Wednesday, October 29, 2003
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Ninth Circuit Rejects Constitutional Challenge to Touchscreen Voting
By KENNETH OFGANG, Staff Writer/Appellate Courts
The use of touchscreen voting systems that lack a paper trial for audit purposes does not violate the due process or equal protection rights of individual voters, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The plaintiff, a resident of Riverside County—the first county in the state to hold an election using touchscreen machines in all precincts—“has raised at most a hypothetical concern about the ability to audit and verify election results,” Judge Pamela Ann Rymer wrote for the panel.
Nor did Susan Marie Weber of Palm Desert, who argued her own appeal, show more than a “minimal” impact on her right to vote, Rymer said. The panel ruling affirmed a summary judgment in favor of the county and of Secretary of State Kevin Shelley granted by U.S. District Judge Stephen V. Wilson of the Central District of California.
Riverside County uses the AVC Edge Touchscreen system manufactured by Sequoia Voting Systems. Shasta County uses the same system, while two other counties use the Diebold AccuVote-TS.
Rymer noted that every voting system used in California must be tested according to Federal Elections Commission and National Association of State Election Directors standards and certified by the secretary of state before it can be adopted by a county.
The AVC Edge system was certified by then-Secretary of State Bill Jones in 1999, and first used in Riverside in the 2000 presidential election. Modifications to the system were certified by Jones in 2001.
The secretary’s testing, Rymer explained, verified that the system protects against fraud “by using redundant data paths and ballot images, by allowing instantaneous systems checks between the voting data, which is stored in triplicate, and by possessing the capability to reproduce a printed facsimile of every ballot cast.”
There is nothing in the Constitution, Rymer said, which says “that the right to vote is infringed when the ease with which ballots can be manipulated is greater than the ease with which the manipulation can be detected.”
Critics of the AVC Edge and AccuVote systems have argued in favor of touchscreen systems that produce a paper ballot that can be verified by the voter before the ballot is cast. They contend that the non-voter-verified systems can be manipulated by the use of malicious computer code, that there is a significant risk of lost votes, and that the lack of paper trail makes the system unauditable.
But those alleged inadequacies do not rise to the level of a constitutional violation, Rymer concluded, because “there is no indication that the AVC Edge System is inherently less accurate, or produces a vote count that is inherently less verifiable, than other systems.”
Every election law and regulation, the judge elaborated, has some impact on the right to vote. That impact, she explained, must be weighed against the state’s right to an orderly elections process.
The jurist went on say:
“No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, ‘hanging chads,’ and other mechanical and human errors that may thwart voter intent....Meanwhile, touchscreen voting systems remedy a number of these problems, albeit at the hypothetical price of vulnerability to programming ‘worms.’ ”
While no system is perfect, the state’s decision to certify a particular system and a county’s decision to adopt one pass constitutional muster if “reasonable, politically neutral and non-discriminatory,” and the plaintiff failed to show that either the state or the county failed that test, Rymer concluded.
The opinion was joined by Judge Richard C. Tallman and U.S. District Judge Ronald B. Leighton of the Western District of Washington, sitting by designation.
The case is Weber v. Shelley, 02-56726.
Copyright 2003, Metropolitan News Company