JD, McGeorge School of Law, University of the Pacific
to be conferred December 2003
B.S., Human Service Administration, Bellevue University, 1997
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2004
B.A., English, University of California, Davis, 1996
Copyright © 2004 by University of the McGeorge School of Law
The Recall Election of 2003 prompted numerous legal challenges, among them a challenge to the use of touch screen voting systems in certain counties in California. In Weber v. Shelley, the Ninth Circuit Court of Appeals upheld the use of touch screen voting systems in Riverside County as a reasonable choice that did not interfere with the fundamental right to vote. - F.3d - 2003 U.S. App. LEXIS 21979 (9th Cir. Oct. 8, 2003). This report discusses the procedures for approval of voting systems, the voting systems that are available for use in California, the arguments for and against the use of touch screen voting systems, and the Ninth Circuit's opinion in Weber v. Shelley.
A. The Law
The Secretary of State, as the chief election officer, has the duty to approve, certify, review and decertify voting systems, and to adopt procedures for carrying out these duties. Cal. Elec. Code § 19001 et seq. A voting system cannot be used unless it received the approval of the Secretary of State before an election. Voting systems may not be approved unless they have fulfilled both statutory requirements and regulations of the Secretary of State. Cal. Elec. Code §§ 19201, 19200. In approving a voting system, the Secretary of State must find the machine or device and its software are suitable for the purposes intended, that the system will preserve the secrecy of the ballot, and that the system is safe from fraud or manipulation. Cal. Elec. Code § 19205.
In 2001, California voters approved the Voting Modernization Bond Act of 2002, which authorized a $200 million bond issuance, the proceeds of which are to be used to update voting systems. Cal. Elec. Code §§ 19230, 19234. The Act was intended to provide counties with the money necessary to update voting systems that have become "technologically obsolete," such as punch card voting systems. Cal. Sen. Rules Comm., Analysis of AB 56, at 5. One of the voting technologies identified as a viable alternative was touch screen voting. The Act also provides counties with a "financial partner" to assist them in implementing this new technology. Cal. Sen. Rules Comm., Analysis of AB 56, at 4.
To aid in the process of replacing out of date voting systems with touch screen systems, the federal government has passed the Federal Help America Vote Act (HAVA). 42 U.S.C. §§ 15301 et seq. HAVA will provide funds to states to replace punch card lever voting systems. Federal Elections Commission, Help America Vote Act of 2002, (accessed Dec. 1, 2003). HAVA is also charged with establishing the Election Assistance Commission to certify voting systems and establish minimum election administration standards. Id. Appointments to the commission will be made by the President with the consent of the Senate. Id. No appointments to the HAVA commission have been made. National Association of Secretaries of State, NASS Statement On Security of Voting Systems, (accessed Dec. 1, 2003).
B. Secretary of State Procedures
Certification of a voting system by the Secretary of State consists of three levels of testing: qualification, certification, and acceptance. California Secretary of State, Procedures for Approving, Certifying, Reviewing, Modifying, and Decertifying Voting Systems, Vote Tabulation Systems, Election Observer Panel Plans, and Auxiliary Equipment, Materials, and Procedures § 104 (accessed Nov. 11, 2003). To qualify, anyone who owns or has an interest in a voting system may apply to the Secretary of State for approval of the system. Id. at § 401. The application must include written information about the system, and a working model of the system must also be submitted. Id. at §§ 403, 405. In reviewing an application, the Elections Division of the Secretary of State's office evaluates whether the voting system complies with relevant elections statutes and whether the voting system will materially affect the security of elections, the accuracy of voting or vote counting, convenience to the voter, lawful conduct of elections, or the integrity of the elections process. Id. at §§ 504, 505. If the voting system complies with statutory requirements and does not materially affect any of these considerations, the system may be approved. Id. at § 506. If there are affects on the security, accuracy, convenience or lawful conduct of elections, a Voting Systems Panel reviews the application and decides whether additional requirements could minimize any negative effects. If there are requirements that could minimize any negative effects, the Panel may conditionally approve the system based on these additional requirements being met. Id. at §§ 505, 507.
