The Situation South of the Border: Recounts, Litigation, and Reconsiderations

Recent challenges to electronic voting machines in the US have taken the form of recounts, re-votes, and litigation. As a result of these challenges and likely the unease of the public discussed previously, some states are taking action.

Recounts and Re-votes

Recounts have been attracting a lot of attention, especially following the 2000 Presidential race between President George W. Bush and former Vice President Al Gore. It was this recount and the difficulties it posed as a result of the infamous “hanging chads” that appears to have spurred an increase in the popularity of DRE systems among election officials. However, the problem has not been solved, and recounts remain very common.

For example, a suit has been filed for a re-vote in Sarasota, Florida after an anomalous number of ballots (18,000) cast on voting machines registered no vote in what was a very tight race (decided by 363 votes)¹. This is particularly notable given that one of the perceived benefits of voting machines is that they have the ability to detect undervotes and overvotes.

In 2004, electors in Alameda County, California voted on a question regarding medical marijuana. In September 2007, a judge ordered a re-vote on the issue after county election officials failed to provide backup data from the voting machines used, logs of activities on the machines, and other records requested by the court. Instead, officials returned the machines to Diebold, and the information required was lost.²

Where different voting systems are used, different recount procedures are often employed. For example, while optical scan ballots that registered an overvote or undervote are assessed manually, voting machines do not generate overvotes or undervotes. In Wexler v. Anderson, the Court of Appeal in Florida held:

Florida's manual recount procedures for those counties employing paperless touchscreen voting machines did not deprive voters of due process; whatever burden, if any, Florida's manual recount procedures placed on voters, that burden was justified by the state's important regulatory interests, as Florida had important reasons for employing different manual recount procedures according to the type of voting system that was used by a particular county, given the differences in the technologies themselves and the types of errors voters were likely to make in utilizing those technologies.³

The challenge was grounded in the fact that unlike the optical scan machines, the DRE machines used in the county did not produce a verifiable paper ballot that could be counted manually.

Litigation

Litigation has arisen in contexts other than recounts. Groups such as the Verified Voting Foundation and Electronic Frontier Foundation (EFF) have intervened in much litigation surrounding e-voting.

In Diebold v. North Carolina Board of Elections, “Diebold Election Systems filed suit against the North Carolina Board of Elections to avoid a law requiring vendors to let state officials examine machines' source code for security vulnerabilities. EFF intervened in the case, getting the complaint dismissed. When election officials later agreed to certify Diebold anyway in violation of the law, EFF filed a legal challenge [McCloy v. North Carolina Board of Elections]. Diebold subsequently withdrew its e-voting machines from North Carolina elections.”⁴

As a result of the regression away from DRE systems and their unavailability in some jurisdictions, groups that advocate on behalf of disabled voters have brought litigation seeking a that voting machines be required for accessibility reasons. As a result, US courts must to balance the needs and rights of disabled voters with the rights of all citizens to a secure electoral system. Decisions of election officials to decertify voting machines have been challenged in court by those who advocate on behalf of this disabled. For example, in American Ass’n of People with Disabilities v. Shelley, the Court held that the Secretary of State’s interest in fulfilling his statutory duties outweighed voters’ interest in an unassisted, private vote, and his decision had a rational basis and thus did not deprive voters of their fundamental right to vote.⁵ EFF is in favour of implementing accessible voting technologies so long as it does not sacrifice election integrity. They have intervened in litigation that would have seen paperless machines purchased by election officials rather than machines which produce an auditable paper trail.⁶

The Ohio results in the 2004 election have been highly contested since problems were observed on Election Day. Litigants there are working to make Ohio’s election procedures and the technology used more secure, transparent and auditable.⁷

Reconsidering the Machines

In recent months, a number of states have started to move away from DRE systems.

New Jersey officials this month have requested a review of the systems used in Union County. The company which manufactures the county’s machines, Sequoia Voting Systems, has responded with their intention to vigorously protect their product from any activities that violate its licensing agreements.⁸

Voters in most parts of Colorado will have the option of voting by paper ballot in the next election. State officials there are acting in response to questions about the security of voting machines.⁹

On January 2, 2008, Ohio Secretary of State Jennifer Brunner, issued a directive ordering that all boards of elections using DRE voting machines “provide an optical scan ballot to any voter who requests it as an alternative method to casting a ballot on a DRE voting machine.” Secretary Brunner broke a deadlock at the Board of Elections, thus implementing the directive. Parrott challenged Brunner’s authority to make this decision in State ex rel. Parrott v. Brunner,¹⁰ but the Court held that she was not exercising judicial or quasi-judicial authority in making the decision and thus let Brunner’s order stand. Thus, Ohio voters will have the option of a paper ballot that is mechanically counted in the next election.

It appears things have reached a point now where competing manufacturers of voting technology are challenging the validity of each other’s products. In March, the US District Court heard a case brought by Avante Intern. Technology Corp. against Premier Election Solutions (the recently renamed subsidiary of Diebold) and Sequoia Voting Systems, which alleged that Premier and Sequoia misrepresented their products to Illinois customers which lead them to believe their products complied with Illinois DRE requirements. The case was dismissed for failure to state a cause of action.¹¹

The need for recounts and revotes, and the exceptional amount of litigation that has arisen, it would seem, as a result of innovations in electronic voting, demonstrate a perception among the American electorate that the integrity of their electoral system and thus their election results lack a satisfactory degree of legitimacy. Perhaps the one good thing that has arisen out of the situation is the potential for enjoyable satire.

¹ Electronic Frontier Foundation. Sarasota County Re-vote Filing
² Lee, Henry K. "Judge voids results of Berkeley measure on medical pot." San Francisco Chronicle. 28 September 2007.
³ Wexler v. Anderson 452 F.3d 1226 C.A.11 (Fla.), 2006.
⁴ Electronic Frontier Foundation. Diebold v. North Carolina Board of Elections
⁵ American Ass’n of People with Disabilities v. Shelley, 324 F.Supp.2d 1120 C.D.Cal.,2004.
⁶ Electronic Frontier Foundation. National Federation of the Blind v. Volusia County.
⁷ Electronic Frontier Foundation. White v. Blackwell: Creating True Verifiability in a Battleground State.
⁸ Jones, K.C."Sequoia Threatens Lawsuit Over E-Voting Machine Review." Yahoo! News. 21 March 2008.
⁹ Kim, Myung Oak "Paper ballot edges back into voting process." Rocky Mountain News. 29 March 2008.
¹⁰ State ex rel. Parrott v. Brunner 117 Ohio St.3d 175, 2008 WL 622935 Ohio,2008.
¹¹ Avante Intern. Technology Corp. v. Premier Election Solutions Inc. Slip Copy, 2008 WL 686324.