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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Wednesday, March 22
 
California Suit Over Diebold Machines
If it sounds like something you've heard before ... well, you probably have, though the latest case is a little different. Voting activists brought this petition in San Francisco Superior Court yesterday, challenging the certification of direct record electronic and optical scan systems made by Diebold, which are to be used in several counties in upcoming elections. The California Secretary of State as well as numerous county election officials are named as defendants. Reuters has this report, and Joe Hall this comment on the case.

The lawsuit arises from the Secretary of State's certification of a precinct-count optical scan system (the AccuVote OS), as well as its touchscreen system (the Accuvote TSx). Unlike some of the others that have been filed, this case is not about paper trails. Both these systems generate paper records that the voter can see at the time of voting, the so-called "voter verified paper audit trail" or "VVPAT." The main claims instead have to do with whether the systems comply with state certification standards, as well as with whether the touchscreen system with the paper trail is truly accessible.

My take: Although the petition is well-crafted, and although it's hard for me to evaluate the claims regarding noncompliance with state certification requirements, I tend to agree with Hall's assessment that this case is probably "going nowhere." There are, however, a couple of interesting features of this case that struck me as I read through the petition:

- One of the key points that the petition makes is that the paper trail generated by the Diebold touchscreen machine isn't really suitable to be used in the event of a manual audit. The Diebold TSx prints onto thermal "toilet paper" rolls, which would be exceptionally difficult, expensive, and time-consuming to actually read. True enough. In fact, as I've many times stated, this is one of the big concerns with contemporary VVPAT technology generally -- and one of the big reasons I've consistently opposed laws to require this device, at least until it proves workable and effective. The petition also notes printer jams that the Diebold had in tests, another concern that I've had with the VVPAT.

- Another of the petition's key points is that the Diebold TSx doesn't really provide equal access for people with visual disabilities, because it doesn't provide a "read-back" of what's on the paper records. Instead, it provides those voters only with a "read-back" of the electronic vote record, which might not correspond to what's on the paper. Thus, contrary to what Calfornia's former secretary of state promised when he mandate a VVPAT back in 2003, the paper trail really isn't "accessible" to people with disabilities. I agree with this -- but don't think that there's any other DRE out there that can do better. This could mean that none of these systems are compliant with what the state has required.

Even though it will be an uphill battle, this case highlights some important issues. For those who thought that adding a VVPAT requirement would resolve the issues surrounding electronic voting, this is a rude awakening. In fact, the arguments made in this case support the conclusion that mandating the VVPAT will cause at least as many problems as it solves.

As for those who are tired of arguments over the VVPAT ... well, I am too (though sometimes I can't resist). But perhaps this case will at least call attention to the fact that paper is neither the beginning nor the end of the debate of the debate over voting security. To the extent that there really are vulnerabilities with Diebold's optical scan and touchscreen systems -- and the petition seems to make a strong case that there are -- we've got to come up with other ways of dealing with them.

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Moritz College of Law The Ohio State University