E-Voting Suit Highlights Legal Lag
By Susan Kuchinskas

A suit filed in Riverside County, California, claims that the Registrar of Voters ignored the law. But electronic voting technology muddies the waters.

Linda Soubirous lost the March 2004 race for a seat on the Riverside County Board of Supervisors by 45 votes. But it wasn't the close call that outraged her. When voting results were held up at one precinct, her campaign aides allegedly saw the vendors' employees tinkering with the central tallying computers.

According to news reports, the company, Sequoia Voting Technologies and Riverside County Registrar of Voters Mischelle Townsend gave conflicting reports about what they were doing. Soubirous asked for a recount which still showed her losing by a hair.

California election law permits any voter to request and review "all relevant election materials" pertaining to a recount. Soubirous asked Townsend and machine vendor Sequoia Voting Systems for 44 pieces of information pertaining to the recount, including the audit logs, the redundant memory stored in the machines, the results of "logic and accuracy" tests, and the chain-of-custody records for the system components.

Townsend allegedly refused, saying the electronic information wasn't relevant to the recount.

On Friday, Soubirous sued Townsend in Riverside County Superior Court. Joining her were Allen Hill and Grace Slocum, two Riverside County Voters, and the Verified Voting Foundation, a non-profit that advocates the use of voter-verified paper ballots for all elections in the United States and that electronic voting equipment and software be open to public scrutiny and random, surprise recounts.

According to the suit, Townsend refused Soubirous' request for the electronic documentation, saying the material wasn't relevant to the recount. Townsend didn't respond to several requests for comment.

"I was shocked when Riverside County election officials told me that access to the internal memories of the voting machines was not 'relevant' to a recount," Soubirous said in a statement. "Of course the internal information is relevant without it, there's no way to determine whether the votes were recorded and counted properly inside the machine." Soubirous didn't return numerous calls and e-mails.

Cindy Cohn, legal director for the Electronic Freedom Foundation, said that the question of what information citizens have a right to in electronic voting systems is far from settled. "In the case of older technology, there's been enough fighting back and forth that we have a pretty settled idea," she says. But she believes Soubirous' suit is the first in the nation examining the issue. For that reason, the EFF is acting as a friend of the court and providing financial support for the suit.

The court document complains that, while absentee ballots in the race were hand-counted, Townsend and her staff merely "pressed the 'print' button on their system a second time an empty gesture. ...Whatever theoretical capacities [direct recording electronic voting] (DRE) machines may have to provide meaningful election recounts were ignored by respondents in this case."

The suit also asks the judge to order that all future county elections produce a paper ballot for verification and follow the security procedures mandated by the California Secretary of State.

There have been numerous criticisms of the security and reliability of electronic voting systems. Researchers from Rice University and Johns Hopkins went public with flaws in software made by Diebold Electronic Voting Systems (Quote, Chart)that they said left it especially vulnerable to tampering via smart card.

Then, Diebold went after ISPs that allowed subscribers to publish copies of internal Diebold e-mails that discussed flaws and vulnerabilities. The company eventually withdrew a cease-and-desist order against The Online Policy Group, the EFF and several Internet Service Providers, following tons of negative publicity.

On Friday, Ohio Secretary of State J. Kenneth Blackwell halted deployment of Diebold electronic voting devices for the 2004 General Election, saying that preliminary findings from a second round of security testing showed unresolved security issues. Three counties had planned to use new Diebold equipment this November.

But this dispute points up the inevitability of human error in the process. The suit claims that the Registrar's office neglected to print "zero tapes" and results reports from each machine at the opening and closing of the polls. Zero reports show that there are no votes in the system before official voting begins.

"There's always potential for human failure," said Will Doherty, executive director of Verified Voting. "When a paper-based system fails, you can go back and count the paper and know the actual results of the election. When an electronic voting system fails, there's no fallback."

The case also illustrates what happens when technological innovation outpaces the law. There is little precedent for what should be handed over to voters such as Soubirous.

"This case raises critical questions about whether elections officials can effectively erase whole chapters of the Election Code that guarantee all citizens the right to request a meaningful recount," Gregory Luke, an attorney with Strumwasser and Woocher who is handling the case pro bono, said in a statement.

Suobirous' suit claims, "The vendors and purchasers of DRE systems in Riverside County have promised citizens and the courts that these machines provide transparent, secure and verifiable elections. A citizen has finally put those promises to the test and found them empty."

As in so many cases where technology rushes past jurisprudence, that's a conundrum for the court. "It will not only set legal precedent in California, but we're hoping it will set the standard for the country," said the EFF's Cohn. "It will be the first case that other courts will look to. And courts across the country will be asked these same questions."