number of votes cast for each candidate. 313 U.S. at 308. Emphasizing the “right of qualified voters within a state to cast their ballots and have them counted,” id. at 315, the Court easily concluded that diluting votes through malicious election interference violates that right, id. at 324-25.3 Indeed, the Court has repeatedly made clear that malicious interference with elections can dilute the effectiveness of the votes cast in the affected jurisdiction. For this reason, the Court has readily understood the security of elections to have constitutional significance, affirming repeatedly that “the elector’s right intended to be protected is not only that to cast his ballot but that to have it honestly counted.” United States v. Saylor, 322 U.S. 385, 387-88 (1944) (citing Mosley, 238 U.S. at 386). Similarly, the Court’s Anderson decision emphasizes that the right to vote entails the right to cast an effective ballot. In Anderson, the Court considered a prospective candidate’s challenge to Ohio’s rules governing the time by which independent presidential candidates had to apply to appear on the ballot, which was well before the major political parties named their nominees. The Court began by noting that its “primary concern” was not candidate Anderson’s 3 Because the conspiracy at issue in Classic involved interference with a congressional primary, the Court emphasized the right to participate in congressional elections, as embodied in Article I, Section 2 of the Constitution. 313 U.S. at 315-21. But nothing in the analysis would restrict its application to this context, and indeed, Classic has repeatedly been cited in cases arising under other constitutional provisions, including the Fourteenth Amendment. See, e.g., Reynolds, 377 U.S. at 555; Gray, 372 U.S. at 380. 15 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 22 of 40 claim of unfair treatment, but instead the regulation’s “impact on voters.” 460 U.S. at 786. Describing the “interwoven strands of ‘liberty’ affected by ballot access restrictions,” the Court explained that such restrictions burden two distinct, essential rights of voters: first, the right of free association, and second, “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 787 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). A voter’s constitutional right to cast an effective ballot is unconstitutionally burdened “if that vote may be cast only for major-party candidates at a time when other parties or other candidates are ‘clamoring for a place on the ballot.’” Id. (quoting Williams, 393 U.S. at 31). These principles have guided lowers courts when plaintiffs challenge unreliable election systems. For example, in League of Women Voters of Ohio v. Brunner, plaintiffs challenged “‘a voting system in Ohio’ that suffer[ed] from ‘non-uniform standards, processes, and rules, and that employ[ed] untrained or improperly trained personnel, and that ha[d] wholly inadequate systems, procedures and funding.’” 548 F.3d 463, 466 (6th Cir. 2008) (quoting plaintiffs’ complaint). In combination, the plaintiffs alleged, these shortcomings resulted in some voters not having their votes recorded or counted and presented a risk that plaintiffs would face such burdens in the future. Id. at 467-469. The court found, among other things, that these voters had sufficiently alleged that “Ohio’s voting system violates the Due Process Clause because it is so unfair as to deny or severely burden Ohioans’ fundamental right to vote.” Id. at 478. The court specifically noted that one of the plaintiffs had stated a claim based on allegations that “touchscreen voting machines at her polling place malfunctioned, causing her vote to ‘jump’ from her chosen candidate to another candidate.” Id. Similarly, in Common Cause Southern Christian Leadership Conference of Greater Los Angeles v. Jones, the court held that plaintiffs 16 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 23 of 40 had stated a claim under the Fourteenth Amendment for “abridgment of the fundamental right to vote.” 213 F. Supp. 2d 1106, 1108 (C.D. Cal. 2001). The gravamen of their complaint was the state’s certification of punch-card voting procedures that were less “reliable” than alternative procedures available in the state. Id. at 1109. See also Stewart v. Blackwell, 444 F.3d 843, 868 (6th Cir. 2006) (“All of the precedent indicates that having one’s vote properly counted is fundamental to the franchise.”), vac’d as moot by 473 F.3d 692 (6th Cir. 2007) (following grant of en banc review, defendants ceased using challenged voting system, rendering case moot).4 By maintaining a statewide iVotronic system in South Carolina, the SEC fails to provide a reliable voting system because it creates a substantial risk that votes will be rendered ineffective, either by intentional wrongdoing or predictable technological failure. As described at length in the Complaint, these machines have been shown to contain numerous vulnerabilities 4 To the extent that prior cases addressed constitutional claims relating to the use of DRE machines, those decisions arose in very different circumstances and were decided based upon considerations not present here. For