Case 1:18-cv-05121-WMR Document 2 Filed 11/06/18 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LATOSHA BROWN; CANDACE FOWLER; JENNIFER IDE; CHALIS MONTGOMERY; KATHARINE WILKINSON, Plaintiffs, v. BRIAN KEMP, in his official capacity as Secretary of State of the state of Georgia, Defendant. ) ) ) ) ) ) ) CASE NUMBER ) ) ) ) ) ) ) PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER Plaintiffs seek emergency relief to prevent Defendant, Georgia Secretary of State Brian Kemp, from supervising the tabulation of votes and certification for the 2018 general election in Georgia, in which he is the Republican candidate for governor. Those dual roles violate the basic rule of fairness that “no man can be a judge in his own case,” In re Murchison, 349 U.S. 133, 136 (1955), and violate Plaintiffs’ due process and First Amendment rights. In the alternative, Plaintiffs 1 Case 1:18-cv-05121-WMR Document 2 Filed 11/06/18 Page 2 of 5 respectfully request an immediate hearing. The relief should be granted for the reasons set forth in Plaintiffs’ accompanying memorandum of law. Given the urgency of the upcoming election certification deadline, and in response to recent reports that Defendant Kemp has used his office to publicize unsupported allegations of misconduct by his opposing party, Plaintiffs seek a temporary restraining order that: 1) Immediately enjoins Defendant Kemp from exercising any powers or duties of the Office of the Secretary of State relating to the 2018 general election, including any runoff or recount, and enjoins him from serving as a member or chairman of the State Elections Board for any purposes relating to the general election; 2) Directs the Governor of Georgia to appoint a substitute to perform the election-related duties of the Secretary of State, and provides that such substitute shall not be anyone who currently reports to or works for Secretary of State Kemp or the Kemp for Governor campaign; and 2 Case 1:18-cv-05121-WMR Document 2 Filed 11/06/18 Page 3 of 5 3) Directs the Georgia Secretary of State’s Office to immediately remove from its web page any reference to any alleged investigation of the Democratic Party. Date: November 6, 2018 Respectfully submitted, /s/ Michael J. Moore MICHAEL J. MOORE Georgia Bar No. 520109 CHARLES W. BYRD Georgia Bar No. 100850 CAROLINE G. MCGLAMRY Georgia Bar No. 230832 WADE H. TOMLINSON III Georgia Bar No. 714605 POPE, MCGLAMRY, KILPATRICK, MORRISON & NORWOOD, P.C. 3391 Peachtree Road, NE, Suite 300 P.O. Box 191625 (31119-1625) Atlanta, GA 30326 Telephone: (404) 523-7706 efile@pmkm.com BRYAN L. SELLS Georgia Bar No. 635562 The Law Office of Bryan L. Sells, LLC Post Office Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 bryan@bryansellslaw.com LAURENCE M. SCHWARTZTOL* JUSTIN FLORENCE* Protect Democracy Project, Inc. 10 Ware Street 3 Case 1:18-cv-05121-WMR Document 2 Filed 11/06/18 Page 4 of 5 Cambridge, Massachusetts 02138 Telephone: (202) 945-2092 Facsimile: (929) 777-8248 larry.schwarztol@protectdemocracy.org IAN BASSIN* Protect Democracy Project, Inc. 222 Broadway Avenue, #1898 New York, NY 10038 Telephone: (202) 599-0466 Facsimile: (929) 777-8428 ian.bassin@protectdemocracy.org JESSICA MARSDEN* 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 *Pro Hac Vice forthcoming Counsel for Plaintiffs 4 Case 1:18-cv-05121-WMR Document 2 Filed 11/06/18 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on November 6, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system and served a copy as required by law. Date: November 6, 2018 /s/ Michael J. Moore MICHAEL J. MOORE Georgia Bar No. 520109 POPE, MCGLAMRY, KILPATRICK, MORRISON & NORWOOD, P.C. 3391 Peachtree Road, NE, Suite 300 P.O. Box 191625 (31119-1625) Atlanta, GA 30326 Telephone: (404) 523-7706 efile@pmkm.com 5 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LATOSHA BROWN; CANDACE FOWLER; JENNIFER IDE; CHALIS MONTGOMERY; KATHARINE WILKINSON, Plaintiffs, v. BRIAN KEMP, in his official capacity as Secretary of State of the state of Georgia, Defendant. ) ) ) ) ) ) ) CASE NUMBER ) ) ) ) ) ) ) Memorandum of Law in Support of Motion for Temporary Restraining Order Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 2 of 26 Table of Contents TABLE OF AUTHORITIES----------------------------------------------------------- III PRELIMINARY STATEMENT -------------------------------------------------------- 1 FACTUAL BACKGROUND ------------------------------------------------------------ 2 ARGUMENT -------------------------------------------------------------------------------- 1 I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS -- 2 A. PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO PREVAIL ON THEIR DUE PROCESS CLAIM IN LIGHT OF KEMP’S DEMONSTRATED BIAS. -------------------- 2 B. PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO PREVAIL ON THEIR CLAIM THAT DEFENDANT. KEMP’S USE OF GOVERNMENTAL POWER TO TARGET POLITICAL OPPONENTS VIOLATES THE FIRST AMENDMENT. -------------------- 6 C. KEMP’S BIASED ELECTION ADMINISTRATION VIOLATES PLAINTIFFS’ RIGHT TO VOTE. ------------------------------------------------------------------------------ 10 II. THE REMAINING FACTORS FOR THE ISSUANCE OF A TRO WEIGH IN PLAINTIFFS’ FAVOR. ------------------------------------------------------------------------------------- 11 CONCLUSION ---------------------------------------------------------------------------- 14 ii Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 3 of 26 Table of Authorities CASES Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) ------------------------------ 7, 9, 10 Ass’n of Nat’l Advertisers Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979) ----- 2 Burdick v. Takushi, 504 U.S. 428 (1992) ------------------------------------------------ 10 California Democratic Party v. Jones, 530 U.S. 567, 586 (2000) -------------------- 7 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 887-90 (2009) -------- 2, 5, 6 Crawford v. Marion Cty Elec. Bd., 553 U.S. 1818, 204 (2008) ---------------------- 10 Elrod v. Burns, 427 U.S. 347, 373 (1976) --------------------------------------------- 6, 7 Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) -------------------------- 1 Georgia Coalition for the People’s Agenda, Inc., v. Kemp, No. 1:18-CV-04627ELR (Nov. 2, 2018) ----------------------------------------------------------------------- 4 Gibson v. Berryhill, 411 U.S. 564, 579 (1973) ------------------------------------------ 2 Gill v. Whitford, 138 S. Ct. 1916, 1938 (2018) ------------------------------------------ 9 In re Murchison, 349 U.S. 133, 136 (1955) ---------------------------------------------- 2 League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) ---------------------------------------------------------------------------------- 12 Martin v. Kemp, No. 1:18-CV-4776-LMM, 2018 WL 5276242 (N.D. Ga. Oct. 24, 2018), appeal filed, No. 18-14503 (11th Cir. Oct. 29, 2018) ----------------------- 12 Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) ------------------------ 12 Reynolds v. Sims, 377 U.S. 533, 555 (1964) -------------------------------------------- 10 Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir. 2005) -------- 1 Tumey v. Ohio, 273 U.S. 510, 523 (1927) ------------------------------------------------ 2 Vieth v. Jubelirer, 541 U.S. 267, 314 (2004)--------------------------------------------- 6 Ward v. Monroeville, 409 U.S. 57 (1972) ------------------------------------------------ 2 Wesberry v. Sanders, 376 U.S. 1, 17 (1964) --------------------------------------- 10, 13 Williams v. Rhodes, 393 U.S. 23, 29 (1968) --------------------------------------------- 6 Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir. 2010) --------------- 1 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ------------------------- 1 OTHER AUTHORITIES Daniel Strauss, Top GA Election Official Warns Dems Are Registering ‘All These Minority Voters’, TALKING POINTS MEMO (Sept. 11, 2014) ------------------------- 8 Emily Kopp, Election Law Experts Decry Brian Kemp’s Hacking Allegation in Georgia, ROLL CALL (Nov. 5, 2018, 9:29 AM) --------------------------------------- 1 James Madison, The Federalist No. 10 (1787)------------------------------------------- 2 Jeremy Redmon, Brian Kemp Under Scrutiny After Announcing Probe of Democrats, Atlanta Journal-Constitution (Nov. 4, 2018) --------------------------- 13 iii Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 4 of 26 Kristina Torres, Georgia AG Gets 53 Forms in Probe of Voter Registration Group, THE ATLANTA JOURNAL-CONSTITUTION (Sept. 20, 2017) --------------------------- 8 Mark Niesse, Lawsuit Challenges 53,000 Stalled Georgia Voter Registrations, Atlanta Journal-Constitution (Oct. 11, 2018) ------------------------------------------ 4 Press Release, Secretary of State, SOS Releases More Details Over Failed Cyberattack (Nov. 4, 2018) -------------------------------------------------------------- 8 Richard Fausset & Alan Blinder, Brian Kemp’s Office, Without Citing Evidence, Investigates Georgia Democrats Over Alleged ‘Hack’, N.Y. Times (Nov. 4, 2018) ---------------------------------------------------------------------------------- 6, 3, 9 Richard L. Hasen, Brian Kemp Just Engaged in a Last-Minute Act of BananaRepublic Level Voter Manipulation in Georgia, SLATE (Nov. 4, 2018, 3:47 PM) 2 Spencer Woodman, Register Minority Voters in Georgia, Go to Jail, THE NEW REPUBLIC (May 5, 2015) ----------------------------------------------------------------- 7 iv Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 5 of 26 Preliminary Statement Defendant Brian Kemp is a candidate for Governor in the 2018 election. As might be expected, he is aggressively pursuing the office he seeks. Defendant Kemp is also the Secretary of State of Georgia, charged with administering the election, tallying the results, and declaring the winner. In light of this obvious potential for conflict, many of Defendant Kemp’s predecessors as Secretary of State who have run for office have resigned or recused themselves from their election administration duties. That ensures the avoidance of any actual or perceived bias that might undermine the effectiveness of the election. Those Secretaries of State before Defendant Kemp who have not recused themselves have gone out of their way to avoid appearing to use their official powers to benefit their campaigns. But not Defendant Kemp. To the contrary, Defendant Kemp has sought to use the powers of his office to obtain every possible personal and partisan advantage, culminating the weekend before the general election in what prominent election law scholars have described as “an appalling abuse of power” and “perhaps the most outrageous example of election administration partisanship in the modern era.”1 1 Emily Kopp, Election Law Experts Decry Brian Kemp’s Hacking Allegation in Georgia, ROLL CALL (Nov. 5, 2018, 9:29 AM), http://www.rollcall.com/news/politics/election-law-experts-decry-brian-kemps1 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 6 of 26 Plaintiffs are registered Georgia voters who have voted for (or plan to vote) for Mr. Kemp’s opponent in the 2018 general election. Because Defendant Kemp has already demonstrated extreme actual bias in the performance of his official duties, allowing him to determine the winners of Georgia’s 2018 general election would violate Plaintiffs’ federal constitutional rights to an unbiased decisionmaker, to political association, and to have their votes counted equally and accurately. These injuries are acute and will be irreparable if Defendant Kemp is allowed to determine the outcome of the election, including with respect to any recounts or runoffs. Accordingly, and for the reasons set forth below, Plaintiffs ask this Court for a narrow temporary restraining order (TRO) transferring his duties to another official to be selected by the Governor. Factual Background The Secretary of State’s office has substantial responsibilities for administering fair elections in the state. Among other things, the office is responsible for certification of election results; certifying the qualification of candidates and preparation of ballots and election forms; investigating election fraud; and enforcing state election laws; tabulating, computing, and canvassing the hacking-allegation-georgia; Richard L. Hasen, Brian Kemp Just Engaged in a Last-Minute Act of Banana-Republic Level Voter Manipulation in Georgia, SLATE (Nov. 4, 2018, 3:47 PM), https://slate.com/news-and-politics/2018/11/georgiagovernor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-votermanipulation.html. 2 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 7 of 26 votes cast for all candidates; and declaring who has won a particular election. Compl. ¶ 14-15. The Secretary of State, under Georgia law, also determines when to order a recount in close elections. Id. ¶ 15. Defendant Kemp, by nature of his official role, also serves as Chairman of the State Board of Elections. The Board’s duties include: “To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution.” Id. ¶ 16. In light of those duties, any Secretary of State running for office faces the potential for actual or apparent conflicts of interests, and for that reason, many of Defendant Kemp’s predecessors have resigned or taken steps to insulate themselves from such conflicts when running for office. Since he commenced his campaign for governor, however, Defendant Kemp has exercised those duties with respect to an intensely contested race in which he is a candidate. See id. ¶ 18. And indeed, in several instances he has taken overt steps to use the official power of his office to advance his electoral interests. Perhaps most starkly, in the last several days Defendant Kemp responded to a credible report of significant vulnerability in the state’s voter registration system 3 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 8 of 26 by purporting to launch a transparently unfounded “investigation” against the Democratic Party of Georgia. For years, election security experts have warned about the vulnerability of Georgia’s election systems to cyber intrusion, but Defendant Kemp has failed to take action to protect the system. Id. ¶ 20. Two years ago, Kemp turned down an offer from the U.S. Department of Homeland Security to provide election cybersecurity assistance before the 2016 election. Id. Despite repeated requests from election experts, Defendant Kemp has failed to take measures to strengthen the state’s election machinery. Id. In August 2018, Defendant Kemp faced a federal lawsuit alleging that he had failed to adequately secure Georgia’s voting system, exposing the voting records of over six million Georgia residents. Id. On Saturday, November 3, an election security attorney notified the FBI and counsel for Mr. Kemp that he had learned from a private citizen of a major flaw in the database used to check in voters at the polls. Id. ¶ 21. According to independent computer scientists, that flaw could enable anyone with access to an individual voter’s personal information to use Georgia’s My Voter registration portal to alter or delete a voter’s record. Id. Rather than address the substance of the concern, Defendant Kemp falsely and without evidence accused his opponent of cyber crimes. Id. ¶ 22. 4 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 9 of 26 Immediately following these notifications about significant security flaws on the voter registration system that Defendant Kemp is responsible for maintaining, he issued a series of statements through official channels of the Secretary of State’s office accusing the Democratic Party of Georgia of criminal behavior. On Sunday, November 4, Defendant Kemp caused the first of two statements to be posted on the official Secretary of State website. It claimed: After a failed attempt to hack the state's voter registration system, the Secretary of State's office opened an investigation into the Democratic Party of Georgia on the evening of Saturday, November 3, 2018. Federal partners, including the Department of Homeland Security and Federal Bureau of Investigation, were immediately alerted. “While we cannot comment on the specifics of an ongoing investigation, I can confirm that the Democratic Party of Georgia is under investigation for possible cyber crimes,” said Candice Broce, Press Secretary. “We can also confirm that no personal data was breached and our system remains secure.” Later that day, Defendant caused a second statement to be posted on the official Secretary of State website. It stated: We opened an investigation into the Democratic Party of Georgia after receiving information from our legal team about failed efforts to breach the online voter registration system and My Voter Page. We are working with our private sector vendors and investigators to review data logs. We have contacted our federal partners and formally requested the Federal Bureau of Investigation to investigate these possible cyber crimes. The Secretary of State’s office will release more information as it becomes available. 5 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 10 of 26 Id. ¶¶ 23-24.2 The official Secretary of State website where these statements were posted is the same website that Georgia voters use to check polling locations, verify their voter registration status, and learn other key election information. Id. ¶ 25. Upon information and belief, there is not and never was any basis for Defendant Kemp to accuse the Democratic Party of Georgia of seeking to hack into the state’s election systems. The public record suggests exactly the opposite— when a voter protection official for the Democratic Party learned of these vulnerabilities, she promptly informed election security experts. See Jordan Wilkie & Timothy Pratt, Kemp’s Aggressive Gambit to Distract from Election Security Crisis, Who What Why (Nov. 4, 2018).3 Nonetheless, Defendant Kemp used the resources of his office and the official Secretary of State website to make these accusations to deflect blame for 2 Defendant Kemp’s official statements at Secretary of State were only slightly less inflammatory than those issued by his campaign. For example, after claiming that “the systems and protocols established by Secretary of State Brian Kemp” prevented “personal information” from being “breached,” his spokesperson went on to state “[t]hese power-hungry radicals should be held accountable for their criminal behavior.” Richard Fausset & Alan Blinder, Brian Kemp’s Office, Without Citing Evidence, Investigates Georgia Democrats Over Alleged ‘Hack’, N.Y. Times (Nov. 4, 2018), https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-votershack.html. 3 Available online at https://whowhatwhy.org/2018/11/04/kemps-aggressivegambit-to-distract-from-election-security-crisis/. 6 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 11 of 26 his own failures to address flaws in the election system and to falsely harm his opponents. This was not the first time Defendant Kemp has sought to use his office for partisan advantage. For example, Kemp has used his office to lead or direct voter purges that removed more than a million names from the state’s voter rolls between 2012 and 2016, and some 670,000 last year. Id. ¶ 31. One study found that 107,000 of those voters were purged due to a controversial “use it or lose it” practice. Id. As another example, Kemp’s office held up 53,000 voter registrations—a whopping 70 percent of them from black applicants—because they did not clear an “exact match” process he implemented. Id. ¶ 32. Defendant Kemp’s aggressive use of his office to limit voting have faced recent scrutiny from the courts. Two weeks ago, a federal judge ordered Defendant Kemp to instruct election officials to stop summarily discarding absentee ballots that contained signature discrepancies. Id. ¶ 33. And as recently as Friday, a federal judge struck down a restrictive “exact match” law instituted by Defendant Kemp. Id. The law had jeopardized the ability of over 3,000 newly naturalized citizens to vote in the election. Id. 7 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 12 of 26 Argument Plaintiffs seek a Temporary Restraining Order (“TRO”) pursuant to Fed. R. Civ. P. 65(b) that will prevent Defendant Kemp from certifying the results of Georgia’s 2018 election or otherwise participating in the tabulation of votes in his own gubernatorial race. A TRO is warranted if the movant demonstrates (1) a substantial likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir. 2010) (standard for obtaining TRO is identical to that for a preliminary injunction). “The purpose of a temporary restraining order, like a preliminary injunction, is to protect against irreparable injury and preserve the status quo until the district court renders a meaningful decision on the merits.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir. 2005). To that end, a “substantial likelihood of success on the merits” requires “only likely or probable, rather than certain, success.” Id. at 1232. And when the balance of the equities weighs heavily in favor of granting preliminary relief, the movant need only show a “substantial case on the merits” in order to obtain an injunction. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). 1 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 13 of 26 I. Plaintiffs have a substantial likelihood of success on the merits A. Plaintiffs are substantially likely to prevail on their Due Process claim in light of Kemp’s demonstrated bias. It is axiomatic that “no man can be a judge in his own case.” In re Murchison, 349 U.S. 133, 136 (1955). As the Founders recognized, if an official were to do so, “his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” James Madison, The Federalist No. 10 (1787).4 While the question of impermissible bias arises most often in the context of judicial proceedings, see, e.g., Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 88790 (2009), the prohibition extends to other government officials engaged in both adjudicatory and rule-making procedures, see Gibson v. Berryhill, 411 U.S. 564, 579 (1973); Ass’n of Nat’l Advertisers Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979). Unconstitutional bias, or the risk of bias, may be pecuniary, see Tumey v. Ohio, 273 U.S. 510, 523 (1927), or political, see Ward v. Monroeville, 409 U.S. 57, 60 (1972). Both violate due process. A constitutional violation may occur even without proof of “actual bias,” but where actual bias has been shown, there is “no doubt” that it warrants relief. Caperton, 556 U.S. at 883. 4 Available online at http://avalon.law.yale.edu/18th_century/fed10.asp. 2 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 14 of 26 Defendant Kemp has violated the Constitution under either standard: the cumulative effect of his actions amount to a showing of “actual bias,” and without question demonstrate the kind of “risk” of bias deemed by the Supreme Court to violate due process. While serving as Secretary of State while running for office need not automatically violate due process, it does present an inherent risk of bias. As noted above, Defendant Kemp is in charge of administering voter registration, setting election procedures, and, ultimately, certifying the election results. Because these powers pose an inherent potential for conflict, election administration officials who are also candidates for office generally go out of their way to avoid exercising their official duties in a biased manner. Defendant Kemp has done the opposite. His recent official conduct amply demonstrates that he is acting with a degree of bias that violates the Constitution. Most significantly, just three days before Election Day, Kemp’s office announced an “investigation” into the state Democratic Party for allegedly hacking into the voter registration system, and he prominently displayed that accusation on his official webpage. See Compl. ¶ 23-25; Richard Fausset and Alan Blinder, Brian Kemp’s Office, Without Citing Evidence, Investigates Georgia Democrats Over Alleged ‘Hack’, N.Y. Times (Nov. 4, 2018). In light of all of the public information about the vulnerability and how it came to light – after being affirmatively reported by a private citizen so that it could be patched, and after 3 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 15 of 26 repeated efforts to alert Defendant Kemp’s office and law enforcement about the vulnerabilities, ¶¶ 20-21—it is simply untenable that the immediate accusation that political rivals violated the law, broadcast via a vital official resource, was a legitimate exercise of the Secretary’s power. His decision to post the announcement on the homepage of the official website, a location he knew would attract tremendous traffic from voters in the days preceding the election, constitutes strong objective evidence of actual bias. Standing alone, it would likely be enough to demonstrate a constitutional violation. Defendant Kemp’s other recent actions reinforce the conclusion that his use of official power for unfounded partisan accusations reflects bias in the exercise of his authority. For example, Defendant Kemp has also held up more than 50,000 voter registrations, the majority of which came from minority voters, under the state’s “exact match” policy. See id. ¶ 33; Mark Niesse, Lawsuit Challenges 53,000 Stalled Georgia Voter Registrations, Atlanta Journal-Constitution (Oct. 11, 2018). Judge Ross recently issued an injunction limiting Kemp’s implementation of “exact match” for unduly burdening Georgia voters’ fundamental right to vote. See Order at 33-34, Georgia Coalition for the People’s Agenda, Inc., v. Kemp, No. 1:18-CV-04727-ELR (Nov. 2, 2018). Taken together, these and other actions show Kemp’s willingness to use his official powers in the service of his political selfinterest, in violation of the Due Process Clause. 