Susan Marie Weber

43041 Buttonwood Dr.

Palm Desert, CA 92260-2605

760 340-2213

In propria persona

 

 

 

 

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

SUSAN MARIE WEBER                                )

Plaintiff,                        )

                        )

vs.                                )

                                    )

BILL JONES, in his official                               )

     capacity as California                                   )

     Secretary of State,                                       )

MISCHELLE TOWNSEND, in her    )

     Official capacity as Riverside                        )

     Country Registrar of Voters                         )

                        )

Defendants.                  )

_________________________

 

 

Case No. CV 01-11159 SVW(RZx)

 

 

PLAINTIFF’S MEMORANDUM

OF CONTENTIONS OF

FACT AND LAW

 

 

Date:    May 13, 2002

Time:    1:30 p.m.

Courtroom 6

 

Before the Hon. Stephen V. Wilson

 

Plaintiff Susan Marie Weber respectfully submits the following Memorandum of Contentions of Fact and Law pursuant to this Court’s Local Rule 16-3.

INTRODUCTION

Plaintiff contends that the Direct Recording Electronic (“DRE”) touchscreen voting system manufactured by Sequoia Voting Systems and approved for use in Riverside County by the Defendants violate Plaintiff’s fundamental right to vote by

(1)    preventing her from casting a ballot which Plaintiff can verify is an accurate reflection of her intent,

(2)    failing to permit an independent audit of system integrity, and

(3)    failing to permit a recount of voter-verified ballots.

 

Plaintiff argues that these design deficiencies result in a voting machine which is not “free from fraud and manipulation” (Cal. Elect. Code §19205) in that the ease with which voter intent can be manipulated (either fraudulently by humans, or inadvertently by “glitch”) is greater than the ease with which such manipulation can be detected. In response, Defendants argue that the DRE systems have been “certified” as free from fraud and manipulation. But in fact, the old standards relied upon by Defendants in their certification process are deficient when it comes to paperless DRE systems. The manufacturers of these systems have included a self-auditing process which is an audit in name only, as it does not engage in an independent audit of voter-verified source documents (ballots). Plaintiff therefore contends that the only way the DRE systems can be constitutionally “free from fraud or manipulation” (and therefore protective of plaintiff’s fundamental right to vote) is if they print a copy of voter selection to be verified by the voter, which ballot is then to be the primary source document for audit and recount purposes.

A decade ago the nation was buzzing about the possibility of voting over the Internet. Today’s greater understanding of the Internet, and a greater appreciation of its inherent limitations, has eliminated nearly all advocates of Internet voting. The “new” of the Internet has worn off. A more realistic appraisal of the usefulness of computers to the ideals of Democracy has set in.

When presented with the possibility of paperless computer elections, Riverside County defendants fell prey to the “ooo neato!” syndrome which has accompanied all new developments in computer technology in this generation, engendered by voting machine vendors and feeding upon the hype of the “Information Society.” Plaintiff is not a Luddite “resistant to change,” (Defendant’s Memorandum of Contentions of Fact and Law (DMCFL), p. 2, line 27) and neither are other computer science experts whose initial enthusiasm for electronic democracy has been dampened by closer study.

Defendant boasts of international recognition for Riverside’s touchscreen system, including an award from socialist Sweeden, but other computer experts are concluding that this initial support will give way to widespread skepticism and voter distrust. As Rebecca Mercuri testified before Congress:

[T]echnology can not and does not, at present, provide a solution to the balloting and tabulation problem. Our society has become increasingly enamored with computers, yet we all have experienced, first-hand, their (sometimes catastrophic) failures in products we use every day. The same is true for computer-based voting systems, but here, there are no warranties and insurance provided if we have problems with the results.  It is therefore crucial that we continue to maintain and impose human checks and balances throughout our election process. This is the only way to insure that our democracy does not become one that is by the machines, of the machines and for the machines.
(Full testimony available on the official House website: http://www.house.gov/science/full/may22/mercuri.htm)

Defendant calls these expert voices “uninformed” (DMCFL, p. 3 line 6), but with more study has come greater knowledge of the inherent limitations. The limitations are now apparent enough to conclude that a paperless computer voting system violates fundamental understandings of democracy.