example, in Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006), plaintiffs argued that Florida’s electronic voting system was defective because it could not facilitate a proper recount of overvotes or undervotes. See id. at 1230-31. The Wexler court, like Plaintiffs here, identified the constitutional question as the effectiveness of the votes cast by plaintiffs (specifically, whether voters using paperless touchscreen voting machines were “less likely to cast an effective vote than voters in optical scan counties”). Id. at 1231. The court rejected the plaintiffs’ constitutional claims because they “did not plead that voters in touchscreen counties are less likely to cast effective votes due to the alleged lack of a meaningful manual recount procedure in those counties.” Id. at 1232. Here, by contrast, Plaintiffs do not allege merely that the iVotronic system prevents overvotes and undervotes from being properly recounted. Rather, all votes are at risk of being lost or altered by hacking or machine malfunction, and Plaintiffs have made detailed allegations about the precise vulnerabilities of the machines as well as the extraordinary current threat environment facing state election infrastructure. And in Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003), the Ninth Circuit upheld a California county’s use of a paperless DRE machine, finding that plaintiffs had alleged only a hypothetical vulnerability of the machines to hacking. Id. at 1106. Although a risk of hacking may perhaps have been described as hypothetical in 2003, that was before EVEREST and similar studies mapped the very real vulnerabilities of the iVotronic and other DRE systems, and before the nation’s top intelligence officials expressed the consensus view of the intelligence community that Russia is actively seeking to interfere with the November 2018 federal elections – and indeed has already begun doing so. See Compl. ¶¶ 111-114. 17 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 24 of 40 that could be exploited by hackers, with consequences that could throw an election into chaos. Compl. ¶¶ 38-56. They include vulnerabilities to attacks that could expand virally throughout a county or precinct. Id. ¶ 52. Despite these well-known vulnerabilities, the SEC does not appear to have taken meaningful measures to physically secure voting machines against attack. Id. ¶¶ 32-37, 75-82. Additionally, security analysis by DHS and the South Carolina National Guard revealed that, as recently as 2016, counties throughout the state failed to meet baseline standards of cybersecurity. Id. ¶¶ 79-81. Exacerbating all of these deficiencies, the machines are obsolete and near or past the end of their recommended lifespan, which increases the risk of failure and diminishes the ability of election officials to properly maintain them. Id. ¶¶ 67-74. Those risks, inherent in the iVotronic system since the SEC first deployed it more than a decade ago, have become even more acute in the current threat environment. The nation’s leading intelligence officials, from across the political spectrum, now unanimously agree that nation-state adversaries are actively and persistently targeting U.S. election infrastructure. Id. ¶¶ 95-114. Nation-state adversaries are seeking to undermine the 2018 election, including by exploiting cyber vulnerabilities in state election systems. The well-established risks of hacking, in other words, are not merely hypothetical. The real and immediate threat facing South Carolina’s election system means that the inherently faulty iVotronic machine is at greater-thanever risk of being undermined in a manner that results in Plaintiffs’ votes being compromised. The risk that Plaintiffs’ votes will not be accurately counted is also compounded by the absence of any manual recount or audit procedure that could detect interference with the software-provided vote count and provide a subsequent remedy. Id. ¶¶ 83-93. There is a simple reason for this absence: the SEC maintains a system that cannot be meaningfully audited, because it produces no software-independent vote record. Id. ¶¶ 86-92. 18 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 25 of 40 Taken together, these problems—each of which independently burdens Plaintiffs’ right to cast an effective ballot—constitute a failure by Defendants to guarantee an effective right to vote. Plaintiffs in this case suffer an injury to their right to cast an effective vote for as long as the SEC maintains a voting system that lacks the wherewithal to operate accurately in the current threat environment. b. The SEC’s Insecure Voting System Severely Burdens Plaintiffs’ Right to Vote by Subjecting Them to a Substantial Risk of Arbitrary and Disparate Treatment The flawed system also subjects Plaintiffs, and all South Carolina voters, to a systemic risk of arbitrary disparities in the effectiveness of their ballots. The vulnerabilities described at length in the Complaint affect every precinct in the state—but because a cyberattack may be launched against a particular precinct or county, the iVotronic system creates the risk that voters across the state will have their votes given uneven effect. This means