Election Results Tossed in E-Voting Case

October 03, 2007

Catherine Pickavet, InternetNews

Electronic voting has promised security, accuracy, expediency and fairness since its advent. But amid continued controversy, a new ruling in California may add yet another mark in the tally against it.

In California last week, Alameda County Superior Court Judge Winifred Y. Smith threw out the results of a November 2004 referendum, citing concerns over e-voting. As a result, Measure R, a medical marijuana referendum that at the time had been voted down, will be placed on the ballot again in November 2008.

And e-voting was supposed to expedite the democratic process.

The three-year-long drama first began in December 2004, when Measure R's co-sponsors, which included the Americans for Safe Access medical marijuana advocacy group, approached Alameda County officials seeking a recount of the votes cast during the referendum.

That request proved problematic. According to last week's ruling, the county's Registrar of Voters denied the request, instead returning the e-voting machines used in the vote to their manufacturer, Diebold -- despite being legally required to turn over the machines' data for a recount.

In her ruling, Smith wrote that the county violated the Elections Code of California by failing to retain the election data collected by and stored on Diebold's e-voting machines. The Code requires that records from e-voting machines, technically called direct recording electronic (DRE) voting units, to be retained for 22 months following an election.

The county eventually admitted in court documents that it made no effort to preserve the data before returning the machines to Diebold.

Worsening matters, efforts to get the data from the returned machines ultimately proved unsuccessful. In April of this year, the court ordered Alameda County to go to Diebold's Plano, Texas, headquarters, to join Measure R supporters in observing the retrieval of any data that Diebold was able to uncover from the returned machines. In the end, however, 462 of the 482 DRE machines had no recoverable data.

"The [recount] request was clear and specific," Smith wrote. "The county ignored the request and proceeded to turn over control of the DRE machines without any effort to preserve the information on them. Why the county did so is anybody's guess. But the result is absolutely certain: The information on those machines is lost completely."

Following that failure, the court stepped in again last week, throwing out the original referendum results entirely and beginning the process of putting Measure R back on the ballot next November. Both sides have until Oct. 30 to respond to the ruling.

Alameda County Registrar of Voters did not return a request for comment.

Gregory Luke of Strumwasser & Woocher LLP, who represents the Measure R sponsors, said last week's ruling comes at the end of a complex, three-year battle to hold the county accountable to its voters.

"This is a very sweet and hard-fought victory because the courts, by their nature don't like to mess around with elections," Luke said. He added that concerns about the county's failure to uphold citizens' rights helped to encourage the court's action.

Even before the case went to court in Alameda County, e-voting technology and the policies surrounding its use were already facing mounting scrutiny.

In Sept. 2004, the county and state of California sued Diebold for fraudulent claims about the security of its electronic voting machines. That suit eventually resulted in a $2.6 million settlement in December.

At the time, then-California Attorney General Bill Lockyer argued that Diebold had not been truthful about the security and reliability of its DRE machines.

Officials and citizen groups in other states had also been raising concerns and lawsuits targeting e-voting in general and Diebold in particular. Many of these arguments trumpeted the need for paper receipts even in e-voting scenarios to avoid precisely the kind of missing-data problems uncovered in the Measure R case.

"In order to recount something, you have to know what it is you're recounting," Luke said. "The data you put in on day one is not necessarily the same data you'll see on day 10."

Despite the ongoing lawsuits, Alameda County evidently had few qualms about continuing to use Diebold DREs in its own November 2004 elections. And while it's unclear whether paper receipts may have prevented the resulting three-year court battle, supporters say they may at least do something to mitigate future problems.

"The first question to ask [about e-voting technology] is, 'How does the law need to be adapted in order to ensure that citizens can continue to exercise their rights to a public, efficient, and transparent post-election confirmation of the accuracy of the election,'" Luke said. "If it turns out the technology you're thinking of buying doesn't allow people to meaningfully exercise these rights, then it's not the right technology."

Some states evidently share those concerns. According to data tracked by VerifiedVoting.org, 26 states have voter-verified paper record legislation on the books. An additional nine have similar legislation on the House and Senate tables.

"You're always going to have a problem of human control," Luke said. "The public must be guaranteed the ability to check the work of elections officials, so legal procedures have to be firmly in place to protect this right in the context of a recount or contest. It's important to make sure laws are on the books."

Even if laws requiring paper receipts don't perfect the e-voting system overnight, they at least might help avoid some of the same pitfalls experienced in the 2004 Alameda County referendum. And they may potentially pave the way for a more widespread e-voting system, which even the system's critics say may be beneficial in the long run.

"There are some really good aspects to the technology that benefit the disabled and language minorities," Luke said. "Take what's good from the tech, and be strong enough to walk away from what's bad."

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