Who Creates Your Vote?

Monday, September 9, 2002

LOS ANGELES, Calif. --  On September 3, a Federal District Court dismissed a lawsuit challenging the constitutionality of the new Direct Recording Electronic (DRE) "touchscreen" voting machines in use in Riverside County, Calif.

The suit was brought by Susan Marie Weber, a Palm Desert resident, against Bill Jones, California's Secretary of State, and Riverside County Registrar of Voters Mischelle Townsend.

Weber said she first became alarmed over the electronic computer voting machines after reading a report by the combined computer experts at CalTech and MIT. That report raised serious concerns about the touchscreen machines, painting what it called "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  )

Plaintiff Weber alleged that voters could never know for sure that their preference had been recorded accurately, or that their votes, once recorded, would not be manipulated, either fraudulently or by a "glitch," and that in the event of a contested election, the absence of an independently auditable "paper trail" rendered a meaningful recount impossible. Weber asked the court to order defendants to add paper ballot printers to the touchscreen systems.

In their joint motion for summary judgment, Defendants Jones and Townsend responded that the machines were constitutional, by virtue of their

(as reported in an article by Christine Mahr in the Desert Sun).

Weber answered that Defendants' response utterly missed the point of the lawsuit:

Plaintiff Weber submitted declarations by three well-known experts in computer voting, including a member of the Internet Voting Task Force assembled by Defendant Bill Jones, and another computer expert who was recently invited to testify before the U.S. House of Representatives' hearing on Voting Technology. All three experts agreed that the Secretary of State cannot fulfill his statutory obligation to ensure that the DRE voting machines are "safe from fraud or manipulation" (California Elections Code §19205) without an independently auditable "paper trail."

The judge hearing the case, U.S. District Court Judge Stephen V. Wilson, disagreed, concluding that the State's interest in easy, attractive voting machines which might increase voter turnout outweighed the voters' interest in verifiable results.

"This is a decision that erases any questions as to the accuracy, validity and accountability of touch-screen voting in California," Secretary of State Bill Jones said.

"ERASES ANY QUESTIONS?" responded Peter Neumann emphatically; "Wow! That is a huge stretch." Neumann, principal scientist at SRI International Computer Laboratories in Palo Alto, CA, was the third witness brought to court by Plaintiff Weber. "I hope you combat that specifically in any press statements," he urged.

In spite of Defendant Secretary of State Jones' enthusiasm, Kim Alexander of the California Voter Foundation says dissatisfaction with paperless touchscreen voting is far from over, but rather is just beginning.  "I anticipate there will be many more lawsuits for years to come if we do not deploy this technology in a more transparent manner," she said.

The Court accepted the Secretary of State's claim that "The [touchscreen] System functions somewhat like an ATM" (Opinion, p.2). But Alexander disagrees: "If it were like an ATM, we'd get something at the end of the transaction -- either a receipt, or something of value (cash/ballot).  No one would use an ATM if they didn't get a receipt or something of value at the end of the process."

Weber, who filed her complaint without the aid of an attorney, said voters cannot know whether the counting machine counted the vote or created the vote, and she is now looking for an attorney to advise her on an appeal.

In the meantime, Weber urges voters in "touchscreen" jurisdictions to cast a paper absentee ballot.

In Westberry v. Sanders, 376 U.S. 1, 17 (1964), the Court testified to the fundamental character of the right to vote: “No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
Constitutional Scholar Lawrence Tribe, Harvard Law School

Experts in Weber vs. Jones

Voting Expert Rebecca Mercuri's website || Declaration in Weber v. Jones

Peter Neumann -- SRI International Computer Laboratories in Palo Alto, CA.  || Declaration in Weber v. Jones

California Voter Foundation, Kim Alexander, President and Founder || Declaration in Weber v. Jones

Opinion of the Court

Key case underlying court's decision:

BURDICK v. TAKUSHI, 504 U.S. 428 (1992)