Once a voting system application has been qualified, certification testing is conducted to ensure the system operates in a lawful manner, and to enhance public confidence in the voting process by assuring that the system protects the secrecy of the ballot, records and counts votes accurately, is "voter friendly" and creates an audit trail showing that the system correctly interpreted the voter's votes. Id. at § 104. The voting system is examined and tested in a mock presidential primary election and a mock gubernatorial general election so that the Secretary of State may determine whether any modifications or changes to the system are necessary. Id. at §§ 703, 801. A public hearing is then held to receive testimony and information on the proposed system. Id. at § 901. The Secretary of State then makes a final written decision either approving, disapproving or withholding approval of the voting system. Id. at § 1001.
The local governing board of a county, city, or voting district may adopt any kind of voting system that has been approved by the Secretary of State and may use it at any election held in that county or city. Cal. Elec. Code § 19210. The Secretary of State must periodically review all approved voting systems to determine whether they are defective, obsolete, or otherwise unacceptable. Cal. Elec. Code § 19222; California Secretary of State at § 1101 . If the Secretary of State determines at any time that a previously approved voting system fails to meet the requirements established, the system may be decertified. California Secretary of State at § 1201 .
California, like many other states, does not have a uniform voting system. Instead, voting systems vary by counties. California Voting Foundation, Directory of California Voting Systems (accessed Nov. 11, 2003). Although there are six voting systems available nationally, only five are listed as being used by California voters. The five voting systems used in California are paper ballots, punch cards, pre-scored punch cards, optical scan cards and the touch screen system. Id. The sixth voting system, the mechanical lever voting system, is no longer used in California. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems (accessed Nov. 11, 2003).
A. Paper Ballot Voting System
The paper ballot system originated in Australia and was adopted for use in the United States by New York for the 1889 state election. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems (accessed Nov. 11, 2003). The paper ballot lists the names of all candidate and referendum options on the ballot. Voters mark the box next to their choice for a candidate or referendum. When the voter completes the marking of the ballot, the voted ballot is dropped into a sealed ballot box. Paper ballots are primarily used in rural areas. California Institute of Technology, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment *2 (accessed Nov. 11, 2003).
B. Punch Card Voting System
San Joaquin and Monterey Counties in California were among the first counties in the United States to adopt the punch card system for the 1964 Presidential election. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems, (accessed Nov. 11, 2003). Punch card voting systems use one or more cards to list candidates and referendums. The names of candidates and referendums are listed on the left side of the card. On the right side of the card is a plus sign (+) located directly across from the name of each candidate or referendum. The card(s) slip into a hole punch device. The voter aligns a chrome lever with the choice of candidate or referendum on the card and presses down on the lever to punch a hole in the card. Id. The process is repeated until the voter completes his or her selection. After voting, the voter places the card(s) into a secrecy envelope and hands it to the ballot officer to have the envelope placed inside a locked ballot box. Id.
C. Pre-scored Punchcard Voting System
The pre-scored punch card voting system is called the Votomatic. The Votomatic card uses numbers assigned to holes on the card. The list of candidates, initiatives, and referendums is not printed on the card but in a separate booklet. The booklet also provides the voter with directions for punching holes to correspond with the voter's choices. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems <http://fec.gov/pages/puncard.htm> (accessed Nov. 11, 2003).
Errors occurring on ballots used in either the punch card or pre-scored punch card voting system are considered "spoiled" ballots. Spoiled ballots are replaced with a new card or set of cards. County of Stanislaus Clerk Recorder and Registrar of Voters, The Right to Request Another Ballot (accessed Dec. 1, 2003). Like the punch card system, the pre-scored punch card voting system requires the voter to place the completed ballot in a secrecy envelope, which is then inserted into a locked ballot box. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems (accessed Nov. 11, 2003).
D. Optical Scan Voting System
Optical scan voting systems are also known as "marksense" or "bubble" ballots. California Institute of Technology*3 . The optical scan voting system uses a ballot that is similar to standardized tests. An empty circle, oval or rectangle is located to the right of the name of each candidate or referendum. Voters make their selection by filling in or marking the appropriate circle, oval or rectangle. In some cases, the ballot has two arrows and the voter completes the arrow by drawing a line from one arrow to the other. The completed ballot is placed into an electronic tabulating device that counts the darkest mark. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems < http://fec.gov/pages/marksnse.htm> (accessed Nov. 11, 2003).