II.
STATEMENT OF FACTS

In contrast to Defendant’s description of the Operation of the Sequoia AVC Edge Touchscreen Voting System in Riverside County (DMCFL, pp. 3-5), Plaintiff offers her own description:

When I voted in Fall, 2000, I inserted the little card and followed the procedure to the end. On the screen appeared the message instructing me to ask for the poll worker's assistance in order to proceed.  The worker reached around to the back and pushed something, out popped the little card, and the worker told me that I was finished voting.  To this day, I have no idea whether or not my vote actually registered, because the button in the back of the machine is a re-set button. When I voted in Fall, 2001, the card I was given did not work, even after the worker tried several times. I was given another card. Again, there are doubts as to the correct functioning of the machine. There should be NO doubt as to whether or not I voted.

Plaintiff has never owned a computer that worked perfectly 100% of the time, nor does she know any other human being who has owned such a computer. The Touchscreen system denies voters the right to verify that the ballot they cast has not had errors imposed on it by the computer. Defendant claims the lifespan of the AVC Edge is 20 years. It seems unlikely that anyone would use the same computer for 20 years, especially without coming to experience increasing error over the years. This will cast increasing doubt on the integrity of elections in the minds of growing numbers of voters.

Defendant weighs the Benefits of the Sequoia AVC Edge Touchscreen Voting System in Riverside County (DMCFL, pp. 5-11), but fails to balance them against the liabilities incurred by the denial of fundamental constitutional rights. All of the benefits listed by Defendant do not outweigh the fact that voters can never verify that their ballots accurately reflect voter intent.

It is not necessarily for Plaintiff to contest Defendant’s claim that Touchscreen machines eliminate over-votes or make them in this limited sense “more accurate” than “Mark-a-Vote” machines (DMCFL, p. 5, lines 5-15). Voters cannot be assured that their ballot accurately reflects their vote unless the machine prints out a ballot which can be verified by the voter and used as the primary source record of their vote, especially in the event of a recount in a contested election.

It is not necessarily for Plaintiff to contest Defendant’s claim that Touchscreen machines are easier for the disabled to use. (DMCFL, pp. 5-6) Disabled voters cannot be assured that their ballot accurately reflects their vote unless the machine prints out a ballot which can be verified by the voter and used as the primary source record of their vote, especially in the event of a recount in a contested election.

It is not necessary for Plaintiff to contest Defendant’s claim that Touchscreen machines are not networked (DMCFL, p. 6, lines 16-21). Lemons come off assembly lines where “quality is Job #1.” Programmers and maintenance workers can be bribed. Computers glitch. Things happen. Voters have a right to a greater assurance that their ballot accurately reflects their vote. The touchscreen machine must print out a ballot which can be verified by the voter and used as the primary source record of their vote, especially in the event of a recount in a contested election.

Defendant contends that “the touchscreen system has improved Riverside County’s ability to audit the election process and conduct recounts.” (DMCFL, pp. 6-7) In fact, the paperless Touchscreen completely eliminates any possibility of an independent external audit. A glitched machine cannot be trusted to self-audit. An independent audit of voter-verified ballots is constitutionally required.

The benefit of “early-voting programs at regional malls throughout the County” (DMCFL p. 7, lines 5-13) need not be contested. It must be weighed, however, against the fundamental right to vote, which is denied by the failure to provide an independent audit of voter-verified ballots. The printing of a paper ballot to be used as the primary source document of the vote does not in any way impair “early election programs at regional malls.”