that the SEC maintains a system that cannot reliably ensure that all votes are weighted equally, since an attack that targets some regions of the state will dilute the effect of the votes cast in those regions. Arbitrary disparities, moreover, would likely be impossible to remedy—even if an attack were to be detected—because the lack of a paper record makes any audit or recount impossible. This subjects Plaintiffs to potentially “arbitrary and disparate treatment” in the exercise of their right to vote. Bush, 531 U.S. at 105. An unconstitutional burden does not require formal classifications among voters; it is enough if a state’s practices result in arbitrary disparities that render some votes less effective than others without adequate justification. This principle runs through the Supreme Court’s decision in Bush v. Gore. That case concerned the Florida Supreme Court’s order regarding recount procedures following the 2000 presidential election ballots. Among other things, under the challenged procedures, voters who cast so-called “undervotes”—meaning that the punch card 19 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 26 of 40 ballot reader determined that they had not cast a ballot in the presidential race—had their ballots scrutinized to determine whether the “intent of the voter” could be determined from the unreadable punch card. Bush, 531 U.S. at 102. But the standards applied to the ballots appeared to differ from county to county and from one recount team to another. Id. at 106-07. In analyzing the recount procedures, the Supreme Court began from the premise that “[t]he right to vote is protected in more than the initial allocation of the franchise. . . . Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104-05. Significantly, this was not a case—like many of the first-generation one-person, one-vote decisions—in which a state employed an explicit classification that directly resulted in one class of citizens having their votes weighted more heavily than another. See Dunn, 405 U.S. at 331; Gray, 372 U.S. at 37071. Nothing about the challenged recount procedures would, for example, predictably cause a voter in Miami-Dade County to have more or less voting power than a voter in Palm Beach County. Rather, the Court found that “[t]he problem inhere[d] in the absence of specific standards” to ensure that all voters cast an equally effective ballot. Bush, 531 U.S. at 106. The analysis in Bush v. Gore has guided lower courts considering cases, like the present one, where voters face a risk of arbitrary disparities in the effectiveness of their vote. See Brunner, 548 F.3d at 477 (“Although Bush was necessarily ‘limited to the present circumstances,’ district courts have found its analysis applicable to challenges to voting systems.”) (citing Bush, 531 U.S. at 109). For example, in Black v. McGuffage, the plaintiffs challenged Illinois’ policy of allowing counties to choose among four different voting systems, some of which had a greater risk of undercounting ballots than others. 209 F. Supp. 2d 889, 89294 (N.D. Ill. 2002). In ruling that plaintiffs’ Fourteenth Amendment claim survived a motion to 20 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 27 of 40 dismiss, the court drew heavily on Bush v. Gore. It noted that, “as in Bush, the State is not classifying citizens insofar as it is choosing one system of voting for some and a different system of voting for others, nor is it choosing to dilute the votes of some and not dilute the votes of others.” Id. at 898-99. It nonetheless found that plaintiffs alleged a constitutional violation because some voters would encounter “a system with less accuracy than others” and that, as a result, “[s]imilarly situated persons are treated differently in an arbitrary manner.” Id. at 899. Similarly, in Stewart v. Blackwell, the plaintiffs challenged the use of unreliable punch card voting machines in certain Ohio counties. The Sixth Circuit found that “voters using the two challenged technologies have an additional likelihood of disenfranchisement due to the inherent deficiencies” of those machines, a dilution of their vote that violated the Constitution. 444 F.3d at 871. Plaintiffs face similar arbitrary disparities. While Defendants impose no formal classification weighing some votes more than others, they maintain a voting system whose fundamental unreliability creates uncertainty about which votes will be counted—the same kind of uncertainty the Court perceived in Bush v. Gore, where the statewide recount procedures created uncertainty as to whether ballots with “hanging chads” would be counted. The prospect of arbitrary disparities is heightened by the possibility that a cyberattack would have the effect of systematically diluting voters in certain counties as compared to others. The iVotronic system is particularly susceptible to county- and precinct-level attacks. As the EVEREST and FSU Reports describe, a viral attack initiated at a precinct can easily spread via a single iVotronic machine to other voting machines at the precinct and back to county election headquarters. Compl. ¶¶ 50, 52, 55-56. Voters in the affected counties would thus be arbitrarily deprived