Lawsuits cast votes against electronic voting machines.

On the eve of elections that could shift the balance of power in at least one house of Congress, lawsuits filed by voters in Arizona, California, Colorado, Florida, New Jersey, and Ohio are challenging the use of electronic voting machines.

The cases, filed against various state officials in state and federal courts, contain several allegations finding fault with direct-recording electronic voting machines (DREs): that they count votes inaccurately, pose security risks because of easily manipulated or flawed software, and violate constitutional guarantees of the right to vote when they do not print out voter-verifiable paper ballots for use in audits and recounts.

Not long ago, many election-reform proponents hailed electronic machines as a solution to voting problems of the kind that led to the 2000 presidential election debacle in Florida, where state officials, struggling to recount paper punch-card ballots, were bedeviled by "hanging chads." Two years later, Congress passed the Help America Vote Act (HAVA), which provided funds for state and local governments to upgrade election equipment, including machines that would better accommodate disabled voters. It also established the Election Assistance Commission (EAC) to administer funds to states and support election officials implementing equipment upgrades.

Although it did not mandate that states switch to DREs, the act created strong incentives to do so. According to the EAC, almost 23 percent of voters used electronic machines in the 2004 presidential election.

DREs commonly use a touchscreen that allows voters to literally touch their choices on a computerized ballot. Their votes are recorded by the machine, which prints out a tally but not individual paper ballots. Some machines can be modified to better accommodate the disabled, as HAVA required.

Some DREs can print voter-verifiable paper ballots, although critics have assailed the technology as flawed. It uses continuous rolls of thermal paper, which do not allow easy assessment of individual ballots in recounts or audits. In addition, the thermal paper degrades easily in heat and with handling. And, critics say, there is no guarantee that what the voter sees on paper matches what is recorded electronically in the machine.

Concerns about the security and reliability of electronic voting systems have surfaced around the country. Before Pennsylvania primary elections on May 16, the state conducted a test of its DREs in which a computer scientist hacked into the machines and altered vote totals. At the same time, another researcher detected software vulnerabilities in a different type of DRE. The reports prompted officials in California, Iowa, and Pennsylvania to direct state elections officials to fix the software before elections were held.

Reports of votes being subtracted, swapped, and deleted during elections also have tarnished DREs' image. In recent elections in Virginia and California, officials were not able to report results from electronic voting systems until well after polls had closed because of DRE problems. In the Virginia election, voters in one county noted that their votes were changed as they voted on DREs.

"HAVA was passed so quickly," said Penny Venetis, a lawyer with the Constitutional Law Clinic at Rutgers School of Law in Newark, New Jersey. "Now we've had time to use these machines and see how fundamentally flawed they are."

Venetis represents plaintiffs who want to stop the use of paperless DREs in New Jersey. Their lawsuit, filed in October 2004 in state court on behalf of citizens whose votes may have been compromised by malfunctioning DREs, alleges that the use of paperless electronic voting machines deprives citizens of their right to vote because the machines do not count votes accurately.

The plaintiffs asked the court to ban the machines' use until they could be retrofitted to produce voter-verifiable paper ballots that voters could use to confirm their votes or that could be used in a recount or audit. A county court dismissed the case in January 2005.

While that decision was on appeal, state lawmakers passed a bill requiring that all DREs in New Jersey produce voter-verifiable paper ballots by 2008. In February, the appellate court ordered the county court to determine whether the state had the technology and funding available to implement the new law.

In April, after hearing from expert witnesses, Mercer County Judge Linda Feinberg issued an opinion expressing doubt about the state's ability to upgrade its nearly 10,000 paperless DREs by the 2008 deadline, and the plaintiffs argued that their constitutional claims were still valid. The appeals court recently vacated the dismissal of the case and ordered Feinberg to monitor the state's progress in complying with the new law over the next 18 months. (Gusciora v. McGreevey, No. A-002842-04T1, 2006WL 1765061 (NJ. Super. Ct. App. Div. June 29, 2006).)