4 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 16 of 26 Of course, Plaintiffs need not definitively prove that Kemp is actually biased in his own favor in order to prevail in this litigation. As long as there is an objective risk that he is biased, he should not be permitted to participate in judging outcomes in his own election. See Caperton, 556 U.S. at 886. Recusal is required whenever, “under a realistic appraisal of psychological tendencies and human weakness,” the decision-maker’s interest in the proceedings “poses such a risk of actual bias or prejudgment” that it jeopardizes due process. Id. at 883-84 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Caperton is instructive. In that case, the Court considered whether an elected justice could, consistent with due process, participate in a lawsuit involving his principal political patron. Without determining that the judge in the case actually harbored bias in favor of his patron, the Supreme Court concluded that the patron’s “significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case” created a “probability of actual bias [that] rises to an unconstitutional level.” Id. at 886-87. Caperton made abundantly clear that, while there may be close cases, a due process violation occurs where the objective risk of bias is “extreme.” Id. This case meets that standard: Kemp is Georgia’s chief election officials, yet his track record demonstrates a history of using that office for partisan gain as he runs for governor. Even if he might nonetheless fairly administer the certification of this election (and 5 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 17 of 26 that is doubtful), there is an objective risk that his judgment will be biased — perhaps without his even realizing it. See id. at 883. Plaintiffs are therefore likely to succeed on the merits of their claim that the Due Process Clause prohibits Defendant Kemp from continuing to administer Georgia’s 2018 elections. B. Plaintiffs are Substantially Likely to Prevail on Their Claim That Defendant. Kemp’s Use of Governmental Power to Target Political Opponents Violates the First Amendment. Plaintiffs are also likely to prevail on their claim that Mr. Kemp’s repeated use of his office to advance his own political fortunes and attack his opponents violates Plaintiffs’ freedom of association under the First Amendment. State authority to regulate elections is “always subject to the limitation that [it] may not be exercised in a way that violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968). “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring). The Supreme Court’s election law precedent repeatedly emphasizes that subjecting voters to disfavored treatment because of their political views or associations violates the First Amendment. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that firing of government employees on the basis of their political beliefs impermissibly violates the First Amendment); California Democratic Party v. Jones, 530 U.S. 6 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 18 of 26 567, 586 (2000) (holding California’s blanket primary system impermissibly burdens freedom of association); Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) (holding state's filing requirements impermissibly burden First Amendment rights where those requirements “fall[] unequally” on some candidates). And in election law, as in other contexts, “a significant impairment of First Amendment rights must survive exacting scrutiny.” Elrod, 427 U.S. at 362. Mr. Kemp has already abused the powers of his office to subject his political opponents and their supporters (including Plaintiffs) to disfavored treatment in their First Amendment rights. By falsely and recklessly accusing his opponents of unlawful activity and threatening them with official investigation, he has already impaired their First Amendment rights. His unfounded claim that the Democratic Party of Georgia attempted to hack the election is only the most recent in his consistent history of using official power to engage in discriminatory partisan actions that disfavor Democratic voters.5 By repeatedly investigating political 5 Kemp first targeted twelve activists for black candidates in a school board election—including three who won seats on the board—with claims of “voter fraud.” Spencer Woodman, Register Minority Voters in Georgia, Go to Jail, THE NEW REPUBLIC (May 5, 2015), https://newrepublic.com/article/121715/georgiasecretary-state-hammers-minority-voter-registration-efforts. The resulting felony trials dragged on through a series of acquittals until all remaining charges were dropped in 2014. Id. Next, he launched a multi-year investigation into the Asian American Legal Advocacy Center (AALAC) after it inquired why voter registrations it submitted had not been processed. Id. Two-and-a-half years later, the investigation ended “with no finding of violations”—but not before leaving an AALAC member “shocked [and] scared.” Id. And then he announced a criminal 7 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 19 of 26 opponents—and often referring them for meritless criminal prosecutions—he has discouraged their ability to associate and engage in protected First Amendment political activity. His most recent misuse of his office for partisan advantage is especially stark. Georgians often must access the Secretary of State website when voting. See Compl. ¶ 26. On that site just days ago, Mr. Kemp alleged that his legal team somehow caught the Democratic Party of Georgia attempting to breach the electronic voter registration system. See id. ¶¶24-25; Press Release, Secretary of State, SOS Releases More Details Over Failed Cyberattack (Nov. 4, 2018).6 That terse, four-sentence statement is utterly devoid of supporting evidence. Id. This stunning accusation runs entirely counter to the typical pattern of cyber-security investigation into the New Georgia Project (NGP) after it worked to register over 100,000 mostly minority voters. Id. He started that investigation only two months after warning a group of Republicans, “[Y]ou know the Democrats are working hard, . . . you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November.” Daniel Strauss, Top GA Election Official Warns Dems Are Registering ‘All These Minority Voters’, TALKING POINTS MEMO (Sept. 11, 2014), https://talkingpointsmemo.com/livewire/brian-kemp-democrats-minority-votersrepublicans. After three years of investigation, his office found no wrongdoing by the group; indeed, it could only identify fifty-three suspicious voter applications of the nearly 85,000 it reviewed. Kristina Torres, Georgia AG Gets 53 Forms in Probe of Voter Registration Group, THE ATLANTA JOURNAL-CONSTITUTION (Sept. 20, 2017), https://politics.myajc.com/news/state--regional-govt--politics/georgiagets-forms-probe-voter-registration-group/MhhTWfqOh3cdkdoTVmwiYI/. 6 Available online at http://sos.ga.gov/index.php/general/sos_releases_more_details_over_failed_cybera ttack_officially_requests_fbi_to_investigate. 8 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 20 of 26 investigations: assessing the extent and nature of a security breach, and then working to identify who committed it. See Richard Fausset & Alan Blinder, Brian Kemp’s Office, Without Citing Evidence, Investigates Georgia Democrats Over Alleged ‘Hack’, N.Y. TIMES (Nov. 4, 2018). By using an official state website to allege malfeasance by the Democratic Party of Georgia, he has chilled potential Democratic voters and created a “burden imposed on [their] associational rights,” Anderson, 460 at 791 n.12. His actions likely cause plaintiffs to “face difficulties fundraising, registering voters, attracting volunteers, [and] generating support from independents.” Gill v. Whitford, 138 S. Ct. 1916, 1938 (2018) (Kagan, J., concurring). The burdens Mr. Kemp has placed on Plaintiffs’ First Amendment freedom of political association, imposed on the basis of those associations, cannot survive strict scrutiny. They have no compelling justification—indeed, the only possible justification is to advantage Mr. Kemp’s campaign and harm his political opponents. Reckless official pronouncements such as these must be seen for what they are: blatant attempts to use the cudgel of state power to suppress voters’ freedom of association. These violate the First Amendment, and Plaintiffs have a substantial likelihood of prevailing on their First Amendment claim. 9 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 21 of 26 C. Kemp’s Biased Election Administration Violates Plaintiffs’ Right to Vote. “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). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Claims asserting violation of the right to vote are evaluated under the two-part test articulated in Anderson, 470 U.S. 789, and Burdick v. Takushi, 504 U.S. 428 (1992). See Crawford v. Marion Cty Elec. Bd., 553 U.S. 1818, 204 (2008) (“To evaluate a law respecting the right to vote – whether it concerns voter qualifications, candidate selection, or the voting process – we use the approach set out in Burdick.”) (Scalia, J., concurring). In Burdick, the Supreme Court held that where the right to vote is “subjected to ‘severe’ restrictions” by state regulation, in order to survive, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’” 504 U.S. at 432 (quoting Norman v. Reed, 502 U.S. 279 (1992)). Here Defendant has severely burdened Plaintiffs’ rights to vote – and to have their votes counted fairly and accurately – by subjecting them to an election system that is infected with partisan bias. Defendant has systematically signaled 10 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 22 of 26 that he will use the official machinery of his office to diminish the effective participation of the party he opposes. Operating in this context, Plaintiffs face a severe burden: even if they manage to navigate the obstacles erected by Defendant, their voting power is diluted by his systematic efforts to suppress the effective participation of Democrats and their supporters. It is hard to fathom what compelling state interests are supported by his decision to use the Secretary of State website as a vehicle of partisan attack, rather than taking meaningful steps to assess the security in the state’s voter registration system and ameliorate any vulnerabilities. II. The remaining factors for the issuance of a TRO weigh in Plaintiffs’ favor. The remaining requirements for a TRO are all satisfied here and weigh heavily in favor of granting preliminary relief. Irreparable injury. Kemp’s participation in the tabulation and certification of Georgia’s election results violates Plaintiffs’ constitutional rights to a fair administration of the election in which they have voted; to the right to association protected by the First Amendment; and to have their votes counted in a fair procedure. These are concrete and substantial injuries. And once suffered they cannot be undone. If Mr. Kemp is allowed to certify the election results and declare winners, it will be too late for any redress of Plaintiffs’ constitutional 11 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 23 of 26 injuries. Once election results are certified, the law provides no opportunity for the results to be re-adjudicated. See Martin v. Kemp, No. 1:18-CV-4776-LMM, 2018 WL 5276242 (N.D. Ga. Oct. 24, 2018), appeal filed, No. 18-14503 (11th Cir. Oct. 29, 2018); see also League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“Courts routinely deem restrictions on fundamental voting rights irreparable injury.”); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“A restriction on the fundamental right to vote therefore constitutes irreparable injury.”). Monetary damages cannot compensate for the loss of the right to vote or to participate in a fairly administered election. The balance of equities. The balance of hardships likewise favors Plaintiffs. Defendant is not meaningfully harmed by the issuance of the proposed injunction—and the injunction would be of substantial benefit to the public interest. As to Mr. Kemp, he has no lawful right to exercise his official election administration duties in a biased and partisan manner as he has done. Enjoining him from the exercise of those duties for the limited purposes of the 2018 general election would prevent him from continuing to abuse his office for partisan and political gain, but that is not a cognizable legal interest. And the public interest would benefit substantially by the issuance of the requested TRO. 12 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 24 of 26 Defendant’s actions to date have cast doubt on his ability to fairly oversee Georgia’s elections. See, e.g., Jeremy Redmon, Brian Kemp Under Scrutiny After Announcing Probe of Democrats, Atlanta Journal-Constitution (Nov. 4, 2018). Freezing his participation in the tabulation of votes until this Court has a chance to evaluate the constitutionality of his double role as candidate and election overseer will bolster voters’ confidence in the integrity of their elections. Furthermore, ensuring all voters’ First Amendment and voting rights is itself in the public interest. See Wesberry, 376 U.S. at 17 (“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.”). Restraining Kemp’s participation in the vote tabulation process need not delay the certification of the election results. Counties may not begin counting their provisional ballots until Friday, November 9; based on past elections, they will not certify their county-level results until Monday, November 12. This Court can move swiftly during that period to begin to resolve Plaintiffs’ claims about the constitutionality of Defendant’s role in the votetabulation and certification procedures. 13 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 25 of 26 Conclusion The Constitution protects Plaintiffs’ right to participate in an election untainted by Defendant’s self-interest or partisan bias. For the reasons stated above, this Court should enter a temporary restraining order entering the relief detailed in Plaintiffs’ accompanying motion for a TRO and proposed order. Respectfully submitted, Date: November 6, 2018 /s/ Michael J. Moore MICHAEL J. MOORE Georgia Bar No. 520109 CHARLES W. BYRD Georgia Bar No. 100850 CAROLINE G. MCGLAMRY Georgia Bar No. 230832 WADE H. TOMLINSON III Georgia Bar No. 714605 POPE, MCGLAMRY, KILPATRICK, MORRISON & NORWOOD, P.C. 3391 Peachtree Road, NE, Suite 300 P.O. Box 191625 (31119-1625) Atlanta, GA 30326 Telephone: (404) 523-7706 efile@pmkm.com BRYAN L. SELLS Georgia Bar No. 635562 The Law Office of Bryan L. Sells, LLC Post Office Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 bryan@bryansellslaw.com 14 Case 1:18-cv-05121-WMR Document 2-1 Filed 11/06/18 Page 26 of 26 LAURENCE M. SCHWARTZTOL* JUSTIN FLORENCE* Protect Democracy Project, Inc. 10 Ware Street Cambridge, Massachusetts 02138 Telephone: (202) 945-2092 Facsimile: (929) 777-8248 larry.schwarztol@protectdemocracy.org IAN BASSIN* Protect Democracy Project, Inc. 222 Broadway Avenue, #1898 New York, NY 10038 Telephone: (202) 599-0466 Facsimile: (929) 777-8428 ian.bassin@protectdemocracy.org JESSICA MARSDEN* 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 *Pro Hac Vice forthcoming Counsel for Plaintiffs 15 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 1 of 102 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LATOSHA BROWN; CANDACE FOWLER; JENNIFER IDE; CHALIS MONTGOMERY; KATHARINE WILKINSON, Plaintiffs, v. BRIAN KEMP, in his official capacity as Secretary of State of the state of Georgia, Defendant. ) ) ) ) ) ) ) CASE NUMBER ) ) ) ) ) ) ) DECLARATION OF JESSICA MARSDEN I, Jessica Marsden, pursuant to 28 U.S.C. § 1746, hereby declare and state under penalty of perjury that the following is true and correct to the best of my knowledge, information, and belief: 1. I am an attorney at the Protect Democracy Project (“Protect Democracy”) and co-counsel for Plaintiffs in the above-captioned action. 2. I submit this declaration in further support of Plaintiffs’ Motion for a Temporary Restraining Order. 1 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 2 of 102 3. Attached hereto as Exhibit 1 is a true and correct copy of Georgia Secretary of State’s Office, After Failed Hacking Attempt, SOS Launches Investigation into Georgia Democratic Party (Nov, 4, 2018), available at http://sos.ga.gov/index.php/general/after_failed_ hacking_attempt_sos_launches_investigation_into_georgia_democratic_party_. 4. Attached hereto as Exhibit 2 is a true and correct copy of Georgia Secretary of State’s Office, SOS Releases More Details Over Failed Cyberattack, Officially Requests FBI to Investigate (Nov. 4, 2018), available at http://sos.ga.gov/index.php/general/sos_releases_more_details_over_failed_cybera ttack_officially_requests_fbi_to_investigate. 5. Attached hereto as Exhibit 3 is a true and correct copy of Alex Tin, Ahead of elections, states reject federal help to combat hackers, CBS News (Oct. 28, 2016), https://www.cbsnews.com/news/ahead-of-elections-states-rejectfederal-help-to-combat-hackers/. 6. Attached hereto as Exhibit 4 is a true and correct copy of Curt Devine and Drew Griffin, 6 million Georgia voters’ records exposed: ‘Could have easily been compromised’, CNN (Aug. 14, 2018), https://www.cnn.com/2018/08/14/politics/georgia-brian-kemp-voterdata/index.html. 2 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 3 of 102 7. Attached hereto as Exhibit 5 is a true and correct copy of Ben Nadler, Voting rights become a flashpoint in Georgia governor’s race, Associated Press (Oct. 9, 2018), https://apnews.com/fb011f39af3b40518b572c8cce6e906c. 8. Attached hereto as Exhibit 6 is a true and correct copy of Mark Niesse, Lawsuit challenges 53,000 stalled Georgia voter registrations, Atlanta Journal-Constitution (Oct. 11, 2018), https://www.ajc.com/news/state--regionalgovt--politics/lawsuit-challenges-000-stalled-georgia-voterregistrations/PK3tylRO9Z1ICNzDcH0FyH/. 9. Attached hereto as Exhibit 7 is a true and correct copy of Jonathan Ringel, Governor's Race Poses Conflict Question for Secretaries of State, Law.com (Oct. 11, 2018), https://www.law.com/dailyreportonline/2018/10/11/governors-race-poses-conflictquestion-for-secretaries-of-state/. 10. Attached hereto as Exhibit 8 is a true and correct copy of Angela Caputo, et al., They Didn’t Vote… Now They Can’t, APM Reports (Oct. 19, 2018), available at https://www.apmreports.org/story/2018/10/19/georgia-voter-purge. 11. Attached hereto as Exhibit 9 is a true and correct copy of Amy Gardner, Judge orders Ga. officials to stop tossing absentee ballots over signatures, Washington Post (Oct. 24, 2018), 3 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 4 of 102 https://www.washingtonpost.com/politics/judge-orders-ga-officials-to-stoptossing-absentee-ballots-over-signatures/2018/10/24/9c5a5b06-d7bd-11e8-a10fb51546b10756_story.html. 12. Attached hereto as Exhibit 10 is a true and correct copy of Alan Judd, Georgia’s strict laws lead to large purge of voters, Atlanta Journal-Constitution (Oct. 27, 2018), https://www.myajc.com/news/state--regional-govt--politics/voterpurge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/. 13. Attached hereto as Exhibit 11 is a true and correct copy of Shannon Van Sant, Judge Rules Against Georgia Election Law, Calling It A ‘Severe Burden’ for Voters, NPR (Nov. 3, 2018), https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-electionlaw-calling-it-a-severe-burden-for-voters/. 14. Attached hereto as Exhibit 12 is a true and correct copy of Jordan Wilkie and Timothy Pratt, Exclusive: Georgia’s Voter Registration System Like ‘Open Bank Safe Door’, Who What Why (Nov. 4, 2018), https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-systemlike-open-bank-safe-door/. 15. Attached hereto as Exhibit 13 is a true and correct copy of Richard Fausset and Alan Blinder, Brian Kemp’s Office, Without Citing Evidence, 4 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 5 of 102 Investigates Georgia Democrats Over Alleged ‘Hack’, N.Y. Times (Nov. 4, 2018), https://www.nytimes.com/2018/11/04/us/ politics/georgia-elections-kemp-voters-hack.html. 16. Attached hereto as Exhibit 14 is a true and correct copy of Avi Selk, et al., Brian Kemp’s office orders ‘hacking’ probe of Georgia Democrats on eve of election he’s competing in, Wash. Post (Nov. 4, 2018), https://www.washingtonpost.com/politics/2018/11/04/brian-kemps-office-ordershacking-probe-georgia-democrats-eve-election-hes-competing/. 17. Attached hereto as Exhibit 15 is a true and correct copy of Jeremy Redmon, Brian Kemp under scrutiny after announcing probe of Democrats, Atlanta Journal-Constitution (Nov. 4, 2018), https://www.ajc.com/news/state-regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutinybrian-kemp/AElKvktttgsz5UgJbiXgyO/. 