LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS “Electronic evidence presents unique characteristics which necessitate careful treatment." 39 In both the case studies below, highly qualified ICT professionals found significant vulnerabilities and security breaches in the election technologies in use. In the United States’ state of Georgia, the plaintiffs were able to gather a significant body of evidence over a prolonged period of time and were largely successful in their court challenge concerning an outdated electronic voting system. In the Honduran case, plaintiffs were unable to gather the necessary technical evidence in time to mount an effective challenge against the electronic results system, and the contested results remained in place. However, an ICT expert from the Organization of American States (OAS) was able to carry out a non-invasive audit and found that the Honduran results system had significant flaws. These two case studies demonstrate how much litigation deadlines and access to expertise can have on cases related to complex election technology. As such, these cases raise concerns over “equality of arms” 40 between complainants and respondents in terms of who may have access to the necessary means to recruit and deploy such experts. Courts must consider this type of extra cost associated with election technology litigation as a country’s legislature or EMB introduces sophisticated election technology solutions. In the United States Federal District Court case Curling v. Raffensperger (2019) in the state of Georgia, plaintiffs argued that Georgia’s outdated electronic voting system diminished voters’ First and Fourteenth Constitutional Amendment rights to cast votes that will be properly counted. 41 The electronic voting system implemented by the Secretary of State of Georgia was designed to have an audit trail, but the trail was never implemented over the 20 years the system was in use. Further, the court found that the direct recording electronic (DRE) voting software used was outdated, unreliable, and vulnerable to cyberattack. In 2018, a report by the National Academies of Sciences, Engineering, and Medicine and associated National Research Council had determined that the electronic voting system used by Georgia had serious security flaws, and since flaws were noted by earlier experts in 2006, there is no evidence that Georgia took steps to protect the electronic voting system after security threats were identified. 42 Additionally, the electronic voting systems were connected to a Global Election Management System that was linked to a public-facing internet-connected computer. Files were later transferred to secure USB drives and then transferred to personal computers belonging to contractors who did work in their own homes. The court found that the electronic voting system was not secure and was particularly susceptible to manipulation without detection. In 2019, the plaintiffs requested a preliminary injunction to prohibit the use of the software for upcoming local elections that year and to order the use of paper ballots instead. The court considered the preliminary injunction in two separate prongs. First, the court determined that for future elections after the immediate off-year election, the balance between the state's hardships (resource and operational constraints) and the public interest (in an orderly and fair election 39 Kenya, William Odhiambo Oduol v Independent Electoral & Boundaries Commission and 2 others, Election Petition (Kisumu) No. 2 of 2012. 40 The principle of equality of arms requires that there be a fair balance between the opportunities afforded the parties involved in litigation. 41 A list of Constitutional amendments can be accessed at: http://hrlibrary.umn.edu/education/all_amendments_usconst.htm 42 U.S. Federal District Court, Curling v. Raffensperger: The Sept. 6, 2018 consensus report of the National Academies of Sciences, Engineering, and Medicine and associated National Research Council ("NAS"), titled "Securing the Vote: Protecting American Democracy," addressing the need to improve voting machine security, and recommending that voting machines that do not produce paper audit trails for each elector's vote "should be removed from service as soon as possible" and that "[e]very effort should be made to use human-readable paper ballots in the 2018 federal election." 18