of their right to vote compared to voters in unaffected counties. Much like in Bush, the 21 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 28 of 40 SEC here has imposed a statewide system that is flawed precisely because it is susceptible to drastically uneven consequences for different voters. The Court in Bush made clear that it did not question “whether local entities, in the exercise of their expertise, may develop different systems for implementing elections,” but instead determined that the statewide order implementing the recount lacked “minimal procedural safeguards” necessary to ensure “equal treatment and fundamental fairness.” Bush, 531 U.S. at 109. Similarly, the iVotronic system renders each precinct and county so vulnerable to attack that it lacks minimal safeguards necessary to ensure an equally effective ballot to all voters. Whether a vote would be counted in the event of a hack or malfunction could thus depend on where the vote was cast—a form of arbitrarily differential treatment that the Constitution does not tolerate. The point is not that certain counties are inherently more or less vulnerable to an attack. Instead, the problem is that Defendants have required all counties to use such a vulnerable system, making every precinct or county a potential weak link and thereby undermining the expectation that all votes will receive equal weight. Plaintiffs, like all South Carolina voters, have no way to assess in advance whether their county or precinct faces a particularly elevated threat in any given election. Rather, in each election they must use a system that lacks sufficient safeguards to ensure consistent weighing of votes across the state. C. The Injury to Plaintiffs’ Right to Vote is Cognizable Because the Substantial Risk of Hacking or Machine Failure Render the iVotronic System Insufficiently Reliable to Guarantee an Effective and Equal Ballot Defendants ask the Court to ignore these injuries. Citing to the first two Lujan factors, they dismiss the burdens on Plaintiffs’ right to vote as “mere conjecture and speculation about the future,” based on nothing more than “feelings and platitudes rather than any particularized injury.” Defs’ Br. at 2, 3-4. But Defendants’ dismissive treatment of Plaintiffs’ injury not only 22 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 29 of 40 fails to grapple with the gravity of the iVotronic system’s impact on Plaintiffs’ right to vote, it also flies in the face of well-established standing doctrine. 1. Plaintiffs’ Complaint Sufficiently Alleges a Substantial Risk of Injury It is well established that a risk of future injury can be sufficient to satisfy the requirement that plaintiffs must have suffered an injury-in-fact that is “actual or imminent.” Such “[a]n allegation of future injury may suffice if the threatened injury is ‘certainly impending’ or there is a ‘substantial risk that harm will occur.’” Driehaus, 134 S. Ct. at 2341 (emphasis added) (quoting Clapper v. Amnesty Intern. USA, 568 U.S. 398, 414 n.5 (2013)). Accord, N.C. State Conference of NAACP v. N.C. State Board of Elections, 283 F. Supp. 3d 393, 404-05 (M.D.N.C. 2017).5 As the Supreme Court has long recognized, these standing principles apply with special force in the context of voting. See Baker v. Carr, 369 U.S. 186, 208 (1962) (holding, in a suit challenging legislative apportionment scheme, that “[i]t would not be necessary to decide whether appellants’ allegations of impairment of their votes . . . will, ultimately, entitle them to any relief in order to hold that they have standing to seek it”). Thus, for the reasons set out above—and recognizing it may be uncertain, or presently unknowable, whether a particular individual’s vote will be inaccurately counted—the case law establishes that being deprived of a reliable voting system constitutes an immediate, and actionable, burden on the right to vote. Arcia v. Florida Secretary of State, 772 F.3d 1335 (11th Cir. 2014), illustrates this principle. In Arcia, plaintiffs challenged a Florida program that sought to remove the names of 5 Both the Clapper majority opinion and Justice Breyer’s dissent note that the “substantial risk” test has long been part of the Court’s standing jurisprudence, and that plaintiffs are not “require[d] . . . to demonstrate it is literally certain that the harms they identify will come about.” 568 U.S. at 414 n.5 (citing, e.g., Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)); see id. at 432-33 (Breyer, J., dissenting) (stating that plaintiff “must demonstrate a realistic danger of sustaining a direct injury”). 