18. Attached hereto as Exhibit 16 is a true and correct copy of Richard L. Hasen, Brian Kemp Just Engaged in a Last-Minute Act of Banana-Republic Level Voter Manipulation in Georgia, Slate (Nov. 4, 2018), https://slate.com/news-andpolitics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minutebanana-republic-style-voter-manipulation.html. 5 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 6 of 102 19. Attached hereto as Exhibit 17 is a true and correct copy of Emily Kopp, Election Law Experts Decry Brian Kemp’s Hacking Allegation in Georgia, Roll Call (Nov. 5, 2018), http://www.rollcall.com/news/politics/election-lawexperts-decry-brian-kemps-hacking-allegation-georgia. Dated: November 6, 2018 Carrboro, North Carolina ____________________________ Jessica Marsden 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 6 Case Document 2-2 Filed 11/06/18 Page 7 of 102 EXHIBIT 1 11/6/2018 after failed hacking attempt sos launches into georgia democratic Case 1:18-cv-05121-WMR Document 2-2investigation Filed 11/06/18 Pageparty 8 of 102 HOME CONTACTS & EMPLOYMENT CORPORATIONS ELECTIONS CONSTITUENT RESOURCES LICENSING SECURITIES ADMINISTRATIVELY ATTACHED AGENCIES CHARITIES IMPORTANT LINKS A F T E R FA I L E D H A C K I N G AT T E M P T, S O S L A U N C H E S I N V E S T I G AT I O N I N TO G E O R G I A D E M O C R AT I C PA R T Y ATLANTA – After a failed attempt to hack the state's voter registration system, the Secretary of State's of ce opened an investigation into the Democratic Party of Georgia on the evening of Saturday, November 3, 2018. Federal partners, including the Department of Homeland Security and Federal Bureau of Investigation, were immediately alerted. "While we cannot comment on the speci cs of an ongoing investigation, I can con rm that the Democratic Party of Georgia is under investigation for possible cyber crimes," said Candice Broce, Press Secretary. "We can also con rm that no personal data was breached and our system remains secure." OFFICE OF BRIAN KEMP NEWS & ANNOUNCEMENTS CONTACT 214 State Capitol Atlanta, Georgia 30334 PRESS & MEDIA KIT PRIVACY POLICY 844.753.7825 E-Mail © 2018 Georgia Secretary of State http://sos.ga.gov/index.php/general/after_failed_hacking_attempt_sos_launches_investigation_into_georgia_democratic_party_ 1/1 Case Document 2-2 Filed 11/06/18 Page 9 of 102 EXHIBIT 2 11/6/2018 sos releases moreDocument details over failed cyberattack officially requests fbiPage to investigate Case 1:18-cv-05121-WMR 2-2 Filed 11/06/18 10 of 102 HOME CONTACTS & EMPLOYMENT CORPORATIONS ELECTIONS CONSTITUENT RESOURCES LICENSING SECURITIES ADMINISTRATIVELY ATTACHED AGENCIES CHARITIES IMPORTANT LINKS S O S R E L E A S E S M O R E D E TA I L S O V E R FA I L E D C Y B E R AT TA C K , O F F I C I A L LY R E Q U E S T S F B I T O I N V E S T I G A T E ATLANTA – The Secretary of State's Of ce issues the following update: "We opened an investigation into the Democratic Party of Georgia after receiving information from our legal team about failed efforts to breach the online voter registration system and My Voter Page. We are working with our private sector vendors and investigators to review data logs. We have contacted our federal partners and formally requested the Federal Bureau of Investigation to investigate these possible cyber crimes. The Secretary of State's of ce will release more information as it becomes available." OFFICE OF BRIAN KEMP NEWS & ANNOUNCEMENTS CONTACT 214 State Capitol Atlanta, Georgia 30334 PRESS & MEDIA KIT PRIVACY POLICY 844.753.7825 E-Mail © 2018 Georgia Secretary of State http://sos.ga.gov/index.php/general/sos_releases_more_details_over_failed_cyberattack_officially_requests_fbi_to_investigate 1/1 Case Document 2-2 Filed 11/06/18 Page 11 of 102 EXHIBIT 3 11/6/2018 Ahead of elections, states reject2-2 federalFiled help to combat hackers - CBS News12 of 102 Case 1:18-cv-05121-WMR Document 11/06/18 Page NEWS S H OW S VIDEO CBSN WAT C H L I V E MORE CBSN By ALEX TIN / CBS NEWS / October 28, 2016, 5:01 PM Ahead of elections, states reject federal help to combat hackers Share / Tweet / Reddit / Flipboard / Email CBS News has found that 11 states - including the battlegrounds of New Hampshire and Michigan - have not accepted the Department of Homeland Security’s help to try and bolster the cyberdefenses of their voter registration systems. Watch CBSN Live More than 34 million Americans have already participated in early voting ahead of election day Remains of Utah Mayor Brent Taylor arrive at Dover Air Force base President Trump is not on the ballot, but is on the minds of many voters First troops arrive at border as migrant caravan reaches Mexico City U.S. troops on the Southern border with Mexico are preparing to meet a caravan of 5,000+ migrants Follow CBS News Tweets by CBS News Latest From "60 Minutes" Fearing a federal takeover, some of those states are rejecting the department’s assistance to combat cyberattacks that could disenfranchise voters. Homeland Security offered states the help amid mounting reports of cyberattacks aimed at influencing the elections, from hacks of state election systems to statesponsored cyberattacks on political parties. “The flipside is whether or not we want the federal government involved in local elections,” said Tim Hurst, chief deputy for the secretary of state of Idaho. “The next step may be that they want to take over it as critical infrastructure, and that would not be good for the system, not good for the country.” Why do mass shooters choose the AR-15 style rifle? Riding the waves of Nazaré with Garrett McNamara The Senate race predicting America's future Whistleblower says bishop allowed problem priests to stay on job The final phase of America's war on ISIS The new maestro of the New York Philharmonic https://www.cbsnews.com/news/ahead-of-elections-states-reject-federal-help-to-combat-hackers/ 1/5 11/6/2018 Ahead of elections, states reject2-2 federalFiled help to combat hackers - CBS News13 of 102 Case 1:18-cv-05121-WMR Document 11/06/18 Page Tracing family trees to catch killers Why has the NYC subway gone off the rails? The federal offer, which comes free of charge to state and local election agencies, includes services from remote “cyber hygiene” scans to on-site inspections. The services look for vulnerabilities within the voter registration system that hackers could exploit. Hunting with eagles in Mongolia Experts said the largest danger is not whether hackers could change actual vote counts but instead that they could modify or delete registration rolls, disqualifying voters on Election Day. America today: training kids to be first responders “Let’s say they wanted to intervene on the side of [Donald] Trump,” said Herbert Lin, a senior research scholar for cyberpolicy and security at Stanford University’s Center for International Security and Cooperation. “Then what you would do is find a way of invalidating the voter registrations, deleting the voter registrations of 10 percent of the Democrats in the state. That would make 10 percent of them ineligible to vote.” play VIDEO Polarized electorate heads to the polls Latest From CBS News Voters go to the polls as control of Congress hangs in the balance — live updates Ivanka Trump's brands win 16 Chinese trademarks despite being shut down Seven states have declined the offer outright: Alabama, Georgia, Kansas, Louisiana, Maine, Massachusetts and New Hampshire. Officials in those states expressed confidence in their voter registration systems and described DHS’ efforts as “unnecessary.” They said it could lead to wasted and redundant efforts or even open the door to a potential federal takeover of elections. “The question remains whether the federal government will subvert the Constitution to achieve the goal of federalizing elections under the guise of security,” Georgia Secretary of State Brian Kemp told a technology blog in August. 82-year-old votes for first time, dies just days after casting important midterm ballot These women could make history in the midterms Texas teen with special needs scores 50-yard touchdown at high school football game These women could make history in the 2018 midterm elections https://www.cbsnews.com/news/ahead-of-elections-states-reject-federal-help-to-combat-hackers/ 2/5 11/6/2018 Ahead of elections, states reject2-2 federalFiled help to combat hackers - CBS News14 of 102 Case 1:18-cv-05121-WMR Document 11/06/18 Page Homeland Security Secretary Jeh Johnson strongly disputed these concerns in September. In a letter to state election officials, Johnson wrote that their offer “does not entail regulation, binding directives, or any kind of federal ‘takeover,’ as has been suggested by some in public discussion. No state or local election official should hesitate to request our assistance based on that misperception.” Four other states not accepting federal assistance, including Idaho and the battleground state of Michigan, said they were still reviewing the offer. And with less than two weeks until Election Day, time is running out for those states. Federal officials warn that it may be difficult for states to address any vulnerabilities before Nov. 8. Popular On CBS News 01 Newlyweds killed in helicopter crash shortly after wedding 414299 views 02 Everything you need to know about voting in all 50 states 17268 views 03 Fake Oprah stars in racist robocall in Georgia 7551 views 04 Coroner: Mac Miller died from "mixed drug toxicity" 4738 views 05 Backlash over killing of maneating tiger in India 4704 views CBS News on Carplay As of Friday, early voting was underway in 32 states. There have been no reports of major problems with voter registration in those states. States that have accepted DHS’ offer have been quick to say that their agreement should not be interpreted as evidence of flaws in their security but simply an abundance of caution. “We have been doing it ourselves with our own state systems already, but since the DHS has been offering it, and it’s free, we figured belts and suspenders don’t hurt,” said John Conklin, spokesman for the New York State Board of Elections. https://www.cbsnews.com/news/ahead-of-elections-states-reject-federal-help-to-combat-hackers/ 3/5 11/6/2018 Ahead of elections, states reject2-2 federalFiled help to combat hackers - CBS News15 of 102 Case 1:18-cv-05121-WMR Document 11/06/18 Page The Obama administration has accused Russia of attempting to interfere in the U.S. presidential election through coordinated cyberattacks on political parties. On Thursday, Russian President Vladimir Putin denied the charges, saying that U.S. elites have used the “mythical and fictitious” issue to distract attention from real government problems. Arizona, Illinois, Florida and over two dozen other states have already had their election systems scanned, probed or breached by hackers. Last month, Arizona Secretary of State Michele Reagan told CBS News’ Jeff Pegues that the threat facing states was unprecedented. “We’ve never had to worry about foreign invaders coming in and trying to mess with our confidence and our election system,” Reagan said. Siobhan McGirl and Gabriela Milian contributed reporting to this article. © 2016 CBS Interactive Inc. All Rights Reserved. Share / Tweet / Reddit / Flipboard / Featured in Politics Email Popular Sens. Collins, Heitkamp explain Kavanaugh votes One voted no and one voted yes, but both put their political futures in jeopardy Historian Doris Kearns Goodwin on whether we are living in "the worst of times" Pulitzer Prize-winning historian says a crisis can be overcome if aroused citizens join together toward a moral purpose CBSNews.com CBS Interactive Follow Us Site Map Help Privacy Policy Ad Choice Facebook Twitter https://www.cbsnews.com/news/ahead-of-elections-states-reject-federal-help-to-combat-hackers/ 4/5 Case Document 2-2 Filed 11/06/18 Page 16 of 102 EXHIBIT 4 11/6/2018 6 million Georgia voters' records exposed: 'CouldFiled have easily been compromised' - CNNPolitics Case 1:18-cv-05121-WMR Document 2-2 11/06/18 Page 17 of 102 6 million Georgia voters' records exposed: 'Could have easily been compromised' By Curt Devine and Drew Griffin, CNN Updated 7:33 PM ET, Tue August 14, 2018 (CNN) — Georgia's shotgun-toting, Trump-style Republican candidate for governor Brian Kemp has sought to assure voters that his state's election system is secure and that any allegations to the contrary are "fake news." But Kemp, who is also the secretary of state in charge of Georgia's elections, is now being accused in a federal lawsuit of failing to secure his state's voting system and allowing a massive breach that exposed voter records and other sensitive election information. The allegations in the lawsuit come as the subject of election security has come into focus nationally, particularly as the November's midterm elections approach. The suit describes how a private researcher discovered the records of more than 6 million registered Georgia voters, password files and encryption keys could be accessed online by anyone looking. Days after the lawsuit was filed, technicians erased the hard drives of the server in question. Marilyn Marks, executive director of the Coalition for Good Governance, a plainti in the suit, argues Kemp's o ce long neglected basic security standards and says it remains unclear if the state's election system was infected with malware or breached by foreign hackers, which she says could have consequences for the midterm elections. She said because the data was destroyed, an independent review cannot be conducted. Her group's lawsuit seeks to force the state to implement paper ballot-based voting so that results can be audited. "The data was open to anyone in the world who had an internet connection," said Marks. "Even when confronted with a security disaster, [Kemp's] response was to blame managers under his supervision for their incompetence and leave the security disaster without so much as a forensic review of the impacts of the security failures." Related Article: Why Trump and the GOP are both guilty of ongoing collusion In response to CNN's questions about the lawsuit and the state's elections system, Kemp said Georgia's voting equipment "remains accurate and secure." He added, "The hysteria of some people seeking to force Georgia to switch to an all paper ballot system is based on misinformation, and making this change would spend money to create problems that we should avoid." "The chaos of switching to a completely di erent voting system this close to an election would cause inconvenience, voter confusion, and potentially suppressed turn-out," Kemp said. The exposure of Georgia's election system's vulnerability dates back to August 2016, when private cybersecurity researcher Logan Lamb discovered 15-gigabytes worth of voter registration data and other sensitive information could be readily downloaded from the website of Kennesaw State University. Kemp's o ce had a contract with KSU's Center for Election Systems to help run Georgia's voting system. Lamb says the center's website was like a door without a lock. https://www.cnn.com/2018/08/14/politics/georgia-brian-kemp-voter-data/index.html 1/3 11/6/2018 6 million Georgia voters' records exposed: 'CouldFiled have easily been compromised' - CNNPolitics Case 1:18-cv-05121-WMR Document 2-2 11/06/18 Page 18 of 102 A recent indictment from special counsel Robert Mueller notes that in the lead-up to the 2016 presidential election Russian intelligence operatives visited "websites of certain counties in Georgia ... to identify vulnerabilities." Kemp's o ce said the indictment revealed only visits, not penetration of any Georgia systems by Russians. "The website security itself is inexcusable," Lamb told CNN. "Never mind the nation-state threats of countries like Russia, it could have easily been compromised by [anyone]." Related Article: Trump-backed Brian Kemp wins GOP nomination in Georgia governor's race, CNN projects Following his discovery, Lamb emailed the executive director of KSU's election center, Merle King, to alert him about the vulnerability. According to Lamb and court filings, King told him that the issues would be addressed but added that Lamb should keep quiet about his findings, otherwise he would be "crushed" by the politicians "downtown." King did not respond to CNN's request for comment. Internal emails show KSU's technology sta acknowledged the elections system had "40+ critical vulnerabilities" in October 2016, but when Lamb and a colleague checked the website more than six months after his original discovery, he says, the vulnerabilities remained. Lamb's colleague notified a KSU faculty member, who then alerted the university's technology services o ce, which finally firewalled the website in March 2017, according to the lawsuit and a KSU report filed in court. An investigation was launched by the FBI and closed without comment. A KSU statement in March 2017 stated that, based on a briefing by the FBI, there was no indication of illegal activity and no personal information was misused. The university said university employees "immediately isolated the server and contacted the O ce of the Secretary of State" when its o cials were notified in March. Kemp called the breach "deeply concerning," and although he announced plans to end the arrangement with the center, his o ce renewed the KSU contract to manage the election system one last time in July 2017. Kemp did not openly criticize KSU until a letter from the state attorney's o ce sent in October revealed KSU sta ers had wiped the election system's hard drives, deleting potential evidence relevant to the lawsuit. The disclosure prompted outrage from the lawsuit's plainti s and was detailed in a report by the Associated Press. A KSU spokesperson did not respond to CNN's questions about why the server's hard drives were wiped. Kemp responded with a Facebook post in which he called the decision "reckless" and condemned "undeniable ineptitude at KSU's Center for Election Systems." Charles Amlaner, a former vice president for research at KSU who signed some of the university's contracts, said Kemp's o ce did not include data security specifications in its election-system contracts with KSU for years . He said he found that unusual because most other government contracts involving sensitive data he has reviewed have contained multiple pages outlining security requirements. "These contracts were pretty slim on detail. If you don't give us rules and regulations on data security, how do you expect us to abide by them?" he said. In response, Kemp's o ce said the university had security protocols in place but didn't follow them. "There were extensive security protocols in place at the university, and every part of the university -- including the Center for Elections Systems -- was expected to follow them," said Candice Broce, spokeswoman for the Georgia Secretary of State's o ce. "When the Center failed to comply, the state added additional security provisions before ultimately terminating this contract and moving all operations in-house. Secretary Kemp made the right call." https://www.cnn.com/2018/08/14/politics/georgia-brian-kemp-voter-data/index.html 2/3 11/6/2018 6 million Georgia voters' records exposed: 'CouldFiled have easily been compromised' - CNNPolitics Case 1:18-cv-05121-WMR Document 2-2 11/06/18 Page 19 of 102 A review of two contracts by CNN found that only after the breach's exposure in 2017 was language inserted mandating that the center "implement data security policies that adhere to all current IT policies." The contract with KSU's Center for Elections Systems ended, but Kemp's o ce o ered a job to a director of the center. Kemp has criticized news reports that raise questions about the integrity of state election systems. He wrote in a recent USA Today op-ed that states are doing enough to secure their own voting systems. Kemp also blasted e orts by the Department of Homeland Security under the Obama administration to label states' voting systems "critical infrastructure" in 2016, which would enable the federal government to give states cybersecurity assistance. He has described the proposed designation as federal government overreach. Although he has said the implementation of paper ballots for the upcoming November elections is unnecessary, Kemp leads a Georgia commission researching ways to improve the state's aging voter system and he supports the deployment of a new system by the 2020 election. Georgia is one of only a few states that currently use voting machines statewide without paper trails. Paper records make manual recounts possible in the event of a contested election or alleged tampering. Related Article: Election officials' concerns turn to information warfare as hackers gather in Vegas Richard DeMillo, a Georgia Tech professor who studies election security and computer science, said he is concerned by the absolute assurance with which Kemp talks about Georgia's election system's security because there's no evidence the state has conducted a forensic review of all its servers. He said improvements to Georgia's voting system should have been implemented years ago. "To say Georgia's system is totally secure you would have to believe there is a magic umbrella over the state protecting it," DeMillo said. "I don't understand where that reasoning comes from." https://www.cnn.com/2018/08/14/politics/georgia-brian-kemp-voter-data/index.html 3/3 Case Document 2-2 Filed 11/06/18 Page 20 of 102 EXHIBIT 5 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 21 of 102 AP NEWS Top Stories Topics Video Listen Voting rights become a ashpoint in Georgia governor’s race By BEN NADLER October 9, 2018 Trending on AP News Click to copy RELATED TOPICS Georgia Race and ethnicity Voting rights Elections Atlanta Voting ATLANTA (AP) — Marsha Appling-Nunez was showing the college students she teaches how to check online if they’re registered to vote when she made a troubling discovery. Despite being an active Georgia voter who had cast ballots in recent elections, she was no longer registered. “I was kind of shocked,” said Appling-Nunez, who moved from one Atlanta suburb to another in May and believed she had https://apnews.com/fb011f39af3b40518b572c8cce6e906c The Latest: Patience wears thin as caravan heads north 2 California death row inmates found dead; suicide suspected Turkey: Saudi investigators worked to remove evidence by Taboola 1/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 22 of 102 successfully changed her address on the voter rolls. “I’ve always voted. I try to not miss any elections, including local ones,” Appling-Nunez said. She tried re-registering, but with about one month left before a November election that will decide a governor’s race and some competitive U.S. House races, Appling-Nunez’s application is one of over 53,000 sitting on hold with Georgia Secretary of State Brian Kemp’s office. And unlike Appling-Nunez, many people on that list — which is predominantly black, according to an analysis by The Associated Press — may not even know their voter registration has been held up. Tuesday is Georgia’s deadline to register and be eligible to vote in the November General Election. Kemp, who’s also the Republican candidate for governor, is in charge of elections and voter registration in Georgia. https://apnews.com/fb011f39af3b40518b572c8cce6e906c 2/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 23 of 102 His Democratic opponent, former state Rep. Stacey Abrams, and voting rights advocacy groups charge that Kemp is systematically using his office to suppress votes and tilt the election, and that his policies disproportionately affect black and minority voters. Kemp denies it vehemently. But through a process that Kemp calls voter roll maintenance and his opponents call voter roll purges, Kemp’s office has cancelled over 1.4 million voter registrations since 2012. Nearly 670,000 registrations were cancelled in 2017 alone. In a recent television appearance on Comedy Central’s “The Daily Show With Trevor Noah” Abrams called Kemp “a remarkable architect of voter suppression.” That’s become a rallying cry for Democrats in the governor’s race, which recent public polling shows in a statistical dead heat. Kemp, meanwhile, says Abrams and allied liberal activists are twisting his record of guarding Georgia elections against voter fraud. His campaign spokesman Ryan Mahoney said in a statement that because of Kemp, “it has never been easier to vote in our state” and pointed to a new online voter registration system and a student https://apnews.com/fb011f39af3b40518b572c8cce6e906c 3/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 24 of 102 engagement program implemented under his tenure. “Kemp is fighting to protect the integrity of our elections and ensure that only legal citizens cast a ballot,” Mahoney said. Two main policies overseen by Kemp have drawn criticism and legal challenges: Georgia’s “exact match” registration verification process and the mass cancellation of inactive voter registrations. According to records obtained from Kemp’s office through a public records request, ApplingNunez’s application —like many of the 53,000 registrations on hold with Kemp’s office — was flagged because it ran afoul of the state’s “exact match” verification process. Under the policy, information on voter applications must precisely match information on file with the Georgia Department of Driver Services or the Social Security Administration. Election officials can place non-matching applications on hold. An application could be held because of an entry error or a dropped hyphen in a last name, for example. Appling-Nunez says she never saw any notice from Kemp’s office https://apnews.com/fb011f39af3b40518b572c8cce6e906c 4/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 25 of 102 indicating a problem with her application. An analysis of the records obtained by The Associated Press reveals racial disparity in the process. Georgia’s population is approximately 32 percent black, according to the U.S. Census, but the list of voter registrations on hold with Kemp’s office is nearly 70 percent black. Kemp’s office blamed that disparity on the New Georgia Project, a voter registration group founded by Abrams in 2013. Kemp accuses the organization of being sloppy in registering voters, and says they submitted inadequate forms for a batch of applicants that was predominantly black. His office has said the New Georgia Project used primarily paper forms and “did not adequately train canvassers to ensure legible, complete forms ....” His office says “the law applies equally across all demographics,” but these numbers became skewed by “the higher usage of one method of registration among one particular demographic group.” Voters whose applications are frozen in “pending” status have 26 months to fix any issues before their application is canceled, and can still cast a provisional ballot. https://apnews.com/fb011f39af3b40518b572c8cce6e906c 5/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 26 of 102 But critics say the system has a high error rate and decry the racial disparity that it produces. “We’ve shown that this process disproportionately prevents minority applicants from getting on the voter registration rolls,” Julie Houk, special counsel for the Washington based Lawyers’ Committee for Civil Rights Under Law, said in an interview. With that in mind, she called it “kind of astounding” that Georgia legislators wrote it into state law in 2017. Houk’s group wrote to Kemp in July threatening legal action if “exact match” wasn’t ended. Kemp’s aggressive maintenance of the voter list has also garnered the threat of legal action. His office says that they simply “conduct regular list maintenance of the voter rolls to ensure election integrity” as required by federal and state law. “All of the affected records were inactive as a result of returned mail, National Change of Address, and ‘no contact’ list maintenance procedures,” it said. Kemp dismissed and derided the legal threat targeting the “exact match” policy, issuing a statement saying that with Election Day coming up, “it’s high time for another frivolous lawsuit from liberal activist groups.” https://apnews.com/fb011f39af3b40518b572c8cce6e906c 6/9 11/6/2018 rights become a2-2 flashpoint in Georgia governor's race Case 1:18-cv-05121-WMRVotingDocument Filed 11/06/18 Page 27 of 102 His office said that since January 2014, elections officials have processed over 6.4 million voter registrations and less than 1 percent remain in pending status. State Rep. Barry Fleming, who authored the state law enabling “exact match,” said in a statement that it’s authorized under federal law, and courts have upheld a similar law in Florida. But Appling-Nunez said it’s important for every Georgian’s vote, including hers, to be counted in November. “If you don’t like what’s happening you either have to vote to change it or get out there and change it yourself,” she said. “A life of politics is not for me so I have to support those who are fighting the good fight.” Woman Killed After Sending… PINE LAKE, Ga. (AP) _ A man … 3 days ago Ad Content New York, New York: This Tiny, U k Promoted: EverQuote https://apnews.com/fb011f39af3b40518b572c8cce6e906c 7/9 Case Document 2-2 Filed 11/06/18 Page 28 of 102 EXHIBIT 6 11/6/2018 filed over 53,000 stalledFiled Georgia11/06/18 voter registrations. Case 1:18-cv-05121-WMRLawsuit Document 2-2 Page 29 of 102 Subscribe for 99¢ Breaking: Machines down, hundreds wait at one Gwinnett voting precinct Caption Lawsuit challenges 53,000 stalled Georgia voter registrations Updated Oct 11, 2018 By Mark Niesse, The Atlanta Journal-Constitution ... A federal lawsuit filed Thursday challenges a Georgia law that has stalled the voter registrations of more than 53,000 potential voters until they verify their basic information. https://www.ajc.com/news/state--regional-govt--politics/lawsuit-challenges-000-stalled-georgia-voter-registrations/PK3tylRO9Z1ICNzDcH0FyH/ 1/9 11/6/2018 Lawsuit filed over 53,000 stalled Georgia voter registrations. Case 1:18-cv-05121-WMR Document 2-2until Filed 11/06/18 Page 30 ofinformation. 