Defendant claims “substantial cost savings in operating elections.” This argument has its limitations. The Defendant could save substantially more by replacing elections entirely with a “scientific sampling” of voters. Computer experts could testify to the validity of their statistical extrapolations. Such a “sampling” would, of course, deny our fundamental right to vote. A court-mandated hard-copy ballot printed by the Touchscreen system could still yield savings over the pre-printed “Mark-a-Vote” ballots. More importantly, an injunction now before other counties adopt paperless systems could save millions of dollars by requiring integration of a fully auditable paper trail, rather than supplementation of DRE systems after they have been adopted and deployed.

Defendant writes at length about Touchscreen Voting System Testing and Certification (DMCFL, pp. 7-11). None of the standards cited by Defendant require an independent audit of voter-verified ballots. These standards (or guidelines) are therefore constitutionally deficient. Plaintiff’s experts have testified before courts and Congressional committees attempting to bring these standards and guidelines into conformity with the latest conclusions of computer science.

 

III. ARGUMENT

The disputed ability of Touchscreen voting systems to conduct independent audits of system integrity and voter intent arises primarily as a result of Defendant’s employment of standards that are constitutionally inadequate for use on paperless Touchscreen systems, standards which violate Plaintiff’s fundamental rights. Plaintiff is by profession an accountant, and is familiar with the normal usage of the word “audit.” She knows that a corporation cannot self-audit. Simply reprinting a spreadsheet or pressing the “refresh” button on the spreadsheet software does not constitute an “audit.” An audit requires an independent examination of the underlying source documents. In the case of accounting, this means receipts and checks. In the case of elections, this means voter-verified ballots.

Black's Law Dictionary, Rev. 4th ed., p. 166, offers the following:

 

Audit

     An audience; a hearing; an examination in general; a formal or official examination and authentication of accounts, with witnesses, vouchers, etc. GreenBoots Const. Co. v. State Highway Commission, 165 Okl. 288, 25 P.2d 783

     Sometimes restricted to a mere mathematical calculation or process, but, in its generally accepted sense, includes an investigation and weighing of the evidence and deciding of whether entries in books are true and correct. Lumber Mut. Casualty Ins. Co. of New York v. Horowitz, 1 N.Y.S.2d 191, 193, 165 Misc. 506. (emphasis added)

 

Plaintiff contends that Defendant’s definition of “audit” would not be “generally accepted,” and that without such an audit, Defendant cannot discharge his responsibility to assure that voting systems are “free from fraud and manipulation” (California Elections Code §19205(c)) thereby denying Plaintiff’s fundamental right to vote.

Plaintiff further contends that the significance of her complaint has been vastly underestimated by Defendants. There is little evidence that Defendants have sought input from those who are both rigorously and broadly grounded in the field of computer science, and can see beyond the claims of voting system vendors. Defendants’ motion for Summary Judgment does not refer in any substantive way to the questions that the experts are raising, and which in months to come will be the concern of “the man on the street.” Plaintiff’s issues were raised in a July 2001 Report of the Caltech-MIT Voting Technology Project, a prestigious group of computer experts:

 

A Provocative Scenario:  A programmer at SlickVotingMachines Corp. adds malicious code to a DRE (Direct Recording Electronic device) machine for the California 2004 Presidential election, so that every fiftieth vote for a Republican candidate is changed to a vote for the corresponding Democratic candidate. This only happens when the machine is in “real” mode as opposed to “test” mode, so the election officials never discover the fraud during their testing. The electronic audit trail made by the DRE machine is also affected, so “recounts” never discover anything amiss.
( http://web.mit.edu/newsoffice/nr/2001/VTP_report2.pdf )

 

The Standards upon which Defendant relied in certifying paperless Touchscreen systems do not enable Defendant to detect this kind of external manipulation, which the man on the street has come to expect from contemporary costly political campaigns, nor to detect the self-manipulation imposed on voter intent by computer glitches. These self-manipulating glitches have already occurred in Riverside Co.,[1] and may be more dangerous than externally added malicious code. Defendant would have us believe that whenever anything is amiss in a Touchscreen system, the system’s ability to self-test and accurately report will remain 100% functional and accurate, as though that component of a broken system will never break. And in the end, the inability to conduct an independent audit of the voter’s source documents (voter verified physical ballots) is a fatal flaw in the design of the paperless Touchscreen system.

