Election Law @ Moritz

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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.

Information and Analysis

FL-13 Update - 12/4/06

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December 4, 2006

A second round of testing on Sarasota County's voting machines concluded on Friday, this time on machines actually used in the Nov. 7 election. This second round, like the first round conducted on unused machines, again generated slightly different results than state auditors had scripted Friday. And once more, officials called the discrepancies minor and likely the result of human error, not machine malfunction. One report is here. The Jennings campaign continues its call for an audit by outside experts, and hundreds of protestors rallied in Sarasota County asking for a re-vote.

Regardless of the results of the state audit, the broader issue in FL-13 is the reliability of electronic voting machines. In her current lawsuit alleging faulty voting machines, Democrat Christine Jennings has amended her complaint to add Election Systems and Software Inc (“ES&S”), the Omaha-based company that manufactured the electronic voting machines, as a defendant. Jennings' lawyer, Kendall Coffey, said bringing ES&S into the lawsuit gets to the heart of the case and could remove procedural arguments that have thus far blocked Jennings' legal team from having access to computer codes that are used to operate the iVotronic voting machines. Coffey and others have argued that a thorough review of those codes could reveal flaws that explain why there was such a large "undervote" in the bitterly contested congressional race.

Presently, ES&S is refusing to allow outside experts to audit the source codes and software of their machines, citing copyright protection. Jennings attorney, Coffey, said failing to delve into the source code would be like a doctor asking a patient questions but not examining lab results or X-rays before making a diagnosis.

Meanwhile, in the hopes of avoiding a situation like FL-13 in the future, a draft report by the federal government's National Institute of Standards and Technology says that touch-screen-type voting systems should eventually be phased out because they provide no reliable paper trail for auditors. The draft report, which when complete will be presented to the U.S. Election Assistance Commission, suggests that the commission ultimately adopt guidelines requiring voting systems to include some way to independently verify the results recorded on the machines.

It also recommends not permitting "software-dependent" systems. "Software dependent" machines include those like the ones used in Sarasota. Because they provide no paper trail, verification of the results recorded by the machines is said to be dependent on the software in the system. The draft report also says the NIST does not know how to create "testable requirements" to make touch-screen machines secure. It says the machines "in practical terms cannot be made secure."

Reported by Debra Milberg, Moritz Class of 2008