E. Direct Recording Electronic Voting Systems
There are different types of Direct Recording Electronic ("DRE's"), such as touch screens, push buttons and key pads. Voters may be able to view the entire ballot (common to push button DRE's) or view one page at a time. California Institute of Technology, *3 . DRE's do not use paper ballots. Election choices appear only on the machine. The voter makes an electronic selection by touching the designated area on a screen or pushing the button or key pad. Write-in votes are possible. The voter's choices are stored in the machine through the use of a memory cartridge, diskette or electronic card. Federal Elections Commission, About Elections and Voting: Administrative Structure of U.S. Elections, Voting Systems (accessed Nov. 11, 2003). The DRE's are similar to the lever systems because there is no ballot, plus the choices are made electronically and are only viewable on the machine.
F. Comparison of Voting Systems
Hand counted ballot systems have a low incidence of spoiled or unmarked ballots, followed by the mechanical lever voting system and optically scanned voting system. California Institute of Technology *2
Report_version2.pdf>. Higher incidence of spoiled and unmarked ballots is found in the punch card system. The punch card system was highly scrutinized following the 2000 Presidential election. Maya Suryaraman, Touch-Screen Voting Debuts (accessed Nov. 5, 2003). It is not uncommon for voters to have difficulty lining up the punching mechanism with the correct name or issue, resulting in making a punch in the wrong place or not making a punch that completely pierces the card. Another problem with punch cards occurs when the punch may pierce the card but the punched part does not completely separate from the card, resulting in what has come to be known as "hanging chads." Problems with the punching of cards skew the results because cards may be read incorrectly. A voter may think s/he has punched the card and not realize the punch did not go completely through the hole, or the wrong punch was made, or the punch left a hanging chad. These problems particularly present themselves with the punch card system and not with hand counted ballots, mechanical lever voting or optically scanned voting.
The primary difference between DRE's and non-electronic systems is the lack of a paper trail. DRE's do keep a record, but it is an electronic record of all the voting that occurred on a particular machine, rather than an immediately generated paper record for individual voters. The novelty of the process may make it harder to discover spoiled or unmarked ballots.
Proponents of touch screen voting systems regard the touch screen system as affordable, flexible and reliable. Maya Suryaraman . The systems are considered affordable because Federal HAVA funding is available and counties will realize cost savings by not having to print ballots. 42 U.S.C. §§ 15301 et seq.; Merced County, Touch Screen Voting (accessed Nov. 11, 2003). Additional benefits include faster tabulation and eliminating incidences of voting for more than one candidate. The speed of the computer system will expedite final tabulations and the system is designed to prohibit over voting, which occurs when the voter chooses more than one candidate in a race. Facsnet Reporting Tools, Looking Past Voting Machines to Voter Interface (accessed Dec. 1, 2003).
The flexibility of the touch screen system is associated with its small size, which makes it portable. Touch screen systems are compact because all the information is contained inside the machine. Only one card needs to be issued to a voter in order to activate the touch screen system, unlike other systems that require multiple paper voting cards. Touch screen voting systems are also expected to be easy to understand. Voters in Santa Clara County found the touch screen system easy to use. Maya Suryaraman . The disabled are able to use the system with the help of an auditory device. The lightweight system can easily be set up and takes less room, so limited space will not be as great a barrier to setting up polling places.
Reliability of the touch screen system is enhanced by on-screen instructions and the opportunity to review the ballot before the voter finalizes the selection. Another feature that increases reliability is that the system operates offline so there is no threat of tampering from an Internet hacker. Diebold Election Systems, Checks and Balances In Elections Equipment and Procedures Prevent Alleged Fraud Scenarios *3 (July 30, 2003). Uploading of the information for election results or auditing is conducted by a point-to-point network, rather than by dial up networking or the Internet. Id.
The touch screen systems are password protected. Additionally, the election process, which involves multiple people overseeing various portions of the election procedure, makes it difficult for any one person to sabotage the integrity of the election. Electronic sabotage would be difficult to achieve because of the safety precautions of the election process, as well as the technological safeguards in place. For example, company procedures require that ballot making staff be separate from system management staff. The separation of tasks makes it difficult for employees to insert "suspect" code into the cards because another team is likely to discover suspect codes. Additionally, the certification process, which tests the system, may reveal deficiencies. Having the system certified by third parties ensures the integrity of the election process. Id. at *1-3.