102 registrations of more than 53,000 potential voters they verify their basic Subscribe for 99¢ The lawsuit, brought by several civil rights groups, asks a judge to overturn Georgia’s “exact match” law, which requires voter registration information to match driver’s licenses, state ID cards or Social Security records. The legal action comes after The Associated Press reported this week that at least 53,000 voter registrations were flagged because of the law. Those voter registrations are on hold because of discrepancies between application information and government records, such as a missing hyphen in a last name or data entry errors. But potential voters can still participate in this year’s elections if they show photo ID either when they go to vote or beforehand. They can also mail identification to county election officials in advance. If their ID resolves the discrepancy, they will immediately become active voters eligible to cast a normal ballot on Georgia’s voting machines. Voters cast their ballots in the primary election at Henry W. Grady High School in Atlanta in May. JOHN SPINK/JSPINK@AJC.COM (The Atlanta Journal-Constitution) The “exact match” law has drawn criticism from voting rights groups that say it could suppress voters in the upcoming election for Georgia governor between Republican Brian Kemp and Democrat Stacey Abrams. Kemp is Georgia’s secretary of state, responsible for oversight of elections and voter registration. Th l it ll th t th l d b th G i G lA bl l t https://www.ajc.com/news/state--regional-govt--politics/lawsuit-challenges-000-stalled-georgia-voter-registrations/PK3tylRO9Z1ICNzDcH0FyH/ h 2/9 11/6/2018 filed over 53,000 stalledFiled Georgia11/06/18 voter registrations. Case 1:18-cv-05121-WMRLawsuit Document 2-2 Page 31 of 102 The lawsuit alleges that the law, passed by the Georgia General Assembly last year, has a Subscribe disproportionate impact on African-Americans, Latinos and Asian-Americans who want forto 99¢ become registered voters. About 80 percent of applications put on pending status were submitted by those minority groups, according to the lawsuit. “It imposes unnecessary and discriminatory burdens on the voter registration process,” according to the lawsuit, filed by the Lawyers Committee on Civil Rights Under Law, which is representing several civil rights organizations in the legal action. Part of the reason many of the pending applications are from minorities is that they were submitted by the New Georgia Project, said Candice Broce, a spokeswoman for the Georgia Secretary of State’s Office. The New Georgia Project, founded by Abrams in 2013, specifically sought to register minorities. Broce called the lawsuit a publicity stunt that will waste taxpayer money when the state defends the law in court. “Their claims are completely bogus,” Broce said. “The so-called ‘exact match’ law was passed by the Legislature and signed by Gov. (Nathan) Deal. It mirrors a Florida law recently upheld in federal court. The 53,000 Georgians cited in the complaint can vote in the Nov. 6 election. Any claims to the contrary are politically motivated and utterly false.” Abrams’ campaign said Wednesday that Kemp is attacking voting rights. “As he has done for years, Brian Kemp is maliciously wielding the power of his office to suppress the vote for political gain and silence the voices of thousands of eligible voters — the majority of them people of color,” Abrams spokeswoman Abigail Collazo said. “This isn’t incompetence; it’s malpractice.” Kemp has said that the state’s record number of registered voters show that he’s focused on ensuring secure, accessible and fair elections. More than 6.9 million voters are now registered in Georgia, including a sharp increase in new voters, with 253,902 people signing up since April. The deadline to register to vote in Georgia was Tuesday. “Not a single voter whose status is pending for failure to verify will get rejected this election https://www.ajc.com/news/state--regional-govt--politics/lawsuit-challenges-000-stalled-georgia-voter-registrations/PK3tylRO9Z1ICNzDcH0FyH/ 3/9 11/6/2018 filed over 53,000 stalledFiled Georgia11/06/18 voter registrations. Case 1:18-cv-05121-WMRLawsuit Document 2-2 Page 32 of 102 cycle,” Kemp said in a statement in August. “Despite any claim to the contrary, it has never Subscribe been easier to register to vote in Georgia and actively engage in the electoral process.”for 99¢ The plaintiffs in the lawsuit are the Georgia Coalition for the Peoples’ Agenda, Asian Americans Advancing Justice-Atlanta, the NAACP of Georgia, the New Georgia Project, the Georgia Association of Latino Elected Officials and ProGeorgia. Georgia’s “exact match” law was passed by the General Assembly last year and implemented in February of this year. One voter, Marsha Appling-Nunez, said she found out she was no longer registered when she tried to check the state’s election website. The AP found her name among the voters placed on pending status. “I was kind of shocked,” said Appling-Nunez, a college teacher who had tried to re-register after moving from one Atlanta suburb to another. “I’ve always voted. I try to not miss any elections, including local ones.” Georgia residents can check their registration status online on the state’s My Voter Page at www.mvp.sos.ga.gov. Voters whose registrations are on hold will receive a message that they need to notify their county election office to verify their information. Voters concerned about their registrations shouldn’t be deterred, said Sean Young, the legal director for the American Civil Liberties Union of Georgia. “Though the ACLU of Georgia strongly opposes the discriminatory ‘exact match’ law passed by Georgia politicians, we must focus on ensuring that all registered voters come out to vote,” Young said. “All voters who have pending registration applications can still cast a regular ballot by presenting photo identification.” ... https://www.ajc.com/news/state--regional-govt--politics/lawsuit-challenges-000-stalled-georgia-voter-registrations/PK3tylRO9Z1ICNzDcH0FyH/ ... 4/9 Case Document 2-2 Filed 11/06/18 Page 33 of 102 EXHIBIT 7 11/5/2018 Governor's Race Poses Conflict Question for Secretaries of State Daily Report Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 34 of 102 NOT FOR REPRINT  Click to print or Select 'Print' in your browser menu to print this document. Page printed from: https://www.law.com/dailyreportonline/2018/10/11/governors-race-poses-conflict-question-forsecretaries-of-state/ Governor's Race Poses Con ict Question for ecretaries of tate ecretar of tate rian Kemp ha held onto hi jo a he run for governor, jut a two Democrat have done in the pat 22 ear. ut another Democrat and a Repulican reigned a the ought higher o ce. By Jonathan Ringel October 11, 2018 hould Georgia’ top election o cial e candidate in the election the overee? It’ a e-or-no quetion—one that ha come up in the Georgia governor’ race —o credit the lone lawer among the pat  ve ecretarie of tate to eek an Secretary of State Brian Kemp (left) and former Secretary of State Cathy Cox (Courtesy photos) anwer in the middle. Cath Cox, who i now dean of the Mercer Univerit law chool, did not tep down from her jo a ecretar of https://www.law.com/dailyreportonline/2018/10/11/governors-race-poses-conflict-question-for-secretaries-of-state/?printer-friendly/ 1/4 11/5/2018 Governor's Race Poses Conflict Question for Secretaries of State Daily Report Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 35 of 102 tate when he ran for the Democratic nomination for governor in 2006. However, he recued from her role chairing the tate lection oard, which make rule and invetigate complaint aout voting. “I didn’t want there to e an appearance of impropriet,” he aid. “I felt like that wa an appropriate compromie.” ecretar of tate rian Kemp, the Repulican nominee for governor, cite Cox’ example and that of another Democrat, Lewi Mae, among hi reaon for taing on the jo amid complaint he ha made it harder for Democrat, epeciall AfricanAmerican, to vote. A pokeman aid Thurda that Kemp, “i not going to arogate hi reponiilit jut ecaue he i appearing on the allot thi Novemer.” Kemp told The Aociated Pre that 53,000 application of motl lack voter are till “pending” ecaue the were loppil  lled out, largel  an organization founded  hi Democratic opponent, former Houe Minorit Leader tace Aram. Kemp ha not recued from chairing the tate lection oard a Cox did, ut pulihed minute how he ha not chaired an of the three meeting held thi ear. A pokewoman did not repond to a quetion aout wh he didn’t chair thoe meeting. Whether a ecretar of tate eeking higher o ce ta on the jo ha had a decidedl mixed partian anwer. In 1996, Democrat Max Cleland reigned while he uccefull ought a eat in the U.. enate. In 2010, Repulican Karen Handel did the ame a he ran for governor. Like Cox, Handel lot in the primar. On Thurda, Cleland called on Kemp to reign hi pot, recalling hi enate campaign. ”I recognized that it would not e fair to Georgia voter if I overaw an election in which I wa a candidate for higher o ce,” he aid in a pre releae iued  the tate Democratic Part. https://www.law.com/dailyreportonline/2018/10/11/governors-race-poses-conflict-question-for-secretaries-of-state/?printer-friendly/ 2/4 11/5/2018 Governor's Race Poses Conflict Question for Secretaries of State Daily Report Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 36 of 102 oth Cleland and Handel aid when the reigned that the wanted to focu on their repective race. Cox aid Thurda that another major motivation for oth candidate would have een that tate o ce holder cannot raie campaign fund for the three to four month while the tate Legilature i in eion. The quetion of whether a ecretar of tate running for higher o ce u er from a legal con ict of interet wa rie  efore Repulican tate Attorne General Chri Carr thi week. On Oct. 3, ettianne Hart, a former Fulton Count proecutor, and former Fulton Judge Thelma Watt Cumming Moore aked the AG for an opinion on the matter. Their letter cited court opinion from Georgia and elewhere and opinion from earlier attorne general arguing that even potential con ict etween two jo put a tate o cial in an “incompatile” poition. Hart, an ardent Aram upporter, noted that there i nothing to keep a ecretar of tate from organizing hi own campaign for re-election. he acknowledged that “there i ome amiguit” in the law “that might require ome legilative action.” The AG’ repone came Thurda in a letter from enior aitant attorne general Reecca Mick (http://image.law.com/contri/content/upload/document/404/20749/ltrattgeneral2.pdf), who wrote: “The miion of the Law Department i to provide legal repreentation to tate government and it man department, agencie, oard, and commiion. Thi o ce i not authorized to provide legal advice, reearch or opinion to private citizen. We would like to note, however, that over the pat twent ear a numer of ecretarie of tate have continued to hold o ce and dicharge their dutie a ecretar of tate when on the allot in Georgia, whether running for Governor (Lewi Mae, 1998; Cath Cox, 2006) or for ecretar of tate (Cath Cox, 2002; rian Kemp, 2010 and 2014).” https://www.law.com/dailyreportonline/2018/10/11/governors-race-poses-conflict-question-for-secretaries-of-state/?printer-friendly/ 3/4 Case Document 2-2 Filed 11/06/18 Page 37 of 102 EXHIBIT 8 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 38 of 102 Georgia purged an estimated 107,000 people largely for not voting, an APM Reports investigation shows apmreports.org/story/2018/10/19/georgia-voter-purge Angela Caputo, Geoff Hing, and Johnny Kauffman This story was reported in collaboration with WABE in Atlanta, KCUR in Kansas City and Reveal from the Center for Investigative Reporting. Even by Georgia standards, the voter purge of late July 2017 was remarkable. In a single day, more than half a million people — 8 percent of Georgia's registered voters — were cut from the voter rolls. Republican Secretary of State Brian Kemp, an avid supporter of President Donald Trump who has described himself as a "politically incorrect conservative," oversaw the removals eight months after he'd declared himself a candidate for governor. The purge was noteworthy for another reason: For an estimated 107,000 of those people, their removal from the voter rolls was triggered not because they moved or died or went to prison, but rather because they had decided not to vote in prior elections, according to an APM Reports analysis. Many of those previously registered voters may not even realize they've been dropped from the rolls. If they show up at the polls on Nov. 6 to vote in the heated Georgia governor's race, they won't be allowed to cast a ballot. 1/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 39 of 102 Kemp's opponent, Democrat Stacey Abrams, is vying to become the first African-American woman in U.S. history to serve as a governor. The state has undergone a dramatic influx of African Americans and Latinos whose votes could challenge Republican dominance, and her campaign is trying to turn out people of color, who are more likely to be infrequent voters. If the race is close, the July 2017 purge could affect the outcome. The APM Reports analysis is the first estimate of the so-called "use it or lose it" policy's possible impact in Georgia. While 107,000 people may seem like a small number in a state with a population of 10.4 million, elections have been decided by far smaller margins. For instance, the 2016 presidential election was decided in favor of Donald Trump by a total of 77,744 votes in Wisconsin, Michigan and Pennsylvania. Using someone's decision not to vote as the trigger to remove that person from the rolls is a highly controversial — yet legal — tactic that voting rights advocates say is a potential tool for voter suppression. And its use is on the rise. APM Reports found that at least nine states — most of them with Republican leadership, including the key battlegrounds of Georgia and Ohio — have purged an estimated hundreds of thousands of people from the rolls for infrequent voting since the 2014 general election. States with these policies are removing voters at some of the highest rates in the nation, no matter the reason. Voter purges are not necessarily controversial or unusual. Hundreds of thousands of Americans who have moved, died, or gone to prison get kicked off voter lists across the country every year. In fact, federal law requires states to cull people from rolls who are no longer eligible to vote. But in the states that employ "use it or lose it" policies, U.S. citizens in good standing who haven't moved, committed a crime or otherwise jeopardized their right to vote, can trigger the removal process because they didn't show up at the polls. Election officials say that they're trying to keep voter registration lists accurate and prevent voter fraud. They consider it safe to assume that people who don't vote in multiple elections, or return confirmation notices, have moved. "We're following the process," Kemp said in a recent interview with public radio station WABE in Atlanta, arguing his office had not only complied with state and federal law but was registering more voters than ever. "I'm very proud of my record on making sure we have secure, accessible and fair elections." But voting rights advocates fear that "use it or lose it" purges could be used as a voter suppression tactic — along with voter ID requirements, gerrymandering, polling place changes or closures, and registration obstacles — that often help conservative candidates, because infrequent voters tend to be younger, poorer and people of color who are more likely to favor Democrats. For instance, the APM Reports investigation found that such purges in Ohio disproportionately affected urban, Democratic-leaning counties. 2/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 40 of 102 Advocates predict that more states could soon adopt similar policies following a controversial 5-4 decision by the U.S. Supreme Court in June that "use it or lose it" policies don't violate federal law. Justin Levitt, a former Justice Department lawyer in the Obama administration turned professor at Loyola Law School in Los Angeles, said a problem with the policy is that infrequent voting doesn't necessarily prove that a person isn't eligible. "So, I sat out a couple elections. I didn't respond to a postcard and sat out a couple of elections," he said. "It doesn't say I've moved. It doesn't say I've died. It doesn't say in any way that I've given up my right." 'Use it or lose it' states APM Reports found at least nine states that have "use it or lose it" policies, meaning they use a person's decision not to vote in at least one election as a trigger for removing that person from the rolls even though he or she had been registered. Voting rights advocates say that this approach doesn't provide any evidence that people have actually moved and could disenfranchise voters who would otherwise be eligible. The nine states are Alaska, Georgia, Montana, Ohio, Pennsylvania, South Dakota, Oklahoma, Oregon and West Virginia. Of those, Georgia and Ohio are the places where the policy has been most contentious. In June 2018, the U.S. Supreme Court ruled that "use it or lose it" purges didn't violate federal law. *Estimates based on state and federal removal and registration data and migration estimates from the U.S. Census Bureau American Community Survey. **Georgia officials have pursued 19 election fraud cases in the past 20 years; seven of those cases resulted in a criminal conviction, according to the Heritage Foundation, a conservative think tank. Additional reporting by Kelly Busche. A state with a troubled past One of the first people to wonder about the recent impact of "use it or lose it" policies in Georgia was an Atlanta-based attorney named Emmet Bondurant. It was 2012, and he was reading an article in the Atlanta Journal Constitution about a decline in the state's voter registration. How, he wondered, could a state growing as fast as Georgia have shrinking rolls? "We haven't had a black plague. We haven't had more than the usual number of people convicted of crimes. We haven't had a major recession like the Dust Bowl that drove the Okies to California," Bondurant said on a recent afternoon from the corner office of his corporate law firm, which, on a clear day, offers a view of the distant Appalachian Mountains. "The population in the state has increased and grown above the national average," he recalled thinking. "And yet the number of registered voters [was] going down." 3/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 41 of 102 Emmet BondurantDustin Chambers for APM Reports Bondurant, 81, is a successful corporate attorney and somewhat of a voting rights legend in Georgia. He got his first big break in 1963 when, at 26, he argued and won a case before the Supreme Court that challenged the undue political influence of sparsely populated, rural areas at the expense of larger more urban ones. It was a significant victory for African-American voting rights in the state; by granting rural areas more influence, the state had prolonged white control. The next year, he was part of a legal team that scored another victory in the high court over similar voter suppression in Georgia. The cases were part of a string of victories for voting rights advocates, culminating in passage of the Voting Rights Act in 1965 that outlawed barriers to voting implemented by the Jim Crow South, including literacy tests in Georgia. Bondurant has continued to do pro-bono voting and other civil-rights cases in the six decades since. As Bondurant saw the voter rolls shrinking, it dawned on him that the "use it or lose it" policy could be depressing registration numbers. And he wanted to do something about it. Georgia adopted the "use it or lose it" law in the early 1990s — under Democratic leadership — following the adoption of the National Voter Registration Act (NVRA), which was passed in the first year of the Clinton administration to boost voter registration and participation. It's often called the "Motor Voter" law because, among many other provisions, it allowed states to register people at the department of motor vehicles. The NVRA also laid out a process for states to ensure that voter lists are accurate by purging voters who'd moved, died or gone to prison. 