23 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 30 of 40 ineligible voters from the official lists of eligible voters. The Eleventh Circuit concluded that because plaintiff voters were naturalized U.S. citizens, “there was a realistic probability that they would be misidentified due to unintentional mistakes in the [Florida Secretary of State’s] . . . process [for identifying ineligible voters].” Id. at 1341. Accordingly, the panel held they had standing to challenge the program: “While the threatened future injury cannot be merely hypothetical or conjectural, probabilistic harm is enough.” Id. That is, unlike in Clapper, the facts alleged did not “rel[y] on a highly attenuated chain of possibilities.” Accord, N.C. State Conference of NAACP, 283 F. Supp. 3d at 404 (denying motion to dismiss where voter alleged county’s policy of canceling voter registrations after a single mailing to the voter was returned undeliverable constituted “a real and imminent risk that [he] will be unlawfully purged from the voter rolls,” thereby “plausibly alleg[ing] that he suffered a cognizable injury—in the form of his substantial risk of future harm – that is traceable to the challenged conduct of the . . . Defendants”); see also ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1318-19 (10th Cir. 2008) (holding plaintiffs established standing to challenge New Mexico voter ID regulation based on risk that their IDs would not be deemed valid by election officials). Similarly, the increased risk of burdening a group of plaintiffs’ right to vote drove the standing analysis in Michigan State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935 (E.D. Mich. 2016), stay pending appeal denied, 833 F.3d 656 (6th Cir. 2016). On motion for a preliminary injunction following a hearing, the court found that voters had standing to challenge a Michigan law abolishing straight-ticket voting. Plaintiffs, African-American voters and voting rights organizations, argued that adoption of the law would lead to increased wait times in predominantly African-American districts, pointing to evidence that African-Americans were substantially more likely to rely on straight-ticket voting. Id. at 941. The court found that 24 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 31 of 40 standing was established for two individual African-American plaintiffs who lived in predominantly African-American cities. Although plaintiffs could not allege with certainty that they would be subjected to increased wait times, the court held that they could establish “standing based on an increased risk that their voting rights will be infringed.” Id. at 944. At the hearing, plaintiffs satisfied this requirement by submitting evidence that, inter alia, there was “a substantial likelihood that wait times for voting would lengthen due to the adoption of [the law].” Id. at 945 (emphasis added). In reaching its conclusion, the district court in Johnson relied on two prior Sixth Circuit decisions: Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), vac’d as moot 473 F.3d 692 (6th Cir. 2007) and Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (per curiam). In Stewart, a challenge to the use of punch card and non-notice optical scan voting systems in Ohio, the court determined that “increased probability of a future injury is sufficient to confer Article III standing.” 444 F.3d at 854. Thus “voters can have standing based on an increased risk that their votes will be improperly discounted.” Id. The Stewart panel, in turn, drew upon the Sixth Circuit’s earlier decision in Sandusky County, a challenge to an Ohio regulation that prohibited voters from casting provisional ballots if the poll worker was unable to confirm that the voter was eligible to vote in that particular district. In finding standing, the court in Sandusky County acknowledged that it is necessarily the case when seeking to vindicate the right to vote that plaintiffs will be pleading only a prospective injury, and thus the voters who will be injured cannot be known in advance: Appellees have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling 25 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 32 of 40 place. It is inevitable, however, that there will be such mistakes. The issues Appellees raise are not speculative or remote; they are real and imminent. Sandusky County, 387 F.3d at 574. The court relied upon similar reasoning in Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002), a constitutional challenge that, like Stewart, focused on the risk that a deficient punch card-based voting system burdened the plaintiffs’ right to vote. The court found that plaintiffs had sufficiently alleged injury-in-fact, based upon the “disproportionate risk of having their votes not counted.” Id. at 894. The court explained: Because the voting process is anonymous, it is impossible for any one voter to know with more certainty that their intended votes were not counted. If standing in cases like this one required more, then no one would have standing to challenge . . . a policy under which every tenth ballot was systematically discarded instead of counted. Id. at 895. As Stewart, Sandusky County, and Black all thus recognize, the nature of the voting process makes it impossible to identify with particularity (or with certainty), prior to the election, which voters will have their votes miscounted due to a vulnerable or deficient voting system. But that does not mean that voters like Plaintiffs Heindel and Leventis lack standing to challenge it. Clapper is not to the contrary. In Clapper, a closely divided Court concluded that plaintiffs had failed to establish standing because the alleged future injury—that plaintiffs’ communications would be intercepted by law enforcement pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, in violation of plaintiffs’ constitutional rights— was merely the purported last event in a “speculative chain of possibilities.” 