Counties' e-vote suit rebuffed

ELECTIONS: A judge upholds the secretary of state's decertification of touch-screen systems.

11:52 PM PDT on Wednesday, July 7, 2004

By MIKE KATAOKA / The Press-Enterprise

A federal judge has upheld Secretary of State Kevin Shelley's right to decertify electronic voting systems if counties don't meet his security requirements, a decision that may force Riverside and San Bernardino counties to come to an agreement with the state.

Bolstered by U.S. District Judge Florence-Marie Cooper's decision, Shelley called for an end Wednesday to litigation in the electronic-voting dispute and asked counties involved in the suit to comply with security demands.

"Now is the time to leave the litigation and the acrimony behind, implement the added security measures we have called for, and run a secure, efficient election in November," Shelley said in a statement.

Based on glitches in the March primary, Shelley declared the technology unreliable and subject to security breaches.

In April, he decertified touch-screen voting systems in 14 counties, including Riverside and San Bernardino, but since has lifted the ban in more than half of those counties after they agreed to his new rules.

Shelley's rules require counties to give voters the option of casting a paper ballot and to give their machines' computer source code to independent analysts for security checks. He also wants a "paper trail" record of electronic votes.

The Inland counties joined Kern and Plumas counties in the federal suit along with advocates for the disabled, who argued that disabled voters are able to cast private ballots through electronic voting, rather than depend on human assistance to fill out paper ballots.

Roy Wilson, chairman of the Riverside County Board of Supervisors, was optimistic Wednesday that some sort of agreement can be worked out.

"I sure hope so," he said. "I'd hate to have to conduct a paper-ballot election. It would take us weeks to count them."

The supervisors will meet in closed session next week to decide whether to accede to Shelley's wishes or take the court battle to another level, Wilson said.

The San Bernardino County Board of Supervisors will be meeting to consider its response, said David Wert, county spokesman.

On Tuesday, Cooper refused to issue an injunction sought by the Inland counties and others that would have allowed them to use touch-screen voting despite Shelley's ban.

The judge's ruling

The federal suit contended that Shelley overstepped his authority and unfairly penalized counties that have had no problems with electronic voting. Riverside County has run 29 successful touch-screen elections since 2000, officials said.

"The interest of the secretary of state in fulfilling his statutory duties and the public interest in accurate, verifiable vote counts outweigh the plaintiffs' interest in an unassisted, private vote," Cooper wrote in her ruling.

She noted that disabled people may be unable to vote privately and independently without electronic systems but wrote "it is clear they will not be deprived of their fundamental right to vote."

"We think the judge is wrong. We're going to appeal," said Jim Dickson, vice president for governmental affairs for the American Association of People with Disabilities, the designated plaintiff in the counties' lawsuit.

But activists skeptical about the integrity of electronic voting, including the California Voter Foundation, hailed Cooper's ruling.

"California is at the forefront of the nationwide movement for e-voting reform," said Kim Alexander, foundation president. The court ruling "reinforces the leadership California Secretary of State Kevin Shelley is bringing to this critical issue."

"As far as San Bernardino County is concerned, the county has been in compliance with all the security measures," Wert said. "The only sticking point was conducting a dual election" with paper ballots and touch-screen voting.

The cost issue

Wilson said discussions with Shelley have focused on who will pay for the paper ballots, which have been estimated to run several million dollars.

Another issue has been requiring Sequoia Voting Systems, the maker of touch-screen systems used in Riverside and San Bernardino counties, to comply with Shelley's security measures.

Sequoia Systems officials said Wednesday their touch-screen system has proven to be a safe and accurate way for people to vote.

"We're confident that the system is and always has been reliable and secure with or without the paper trail," Sequoia Systems spokesman Alfie Charles said.

"The conditions that the secretary of state has imposed may be burdensome to election officials, but if that's what's required to ensure voter confidence then we'll do what we can to help ensure that counties will be able to use the voting systems in November," Charles said.

The lawsuit contended that Shelley decertified the systems without a notice and hearing but the judge disagreed.

Strong words from judge

"There was significant public response to the (decertification) notice, the vast majority of which concerned the continued use of electronic voting machines," Cooper wrote. "Further, there was substantial public participation in the meeting, including participation by advocates for voters with disabilities."

The suit further contended that Shelley issued the ban without specific authority but again Cooper disagreed.

The secretary of state, she wrote, is "not only authorized, but expressly directed, to withdraw his approval of any voting system found to be defective or unacceptable."