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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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FL-13: Jennings Appeals Order Denying Access to Source Code

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January 4, 2007

Yesterday, Democratic candidate Christine Jennings filed an Emergency Petition with the Court of Appeals for the First District of Florida. In the petition, Ms. Jennings asks the Court of Appeals to quash the trial court’s Order denying her access to the source code for the election equipment used in the November, 2006, election.

Jennings argues that without access to the source code, she will be unable to provide evidence to support her theory of what caused the undervote. At the trial level, the state argued that their parallel testing of the voting machines should be sufficient to prove that the machines were not the cause of the undervote. Aside from pointing out that this audit was conducted by the same officials who certified the allegedly defective machines, Jennings presented evidence in the trial court that this parallel testing did not accurately replicate Election Day conditions and did not account for the diverse backgrounds of the actual voters. Additionally, Jennings argued that the report was improperly admitted as Florida’s hearsay rules do not provide an exception for factual findings of official investigations.

In her petition, Jennings further argues that the trial court did not apply the proper balancing test in determining whether there should be no disclosure of the source code. The court should have balanced the harm to the owner of the trade secret against the harm of not allowing Jennings to see the code. Instead, Jennings claims the court wrongfully assumed that any disclosure of the source code would impermissibly destroy the protections afforded to its owners. Jennings claims that she proved a “reasonable necessity” to view the source code, but that the trial court improperly required her to prove a “reasonable likelihood of success”—something she claims it is impossible to do without first having access to the source code.