4/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 42 of 102 At the time, the Justice Department initially objected to Georgia's "use it or lose it" law. In 1994, Deval Patrick, then-assistant attorney general of the Justice Department's civil rights section who would later be elected governor of Massachusetts as a Democrat, warned Georgia officials in a letter that the new law was "directly contrary to the language and purpose of the NVRA, and is likely to have a disproportionate adverse effect on minority voters in the state." Georgia's "use it or lose it" law remained in place. In years to come, a growing number of Georgians would find themselves purged from the voter rolls because of it. This rise in purges had alarmed Bondurant, and the increase had coincided with the tenure of Georgia's new secretary of state — Brian Kemp. Georgia gubernatorial candidates Stacey Abrams (a Democrat) and Brian Kemp (a Republican).AP Kemp's purges Kemp, a former state senator, took over as Georgia's top election official in January 2010 when then-Gov. Sonny Perdue appointed him to an unexpired term. He's since won reelection twice. Kemp took office at a time when voter purges across the country began to grow. An APM Reports analysis of federal data shows that voter removals nationwide increased 11 percent between 2010 and 2016, by more than 1.6 million. The 2008 election marked a turning point not just because Americans elected the first-ever African-American president, but also because Barack Obama performed exceptionally well in states that Republicans had dominated for at least the previous decade. Thanks in part to a huge turnout by African-Americans, Obama won Virginia, North Carolina, and Indiana and got within 5 percentage points in Georgia (George W. Bush had won the state by 17 points in 2004). In Georgia, active voter registration grew by 18 percent in 2008 compared with 2006. An additional 362,000 African Americans were added to the voter rolls that cycle, a 30 percent increase. There was also a 69 percent surge in Latino registrations and a 44 percent increase 5/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 43 of 102 in the number of Asians added to the voter rolls between 2006 and 2008. But after Obama was elected, participation lagged, and not just in Georgia. More than 100 million Americans of voting age didn't cast ballots in 2016. At the same time, voter list removals across the country began to rise, especially in some battleground states where Obama had performed well in 2008, according to an APM Reports analysis. But few states have increased voter purges more than Georgia. In the 2010 election cycle, when Kemp first took office, nearly 379,000 people were removed in counties across the state, according to data the state reported to the U.S. Election Assistance Commission. By 2014, the number of voters canceled increased by more than 35 percent, to 517,000, according to state data. In all, counties across Georgia reported removing more than 1.6 million from the rolls in the past decade. Some of these registrations (11 percent in 2017) were canceled because the voter died or was convicted of a felony. RELATED In the South, purging former felons from voting rolls In Georgia, a registered voter can be flagged for a purge if he or she doesn't vote or make contact with election officials for three years. Election officials then send a notice in the mail to inform the person that he or she may be purged. If the person doesn't respond, contact election officials or vote in two subsequent elections, then he or she will be removed. It's a seven-year process. So people who voted in the high-turnout 2008 election but skipped 2010 through 2016 were dumped in 2017. That may explain why the July 2017 purge was the biggest one yet under Kemp. More than 591,000 Georgians had their voter registrations canceled that year, according to the secretary of state's office. State records show that 560,000 voter registrations were canceled for inactivity. Not all were removed for not voting, however. The APM Reports investigation found that the state is broadly applying the term inactivity to remove voters. It includes people who have moved and who even voting rights advocates would agree should be purged from the lists. Georgia maintains no clear data on how many people have been purged under "use it or lose it." So APM Reports analyzed state voter records to determine roughly how many people were purged because they moved and how many were purged because they hadn't voted. By using estimates from the U.S. Census Bureau's American Community Survey of how many Georgians moved, APM Reports calculated that about 107,000 people — or about 18 percent of all voters removed — were purged in 2017 for reasons that the data suggested couldn't be attributed to moving. The finding is the first public estimate of how many people in Georgia — which, along with Ohio, is one of the most prolific "use it or lose it" states — were purged for failure to vote and respond to a notice. 6/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 44 of 102 Kemp, who, like many conservatives, prefers to call the process "voter list maintenance," defended his office's use of "use it or lose it" as an effective way of protecting elections from voter fraud. "So you think we should just leave people alone in perpetuity? I mean, what happens if they move to another state? People all the time move to another state, and they don't tell us and end up getting on the voter rolls in two different states. We've had the same person voting twice in two different states in presidential elections. So there's a reason you keep the voter rolls current and up to date," Kemp said. "We don't have near the problems other states have with with voter fraud, I believe, but we do have it." Georgia officials have pursued 19 election fraud cases in the past two decades; seven of those cases resulted in a criminal conviction, according to the Heritage Foundation, a conservative think tank. Kemp's critics argue that there's little evidence that voter fraud is a serious threat to elections and that the true aim is to make it more difficult for minority voters to cast a ballot. There's indication that purges have disproportionately affected minority voters in some places. Analyzing all the Georgians purged in 2017, APM Reports found that in six of every 10 counties across Georgia, black voters were canceled at a higher rate than their white peers for inactivity. And in more than a quarter of those counties black voters were removed at a rate 1.25 times their white peers. Purges are just one area in which critics allege that Kemp has tried to suppress the vote, and they've repeatedly sued his office for a range of infractions. The latest lawsuit was filed just last week by the Lawyers' Committee for Civil Rights Under Law, the state chapter of the NAACP and other civic groups alleging that Kemp's office has slow-walked 53,000 new voter registration applications, a majority submitted by people of color, because of an exact-match policy that was struck down by the courts only to be reinstated by state lawmakers. People on the list can still vote if they show up at a polling place with their photo ID, but the civil rights groups worry they'll be confused and discouraged. In fact, more federal voting rights lawsuits have been filed against officials in Georgia than any other state except Texas since 2011, an APM review of court records found. Multiple suits have accused Kemp of wrongly purging voters and creating obstacles to registration efforts. Of the most common voter suppression tactics studied this year by the U.S. Commission on Civil Rights, a federal agency — voter ID laws, proof of citizenship requirements, purges, cuts in early voting, and polling places closures — Georgia is the only state once under federal oversight to have adopted all five. "Racial discrimination in voting has been a particularly pernicious and enduring American problem," the commission wrote in its recently released report. The commission concluded that voter purges, combined with other policies, present ongoing barriers to equal access for voters and "have a disparate impact on voters of color and poor citizens." By 2016, Bondurant had had enough and decided to file a lawsuit with Common Cause Georgia, a nonprofit watchdog group, and the state chapter of the NAACP, challenging the legality of "use it or lose it." 7/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 45 of 102 In the lawsuit in federal court, he argued that using failure to vote as the trigger for purging people from the rolls violated federal law. Meanwhile Kemp's office counters that people have been notified and would remain active if they would take the time to respond to the notice sent out by election officials. Bondurant suspects that most people treat the pre-purge notices as "junk mail" and throw them away. "It's a First Amendment issue," Bondurant said. "You have a right to speak out on something, but you also have a right not to speak out on something. And voting can be thought of in the same way." Is it legal? Around the same time that Bondurant filed his suit, voting rights advocates in Ohio were engaged in a similar fight. In 2016, Larry Harmon, a 59-year-old U.S. Navy veteran, joined a lawsuit against Ohio Secretary of State Jon Husted after being purged for infrequent voting. "You know, I pay my taxes every year, and I pay my property taxes, and I register my car. So the state had to know I'm still a voter," Harmon told PBS's "NewsHour." "I'm a veteran, my father's a veteran, my grandfather's a veteran. Now they aren't giving me my right to vote, the most fundamental right I have? I just can't believe it." Ohio Secretary of State Jon HustedJohn Minchillo AP Harmon was born and raised in Ohio and had lived at the same address for approximately 15 years. When he tried to vote in the November 2015 general election, he was told that his name did not appear in the poll book. Harmon hadn't voted in either 2009 or 2010 and was 8/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 46 of 102 "disillusioned with the presidential candidates" in 2012 so he sat that one out too. Under Ohio's version of "use it or lose it" a registered voter can be removed after six years of inactivity, and in 2015, Harmon was removed from the Portage County voter registration rolls because he had not voted since 2008, court records show. Husted, who is also running for lieutenant governor this year, defended the practice, arguing that his office was simply following the law and maintaining accurate voter rolls. At issue in the court battle was the interpretation of the NVRA, which has been politically contentious since its inception. The initial bill, which set out to make voter registration more accessible through state offices and public outreach efforts, was blocked in the Senate by Republicans who feared expanding registration would lead to voter fraud. Among the vocal opponents was now-Senate Majority Leader Mitch McConnell, who scoffed at helping "political couch potatoes." The bill was reintroduced in 1993 and signed into law by newly elected President Bill Clinton. While the law requires states to keep their voter lists up-to-date, it explicitly outlaws purging people for not voting. But lawyers for Husted and Ohio officials contended that their "use it or lose it" approach is legal because it doesn't purge people solely for not voting. Registered voters must skip elections and fail to respond to a notice and not make contact with elections officials in any other way. The Sixth Circuit U.S. Court of Appeals rejected that argument and struck down the Ohio "use it or lose it" policy in September 2016. In their ruling, the Sixth Circuit judges, which included one appointed by George W. Bush, wrote that even though not voting was just one part of the purge process, under Ohio's "use it or lose it" approach, it was the key factor. Ohio officials appealed to the Supreme Court. The case became the latest flash point in the ongoing partisan fight over voter suppression and voter fraud. Georgia and 16 other states — all of them controlled by Republicans or with Republican attorneys general — filed briefs supporting the Ohio policy, as did conservative legal groups such as Judicial Watch and the American Civil Rights Union. On the other side, 12 states and the District of Columbia — all Democratically controlled or with Democratic attorneys general — along with left-leaning groups such as Common Cause and the ACLU filed briefs opposing Ohio's "use it or lose it" policy. Bondurant, the Atlanta lawyer, was watching the Husted case closely. The lawsuit he'd filed in Georgia was on hold pending a decision by the high court. The partisan divide in the Ohio case, he said, only confirmed what he'd suspected all along. "Everybody on both sides of the political aisle sees that this benefits Republican voters." 9/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 47 of 102 In their amicus brief to the Supreme Court, the dozen Democratic states argued that using failure to vote as a trigger for purges was a terribly inaccurate way to maintain the rolls because it doesn't offer any evidence that people have actually moved. Only about 12 percent of Americans relocate in any given year, the Democratic AGs wrote in their brief, but the percentage of Americans who don't vote has run as high as 60 percent in recent years. But the Supreme Court ultimately ruled that Ohio's approach comported with federal law. Writing for the majority, Justice Samuel Alito wrote that "use it or lose it" may or may not be good policy but it didn't violate federal law. The ruling scuttled Bondurant's case as well and ensured that "use it or lose it" would be in place in Georgia for the foreseeable future. Bondurant thinks that the case could get new life if there's evidence that people of color are disproportionately affected by the purges in violation of the Voting Rights Act. "But until that research is done," he said, "we're stuck with secretaries of state like Kemp who, with great enthusiasm and vengeance, want to purge as many people as possible." The exact number of people removed under Ohio's "use it or lose it" law was never revealed through the lawsuit. In a dissenting opinion, Justice Stephen Breyer took a stab at the math and raised questions about why Ohio's removal rates were so high when people didn't seem to be leaving the state in droves. "[T]he streets of Ohio's cities are not filled with moving vans; nor has Cleveland become the Nation's residential moving companies' headquarters," he wrote. By comparing Ohio purge data with U.S. Census data, as we did with Georgia, APM Reports calculated an estimate of people whose removal was triggered by not voting. According to this analysis, 50,610 registered voters in Ohio could have been removed by the end of the 2016 general election under the "use it or lose it" policy. In Ohio, voters were purged most in Democratic-leaning counties, which are larger and more urban. Of the five counties with the highest overall removal rates, four went for Hillary Clinton in the 2016 presidential election, an APM Reports analysis of data provided by the Ohio secretary of state's office shows. Clinton won just eight of the state's 88 counties. In four of them — Cuyahoga, Athens, Franklin and Hamilton — more than a million people were removed overall from the voter list between November 2014 and February of 2018, state records show. Voters in those four counties accounted for 43 percent of all removals statewide despite making up just 30 percent of the state's registered voters in 2016. Trump won the state by nearly 447,000 votes. After the high court's ruling, Husted told reporters that he hopes Ohio will "serve as a model for other states to use." And voting rights advocates fear that more red states will heed his advice. 10/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 48 of 102 Colquitt County Courthouse in Moultrie, Georgia. Dustin Chambers for APM Reports In a small Georgia town, apathy and disillusionment For the moment, the biggest impact from "use it or lose it" policies may be seen in Georgia, where the Kemp-Abrams race has drawn national media attention. With Kemp and Abrams neck-and-neck in polls, the election will likely be decided by who turns out to vote. While Kemp has a record of shedding voters, Abrams is open about her strategy: register as many people of color as possible, and inspire them to turn out in unprecedented numbers. The two have clashed repeatedly over those registration efforts. The nonprofit New Georgia Project, launched by Abrams to get more voters involved, became the subject of one of the voter fraud investigations that Kemp's office has launched in recent years. No evidence of election fraud has been substantiated to date. In short, Abrams is trying to replicate what happened around the country in 2008 when Obama was running for president. "There's a pathway for Stacey Abrams to win," said Republican strategist Brian Robinson, who's done work for congressmen in Georgia and the state's current governor, and advised one of Kemp's primary opponents. "Republicans who think that there is not are delusional and they are a danger because it will lead to complacency." Democrats are fighting complacency too, especially in the more remote corners of the state. In rural Colquitt County, people like Isabella Brooks, the president of the Colquitt chapter of the NAACP, is trying to motivate voters to turn out for Abrams. It's hasn't been easy. 11/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 49 of 102 Isabella Brooks, head of the Colquitt County NAACP, at her home in Moultrie, Georgia. Dustin Chambers for APM Reports Colquitt is a rural area in southwest Georgia, about 45 minutes from the Florida state line, where most people live clustered in a handful of towns divided by large swaths of cotton fields and livestock farms that have supported the local economy for more than two centuries. It has low voter turnout, especially among African-Americans, and perhaps relatedly, one of the highest purge rates in the state. On a recent evening as dusk set in, Brooks, her sister and some friends packed into her Ford Fusion to do voter outreach in Moultrie, the county seat. They drove along potholed streets, past ramshackle homes on the black side of town, before crossing into the whiter area where the homes are freshly painted and the lawns are lush and wide. As a child, Brooks recalled, her mother was subjected to a literacy test at a local polling place. "She had to read a long passage," she said, stretching her hands inches apart. "Then she could vote." It's a reminder of how voting shouldn't be taken for granted. In the white part of town, the Kemp yard signs outnumber the ones for Abrams. But there are a few Democrats to be found. The canvassers, all elderly black women, knocked on doors of registered voters provided by the Democratic Party. They crunched through fallen leaves, leaving fliers on doorsteps. Around 8 p.m., with the sun setting, they tried one last house, where they could see someone inside watching "Jeopardy!" Nobody came to the door, and a 12/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 50 of 102 canvasser turned around and walked back toward the road, frustrated. It's a running joke here that most of the local white Democrats are in the closet these days, particularly after Obama was elected. Levitt, the former Justice Department attorney, says that low voter turnout isn't good for either party — or the country. And having motivated voters turned away at the polls could only dampen enthusiasm, activists fear. A low turnout could also trigger hundreds of new purges in Colquitt alone next year; about a third of inactive voters in the county are queued up for cancellation before the next presidential election because they haven't voted in years, according to state data. If "use it or lose it" states like Georgia adopted same-day registration, experts say, motivated, eligible voters who were purged would have a protection built in so they could still cast ballots. Only one of the nine "use it or lose it" states currently has same-day registration. Bills to add it in Georgia have been introduced a dozen times since 2011, but they all failed to pass the Republican-controlled state House. The uncertainty of Election Day registration — and the possibility of a wave turnout — makes some Republican lawmakers uneasy, because, as Robinson put it: "Weird things happen where states elect some oddball. It leads to irrational voting." But same-day registration would help people like Kathlean Ponder, a 66-year-old AfricanAmerican resident of Colquitt County who was removed from the rolls in the 2017 purge. In 2008, she registered as part of the Obama wave. "I was feeling good about it," she said. "I had in my mind to vote for him, and that's what I did." She hasn't cast a ballot or connected with election officials since. She doesn't recall ever getting a notice that her registration was being canceled. She isn't a regular voter, but she's thinking about turning out in November to support Abrams. Her nephew is Cornelius Ponder III, a pastor and Moultrie city councilman. He said that too many people in his now majority African American hometown have grown so disillusioned with government that they've given up on voting, people like his aunt. He fears that any additional obstacles will only reinforce that the system is designed to discourage their vote. "A lot of our race is basically wondering is it really worth it," he said. "I don't believe that this generation believes that their votes really matter." 13/14 Case 1:18-cv-05121-WMR Document 2-2 Filed 11/06/18 Page 51 of 102 Pastor Cornelius Ponder III at his church office in Moultrie, Georgia. Dustin Chambers for APM Reports Ponder has been sharing his congregation's community center with Brooks and the other canvassers trying to engage with voters, but people like his own aunt have been overlooked by canvassers because they are no longer on the list of active voters. Even Ponder didn't know that his own aunt had been purged from the voter rolls. "I think we need to get down to the bottom of it," Ponder said of his aunt's purge, "because if it happened to her, I promise you, she's not the only one." Johnny Kauffman is a reporter with the public radio station WABE in Atlanta. Peggy Lowe with KCUR contributed reporting to this story. Support for this project was provided by the Corporation for Public Broadcasting. Photo at top: David Goldman AP. Angela Caputo acaputo@apmreports.org @AngelaTCR Geoff Hing ghing@apmreports.org @geoffhing Don't miss our next investigation Enter your email below to receive notifications of new stories. 14/14 Case Document 2-2 Filed 11/06/18 Page 52 of 102 EXHIBIT 9 11/6/2018 Judge orders Ga. officials to stop tossing 2-2 absenteeFiled ballots over signatures - The Washington Post102 Case 1:18-cv-05121-WMR Document 11/06/18 Page 53 of The Washington Post Politics Judge orders Ga. officials to stop tossing absentee ballots over signatures By Amy Gardner October 24 A federal judge on Wednesday ordered Georgia election officials to stop summarily tossing absentee ballots because of mismatched signatures, delivering a crucial win to voting-rights advocates — and to Democratic gubernatorial candidate Stacey Abrams — less than two weeks before Election Day. The ruling resulted from two lawsuits filed earlier this month after election officials in a single Atlanta suburb, Gwinnett County, rejected hundreds of absentee ballots with signature discrepancies, missing addresses or incorrect birth years. The plaintiffs, including the ACLU, the Lawyers’ Committee for Civil Rights Under Law and the Coalition for Good Governance, argued that allowing nonexpert election officials to judge the validity of signatures without giving voters the chance to contest the decisions amounted to unconstitutional voter suppression. U.S. District Judge Leigh Martin May agreed, and she ordered Secretary of State Brian Kemp to instruct all local election officials to stop rejecting absentee ballots over the mismatched signatures. Instead, such ballots will be marked “provisional,” and the voter will be given the right to appeal the decision or confirm his or her identity. Kemp and the Gwinnett County election board were named as defendants in the suit. The issue had prompted a fiery outcry from Abrams, who accused Kemp, also her Republican opponent, of trying to suppress the minority vote. Gwinnett County, the state’s second-largest county, has undergone a demographic transformation in recent years, moving from 67 percent white in 2000 to 62 percent nonwhite last year. Democrats have sought to mobilize the new residents in support of their efforts to turn the state blue. Voting rights advocates noted with suspicion that Gwinnett accounted for more than a third of all rejected absentee ballots across Georgia. “This ruling protects the people of Georgia from those who seek to undermine their right to vote,” said Sophia Lakin, a staff attorney with the ACLU’s Voting Rights Project. “It’s a huge victory, especially with the midterms just days away.” https://www.washingtonpost.com/politics/judge-orders-ga-officials-to-stop-tossing-absentee-ballots-over-signatures/2018/10/24/9c5a5b06-d7bd-11e8-a10f-b51546b1… 1/4 11/6/2018 Judge orders Ga. officials to stop tossing 2-2 absenteeFiled ballots over signatures - The Washington Post102 Case 1:18-cv-05121-WMR Document 11/06/18 Page 54 of The president of the Lawyers’ Committee, Kristen Clarke, also weighed in with a promise to challenge “other 11th hour attempts to disenfranchise voters.” A spokeswoman for Kemp declined to comment except to say that the injunction is not final. A spokesman for Gwinnett County said only that officials there were reviewing the decision. The ACLU suit, filed on behalf of the Georgia Muslim Voter Project and Asian Americans Advancing Justice-Atlanta, and the Coalition for Good Governance suit, filed on behalf of five individual voters, are among several legal actions pending in Georgia, where Kemp and Abrams have traded accusations of encouraging voter fraud and voter suppression, respectively. Abrams, a former state lawmaker who is black, founded the New Georgia Project with the goal of boosting voter registration among African Americans. Kemp, who is white, has promoted some of the most restrictive voting laws in the nation, including one new law known as “exact match” that requires the information provided on voter registration