568 U.S. at 414. Here, by contrast, Plaintiffs face not an attenuated “chain of possibilities,” but a single, deeply vulnerable system, the limitations of which have been repeatedly demonstrated. See Section II.B, supra. The lack of reliability—which must be measured in the context in which voting 26 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 33 of 40 machines are deployed, including the current threat environment—imposes an immediate injury. Every time Plaintiffs vote, they are doing so on machines that lack sufficient reliability to guarantee an effective and equal ballot. To the extent that the iVotronic system’s lack of reliability is in part a product of the risk that its vulnerabilities will be exploited by hackers, these vulnerabilities must be viewed in light of the current threat of manipulation by foreign actors. Intelligence and law enforcement officials have repeatedly described that threat as real and ongoing. See Compl. ¶¶ 94-114. Even putting this risk aside, there have been repeated instances across the state of machine malfunction causing confusion and delays in the voting process. Indeed, notwithstanding the incorrect statement in Defendants’ Memorandum that “there is no dispute that the iVotronic Machines perform properly if they are not manipulated by third parties,” Defendants have actually acknowledged the existence of those vulnerabilities. See, e.g., Compl. ¶¶ 67-73.6 In contrast to Defendants’ incorrect characterization of Clapper, the court in State of New York v. United States Dep’t of Commerce, 2018 WL 3581350 (S.D.N.Y. June 26, 2018), illustrated the proper application of standing principles in light of Clapper. There, a group of states, localities, the District of Columbia, and nongovernmental organizations are challenging 6 In Clapper, the Court also noted that it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id. at 409. Here, by contrast, Plaintiffs seek to vindicate “the most basic of political rights,” Fed. Elections Comm’n v. Akins, 524 U.S. 11, 25 (1998)—a characterization Defendants agree with—against unconstitutional interference. And in contrast to the national security interest asserted in Clapper, Defendants here have not actually pointed to any overriding interest in maintaining the outdated and vulnerable iVotronic system. To the contrary, Defendants have for years publicly stated that a new system would benefit South Carolina. See Compl. ¶ 61-62, 88. And unlike the Fourth Amendment right the plaintiffs sought to vindicate in Clapper, there is no exclusionary rule that could shield Plaintiffs from the harm caused by the infringement of their right to vote. Cf. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no doover and no redress. The injury to these voters is real and completely irreparable if nothing is done to enjoin this law.”). 27 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 34 of 40 the Commerce Department’s decision to include a citizenship question on the 2020 census. Plaintiffs allege they will be harmed by implementation of that change because (i) the citizenship question will deter some individuals from completing their census forms, (ii) plaintiffs’ jurisdictions will report disproportionately lower populations, and (iii) their jurisdictions will lose federal funds as a result. See id. at *7-8. Although the question of how census-takers will respond to a citizenship question is necessarily somewhat uncertain, the district court held that plaintiffs have satisfied their burden at the pleading stage. Among other things, plaintiffs cited— as do Plaintiffs Heindel and Leventis—“an array of evidence—much of it from Defendants themselves.” Id. at *7. This included, for example, concerns expressed by the Census Bureau in the past that a citizenship question could jeopardize the accuracy of the overall count. Here, among other detailed evidence of the iVotronic system’s unreliability, Plaintiffs cite to a number of occasions on which South Carolina election authorities have acknowledged the infirmities of the iVotronic system and the need for a new and improved one. In State of New York, the district court found that “[p]laintiffs easily meet their burden at this stage of the proceedings.” Id. at *8. The result should be the same here.7 7 Defendants also assert that the claims in this case are merely a “generalized grievance against allegedly illegal government conduct,” and not a particularized claim of injury. Defs’ Br. 8-9. Yet it has long been the law that voting rights challenges will not be so characterized, because, as the Supreme Court stated in Baker v. Carr, if “arbitrary impairment by state action” is shown to produce a legally cognizable injury, then plaintiff voters “are asserting ‘a plain, direct and adequate interest in maintaining the effectiveness of their votes,’ not merely a claim of ‘the right possessed by every citizen ‘to require that the government be administered according to law.’” 369 U.S. at 208. See also Black, 209 F. Supp. 2d at 894 (plaintiffs sufficiently alleged a personal injury by demonstrating disproportionate risk their votes would not be counted). Cf. Akins, 542 U.S. at 24-25 (noting that where an interest is “sufficiently concrete” it may constitute an “injury in fact,” and that one “particularly obvious” example is “where large numbers of voters suffer interference with voting rights conferred by law”). Finally, Plaintiff Heindel alleges he has conducted investigations into the iVotronic system, including FOIA requests, over a long period of time, all at his own expense. See Compl. ¶ 12; 28 3:18-cv-01887-DCC 2. Date Filed 08/28/18 Entry Number 14 Page 35 of 40 Plaintiffs’ Injury is Fairly Traceable to Defendants’ Conduct, and is Not Solely the Result of Third-Party Misconduct Plaintiffs’ injury is fairly traceable to Defendants’ failure to maintain a reliable voting system that accurately records voters’ ballots as cast. This failure has two components: First, Defendants maintain an electronic voting system that is susceptible to hacking and manipulation, and second, separate and apart from any hacking risk or outside interference, the system is susceptible to malfunction. Defendants’ argument that they are not responsible for Plaintiffs’ injury rests on a fallacy. In their view, any defects in South Carolina’s voting system that may be exploited by hackers are not Defendants’ problem. Defs’ Br. at 10-11 (“Plaintiffs’ allegations about criminal interference with the voting system concern hypothetical third parties, not the Defendants.”). But fortifying a voting system against the risk of hacking is an integral element of maintaining a reliable voting system that enables an effective right to vote. Courts have long recognized that protecting the right to vote means protecting it against malicious interference. See, e.g., Reynolds, 377 U.S. at 555 (“The right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing.”) (citations omitted); Classic, 313 U.S. at 315 (“Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted . . . .”). This is more true now than ever, when the nation’s top intelligence and law enforcement officials—as well as the SEC— have acknowledged that safeguarding against hacks is a core element of administering elections. see generally Compl. Exh. 3 (Heindel declaration). Defendants suggest they understand these allegations to be “an articulation of damages,” Defs’ Br. at 8, even though Plaintiffs seek only prospective relief. In fact, as recognized in Clapper, where a plaintiff is able to demonstrate injury-in-fact, including under the substantial risk standard, incurred costs may provide an independent basis for standing. 29 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 36 of 40 Moreover, Defendants mischaracterize the facts as set out in the Complaint. It is not true that, as Defendants assert, “there is no dispute that the iVotronic Machines perform properly if they are not manipulated by third parties.” Defs’ Br. at 8. The Complaint repeatedly alleges that South Carolina’s machines have malfunctioned on their own in ways that jeopardize the accuracy of the vote count. Compl. ¶¶ 67-74. Thus, Plaintiffs’ right to vote may be impaired solely by Defendants’ continued use the iVotronic machines, without the involvement of any third party. Finally, even to the extent that burdens on Plaintiffs’ rights reflect the risk of hacking by third parties, the causation required for standing purposes is less than proximate cause, and the Supreme Court has made clear that an injury may be traceable to a defendant even when a third party also plays a role in causing the injury. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153-55 (2010) (holding conventional alfalfa farmers have standing to contest the deregulation of genetically modified alfalfa when bees are likely to contaminate their fields with pollen from genetically-modified crops); Clapper, 568 U.S. at 420 (explaining that injury to conventional farmers in Monsanto was fairly traceable to deregulation that did not apply to them because that deregulation could nevertheless result in injury to both conventional farmers and the farms directly affected by the deregulation). As the Fourth Circuit has explained in the election law context, “traceability” is distinct from “proximate cause,” and “[i]mposition of the stringent proximate cause standard . . . has been held to ‘wrongly equate . . . injury fairly traceable to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation.’” Libertarian Party of Virginia v. Judd, 718 F.3d 308, 315-16 (4th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154, 168-69 (1997)). As long as an election regulation “is at least in part responsible” for the 30 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 37 of 40 plaintiff’s injury, the causation element of Lujan is satisfied, “notwithstanding the presence of another proximate cause.” Id. at 316; see also Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347 (3rd Cir. 2014) (minor party had standing to challenge a Pennsylvania ballot-access rule even though they could only be injured if a third party challenged signatures on their petition).8 IV. DEFENDANTS FAIL TO MEET THE