Suit seeks to halt electronic voting in 15 N.J. counties

By Kaitlin Gurney

Philadelphia Inquirer 20 October 2004

TRENTON - Arguing that electronic voting machines are faulty and vulnerable to fraud, a coalition of voting-rights activists sued the state yesterday, seeking to force election officials to use old-fashioned paper ballots.

Lawyers for the Constitutional Litigation Clinic at Rutgers University contend that the electronic voting technology used in 15 of the state's 21 counties does not provide a printed record and therefore "cannot be relied upon to protect the fundamental right to vote."

The detailed complaint, filed late yesterday in state Superior Court in Mercer County, lists problems associated with each type of voting machine used in the state and includes accounts by two New Jersey voters who allege they were disfranchised by the new technology.

The lawsuit joins the frenzy over voting security in the first presidential campaign since the contested Florida election in 2000. Lawsuits related to electronic voting are pending in Maryland and Florida, and elsewhere activists have requested special monitoring of elections where the technology is used, in many cases for the first time.

The Rev. Robert Moore, executive director of the Coalition for Peace Action, one of the groups that brought the lawsuit, said voting security was especially important in New Jersey this year because polls indicate the presidential race for the state's 15 electoral votes is tight.

"If this election is as close as it's shaping up to be and there is no way to verify whether votes were counted properly, we have a train wreck coming," Moore said. "The rule is one person, one vote, and you need to know that your vote really counted.

"This may be a last-ditch effort, but it's too important not to try."

Attorney Penny Venetis of the Constitutional Litigation Clinic said she had asked the court to hear the case on an emergency basis. She said she was seeking an injunction on electronic voting that would force county election officials to use paper ballots counted by the optical scanners used to tabulate absentee votes.

Five counties, including Camden County, still use lever machines that Venetis asserted were more reliable because they could not be programmed to malfunction on Election Day. Burlington and Gloucester Counties, like 10 other counties, use electronic machines made by Sequoia Pacific. Warren County uses optical-scanning technology, which reads marks on a ballot, the lawsuit says.

In the nine years electronic voting machines have been used in the state, the only problems reported have been attributed to human error, said Markus Green, chief of staff for state Attorney General Peter Harvey.

"We have a long-standing history of voting with integrity and security in New Jersey," Green said. "Because of the reminder of Florida in 2000, people are starting to question the technology we've used without error for the past nine years."

If a judge rules against the state, Green said, election officials could use paper ballots or a combination of methods.

"Would it be disruptive? Yes. Would it cause confusion? Yes. But could we do it? Yes," he said.

In addition to documenting problems with Sequoia Pacific's electronic machines and other brands in California, Ohio and Nevada, the lawsuit cites accounts from two voters from Hopewell Township, Mercer County. They contend they were instructed to cast their vote four times in a primary and school board election this year because a poll worker told them the machine was malfunctioning. One of the voters, Stephanie Harris, is a party to the lawsuit.

"She has no idea whether she voted once, twice, three or four times, or not at all," the lawsuit states. "When she exited the voting booth the fourth time, the poll worker tentatively advised her: 'I think it went through.' "

Moore, of the Coalition for Peace, said he had sued the state only as a last resort. After listening to a speech on voting security by U.S. Rep. Rush Holt (D., N.J.), who has sponsored legislation that would require electronic voting systems to produce a paper trail, Moore's group collected 20,000 signatures on a petition seeking greater voting protections.

After the group delivered the petition at a rally in Trenton in May, Assemblyman Reed Gusciora (D., Mercer) took up its cause and unsuccessfully lobbied Gov. McGreevey and Harvey on the activists' behalf.

"We require more scrutiny of slot machines in Atlantic City than we do of our voting machines," said Gusciora, chairman of the Assembly's Federal Relations Committee and a party to the lawsuit. "All we want from a voting machine is a paper trail and a receipt, like you get from an ATM."

The Election Technology Council, a group of vendors that banded together last year to defend their voting machines against the flurry of complaints, called the lawsuit a frivolous attempt to discredit reliable technology.

"Attempting to stop the use of this technology two weeks before a presidential election ignores history, the facts of the current situation, common sense, and the best interests of voters in New Jersey," said Harris Miller, president of the Information Technology Association of America, the council's parent group. "We call on the state Superior Court to dismiss this wrongheaded suit."

But Edward Felten, a computer-science professor at Princeton University who has studied electronic-voting technology, said the activists had concerns that merit consideration by a court.

"In many places voter security has been moved backward by the push to use electronic voting machines," Felten said. "You don't have to be paranoid to be worried about the lack of safeguards in this technology."