applications to exactly match existing driver and Social Security records. He also accused the New Georgia Project of improper registration practices, but his investigation found no wrongdoing. Kemp has also accused Abrams of encouraging undocumented immigrants to vote, which she has denied. There is no evidence of widespread voter fraud in Georgia or elsewhere. The “exact match” law has been blamed for the suspension of more than 53,000 registration applications in Georgia this year. Kemp has also been accused of purging hundreds of thousands of active voters from the state’s rolls. He has argued that his office has properly maintained the state’s voting rolls and that the “exact match” law is an appropriate safeguard against voter fraud. https://www.washingtonpost.com/politics/judge-orders-ga-officials-to-stop-tossing-absentee-ballots-over-signatures/2018/10/24/9c5a5b06-d7bd-11e8-a10f-b51546b1… 2/4 Case Document 2-2 Filed 11/06/18 Page 55 of 102 EXHIBIT 10 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 56 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed 63° BREAKING NEWS Machines down, hundreds wait at one Gwinnett voting precinct Georgia’s strict laws lead to large purge of voters Efforts put voters at risk of disenfranchisement, critics say By Alan Judd ­ The Atlanta Journal­Constitution ... People lined up for early voting in Gwinnett County. Georgia purged more than 600,000 people from voter rolls in 2017. HYOSUB SHIN / HSHIN@AJC.COM Posted: 6:00 a.m. Saturday, October 27, 2018 One evening in July 2017, computers at the Georgia Secretary of State’s office were set to a monumental task. Through the night, they would sift through a list of 6.6 million registered voters, https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 1/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 57 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed seeking out those who didn’t belong. By dawn, more than 500,000 people were registered no more. This purge, according to election­law experts, may represent the largest mass disenfranchisement in U.S. history. It also underscores how Georgia – where people once died for the right to vote – has systematically enacted some of the strictest voting laws in the nation over the past two decades. While officials say the laws are aimed at preventing election fraud, the U.S. Commission on Civil Rights says no state has done more than Georgia in recent years to make voting difficult, especially for minorities. Related: How voting issues became a big issue in Georgia’s governor race Related: Georgia stalls voter registrations, from Jesus to new U.S. citizens Related How voting issues became a big issue in Georgia’s governor race Georgia 2018: Where the candidates for governor stand on the issues Ballot initiatives for Georgia’s Nov. 6 election How Exact Match 2.0 happened -- but the real question is why On the trail for governor: Brian Kemp On the trail for governor: Stacey Abrams https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 2/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 58 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed Inside the Georgia governor election 2018 These efforts went relatively unnoticed before this year’s campaign for governor. That has changed amid what appears to be a historically tight race and, perhaps more important, claims that Republicans are engaging in voter suppression. The focus on who gets to vote may have been inevitable in this election. Republican candidate Brian Kemp, the secretary of state since 2010, has avidly enforced and advocated for strict voting laws. Democrat Stacey Abrams, a former state legislator, is a long­time voting­rights activist. She also could become the first African­American woman elected governor of any state. The points of conflict are many: An “exact match” law that put 50,000 would­be voters into electoral purgatory over even slight inconsistencies in their registration applications. The closing of voting precincts in areas with substantial African­American populations. The diversion of a busload of black senior citizens headed to the polls for early voting. Nothing, however, generated more controversy than Georgia’s massive purge, authorized by a 20­ year­old law whose advocates distilled the right to vote to a pithy phrase: Use it or lose it. Since 2012, according to federal and state data, Georgia has removed about 1.4 million people from the voting rolls. Some died. Some moved away. Some lost their voting rights after being convicted of felonies. But most simply stopped participating in elections, an analysis of canceled registrations shows. They didn’t use their right to vote, so they lost it. Kemp, whose job puts him in charge of the election in which he is running, and other officials say they are following the law. Both federal and state laws require voters lists to be accurate and up to date to help maintain election integrity. Officials say saboteurs could more easily assume the identities of inactive voters than of those who cast ballots in virtually every election. But this year, the convergence of Georgia’s numerous efforts to carefully regulate voting is straining the state’s election system, said Jonathan Brater, a lawyer with the Brennan Center for Justice at New York University. https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 3/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 59 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed “The combined effect is to put voters – especially racial minorities – at risk of disenfranchisement,” Brater wrote in a blog post last week. The post’s title: “What’s the Matter with Georgia?” In­person early voting in Georgia ends Nov. 2. ‘Gateway to voting’ In 1965, before the Voting Rights Act took effect, 27.4 percent of eligible African­Americans and other minorities were registered to vote in Georgia. Three years later, that rate had almost doubled, to 52.6 percent. But in a recent report, the Commission on Civil Rights, a bipartisan federal panel, harshly criticized Georgia’s more recent treatment of minority voters. The commission listed five restrictions it considers particularly onerous: requiring government­ issued photo identification to cast a ballot; requiring documentary proof of citizenship, such as a birth certificate or a passport, to register; aggressive purges of inactive voters; reductions in early voting; and moving or closing polling places. Georgia is the only state that imposed all five restrictions, the commission found. The proof of citizenship law was never implemented, however. The commission’s criticism came as many states were busy revising laws that regulate voter registration – “the gateway to voting,” as Dylan Lynch of the National Conference of State https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 4/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 60 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed Legislatures put it. Twenty­three states passed voter registration laws this year, compared to six in 2014. Many of those laws seek to make registration easier or to keep more voters eligible to cast ballots. In California, for example, lawmakers instructed election officials to communicate with newly registered voters by text or email to let them know their applications are being processed. Delaware legislators ordered that the state find a “non­discriminatory” method for identifying registered voters who may have become ineligible by moving out of state. They said the current system, the same one that Georgia and 35 other states use, relies on a change­of­address database that contains too much erroneous information. In many respects, the way Georgia maintains its voter list sits firmly in the mainstream. It is among 44 states that routinely flag inactive voters, according to the National Association of Secretaries of State. It is one of 38 states that restrict voting by people judged mentally incompetent. But in canceling the registration of people who stop participating in elections, Georgia is a definite outlier. Since 1997, it has been one of nine states that purge voters for a lack of contact with the election system. Voting­rights advocates say it is unfair to take away a citizen’s right to vote. But the U.S. Supreme Court, ruling in an Ohio case, recently upheld the practice. Regardless, said Candice Broce, a spokeswoman for Kemp’s office, “it’s not just the lack of voting” that leads to cancellation, “it’s the lack of contact.” The purge The night of July 28 last year, the secretary of state’s computers hunted for voters who were registered but far from engaged. Those voters had gone into inactive status after three years in which they had no contact with the election system. They had not updated their registrations with new addresses during that time. They had ignored mailings from their county election offices. They hadn’t signed petitions seeking to get a candidate or an issue on the ballot. And they hadn’t voted. At the end of that three years, state officials mailed these voters notices that gave them 30 days to confirm that they still wanted to be on the voting rolls. Regardless of whether they wanted to stay https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 5/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 61 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed registered, they then failed to vote in either of the next two general elections. The 1997 law – passed when Democrats controlled the Legislature and the governor’s office, as Kemp’s office points out – instructed election officials to clean up voter lists every odd­numbered year, between statewide elections. The Secretary of State’s office did not carry out the required maintenance in 2015 because of a legal challenge, Broce, the spokeswoman, said. As a result, she said, the number of cancellations spiked in 2017. The process can take as long as seven years. But for many of the people purged in 2017, the three years without contact ended in September 2014, when that year’s early voting period concluded. Then they didn’t vote in in that year’s general election two months later, or in 2016. They went from disengaged to disenfranchised in six years. Kemp’s office has described the process as “automated.” But Broce said three officials from the office oversee the cancellations to guard against widescale errors. Kemp is not one of them. “They all have to review and sign off on the identified list of people,” Broce said. The July 2017 list identified 534,119 voters who were no longer eligible; 80 percent had not voted either in 2014 or 2016 and had had no other contact with the election system in years. Throughout 2017, the state purged 665,791 people, or about 10 percent of all registered voters. The law does not require the state to notify them of the cancellations. More than 130,000 of those purged last year had registered to vote in 2008, the year of Barrack Obama’s historic presidential candidacy. Nearly half were minorities. Officials suspect many voted for Obama that year – and never returned to the polls or made other contact with the election system. What no one knows is whether some might have been similarly motivated to vote for the first black nominee for governor in Georgia. If they go the polls this year, they’ll be turned away. The right not to vote In 2016, Common Cause and the NAACP challenged Georgia’s method of purging voters, arguing in a lawsuit that it violated a First Amendment guarantee – the right not to vote. Just like voting, the suit claimed, withholding a vote “also constitutes political speech.” https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 6/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 62 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed “The First Amendment protects not only the right of a qualified citizen to vote,” the suit said. “It also protects the right of a citizen not to vote.” In a hearing in federal court, a lawyer for the state argued that “there is no established constitutional right to vote. But, she said, “any registered voter is free not to vote in any election they so desire.” A federal judge dismissed the suit, but an appeals court reinstated it while the Supreme Court considered the Ohio case. After the high court upheld Ohio’s voter­list procedures, the suit was dropped. So the purges stand, subject to rulings in recently filed lawsuits. How many of the hundreds of thousands of purged voters actually want to be registered is not clear. The Atlanta Journal­Constitution tried last week to get in touch with 50 people randomly chosen from the list of 2017’s purged voters. Twenty clearly would be ineligible to vote in Georgia: 17 moved out of state, two were convicted of felonies and one had died. Most of the rest left a trail of address changes and disconnected telephone numbers. For some, voting clearly is not a priority. Anthony Ervin, 52, of Decatur registered in 2008 but hasn’t voted since. He showed no surprise at the news that he had been purged from the rolls. “I don’t know nothing about it,” he said. Jenny Arter, 55, of Kingsland registered in 2010 – and never once cast a ballot. Her reasons reflect both a deep cynicism and a distinct political viewpoint. When Obama was running for president, she said, “I didn’t care.” When Donald Trump ran, “I didn’t care.” “What is the point of me voting?” Arter said, her voice rising. “They’re going to elect whoever they’re going to elect. It doesn’t matter what the people want.” She lowered her voice before adding, “That’s just the way I feel.” https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 7/9 11/6/2018 voters purge may be largest11/06/18 in U.S. history Page 63 of 102 Case 1:18-cv-05121-WMR Georgia Document 2-2 Filed Georgia’s purge In 2017, Georgia election officials, overseen by Secretary of State Brian Kemp, now the Republican candidate for governor, removed 665,791 people from voter rolls. Here are the major reasons for the purges: No voting or other contact with election system in two campaign cycles: 534,517. Deceased: 64,446 Duplicate names: 36,736 Felons: 14,021 Moved out of state: 11,631 Sources: Georgia Secretary of State’s office, AJC research. Follow This: Georgia Politics Get Georgia Politics updates delivered to your inbox. Sign Up Enter your email address By providing my email address, I agree to receive messages related to this story and agree to the Privacy Policy About the Author ALAN JUDD   Reader Comments  ...   https://www.myajc.com/news/state--regional-govt--politics/voter-purge-begs-question-what-the-matter-with-georgia/YAFvuk3Bu95kJIMaDiDFqJ/ 8/9 Case Document 2-2 Filed 11/06/18 Page 64 of 102 EXHIBIT 11 11/6/2018 Judge Rules AgainstDocument Georgia Election2-2 Law, Calling It A11/06/18 'Severe Burden' For Voters65 : NPR Case 1:18-cv-05121-WMR Filed Page of 102 Pick Your NPR Station There are at least two stations nearby Judge Rules Against Georgia Election Law, Calling It A 'Severe Burden' For Voters November 3, 2018 · 6:33 PM ET SHANNON VAN SANT Georgia gubernatorial candidates Democrat Stacey Abrams and Republican Brian Kemp during a debate last month. John Bazemore/Getty Images The Georgia governor's race is already drawing people to the polls in record numbers, and a federal judge has just made it easier for even more voters in the state to cast a ballot. U.S. District Judge Eleanor Ross ruled on Friday the state must relax restrictions that could prevent more than 3,000 people, flagged under a controversial state law as potential noncitizens, from voting in Tuesday's midterm elections. https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters 1/12 11/6/2018 Judge Rules AgainstDocument Georgia Election2-2 Law, Calling It A11/06/18 'Severe Burden' For Voters66 : NPR Case 1:18-cv-05121-WMR Filed Page of 102 The "exact match" law flags voter registrations that have discrepancies with other official identification documents used by the state. Mismatches can occur under the law for such reasons as missing hyphens, accent marks and middle initials. Those who are flagged can still vote if they settle the discrepancy by providing proof of identity. Those who are flagged as potential noncitizens must be approved by a deputy registrar before being allowed to vote. Civil rights groups filed suit, arguing that the law's requirements are part of a discriminatory voter suppression effort that disenfranchises predominantly minority voters. Brian Kemp, the Republican candidate for governor who also oversees the vote as Georgia's secretary of state, says the law is vital for election integrity. In her ruling, Ross said the requirements raised "grave concerns for the Court about the differential treatment inflicted on a group of individuals who are predominantly minorities. ... The election scheme here places a severe burden on these individuals." Ross ruled that Georgia must immediately start allowing poll managers to clear voters who show proof of citizenship. Ross also ordered Kemp to issue a news release explaining how flagged potential voters could vote by proving their citizenship, and offer a phone number for people to call with any questions. In a statement to NPR, Candice Broce, the spokeswoman for Secretary of State Kemp's office, said Ross's decision is "a minor change to the current system." Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law, one of the groups that brought the lawsuit, called the decision "scathing." "Prior to the court's issuance of relief, these citizens, many of whom provided proof of citizenship with their registration form, would have had to physically track down a Deputy Registrar in the county to provide proof of their citizenship," said Clarke. "Tracking this one individual down was a fatal requirement that would have been impossible for many to meet." https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters 2/12 11/6/2018 Judge Rules AgainstDocument Georgia Election2-2 Law, Calling It A11/06/18 'Severe Burden' For Voters67 : NPR Case 1:18-cv-05121-WMR Filed Page of 102 A report by The Associated Press said that under the "exact match" law, Kemp had stalled more than 50,000 voter registrations by mostly black voters. The AP also reported that through a process Kemp calls "voter roll maintenance," his office has "cancelled over 1.4 million voter registrations since 2012" and that "nearly 670,000 registrations were cancelled in 2017 alone." Voting rights been a central issue in Kemp's race against Democrat Stacey Abrams, who is vying to become the nation's first black female governor. The race has attracted national attention, even drawing a visit on Friday by Oprah Winfrey, who spoke at an Abrams rally about the state's history of voter suppression, and implored people to show up at the polls. "For anybody here who has an ancestor who didn't have the right to vote and you are choosing not to vote wherever you are in this state, in this country, you are dishonoring your family," Winfrey said. "You are disrespecting and disregarding their legacy, their suffering and their dreams when you don't vote." Brian Tyler Cohen @briantylercohen Wow, wow, wow. This may be the single most powerful story I've ever heard. Vote. If not for yourself, do it because people like Otis Moss Sr. couldn't. 3:43 PM - Nov 2, 2018 2,482 1,305 people are talking about this https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters 3/12 11/6/2018 Judge Rules AgainstDocument Georgia Election2-2 Law, Calling It A11/06/18 'Severe Burden' For Voters68 : NPR Case 1:18-cv-05121-WMR Filed Page of 102 President Trump is scheduled to appear in the state on Sunday at a rally for Kemp. In a gubernatorial debate last month, Kemp said allegations he had been attempting to suppress the vote are "totally untrue." "I've staked the integrity of my whole career on the duty that I have as secretary of state. I have always fulfilled and followed the laws of our state and I'll continue to do that," Kemp said. Abrams has based a large part of her strategy around turning out minority voters. On Saturday in an interview with MSNBC, Abrams said, "The fundamental belief that I have for my campaign and this state, is it's an organizing opportunity. It is not just about my election. It is about building the capacity for voters who are often overlooked by our politics to have their voices heard." On Friday, in a separate case, the American Civil Liberties Union announced the U.S. Court of Appeals for the 11th Circuit had denied Kemp's request to block a court order requiring him to exercise due process before rejecting ballots over mismatching signatures and handwriting. The state attorney general's office has not responded to a request from NPR for comment on the ruling. The debate over voter suppression in the midterm elections extends to multiple states. In North Dakota the Republican-controlled government has implemented a controversial new law requiring residents to show identification with a current street address. But as Ruben Kimmelman reported for NPR, "Many residents of Native American reservations — who tend to vote for Democrats — do not have street addresses. They have Post Office box numbers, and those don't qualify." In Iowa, the Republican secretary of state is phasing in a new voter ID law, and in Dodge City, Kan., a federal judge has denied a request to reopen the city's longtime polling site in the city. The location of the new polling site is outside the city limits, https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters 4/12 11/6/2018 Judge Rules AgainstDocument Georgia Election2-2 Law, Calling It A11/06/18 'Severe Burden' For Voters69 : NPR Case 1:18-cv-05121-WMR Filed Page of 102 and more than a mile away from the nearest bus stop, making travel there difficult for some potential voters. The debate over voting rights extends back decades to before the 1965 Voting Rights Act, which sought to make voting easier for millions of minority voters across the country. In a 2013 ruling, Shelby County v. Holder, the Supreme Court struck down a key provision of the Voting Rights Act, which stipulated that states like Georgia, with a history of racial discrimination, had to get changes to voting measures approved in advance by the federal government. With that oversight abolished, multiple states have moved to implement new voting measures, such as the "exact match" law, which Georgia legislators enacted last year. Correction Nov. 4, 2018 A previous version of this article said a judge denied a request to open a new polling site far from the city center in Dodge City, Kan. In fact, the judge denied a request to reopen a previously used polling place within city limits that was closed. potential voters voting exact match republican voter suppression voter registrations kemp voter election Subscribe to the NPR Politics Podcast https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters 5/12 Case Document 2-2 Filed 11/06/18 Page 70 of 102 EXHIBIT 12 11/6/2018 Exclusive: Georgia’s Voter Registration 2-2 System Like ‘Open Bank Safe Door’ - WhoWhatWhy Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page 71 of 102 earch … Photo credit: pxhere / (CC0 1.0) Share Share Tweet Email We use cookies to enhance your experience. By continuing to visit this site you agree to our use of cookies. More info Two da efore the midterm election a erie of ecurit vulnera ilitie have een https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-system-like-open-bank-safe-door/ 1/10 11/6/2018 Two da Exclusive: Georgia’s Voter Registration 2-2 System Like ‘Open Bank Safe Door’ - WhoWhatWhy Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page 72 of 102   efore the midterm election , a  erie  of  ecurit  vulnera ilitie  have  een di covered that would allow even a low- killed hacker to compromi e Georgia’  voter regi tration  tem and, in turn, the election it elf. It i  not known how long the e vulnera ilitie  have  een in place or whether the  have alread   een exploited. Ju t  efore noon on  aturda , a third part  provided WhoWhatWh  with an email and document,  ent from the Democratic Part  of Georgia to election  ecurit  expert , that highlight  “ma regi tration  ive” vulnera ilitie  within the  tate’  M  Voter Page and it  online voter tem. According to the document, it would not  e difficult for almo t an one with minimal computer experti e to acce  million  of people’  private information and potentiall  make change  to their voter regi tration — including canceling it. In thi  election and during the primarie , voter  have reported not  howing up in the poll ook ,  eing a igned to the wrong precinct, and  eing i All of that could  e explained  ued the wrong  allot.  