Lowell Finley, a Berkeley, California, lawyer and codirector of the nonprofit voter advocacy group Voter Action, represents voters in lawsuits recently filed in state courts in Arizona, California, and Colorado seeking to bar those states' use of DREs. The California case alleges that Diebold TSx DREs have security vulnerabilities that prevent them from meeting state certification requirements and fail to provide access for disabled voters. (Holder v. McPherson, No. CV 06-02923 SBA (Cal., San Francisco County Super. Ct. filed Mar. 21, 2006).) Several counties in the state, named as defendants, were dismissed from the case when they switched to all-paper balloting.

The Arizona case seeks to prohibit state officials from using DREs that the complaint alleges do not satisfy state requirements "for accuracy and disability access and that present unacceptable risks of inaccuracy, vote manipulation, and malfunction." (Chavez v. Brewer, No. CV 2006-007000 (Ariz., Maricopa County Super. Ct. filed May 9, 2006).) The Colorado case makes similar claims. (Conroy v. Dennis, No. 06CV (Colo., Denver County Dist. Ct. filed June 1, 2006).)

The Ohio lawsuit--brought in federal court by the nonprofit Electronic Frontier Foundation (EFF) and others on behalf of that state's voters--alleges that "violations of constitutional and federal law within Ohio's voting system are pervasive, severe, chronic, and persistent" and that the state's "incoherent, inadequate, and inequitably funded systems; nonuniform standards; and inadequate planning and training" have disenfranchised citizens. (White v. Blackwell, No. 3:05CV7309 (N.D. Ohio filed Dec. 8, 2005).)

EFF staff attorney Matt Zimmerman noted that White brings due process and equal protection claims for a "wholesale failure to set up a proper procedure surrounding the use of electronic voting systems."

In April, the Sixth Circuit overturned a trial court decision in favor of the defendants in another Ohio DRE case. The court found that the state's use of punch-card ballots in some counties and DREs in others violated the Voting Rights Act as well as Ohio voters' equal protection and due process rights. (Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006).)

But in June, the Eleventh Circuit reached a contrary result in a case filed by Rep. Robert Wexler (D-Fla.) and others, alleging that the use of paperless DREs in some Florida counties unconstitutionally disenfranchised voters because the machines did not allow for a meaningful manual recount in close elections, as required by Florida law.

A federal district court had ruled for the defendants, finding that the state's recount procedures for DREs--comparing a printout of ballots cast at each machine to both precinct and overall vote tallies--complied with Florida law.

The plaintiffs appealed, claiming that the DRE recount method would not show whether a machine's failure to record a vote was due to human or system error, while a recount of votes in other counties, which used optical scan equipment to read punch-card ballots, would show this.

The Eleventh Circuit affirmed the trial court's decision, finding that the plaintiffs had erred in framing their constitutional question. "Plaintiffs' fundamental error is one of perspective," the court wrote. "By adopting the perspective of the residual voter, they have avoided the question that is of constitutional dimension: Are voters in touchscreen counties less likely to cast an effective vote than voters in optical scan counties? It is this question, and not the question of whether uniform procedures have been followed across a state regardless of difference in voting technology, that the [U.S.] Supreme Court consistently has emphasized in voting jurisprudence."

The court then rejected the plaintiffs' claim that the court should apply strict scrutiny review and found that the recount procedures the state had employed were justified by its important regulatory interests and therefore did not violate Florida voters' equal protection or due process rights.

The Center for Constitutional Litigation (CCL) in Washington, D.C., which represents the plaintiffs, plans to ask the U.S. Supreme Court to review the case.

"The Eleventh Circuit mistakenly refocused the case on the ability of the different voting machines to record initial votes where the machines all have substantially similar error rates. Yet the premise of this case--very much like the premise that animated the majority in Bush v. Gore--is that having undertaken to provide for an automatic manual recount, Florida cannot dispense with that recount for some voters merely because their home county chose to purchase voting equipment that has no paper trail," said CCL President Robert Peck.

At press time, a bill sponsored by Rush Holt (D-N.J.) in Congress to require DREs to produce voter-verifiable paper ballots has been promised a committee hearing.