The vast majority of computer experts seem aware and concerned about the issues raised by Plaintiff; Defendant’s motion does not. These issues need to be thoroughly examined and adjudicated, and a judgment for Defendant would serve only to bury them.

 

EQUITY: APATHY VS. INTEGRITY

The relief sought by Plaintiff has been described by Defendant as violative of “the needs of the public.” The question before this court is the relative importance of “early-voting programs at regional malls” versus elections with integrity which are trusted by voters and eliminate political cynicism. Ignoring the effects of paperless ballots in any balancing process “is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.” Bush v. Gore, 531 U. S. ____ (2000)

All of the benefits cited by Defendants would be retained by requiring a voter-verified hard copy to be produced by the Touchscreen machines, and by requiring such voter-verified ballots to be the final standard of voter intent. The public interest is in independently auditable elections which inspire voter confidence, and Defendants have nothing to weigh against that public interest. The requirement to provide an election system in which the public can repose its confidence is not a “hardship” but a Constitutional duty.

Defendant’s analysis of the balance of equity is deficient. Defendant argues first that A. The Benefits Afforded to the Voters of California and Riverside County by the Use of Touchscreen Voting Systems More than Provide a Rational Basis for Their Certification and Adoption. (DMCFL, pp. 11ff.) Even granting that the DRE system provides all the benefits enumerated by Defendants (e.g., ease of use for the disabled, early voting at regional malls, etc.), if that system manipulated the votes of every fifth voter (see the “Provacative Scenario” of the CalTech/MIT Voting Project, above p. 7), the system must be rejected, even though “every fifth voter” does not constitute “a suspect class.” The cases cited by Defendants are not on point. Clements v. Fashing, 457 U.S. 957, dealt with the right to be a candidate for office, which the Court found not to be a “fundamental right,” not the right to vote, which the Court has repeatedly found to be “fundamental.” In McDonald v. Bd. of Election Commissioners, 394 U.S. 802 the Court found that “there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.” 394 U.S. 802 at 807. In this case Plaintiff is neither a candidate nor seeking and absentee ballot, but is denied the right to vote by Defendants’ voting system which is not “free from fraud and manipulation.”

Defendant claims that “the United States Supreme Court has expressly and repeatedly rejected application of the ‘strict scrutiny’ standard to every voting rights case.” DMCFL, p. 11, line 23-25. Plaintiff believes this is an exaggeration. Of a half dozen major voting rights cases reviewed by the court, five have strongly or slightly favored a “strict scrutiny” approach. Harper v. Virginia Board of Elections et al 383 U.S. 663 (1966) clearly adopted a strict scrutiny standard: “We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.” Harper, 383 U.S. at 670. The Court in Kramer v. Union School District, 395 U.S. 621 (1969) relied on Harper and demanded a compelling state interest.

Defendant’s citation of Burdick v. Takushi, 504 U.S. 428 (1992) supports Plaintiff’s case. In Burdick the Supreme Court held that “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens [fundamental] rights.” Id. at 434. Defendant’s refusal to permit an independent audit of voter-verified ballots is a potentially wholesale negation of Riverside County voters’ intent and thus their right to have their votes counted. The magnitude of the warnings raised by the CalTech/MIT Report trigger Burdick’s requirement that Defendants’ standards “be narrowly drawn to advance a state interest of compelling importance.” Id. Thus, even Burdick would call for strict scrutiny of Defendants’ refusal to provide auditable elections.