a  ad actor changing voter regi tration data — and at thi point there ma   e no wa  of knowing if that happened. It i  not clear what impact — if an  — thi  will have on Tue da ’  election , or what it ha had on earl  voting. Voter   hould  till go to the poll  and, if the  are encountering pro lem , a k to ca t a provi ional  allot a  i  their right. WhoWhatWh  contacted five computer  ecurit  and election  tem  expert  to review the document. None of the e c er  ecurit  expert  te ted the vulnera ilitie  de cri ed, downloaded an file , or altered an  data. All five noted that te ting the e vulnera ilitie  without permi ion would  e illegal. In tead,  everal logged onto the M  Voter Page to look at the code u ed to  uild the  ite —  omething an Georgian voter could do with a little in truction — and confirmed the voter regi tration  tem’ vulnera ilitie . The  all agreed with the a e ment that the data of voter  could ea il   e acce ed and changed. We use cookies to enhance your experience. By continuing to visit this site you agree to our use of cookies. More info “For uch an ea and low hanging vulnera ilit to exi t it give me zero confidence in the https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-system-like-open-bank-safe-door/ 2/10 11/6/2018 Exclusive: Georgia’s Voter Registration 2-2 System Like ‘Open Bank Safe Door’ - WhoWhatWhy Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page 73 of 102 For  uch an ea  and low hanging vulnera ilit  to exi t, it give  me zero confidence in the capa ilitie  of the  tem admini trator,  oftware developer, and the data cu todian,” Kri Con ta le, who run  a privac  law and data  ecurit  con ulting firm, told WhoWhatWh . “The   hould not  e tru ted with per onall  identifia le information again. The  have howed incompetence in proper privac -protecting data cu todian capa ilitie .” A   ecretar  of  tate, Kemp i  the data cu todian, meaning he i  re pon i le for the  ecurit of voter information. The  i  a private contractor hired  tem admini trator work  for Kemp and the  oftware developer  Kemp’  office. Kemp i  the Repu lican candidate for governor in Tue da ’  election. ecau e thi   tor  came together overnight, man  of the  tate official  WhoWhatWh  ha reached out to have not gotten  ack to u . We will update thi   tor  when the  do. WhoWhatWh  al o ha  additional information on the e vulnera ilitie  that we will pu li h a quickl  a  po i le. Update (9:00 AM): Following pu lication of WhoWhatWh ’  article, the  ecretar  of  tate’  office announced that it i  inve tigating the Democratic Part  of Georgia: “While we cannot comment on the  pecific  of an ongoing inve tigation, I can confirm that the Democratic Part  of Georgia i  under inve tigation for po pre i le c er crime ,”  aid   ecretar  Candice  roce. “We can al o confirm that no per onal data wa   reached and our  tem remain   ecure.” However, prior to that  tatement  eing relea ed, the computer  ecurit  expert WhoWhatWh  contacted  aid that the vulnera le  tem  did not have  ecurit  mechani m to track change . Thi  rai e  que tion  a out the  tatement from Kemp’  office. In addition, the Democratic Part  of Georgia at that time had alread  contacted computer ecurit  expert  and notified them of the vulnera ilit . Update (9:35 AM): In re pon e to the view  of the  ecurit  expert  that  uch a  reach and an  damage cau ed a  a re ult could not  e tracked,  roce told WhoWhatWh . “The  know nothing of our ecurit  mea ure . The  are wrong.” Con ta le anticipated thi  re pon e from Kemp’  office on  aturda  when WhoWhatWh poke with him. We use cookies to enhance your experience. By continuing to visit this site you agree to our use of cookies. More info At the time efore the pu lication of thi article and efore Kemp’ office pu licl https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-system-like-open-bank-safe-door/ 3/10 11/6/2018 Exclusive: Georgia’s Voter Registration 2-2 System Like ‘Open Bank Safe Door’ - WhoWhatWhy Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page 74 of 102 At the time,  efore the pu lication of thi  article and  efore Kemp  office pu licl announced it  inve tigation, Con ta le noted that, in the United  tate ,  oth private indu tr  and the government have a long hi tor  of attacking the people who find in ecuritie  in computer  tem . In tead of holding the cu todian of the data re pon i le for not protecting it, the people who find the flaw are attacked, he  aid.   “How man  unreported  ecurit  vulnera ilitie  exi t in the U  government toda   ecau e of the ri k of doing re earch on them, a  oppo ed to the  ad gu vulnera ilitie   ecau e the  continue to go unaddre  who are exploiting the e ed?” Con ta le a ked. The United  tate  doe  not have a privac  law to enforce  trong  ecurit  of per onall identifia le information and there i  no legal mechani m to puni h data cu todian  who leave private citizen ’ data unprotected, Con ta le noted. “Vulnera le  tem  will continue until there are repercu whoever i  re pon i le for thi   ion  for the cu todian,  uch a tem,” Con ta le  aid, referring the the major  ecurit gap  in the M  Voter Page and the voter regi tration page. Update (10:30 AM): What Kemp’  office i  doing i  di ingenuou ,  ruce  rown, law er for the nonprofit Coalition for Good Governance a erted. rown noted that, at 7:03 PM la t night, he had emailed John  alter and Ro   arne , former Governor of Georgia, in their capacitie  a  coun el to  ecretar  of  tate Kemp, to notif them of the  eriou  potential c er vulnera ilit  in the regi tration file  that had  een di covered without an  hacking at all. rown al o told Kemp’  law er  that the information had alread   een forwarded to national intelligence official . The Coalition for Good Governance, an election  ecurit  advocac  group, ha   ued Georgia multiple time  over the vulnera ilit  of it   tem . “We have  een, unfortunatel , that we were too correct in our allegation  and Judge [Am ] Toten erg wa  too pre cient in her concern  a out the  tem,”  rown  aid. “That Kemp would turn thi  around and  lame other people for hi  failure  i  reflective of hi  complete failure a   ecretar  of  tate.” We use cookies to enhance your experience. By continuing to visit this site you agree to our use of cookies. More info Judge Toten erg had recentl ruled that there wa not enough time for Georgia to witch to https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-system-like-open-bank-safe-door/ 4/10 11/6/2018 Exclusive: Georgia’s Voter Registration 2-2 System Like ‘Open Bank Safe Door’ - WhoWhatWhy Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page 75 of 102 Judge Toten erg had recentl  ruled that there wa  not enough time for Georgia to  witch to paper  allot  — widel   een a  a more  ecure voting method —  ut expre ed grave concern  over the  ecurit  of the  tate’  election . “What i  particularl  outrageou  a out thi , i  that I gave thi  information in confidence to Kemp’  law er   o that  omething could  e done a out it without expo ing the vulnera ilit  to the pu lic,”  rown told WhoWhatWh . “Putting hi  own political agenda over the  ecurit  of the election, Kemp i  ignoring hi  re pon i ilit  to the people of Georgia.” Plea e help u  do more. Make a tax-deducti le contri ution now. Keep it civilized, keep it relevant, keep it clear, keep it  hort. Plea e do not po t link  or promotional material. We re erve the right to edit and to delete comment  where nece ar .  print  — Grant Gerke  a : Novem er 5, 2018 at 5:28 pm I agree  han a,  ut I would throw in a “repu lican” vote or 2 on the  allot to throw off an code that will “ witch” ever  5th or 6th electronic all D M vote. I’m pulling for her  ut no “ ackup”  allot  with an all electronic voting proce , A ram  i not wining. Repl  — FJP  a : Novem er 5, 2018 at 11:07 am If the charge   rought   Kemp do ari e from the e event  ( ecurit  expert  viewed pu licl availa le code and privatel  warned government official  of the need to fix the vulnera ilitie   een), and A ram  (God willing) win ,  he need  to direct her AG to open a criminal inve tigation again t Kemp for attempted election fraud. A ram  a  Governor will We use cookies to enhance your experience. By continuing to visit this site you face a great deal of pre ure, including from Democrat , not to do that, to let it go, it’  too agree to our use of cookies. More info parti an, etc., etc.  he need  to re i t all that pre ure. Thi   tuff will keep happening a https://whowhatwhy.org/2018/11/04/exclusive-georgias-voter-registration-system-like-open-bank-safe-door/ 5/10 Case Document 2-2 Filed 11/06/18 Page 76 of 102 EXHIBIT 13 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 77 ofNew 102 Brian Kemp’s Office, Without Citing Evidence, Investigates Georgia Democrats Over Alleged ‘Hack’ By Richard Fausset and Alan Blinder Nov. 4, 2018 • Candidates are making a final pitch to voters across the United States. ATLANTA — For weeks, Brian Kemp, the Georgia secretary of state and Republican candidate for governor, has faced accusations that he is trying to suppress the minority vote in his race against Stacey Abrams. And just days ago, a federal judge ruled that the state needed to adjust elements of its so‑called “exact match” voting requirement, calling them needlessly burdensome. Now, in what Democrats said was a desperate attempt to deflect attention just two days before a crucial midterm election, Mr. Kemp used his official position Sunday to announce, with scant evidence, that the Democrats were under investigation for allegedly trying to hack the state’s voter registration files. Democrats immediately denounced the claim as bogus and called it an abuse of power. The controversy over voting rights, and the basic mechanics of Georgia’s electoral process, has roiled one of the nation’s marquee races. Mr. Kemp is locked in a tight contest with Ms. Abrams, the Democratic nominee, who would become the first African‑American woman to lead any state if she wins. For weeks she has been accusing him of trying to suppress the minority vote and called for him to step aside as secretary of state — something he has declined to do while calling allegations of suppression “a farce.” Mr. Kemp is a staunch supporter of President Trump, and appeared with him at a rally Sunday in Macon, Ga. In brief remarks before and during the rally, Mr. Kemp made no reference to the investigation. Mr. Trump, who has made numerous baseless claims of voter fraud in the past, spoke at length about voting issues, but did not mention the probe. Concerns about voter suppression, particularly in minority communities, have been raised again and again in states across the country in recent months. A North Dakota law requiring voters to have residential addresses has alarmed residents of Native American reservations, where houses often lack numbers. In Kansas, the one polling place in majority‑Hispanic Dodge City, was moved https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 1/6 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 78 ofNew 102 outside the town limits, leading to a lawsuit by the American Civil Liberties Union. And in Texas, a federal appeals court upheld a law requiring voters to show ID before they cast a ballot, saying it did not discriminate against African‑Americans and Hispanics. But the controversy over voting rights has been most heated in the Georgia race, especially after The Associated Press reported more than 50,000 voters were stuck in a “pending’’ status because their registration forms did not precisely match personal information on government databases — under a system that can flag voters simply because of a missing hyphen. Nearly 70 percent of the registrants were African‑American, the news agency found. The initial announcement of the Georgia inquiry did not cite any supporting evidence. Later Sunday, Candice Broce, a spokeswoman for Mr. Kemp’s office, said that the inquiry was set off by an email that Mr. Kemp’s office had obtained that showed a person named Rachel Small “talking about trying to hack the Secretary of State’s system.” The email was sent to Sara Ghazal, the Democrats’ voter protection director, Ms. Broce said. In the early evening, the state Democratic Party in Georgia released what it said were the email exchanges Ms. Broce was referring to. They appeared to be rooted in efforts to find troubling weaknesses in Georgia’s election system. Critics have raised concerns about the system’s vulnerability after two breaches in recent years that exposed the data of millions of voters, and Democrats have pointed to such breaches as proof of what they call Mr. Kemp’s “incompetence” as secretary of state. https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 2/6 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 79 ofNew 102 Stacey Abrams, the Democratic candidate for governor, greeted voters outside of a grocery store in Atlanta on Saturday. Ruth Fremson/The New York Times In the first email, a man named Richard Wright, who Democrats say is not affiliated with the party, writes to Ms. Small, whom officials identified as a Democratic Party volunteer. In the email, Mr. Wright describes how “any file on the system” on a Georgia voter information page can be accessed through a place on the site meant for downloading sample ballots and poll cards. He also shows how an online voter registration site can be used to “download anyones[sic] data.” The Democratic Party statement says that Ms. Small forwarded that email to Ms. Ghazal. The party said that it was “abundantly clear” that Ms. Small did not attempt to manipulate the site. “The Kemp campaign has no case and must immediately retract their defamatory accusations,” the Democratic statement said. Ryan Mahoney, Mr. Kemp’s campaign spokesman, said in a statement late Sunday that the effort to “expose vulnerabilities” in the voter system was an “act of desperation” by Democrats. “This was a 4th quarter Hail Mary pass that was intercepted in the end zone,” he said. “Thanks to the systems and protocols established by Secretary of State Brian Kemp, no personal information was breached. These power‑hungry radicals should be held accountable for their criminal behavior.” [Read more about how voting became a key issue in Georgia.] Voting rights and suppression are particularly combustible issues in Georgia, a Deep South state with a long history of denying the franchise to people of color; its voting procedures and laws have been subject to numerous legal challenges and formal complaints leading up to Election Day. Ms. Abrams and Georgia Democrats have assailed Mr. Kemp, whom opponents have portrayed as a “master of voter suppression” because of purges of voter rolls and additional limits on voting. As recently as Friday, a judge sided with critics of Mr. Kemp in one case, stating that the procedures for verifying the eligibility of voters whose citizenship was in question was “creating confusion as Election Day looms.” Concerns about the integrity of the voting system are rampant. A poll, released last week and commissioned by The Atlanta Journal‑Constitution and WSB‑TV, said that 44 percent of respondents believed it was likely or very likely that someone would attempt to tamper with Georgia’s voting system. The survey had a margin of error of three percentage points. The secretary of state’s investigation is also likely to further inflame the rancorous national debate over Republicans’ allegations of electoral fraud — many of which have proven to be baseless — and whether those claims are being used to unfairly harm the Democrats’ electoral https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 3/6 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 80 ofNew 102 chances. Mr. Kemp, who is white, has served as secretary of state since 2010. His office has overseen legal purges of more than two million inactive voters from the rolls since 2012 and stalled more than 50,000 applications filed by voters, most of them black. But he has vehemently denied charges of suppression and said he had “made it easier to vote and harder to cheat in our state,” noting that Georgia has added a million voters to the rolls since he took office. Mr. Kemp spoke at a rally with President Trump in Macon, Ga., on Sunday. Gabriella Demczuk for The New York Times Mr. Kemp’s office said in a statement Sunday that it had opened its inquiry “after receiving information from our legal team about failed efforts to breach the online voter registration and My Voter Page.” The office said it had formally requested the assistance of the F.B.I., and that state officials were “working with our private sector vendors and investigators to review data logs.” Kevin Rowson, a spokesman in the F.B.I.’s Atlanta field office, said the bureau had no comment. When the F.B.I. receives referrals, agents then decide whether to proceed with an investigation. The bureau does not comment on the existence of investigations, and it has traditionally avoided taking public actions that would affect elections. https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 4/6 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 81 ofNew 102 The announcement by the secretary of state’s office was a distinctly odd one. Usually investigations begin by determining if there was a cyber intrusion or an action taken by an attacker to bring down networks or wipe out information, or whether data was changed or stolen. Only then would investigators turn to gathering forensic evidence on who might have conducted an attack — a foreign government, a political rival, maybe a group of teenagers. Mr. Kemp has made similar accusations of vote hacking in the past. In December 2016, he accused the Department of Homeland Security of hacking into Georgia’s voter registration records, as well as the Georgia secretary of state’s computer systems. An independent investigation by the department’s inspector general, which operates independently from the department’s chain of command, found that the activity Mr. Kemp believed was suspicious was, in fact, normal behavior between computer systems. Voter registration records, which are kept on a state‑by‑state basis, are an alluring target for hackers. The records provide details on voters, yet are often kept in insecure databases or computers with outdated systems. During the 2016 presidential elections, Russian state actors probed the voting registration records of at least 20 states, according to the Department of Homeland Security. Sign up for The Campaign Reporter Hey, I’m Alex Burns, a politics correspondent for The Times. Send me your questions using the NYT app. I’ll give you the latest intel from the campaign trail. Sign up via push alert Some Democratic voters, like Dawson Zimmerman, a 28‑year‑old high school teacher, said Sunday that they questioned the timing of the announcement. “I think, given the documented attempts at voting purges from the standpoint of Kemp, I can’t help but be skeptical about the timing and lack of evidence provided at this time,” Mr. Zimmerman said. As people began gathering Sunday afternoon for Mr. Trump’s rally, several supporters of the Republican ticket in Georgia said they had already heard about the allegations against the Democratic Party. https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 5/6 11/6/2018 Brian Kemp’s Office, Without Citing Document Evidence, Investigates Democrats Over Alleged ‘Hack’ - The York Times Case 1:18-cv-05121-WMR 2-2Georgia Filed 11/06/18 Page 82 ofNew 102 Although there were scattered doubts about whether the election would be fair, some voters still expressed confidence in the security of Tuesday’s balloting. Shawn McClellan, who was resting against a barricade and wearing a red‑and‑white “USA” shirt, said he believed the swirl of allegations about the election would sort themselves out. “The integrity of the political system takes care of itself,” said Mr. McClellan, a teacher from suburban Atlanta. “I think it’s good that there are challenges on both sides — it keeps them on their toes.” He expected complaints by Wednesday morning, no matter the outcome in the governor’s race. “One side or the other, whoever loses, they’re going to squawk,” he said. Alan Blinder reported from Macon, Ga. Sheera Frenkel, Adam Goldman, David Sanger, Liam Stack and Susan Chira contributed reporting. A version of this article appears in print on Nov. 5, 2018, on Page A1 of the New York edition with the headline: Offering Little Proof, Republican Accuses Georgia Rival of ‘Hack’ READ 269 COMMENTS https://www.nytimes.com/2018/11/04/us/politics/georgia-elections-kemp-voters-hack.html 6/6 Case Document 2-2 Filed 11/06/18 Page 83 of 102 EXHIBIT 14 11/6/2018 Brian Kemp says he'll investigate Georgia Democrats days 11/06/18 before his electionPage day - The84 Washington Case 1:18-cv-05121-WMR Document 2-2— two Filed of 102Post The Washington Post Politics Brian Kemp’s office orders ‘hacking’ probe of Georgia Democrats on eve of election he’s competing in By Avi Selk , Vanessa Williams and Amy Gardner November 4 at 7:43 PM Georgia Secretary of State Brian Kemp’s dual roles as both referee and Republican competitor in the state’s gubernatorial election collided Sunday, when the government office he controls announced an investigation into the Georgia Democratic Party for an alleged “hacking” attempt into the voter registration system and his campaign for governor subsequently condemned the “criminal behavior” he allegedly discovered. But neither Kemp’s campaign nor his secretary of state’s office provided evidence that Democrats had tried to hack into Georgia’s voter registration system. Candice Broce, a spokeswoman for the secretary of state’s office, said in an interview that Democrats were in possession of an email with script attached to it that, if launched, could have been used to extract personal voter registration data. “Our position is that these were failed attempts to hack the system," Broce said. "All the evidence indicates that, and we’re still looking into it.” Democratic officials, in turn, accused Kemp of “defamatory accusations” and released the email in question, showing that it had been forwarded to a Democratic volunteer by someone not affiliated with the party who was flagging a potential data vulnerability. The volunteer forwarded the email to the party’s voter protection director, who shared it with cybersecurity experts, who in turn alerted Kemp’s office, they said. Two voting rights attorneys suggested that Kemp launched the probe as a distraction, hours after they told authorities about potential security flaws in the electronic voter systems he is responsible for maintaining. “We alerted the authorities. We expected Mr. Kemp to take action. We were surprised to see the apparent response to that was accusing [the Democrats] of hacking,” David D. Cross, a Washington attorney who is helping sue Georgia to make it use paper ballots, said at a news conference Sunday afternoon. https://www.washingtonpost.com/politics/2018/11/04/brian-kemps-office-orders-hacking-probe-georgia-democrats-eve-election-hes-competing/?utm_term=.893f4c4a… 1/6 11/6/2018 Brian Kemp says he'll investigate Georgia Democrats days 11/06/18 before his electionPage day - The85 Washington Case 1:18-cv-05121-WMR Document 2-2— two Filed of 102Post By late Sunday, Kemp’s opponent, Stacey Abrams, was trying to reframe the investigation as an example of how she says the Republican has abused his government power as he seeks a higher office. “Within the past hour it was revealed that Brian Kemp’s office, along with the FBI, was notified by a third party yesterday morning regarding a major security vulnerability of Georgia’s elections database,” Abrams’s campaign wrote in a statement. “Kemp’s false accusations against the Democratic Party of Georgia were nothing more than a pathetic attempt to cover up for his failures.” The office of the secretary of state, which Democrats have accused throughout Kemp’s campaign of manipulating the electoral system for his benefit, announced the investigation Sunday morning with an all-caps headline that appeared directly below a voter’s guide on a government website: “AFTER FAILED HACKING ATTEMPT, SOS LAUNCHES INVESTIGATION INTO GEORGIA DEMOCRATIC PARTY.” The attached statement contained no evidence and almost no details on the Democratic Party of Georgia’s “possible cyber crimes,” but it said Kemp’s office had launched the investigation Saturday evening and alerted the FBI and the Department of Homeland Security. By early Sunday afternoon, Cross and at least one other voting rights attorney had called foul on Kemp. Cross forwarded an email between himself and an FBI agent from Saturday, sent before Kemp’s office launched its probe. In it, the Washington lawyer tells the agent that a secretary of state website set up for voters to check their registration status