Technology of democracy

Several recent studies of DREs have exposed flaws in the technology. A 2005 Government Accountability Office (GAO) report recommended improving their security and auditability.

"Some electronic voting systems did not encrypt cast ballots or system audit logs," the GAO noted, "and it was possible to alter both without being detected; it was possible to alter the files that define how a ballot looks and works so that votes for one candidate could be recorded for a different candidate, and vendors installed uncertified versions of voting system software at the local level."

A June report commissioned by the nonprofit Brennan Center for Justice came to the same conclusions after researchers evaluated the security of paperless DREs, DREs with voter-verified paper ballots, and optical-scan machines, which count paper ballots that voters have marked and inserted into the machines.

"All three voting systems have significant security and reliability vulnerabilities," the researchers found. To remedy deficiencies, the report recommended routine audits to compare paper and electronic records, regular testing of machines, decentralized administration to prevent widespread software attacks, and development of procedures for addressing DRE fraud.

The report also questioned the value of voter-verifiable paper records: "The paper record has significant value only if an automatic routine audit is performed (and well-designed chain of custody and physical security procedures are followed). Of the 26 states that mandate voter-verified paper records, only 12 require regular audits."

Finley, of Voter Action, agreed. "Without mandatory random-audit requirements, voter-verifiable paper audit trails serve only the purpose of giving people a false assurance that there's a means of confirming the accuracy of the computerized vote," he said. "If you don't use the paper, you might as well not ever have printed it."

Security problems with DREs were identified as early as 2003, when Johns Hopkins University computer scientist Avi Rubin and fellow researchers analyzed one DRE's software and identified weaknesses that, among other problems, could allow users to cast unlimited numbers of votes without detection.

The tested machine met voluntary federal certification standards issued by the EAC. Rubin noted that the federal standard of having independent labs check DREs for compliance is "a joke, as the standards barely say anything about security, and what they do say is insufficient."

Venetis echoed Rubin's critique. "The [certification] system we have in New Jersey is simply inadequate. It calls for an exam by a patent attorney and two mechanical engineers. They get paid $150 for the examination. These laws were enacted in the Depression for lever machines. That process was adequate for lever machines, but it's not adequate for electronic machines."

Rubin noted that even when reports of security problems have surfaced, "some election officials dismissed them because they've been listening to vendors who always reassure them that the systems are secure."

Finley said the widespread criticism of Florida's punch-card ballots in 2000 "provided a tremendous marketing opportunity for the voting machine companies. And the passage of HAVA created a huge pool of funds that guaranteed them the sale of billions of dollars worth of voting systems. We know that voting machine companies, particularly Diebold, heavily lobbied the authors of that law."

Going to the source

A critical question in litigation has centered on DRE source codes. A machine's source code functions as its "brain" and is closely guarded by the manufacturer.

"Right now, you have vendors who say, 'You can't look inside these machines because all of our technology is protected by trade secrets, and you shouldn't be able to see how these things work,'" said EFF's Zimmerman. "But that's antithetical to a transparent democratic process. The few times that experts like Avi Rubin have had the opportunity to review the source code, they have found that the code is woefully inadequate and has enormous security holes."

"In our trial recently," noted Venetis, "the New Jersey attorney general's office asserted the trade secret on behalf of a manufacturer, saying we couldn't get access to its source code. The attorney general's office has every interest in the world in getting access to the source code. If the secret to the Coca-Cola recipe can be examined in camera, then certainly the source code that reveals how our votes are counted should be disclosed. Our most fundamental right is at risk when the voting process is nontransparent."

Zimmerman noted that the federal standards for electronic voting machine certification require that the source codes be secure, so that they cannot be changed and cannot modify themselves. But, he said, "there is some indication that the Diebold systems at least have some of this banned, nonsecure code, and so the California, Arizona, and Colorado lawsuits say that their certification is illegal because those states require them to meet the federal guidelines."

"If we could see the source code and monitor it, or if the machines were auditable in some other way, then there would not be a need for a voter-verifiable paper ballot," said Venetis.

"But it is a closed universe. It is really shutting your eyes and taking a leap of faith that the machine is going to count the votes accurately."