Opponents to touch screen voting systems cite concerns about the security of an electronic system that does not provide a paper trail for verifying votes. Since all the information is contained in the computer, opponents raise concern that hackers can access the system and sabotage the election. The concern stems around the threat of saboteurs "stuffing" the ballot box. Id. at *3.
The fact that the voting system relies on a highly technical process that is understood by few, only leads to more suspicion of the touch screen voting system. Opponents cite the relative secrecy with which the information will be stored, tabulated and audited, as cause for concern. California Voting Foundation . The system is susceptible to manipulation by a few knowledgeable people. Should such sabotage occur, it is unlikely the public will be aware of the problem or even able to prove the election process has been compromised. Even proponents of touch screen voting systems admit that sabotage is not impossible, but only difficult. For example, authentication of voter's cards would be possible though not easy to accomplish. Id. at *7.
Opponents also cite the potential for system failure. Benjamin Bederson and Paul Herrnson, Usability Review of the Dieold DRE System for Four Counties in the State of Maryland (accessed Nov. 11, 2003) In the event of system failure, opponents speculate that the voting process will be interrupted. Such a failure did occur in Palo Alto, where voting stopped for half an hour. During the system failure, voters used sample ballots to record their selections until the system could be reactivated. Maya Suryaraman . Computer failures may necessitate the use of paper ballots as a backup system. Having to provide a paper back up system will limit savings because counties will still be paying for printing costs.
Additionally, there are problems with the touch screen voting system that have more to do with user friendliness than vulnerability. For example, the help button cannot be activated during the voting process. Unclear and lengthy instructions appear on the screen during the voting process. It is possible that too much information on the screen may confuse voters. Id.
Voter unfamiliarity with touch screen voting makes the system more difficult to use correctly, thus affecting reliability. Suggested remedies, such as paper audits to support the computerized process, eliminate cost savings for counties. The most significant detraction to touch screen voting systems is the erosion of public confidence in the election process if the touch screen voting system suffers sabotage.
In Weber v. Shelley, the Ninth Circuit Court of Appeals addressed a challenge brought by a resident of Riverside County, Susan Weber, to that County's use of a touch screen voting system. 2003 U.S. App. LEXIS 21979. Weber alleged that the voting system violated her equal protection and due process rights because the system produced no voter-verified paper trail. Id. at *2. The District Court did not find any evidence that use of the touch screen system constituted differential treatment of voters, and ruled that use of the system did not impair her right to vote because the County had implemented the system as a reasonable choice that protected against fraud and advanced important state interests. Id. The Ninth Circuit affirmed the District Court's ruling, stating that the challenge raised "at most a hypothetical concern about the ability to audit and verify election results" and any impact the system had on Weber's right to vote was "minimal." Id.
The Court began its discussion by describing the touch screen system, which had been approved by the Secretary of State and implemented by Riverside County. At the polls, voters were given a card used to activate the voting machine and on-screen directions instructed the voter how to select candidates and how to make changes if necessary. The machine required that the voter review the entire ballot once voting had been completed, and once reviewed, the voter was directed to touch a "Cast Vote" cue on the last screen. Id. at *5. Once the voter cast a ballot, the unit ejected an activation card, which the voter returned to the election officer. After the polls closed, cartridges that recorded the votes were removed from the voting machines and sealed in a secured pouch for counting. Id. An electronic cartridge reader then transmitted the votes to a central location were all votes from the County were tabulated on the County's secure data network. Id. Several fraud protections were implemented by the County, including the use of redundant data paths and ballot images, allowing system checks between voting data, storing the data in triplicate, and having the ability to reproduce a printed copy of every ballot cast. Id. at *6. The County implemented this system after determining that touch screen systems were more accurate and reliable than paper systems, that touch screen systems were more easily accessible to the disabled and foreign-language speaking voters, that recounts could be done with more speed and accuracy, that touch screen systems increased voter turnout and that they were cost-effective. Id.