and find polling locations may be leaking confidential voter information. “Thanks!” the agent replies. “We’ll pass the information along to the Secretary of State’s Office for them to evaluate.” Bruce Brown, a lawyer with the Coalition for Good Governance, told the Who What Why blog that he had alerted Kemp’s attorneys to similar issues on Saturday. The Democratic Party of Georgia later released a Saturday email exchange between two of its staff members, forwarding someone else’s report about the security issue. The party suggested that Kemp had obtained this exchange, mistakenly assumed that the staffers had tried to hack the voter registration system and launched its investigation on a faulty premise. The “Secretary of State’s office is apparently unaware that the letters ‘Fwd:’ means ‘forward,’ ” a spokeswoman for the party wrote. Several hours after announcing its hacking investigation, after contradictory reports emerged, Kemp’s office issued an updated statement that sounded somewhat less dire. https://www.washingtonpost.com/politics/2018/11/04/brian-kemps-office-orders-hacking-probe-georgia-democrats-eve-election-hes-competing/?utm_term=.893f4c4a… 2/6 11/6/2018 Brian Kemp says he'll investigate Georgia Democrats days 11/06/18 before his electionPage day - The86 Washington Case 1:18-cv-05121-WMR Document 2-2— two Filed of 102Post “We opened an investigation into the Democratic Party of Georgia after receiving information from our legal team about failed efforts to breach the online voter registration system and My Voter Page,” reads the new statement. “We are working with our private sector vendors and investigators to review data logs. We have contacted our federal partners and formally requested the Federal Bureau of Investigation to investigate these possible cyber crimes. The Secretary of State’s office will release more information as it becomes available.” This isn’t the first time Kemp’s office has claimed its voting systems were hacked based on thin evidence. After the presidential election in 2016, the Hill reported, Kemp accused President Barack Obama’s Department of Homeland Security of launching at least 10 failed cyber attacks on Georgia. An investigation during President Trump’s administration concluded that the supposed attacks were actually “normal and automatic computer message exchanges generated by the Microsoft applications involved." This weekend’s investigation into Kemp’s rival party was immediately condemned as a political ploy by Democrats and some commentators, who believe he should not oversee an election in which he is competing. “Brian Kemp’s scurrilous claims are 100 percent false, and this so-called investigation was unknown to the Democratic Party of Georgia until a campaign operative in Kemp’s official office released a statement this morning,” Rebecca DeHart, executive director of the state Democratic Party, wrote in a statement to reporters. “This is yet another example of abuse of power by an unethical Secretary of State.” Abrams, who is polling almost neck-and-neck with Kemp, told CNN on Sunday that she had been unaware of her opponent’s investigation into her party. “He is desperate to turn the conversation away from his failures, from his refusal to honor his commitments, and from the fact that he’s part of a nationwide system of voter suppression,” she said. In a statement late Sunday, Kemp’s spokesman issued the following statement: “In an act of desperation, the Democrats tried to expose vulnerabilities in Georgia’s voter registration system. This was a 4th quarter Hail Mary pass that was intercepted in the end zone. Thanks to the systems and protocols established by Secretary of State Brian Kemp, no personal information was breached. These power-hungry radicals should be held accountable for their criminal behavior.” Voting rights has become a major issue in the campaign, which has drawn national attention because, if elected, Abrams, 44, would become the nation’s first black female governor. Abrams, who four years ago started a nonprofit group whose goal was to sign up hundreds of thousands of unregistered people of color, has clashed repeatedly with Kemp, whom she calls “the architect of voter https://www.washingtonpost.com/politics/2018/11/04/brian-kemps-office-orders-hacking-probe-georgia-democrats-eve-election-hes-competing/?utm_term=.893f4c4a… 3/6 11/6/2018 Brian Kemp says he'll investigate Georgia Democrats days 11/06/18 before his electionPage day - The87 Washington Case 1:18-cv-05121-WMR Document 2-2— two Filed of 102Post suppression.” Kemp investigated the group, with which Abrams is no longer affiliated, on suspicion of fraud but found no wrongdoing. Kemp, 55, who has argued that the policies are aimed at preventing voter fraud, also has been criticized for having purged more than a million voters from the rolls during the past year. He has rejected calls, including one from former president Jimmy Carter, that he should step down as the state’s top elections official while he is running for governor. Although lawmakers and elections officials in Republican-controlled states have cited concerns about cheating to enact strict voter registration and identification laws, there is no evidence of widespread fraud in the United States. Kemp’s office came under intense scrutiny last month when the Associated Press reported that more than 53,000 voter registration applications — 70 percent of them from African Americans — had been held up because the identification information was not an “exact match” to other state records on account of discrepancies that could be as minor as a dropped hyphen in a person’s name. On Friday, a federal judge ordered the state to immediately stop using the rule, saying it would probably lead to violations of the voting rights of a large number of people. Less than two weeks ago, in a separate case, a federal judge ordered elections officials to stop automatically rejecting absentee ballots after advocates filed suit against Gwinnett County, which threw out hundreds of ballots because of discrepancies in signatures or missing addresses. Trump was scheduled to host a campaign rally for Kemp in Macon on Sunday. Read more: ‘Hi, I’m Oprah’: The Georgia governor’s race is at full boil — and now the cavalry has arrived For black women in Georgia backing Abrams, a chance to break ‘the ceiling on top of the glass ceiling’ Obama urges Georgians to reject GOP ‘lies’ by voting for Abrams and other Democrats https://www.washingtonpost.com/politics/2018/11/04/brian-kemps-office-orders-hacking-probe-georgia-democrats-eve-election-hes-competing/?utm_term=.893f4c4a… 4/6 Case Document 2-2 Filed 11/06/18 Page 88 of 102 EXHIBIT 15 11/6/2018 Election 2018:2-2 Kemp under scrutiny in waning days Case 1:18-cv-05121-WMRGeorgia Document Filed 11/06/18 Page 89 of 102 Breaking: Machines down, hundreds wait at one Gwinnett voting precinct Subscribe for 99¢ Caption Brian Kemp under scrutiny after announcing probe of Democrats Nov 04, 2018 By Jeremy Redmon, The Atlanta Journal-Constitution ... Secretary of State Brian Kemp has had two roles this year: Running Georgia’s elections and running for governor of the state. https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 1/14 11/6/2018 Georgia Election 2018:2-2 Kemp under scrutiny in waning days 1:18-cv-05121-WMR Document Filed 11/06/18 Page 90 of 102 running forCase governor of the state. Democrats, including former President Jimmy Carter, have called on him to step aside, warning repeatedly of potential conflicts of interest. Kemp is now facing renewed scrutiny after his office announced Sunday — without providing evidence and doing so just hours before Election Day — that it is investigating the Georgia Democratic Party for an alleged hack of the state’s voter registration system.  The move to publicly disclose the probe appeared to break with tradition in the office, which oversees voting integrity, as it differed from how Kemp’s team handled an earlier cyber breach at Kennesaw State University. ‘It all just sounds very strange’ Edgardo Cortés, Virginia’s former elections commissioner, called Sunday’s announcement “bizarre” and said the timing of it is “problematic,” adding he wouldn’t have done it had he Subscribe forby 99¢ been in Kemp’s shoes. Such public statements, Cortés said, could depress voter turnout making people question the reliability of the election system. “It all just sounds very strange,” said Cortés, an election security advisor for the Brennan Center for Justice, a nonprofit institute at New York University’s School of Law. “You suddenly open an investigation without giving any sort of details about what happened? In Virginia, we would never have done something like that because I think it would have created a lot of concern among voters.” https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 2/14 11/6/2018 Election 2018:2-2 Kemp under scrutiny in waning days Case 1:18-cv-05121-WMRGeorgia Document Filed 11/06/18 Page 91 of 102 November 1, 2018 Dalton - Vice President Mike Pence and GOP gubernatorial candidate Brian Kemp waveSubscribe to supporters at Dalton Convention Center in Dalton on Thursday, November 1, 2018. The nationally-watched for Georgia 99¢ race for governor is about to get even more attention. Vice President Mike Pence is headed to Georgia on Thursday for a trio of events in conservative areas for Brian Kemp. Democrats are countering with a visit by Oprah Winfrey, who will appear with Stacey Abrams at a pair of town hall meetings. HYOSUB SHIN / HSHIN@AJC.COM (HYOSUB SHIN / AJC) Further, Cortés questioned why Kemp’s office said Sunday that no personal data was breached and that the system remains secure despite the attempted hack. “It is kind of hard to make that determination without actually going through and doing a thorough investigation,” he said. Kemp’s office said the FBI and U.S. Department of Homeland Security had been alerted. The FBI declined to comment Sunday. And a federal Homeland Security official referred questions to Kemp’s office. On Sunday, The Atlanta Journal-Constitution filed a request with Kemp’s office under Georgia’s Open Records Act for documents about the probe as well as correspondence between his staff, the FBI and the U.S. Department of Homeland Security. Kemp declined to comment but a spokesperson defended the probe. Another Breach https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 3/14 11/6/2018 Election 2018:2-2 Kemp under scrutiny in waning days Case 1:18-cv-05121-WMRGeorgia Document Filed 11/06/18 Page 92 of 102 This isn’t the first time Kemp’s office has dealt with a cyber breach. In 2017, the FBI investigated accusations that millions of Georgia voters may have had their personal information compromised. The allegations involved Kennesaw State University’s Center for Election Systems, which oversaw the state’s election operations and voting machines through an agreement with the Secretary of State’s Office. That arrangement has since been terminated. MORE: How voting became an issue in Georgia election In that case, state elections officials did not publicly disclose the breach but provided details only after reporters began asking questions. The same was true in an earlier state breach by Kemp’s office in 2015. That raises questions for some observers about why this instance was treated differently. The Secretary of State’s office does not keep a complete archive of its Subscribe press releases online so it was not possible to learn Sunday whether there were other times for 99¢ when the office announced investigations. Cathy Cox, a former Democratic nominee for Georgia governor, said she could not recall making a similar announcement about an investigation during the two terms she served as Georgia’s secretary of state. “For the sake of getting the best information you can in an investigation, you just don’t typically put those matters out on the street,” said Cox, dean of Mercer University’s School of Law. “And it is just not fair, I think, to anybody involved in it to try it in the public when you are trying to conduct a bona fide and fair investigation.” Republican U.S. Rep. Karen Handel, also a former secretary of state and former GOP nominee for governor, could not be reached for comment Sunday. Cox added it would be appropriate to turn the matter over to state law enforcement authorities, taking it out of Kemp’s hands. https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 4/14 11/6/2018 Election 2018:2-2 Kemp under scrutiny in waning days Case 1:18-cv-05121-WMRGeorgia Document Filed 11/06/18 Page 93 of 102 Cathy Cox: The former Democratic Secretary of State has repeatedly said she won't seek office again. (AJC file) Subscribe for 99¢ “It is hard to say whether there is a contention that it is a violation of election law or whether it is a criminal matter,” she said. “And in either case, given the context we are dealing with, it sort of jumps off the page at me as being something that probably should have been turned over to the GBI or to an appropriate district attorney to investigate. And then those entities could have decided whether or not a public comment was warranted at the start of an investigation.” “If it involves your own election,” she added, “I just cannot imagine the candidate remaining involved in the investigation of something that might relate so directly to their own race. It doesn’t meet the smell test under anything I could measure.” Recusal at Issue There’s no law requiring a secretary of state running for office to resign. But certain statutes say the chairman of the state elections board — currently Kemp — should not participate in procedures that could impact the enforcement of elections rules. In 2010, Handel ran as the Republican nominee for Georgia governor and stepped down as secretary of state. When Cox ran for governor in 2006 she remained in her job but recused https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 5/14 11/6/2018 Election 2018:2-2 Kemp under scrutiny in waning days Case 1:18-cv-05121-WMRGeorgia Document Filed 11/06/18 Page 94 of 102 herself from involvement with the elections board. Follow This: Georgia Politics Get a regular summary of the latest news Enter your email ... 84 Subscribe for 99¢ Related Stories https://www.ajc.com/news/state--regional-govt--politics/probe-georgia-democratic-party-prompts-fresh-scrutiny-brian-kemp/AElKvktttgsz5UgJbiXgyO/ 6/14 Case Document 2-2 Filed 11/06/18 Page 95 of 102 EXHIBIT 16 11/6/2018 Georgia Governor candidateDocument Brian Kemp attempts voter96 manipulation. Case 1:18-cv-05121-WMR 2-2last-minute Filed Banana-Republic 11/06/18 style Page of 102 Menu GLIDING SERENELY THIS WAY AND THAT JURISPRUDENCE Brian Kemp Just Engaged in a Last-Minute Act of Banana-Republic Level Voter Manipulation in Georgia By RICHARD L. HASEN NOV 04, 2018 • 3 47 PM TWEET SHARE COMMENT A screenshot of Brian Kemp’s last-minute ploy. Screenshot of sos.ga.gov on Nov. 4, 2018. Popular in News & Politics https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html 1/5 11/6/2018 1 2 3 4 Georgia Governor candidateDocument Brian Kemp attempts voter97 manipulation. Case 1:18-cv-05121-WMR 2-2last-minute Filed Banana-Republic 11/06/18 style Page of 102 The Weird Kavanaugh Encounter That Led Me, a Staunch Republican, to Volunteer for Heidi Heitkamp “Supreme Corp.”! “Make America Sick Again”! How Did Democratic Messaging Get So, So Bad? Brett Kavanaugh Has Refused to Run Interference for Trump in Three Key Early Rulings. Why? Why Don’t Young People Vote? This System Doesn’t Want Them To. In perhaps the most outrageous example of election administration partisanship in the modern era, Georgia Secretary of State Brian Kemp, who is running for governor while simultaneously in charge of the state’s elections, has accused the Democratic Party without evidence of hacking into the state’s voter database. He plastered a headline about it on the Secretary of State’s website, which thousands of voters use to get information about voting on election day. It’s just the latest in a series of partisan moves by Kemp, who has held up more than 50,000 voter registrations for inconsistencies as small as a missing hyphen, fought rules to give voters a chance to prove their identities when their absentee ballot applications are rejected for a lack of a signature match, and been aggressive in prosecuting those who have done nothing more than try to help those in need of assistance in casting ballots. But the latest appalling move by Kemp to publicly accuse the Democrats of hacking without evidence is even worse than that: Kemp has been one of the few state election of icials to refuse help from the federal Department of Homeland Security to deter foreign and domestic hacking of voter registration databases. After computer scientists demonstrated the insecurity of the state’s voting system, he was sued for having perhaps the most vulnerable election system in the country. His of ice has been plausibly accused of destroying evidence, which would have helped to prove the vulnerabilities of the state election system. Things are so bad with the security of Georgia’s election system that federal district court judge Amy Totenberg minced no words about the problems: The State’s posture in this litigation – and some of the testimony and evidence presented – indicated that the Defendants and State election of icials had buried their heads in the sand. This is particularly so in their dealing with the rami ications of the major data breach and vulnerability at the Center for Election Services, which contracted with the Secretary of State’s Of ice, as well as the erasure of the Center’s server database and a host of serious security vulnerabilities permitted by their outdated software and system operations. A wound or reasonably threatened wound to the integrity of a state’s election system carries grave consequences beyond the results in any speci ic election, as it pierces citizens’ con idence in the electoral system and the value of voting. Advanced persistent threats in this data-driven world and ordinary hacking are unfortunately here to stay. Defendants will fail to address that reality if they demean as paranoia the research-based indings of national cybersecurity engineers and experts in the ield of elections. https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html 2/5 11/6/2018 Georgia Governor candidateDocument Brian Kemp attempts voter98 manipulation. Case 1:18-cv-05121-WMR 2-2last-minute Filed Banana-Republic 11/06/18 style Page of 102 Ultimately, Totenberg has not required the state switch to paper ballots for the upcoming election because she ruled that the request was too close Election Day, an unfortunate pattern among federal courts these days. If anyone is to blame for vulnerabilities with the voting system it is Kemp. And now he’s trying to turn those vulnerabilities into crass political advantage by blaming Democrats without evidence for the state’s failings. The press release entitled “After Failed Hacking Attempt, SOS Launches Investigation into Georgia Democratic Party” provides no details. It quotes a spokesperson saying “While we cannot comment on the speci ics of an ongoing investigation, I can con irm that the Democratic Party of Georgia is under investigation for possible cyber crimes.” WhoWhatWhy issued a report early on Sunday morning that seemed to explain what was going on. Just before noon on Saturday, a third party provided WhoWhatWhy with an email and document, sent from the Democratic Party of Georgia to election security experts, that highlights ‘massive’ vulnerabilities within the state’s My Voter Page and its online voter registration system. According to the document, it would not be dif icult for almost anyone with minimal computer expertise to access millions of people’s private information and potentially make changes to their voter registration — including canceling it. If this is true, it doesn’t show Democrats “hacking” to manipulate election results. It shows Democrats, like many others, pointing out the glaring security laws in Georgia’s voting system. To turn this around and blame Democrats is an act of political chutzpah by an election of icial on par with nothing else I’ve seen. It is bad enough there is a partisan election of icial running Georgia’s elections. It is also bad enough that this partisan election of icial is in charge of his very own election, an election where he is running in a very tight race against Democrat Stacey Abrams, and that he has engaged in acts of voters suppression aimed to decrease the turnout for the candidate who would be this nation’s irst black woman to win a governor’s mansion. It is still worse that we have an election of icial who, according to audio leaked to Rolling Stone, expressed concern about the state’s citizens exercising their rights to vote via absentee ballot: “[Democrats] have just an unprecedented number of [absentee ballot applications],” he said, “which is something that continues to concern us, especially if everybody uses and exercises their right to vote—which they absolutely can—and mail those ballots in, we gotta have heavy turnout to o set that.” But what Kemp has done now goes beyond the pale. He’s accused his opponents of election tampering without evidence on the eve of the election, and plastered the incendiary charge on an of icial state website in the days before his of ice will administer that election. This is some banana republic stu . Brian Kemp needs to step aside from running this election. If he doesn’t and he wins, lots of people will now believe the ix was in. Considering these latest actions, that belief will be justi ied. If you think Slate’s election coverage matters… Support our work: become a Slate Plus member. You’ll get exclusive members-only content and a suite of great bene its—and you’ll help secure Slate’s future. Join Slate Plus Tweet Share Comment https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html 3/5 Case Document 2-2 Filed 11/06/18 Page 99 of 102 EXHIBIT 17 11/6/2018 Election Law Experts Decry 2-2 Brian Kemp’s Hacking Allegation in Georgia100 of 102 Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page Menu Nov 6, 2018 Search (https://www.rollcall.com) http://www.rollcall.com/news/politics/election-law-experts-decry-brian-kemps-hacking-allegation-georgia (https://www Call/245197 (https://tw pos=rr) pos=rr) (https 1/8 11/6/2018 Election Law Experts Decry 2-2 Brian Kemp’s Hacking Allegation in Georgia101 of 102 Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page Menu http://www.rollcall.com/news/politics/election-law-experts-decry-brian-kemps-hacking-allegation-georgia Search 2/8 11/6/2018 Election Law Experts Decry 2-2 Brian Kemp’s Hacking Allegation in Georgia102 of 102 Case 1:18-cv-05121-WMR Document Filed 11/06/18 Page Menu http://www.rollcall.com/news/politics/election-law-experts-decry-brian-kemps-hacking-allegation-georgia Search 3/8 Case 1:18-cv-05121-WMR Document 2-3 Filed 11/06/18 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LATOSHA BROWN; CANDACE FOWLER; JENNIFER IDE; CHALIS MONTGOMERY; KATHARINE WILKINSON, Plaintiffs, v. BRIAN KEMP, in his official capacity as Secretary of State of the State of Georgia, Defendant. ) ) ) ) ) ) ) CASE NUMBER ) ) ) ) ) ) ) [PROPOSED] ORDER For the reasons set forth in Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for a Temporary Restraining Order, the Court hereby GRANTS Plaintiffs’ Motion for a Temporary Restraining Order and ORDERS as follows: 1. Secretary of State Brian Kemp is hereby enjoined from exercising any powers or duties of the Office of Secretary of State relating to the 2018 general election (including any runoff or recount). He is enjoined from serving as a member or chairman of the State Elections Board for any purposes related to the 2018 general election. He shall not be designated as Case 1:18-cv-05121-WMR Document 2-3 Filed 11/06/18 Page 2 of 2 Georgia’s chief state election official for purposes of any provision of federal law relating to the 2018 general election. 2. The Governor shall within three days appoint a person to perform the duties thus vacated by the Secretary of State or, at the Governor’s sole discretion, such appointment shall be made within three days by the State Elections Board. Said appointment shall not be made to anyone who currently reports to or works for Secretary of State Kemp or the Kemp for Governor campaign. 3. The Secretary of State’s Office shall immediately remove from its web page any reference to any alleged investigation of the Democratic Party. 4. This order does not affect the Secretary’s other, non-election-related responsibilities as Secretary of State. ____________________________ United States District Judge _____________________________ Date