RULE 56 STANDARD Defendants style their motion as a motion for summary judgment pursuant to Rule 56 as well as a motion to dismiss pursuant to Rule 12—but they do not even attempt to satisfy the basic requirements for a Rule 56 motion.9 For that reason, their efforts to obtain judgment as a matter of law pursuant to Rule 56 must fail. 8 The approaches taken by the Fourth Circuit in Libertarian Party and the Third Circuit in Constitution Party of Pennsylvania reflect the Supreme Court’s explanation of the “fairly traceable” standard in Clapper. In Clapper, plaintiffs were not able to show that the potential surveillance they objected to, assuming it occurred, would be carried out pursuant to the statute they were challenging. The Court stated: Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to [the statute at issue]. But, because respondents can only speculate as to whether any (asserted) interception would be under [that statute] or some other authority, they cannot satisfy the “fairly traceable” requirement. 568 U.S. at 1149. By contrast, the injury here is indisputably “traceable” to use of the iVotronic voting system, even if, as discussed above, the actions of third parties may contribute to it. 9 Defendants’ brief also seems to suggest they believe they are countering a request for preliminary relief. Defs’ Br. at 5 (referencing the practical difficulties of implementing “a system thrown in at the last minute, as compliance with a court order as requested by Plaintiffs would require”). Plaintiffs, of course, have not filed any motion for preliminary or emergency relief. Any relief imposed by the Court, at the appropriate stage of litigation, would of course take into account all equitable considerations, including timing and practicability. 31 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 38 of 40 A motion for summary judgment shall be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be disputed “must support the assertion by citing to particular parts of materials in the record” or showing “that an adverse party cannot produce admissible evidence to support that fact.” Fed. R. Civ. P. 56(c). “The moving party must present specific facts establishing that there is an absence of a genuine dispute and cannot rely solely on the complaint.” Mass. Mut. Life Ins. Co. v. Hiller, No. 6:16CV-01643-JMC, 2018 WL 3054935, at *2 (D.S.C. June 20, 2018). Moreover, summary judgment should generally be granted only “after adequate time for discovery.” McCray v. Maryland Dep’t of Transp., Maryland Transit Admin., 741 F.3d 480, 483-84 (4th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Defendants do not even attempt to meet these requirements. Perhaps most significantly, they fail to identify any undisputed facts, and mischaracterize factual assertions as undisputed when they are in fact contradicted by allegations in the Complaint and unsupported by evidence in the record. Indeed, as Defendants acknowledge, they have chosen not to put in any supporting affidavits or other evidence. Defs.’ Br. at 2.10 V. CONCLUSION For the reasons stated above, the Court should deny Defendants’ motion to dismiss and for summary judgment. 10 Given Defendants’ decision to invoke Rule 56 without putting in supporting facts or identifying undisputed issues, it would obviously be unfair for them to attempt to remedy those deficiencies on reply. However, if they did, Plaintiffs would expect to take discovery related to those facts pursuant to Rule 56(d). 32 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 39 of 40 Respectfully submitted by, _/s/ Marcus A. Manos___________ Marcus A. Manos (Fed. ID No. 4828) Victoria L. Eslinger (Fed. ID No. 738) NEXSEN PRUET, LLC 1230 Main Street, Suite 700 Columbia, South Carolina 29201 Telephone: 803.771.8900 Facsimile: 803.253.8277 VEslinger@nexsenpruet.com MManos@nexsenpruet.com Laurence M. Schwartztol (pro hac vice forthcoming) PROTECT DEMOCRACY PROJECT, INC. 10 Ware Street Cambridge, Massachusetts 02138 Telephone: 202.945.2092 Facsimile: 929.777.8248 larry.schwarztol@protectdemocracy.org Anne H. Tindall (pro hac vice forthcoming) Jamila Benkato (pro hac vice forthcoming) PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue, NW, Suite #163 Washington, D.C. 20006 Telephone: 202.856.9191 Facsimile: 929.777.8428 anne.tindall@protectdemocracy.org jamila.benkato@protectdemocracy.org Jessica Marsden (pro hac vice forthcoming) PROTECT DEMOCRACY PROJECT, INC. 106 S. Greensboro St, Suite E Carrboro, North Carolina 27510 Telephone: 202.672.4812 Facsimile: 929.777.8428 jess.marsden@protectdemocracy.org David S. Frankel (pro hac vice forthcoming) Samantha V. Ettari (pro hac vice forthcoming) Harry P. Morgenthau (pro hac vice forthcoming) KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 33 3:18-cv-01887-DCC Date Filed 08/28/18 Entry Number 14 Page 40 of 40 Telephone: 212.715.9100 Facsimile: 212.715.8000 dfrankel@kramerlevin.com settari@kramerlevin.com hmorgenthau@kramerlevin.com Hon. Nancy Gertner (Ret.) (pro hac vice forthcoming) FICK & MARX LLP 100 Franklin Street, 7th Floor Boston, Massachusetts 02110 Telephone: 857.321-8360 ngertner@fickmarx.com ATTORNEYS FOR THE PLAINTIFFS August 28, 2018 34