Weber's challenge to the touch screen voting system implemented in Riverside County asserted that the right to vote was infringed because "the ease with which ballots [could] be manipulated [was] greater than the ease with which the manipulation [could] be detected." Id. at *7. Without paper ballots and an audit of them, any flaws in the programming code of touch screen systems could not be detected. Weber pointed out that touch screen systems that produce a paper ballot do exist and the burden on Riverside County to correct the possibility of manipulation would be minimal. Id. at *7-8.
Weber challenged the District Court's ruling that expert testimony regarding the problems with touch screen voting was inadmissible. The Ninth Circuit upheld this ruling, stating that the expert's declarations did not tend to show that voters in Riverside County had a lesser chance of having their votes counted. Id. at *9. The declarations pointed out that a paper ballot would provide an audit trail that would be useful when disputes arise. Also, the absence of programming errors is impossible to verify, the system used had a significant number of votes that were lost and there was no requirement for voter-verification at the time of balloting. However, the Court held that these facts did not show that the touch screen system used in Riverside County was any less accurate or verifiable than any other voting system. Id.
The Court then addressed the Constitutional challenges to the touch screen voting systems, noting the right to vote is fundamental. Id. at *10. However, states have broad discretion in enacting legislation to ensure fair elections. Id. Because every electoral law has some impact on the right to vote, courts have implemented a balancing test to determine whether a state's voting law violates the Constitution. Id. at *11. The court must "weigh the character and magnitude of the asserted injury to the rights protected by the Fourteenth Amendment against the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. at *11-12 (citing Burdick v. Takushi, 504 U.S. 428 at p. 433 (1992).) Under this standard, when Fourteenth Amendment rights are severely restricted, the state's regulation must be narrowly tailored to advance a compelling state interest, but if the regulation only imposes reasonable, nondiscriminatory restrictions on voters' rights, the state's "important regulatory interests are generally sufficient to justify the restrictions." Id. at *12.
The Ninth Circuit stated that under this standard, the question in this case was whether using a voting system that brings about a number of positive changes, but lacks a voter-verified paper ballot, constituted a severe restriction on the right to vote. Id. The Court answered this question by noting that no balloting system is perfect and that even traditional paper ballots are prone to problems, as evidenced in the 2003 presidential election. Id. at *13 (citing Bush v. Gore, 531 U.S. 98 (2000).) The Court went on to state that touch screen voting systems have eliminated some of the problems encountered with paper ballots, and while the addition of a voter-verified paper ballot to touch screen systems might further improve the system, the legislature is responsible for weighing the pros and cons of a voting system, not the courts. Id. at *14. If the legislature's choice is reasonable and neutral, the courts cannot interfere. In this specific case, California made "a reasonable, politically neutral and non-discriminatory choice to certify touch screen systems," as did Riverside County in deciding to implement the system. Id.
Distrust of touch screen systems is partly attributable to a general unease in adapting to a new and high-tech voting system. Additional distrust is created because the audit system is as high-tech as the voting process. The technical knowledge needed to understand the system removes it from the scrutiny of the average person. Current safeguards are not sufficient to remove the suspicion surrounding touch screen voting systems.
Until HAVA is fully operational, voters must rely upon the judgment of the California Secretary of State to certify, review and decertify voting systems. It is the responsibility of the California Secretary of State to adopt procedures to safeguard the election process. Cal. Elec. Code § 19001 et seq. Faced with a deadline to eliminate punch card voting systems, voters must rely on state officials to test DRE's for reliable operation.
Still, a paper audit trail may provide the added assurance needed to maintain public confidence in the election process. The paper audit trail provides tangible proof of voters' selections. Furthermore, the use of paper audit trails may only be needed on a temporary basis once touch screen voting systems are proven to meet an acceptable standard of reliability and more voters begin to trust the new electronic system.
Constitutional concerns whether cast votes are being accurately counted will continue to haunt the voting systems using the DRE's until voters' fears regarding the systems' accuracy is placated. Currently, there is no evidence that use of DRE's will result in unfair, unscrupulous, manipulated or fraudulent elections.
Finally, education is another factor that can affect public trust in touch screen voting systems. Educating voters about how to use touch screen voting systems will help insure correct and reliable usage. Educating election officials will help alleviate any disruptions to the touch screen system by preparing officials to implement a back up system.
Federal law makes it clear that the future of voting lies in the use of higher technology. DRE's will replace paper ballots. Proof that touch screen voting systems are reliable can be accomplished by using a paper trail audit.