Even granting Defendants’ standard of review, it will be found unable to justify Defendants’ certification of voting systems which are not subject to an independent audit of voter-verified ballots. Defendant claims that the advantages of the Touchscreen system are rationally related to the government’s legitimate interest in “efficient” elections. But none of these advantages would be lost, and no government interest sacrificed, by attaching a printing device to these same Touchscreen systems to provide an independently auditable paper trail. See Plaintiff’s Statement of Genuine issues, in which Defendant’s advantages are weighed against a true audit. There comes a line when “efficiency” (multi-language ballots, audio talk-back, “ooo neat-o” computer buttons) in an election that does not count voters’ ballots converts an election into a mere façade.

Defendant next claims that B. The Criticisms of the Touchscreen Voting Systems Asserted by Plaintiff Are Without Factual Basis and Do Not Invalidate the Rational Basis for the Certification and Adoption of the Touchscreen Systems. (DMCFL, pp 13f.) The factual basis of Plaintiff’s allegations are undeniable: the standards relied upon by Defendants in certifying DRE voting systems do not require an independent audit of voter-verified ballots. The DRE system deployed in Riverside County substitutes a self-audit for a genuine independent audit. These standards do not pass muster in the fields of accounting or of computer science, much less when the fundamental right to vote is at stake.

Plaintiff does not contend that she is harmed merely because the voting system she is forced to use is different than those used in other jurisdictions. She complains of a system which is statutorily and constitutionally deficient because she is not allowed to cast a voter-verified ballot in a system which is “free from fraud and manipulation.”

Defendant finally contends that C. The Remedy Sought By Plaintiff Would Violate Equity Requirements Because It Would Defeat The Public Interest. “The public interest” in this case is clearly in elections which foster public confidence in our government. If anyone could be expected to support DRE voting systems, it would be those on the cutting edge of computer science. Yet the experts in the field (as opposed to mere vendors of computer voting systems) are reluctantly admitting that paperless computers cannot adequately guard our most fundamental constitutional rights. And if computer experts do not have confidence in DRE systems, then in due time the now-infatuated public will soon experience buyer’s remorse. Defendant cites U.S. v. Oakland Cannibis Buyers’ Cooperative, 532 U.S. 483 (2001), but in that case the Court balanced “the public interest or the convenience of the parties” against the government. (III.B) The Court found that the federal legislature’s interest in prohibiting marijuana outweighed “the public interest and the convenience of the parties,” that is, Californians who voted Proposition 215 into law, and those infirm who had a medical need for marijuana. But “the public interest” in that case more closely parallels the voters in this case, not the Secretary of State.

In this case both “the public interest and the convenience of the parties,” and the judgment of the legislature is in favor of voting systems which are “free from fraud and manipulation.” (Cal. Elect. Code §19205) Defendant, however, wishes to continue to rely on testing standards and guidelines which do not reflect the wisdom of the most recent conclusions in computer science, and do not require an independent audit of voter-verified ballots. There is neither a public interest nor a legislative judgment in favor of the old standards and against an independent audit of voter-verified ballots to balance against relief for the Plaintiff.

If every county had already adopted a DRE system and had them in place for years, this court could very well find that equity was on the side of established voting systems. But here we confront an emerging trend, a trend fostered by vendors of a particular voting system in conflict with the conclusions of computer science experts, but a trend which is in its infancy. An injunction now would re-direct this trend in a more constitutional direction with relatively little hardship on county governments as a whole.

 

IV. CONCLUSION

Plaintiff respectfully requests that this court grant judgment in favor of the Plaintiff to ensure the integrity of elections and guard against further deployment of an unconstitutional voting systems.

 

DATED: May ___ 2002

                                                                                    Respectfully submitted,

                                                                                    Susan Marie Weber

                                                                                    43-041 Buttonwood Dr.

                                                                                    Palm Desert, CA 92260-2605

                                                                                    760 340-2213

                                                                                    In propria persona

 

 

                                                                                    By:       ________________________

                                                                                    Susan Marie Weber

 



[1] Laurie Koch Thrower and Imran Ghori, “Glitch Slows Voting,” [Riverside] Press-Enterprise, November 9, 2000, B-5.