Will your vote count?: can the current software withstand and guarantee the constituational right to vote?

• Author: Fisher, Matthew
• Position: Report

Introduction

The right to vote is fundamental, receiving protection under the Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth Amendments to the United States Constitution. (1) Following the 2000 election, the United States of America witnessed the disruptive power of a faulty voting system, as the results of the presidential election were delayed five weeks due to Florida's inability to count votes. (2) In response to the 2000 election, Congress enacted the Help America Vote Act of 2002 (3) (HAVA) as a vehicle of change to encourage the states to adopt more current voting technology, specifically, electronic voting machines that do not utilize punch cards or levers. (4) Protecting and guaranteeing the right to vote, a right fundamental to the operation of democracy, forms the basis for pushing the adoption of direct record electronic (DRE) voting machines in order to take advantage of the opportunities offered by the use of modern technology. (5) However, technology experts are concerned about the actual security provided by DRE machines, especially the ability of the machines' software to withstand attacks. (6)

This Note will examine the forms of electronic voting that are available and assess the ability of each to protect the constitutional right to vote promised to every citizen of the United States of America that is eighteen years of age or older. It will illustrate the need to replace the existing system with a safe and secure form of electronic voting. It is imperative to meet the constitutional standards of security required in protecting the right to vote. Adequately protecting the right to vote will require active government involvement, continual testing of voting machines and security assurances for any form of electronic voting utilized.

Part I of this Note describes the attitude of the courts towards the use of technology when casting one's ballot and traces the development of voting technology. Part II describes the types of DRE systems available and the safety concerns connected to each particular form of electronic voting. Part III analyzes previously suggested remedial measures and proffers new ideas to protect against election fraud.

1. History of Voting Technology

   1. History of Court Protection of the Right to Vote

      The Supreme Court formally recognized the right to vote as being fundamental to the proper functioning of American democracy for the first time in 1886 in Yick Wo v. Hopkins. (7) At the same time, the Court allowed legislatures to impose justified limitations and requirements on voting. (8) In United States v. Classic, (9) the Court stated that "included within the right to choose, secured by the Constitution, is the right of qualified voters ... to cast their ballots and have them counted." (10)

      The historical line of cases firmly entrenched the importance of the right to vote while indicating a judicial impatience with any practice that would impede its exercise. Although Yick Wo was decided in 1886, it was not until the Court agreed to hear the issue under dispute in Baker v. Carr (11) that voting issues received serious consideration before the Supreme Court. (12) In Baker, the Court found the Equal Protection Clause defeated a claim that a redistricting plan created a nonjusticiable political question beyond the power of the courts to decide. (13) The Court furthered its foray into voting rights analysis in Wesberry v. Sanders, (14) by holding that a person's vote cannot be reduced in efficacy and that all citizens are entitled to have their voice heard during an election. (15) In Reynolds v. Sims, (16) the Court stated that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." (17) The Court completed the application of the one-person, one-vote doctrine by including local governments in Avery v. Midland County, (18) finding that the Fourteenth Amendment forbade any abridgment on the right to vote. (19)

      Although previous cases had addressed the right to vote, Bush v. Gore represented the first time the Supreme Court focused on the machinery used to vote. (20) However, the Bush Court limited its decision to the specific facts of the case, declining the opportunity to voice a definitive opinion about the different available voting technologies. (21) The Court's language still sought to affirm that "the rudimentary requirements of equal treatment and fundamental fairness are satisfied." (22) The most important aspect of the Bush decision was the increased public awareness of potential complications associated with older forms of voting technology.

      In 2003, Weber v. Shelley (23) became one of the first cases directly addressing the validity of DRE voting machines. The Ninth Circuit held that while the right to vote is fundamental, States can impose procedures to help ensure fairer elections. (24) Thus, even though a DRE machine may not produce a paper record, there is no valid vote denial claim if use of the machine is approved through a fair and indiscriminate review process. (25) The court explicitly recognized that although no voting system can completely eliminate the potential for fraud, some protections must be permitted to safeguard against it. (26)

      A federal court most recently addressed the general issue of voting technology in Stewart v. Blackwell, (27) where petitioners challenged the continued use of punch card ballots. (28) The Sixth Circuit held that precedent requires implementation of adequate protections to ensure that all votes are counted equally. (29) If error-prone technology is used then unequal treatment can result, violating constitutional protections. (30) Technology that unfairly overvalues certain votes should not be used during the course of an election. (31) Even though DRE machines were specifically not at issue in Blackwell, it is possible to interpret the decision as requiring DRE machines to also ensure that sufficient protections are in place to guarantee the sanctity of every person's vote.

   2. Development of Voting Technology

      Originally votes were cast by choosing a straight party ballot printed by a particular party, eliminating the need to either select a candidate from a list or fill in a candidate's name. (32) In the 1880s, general fears of ballot inconsistencies and vote-buying led to enactment of reform legislation. (33) The main reform implemented the Australian ballot, a uniformly printed ballot where the act of voting occurs in secret and all candidates for all positions are listed. (34) While the Australian ballot solved one problem, it created another. Errors in counting hard copy versions of Australian ballots can still occur if the voter does not clearly mark the ballot or the human or machine counter incorrectly interprets the voter's intention. (35) Mechanical lever machines, first used in 1892, further protected ballots from tampering because a mechanical counter recorded each vote without producing a paper record that could be altered. (36) However, problems with machine levers arose if poll workers failed to properly adjust the lever, the machine did not record a vote, or someone tampered with the counters. (37)

      As technology developed it became possible to use computers to aid in the vote counting process through the creation of a punch card that could be read by an optical scanner. (38) Due to the ease with which a vote can be made with a punch card and the continued state of anonymity, it quickly became the most popular form of voting. (39) A punch card also allows for quick tabulation of votes because the cards are fed into a machine that scans the holes in the ballot. (40) However, as illuminated by the 2000 presidential election, (41) problems occurred if the chad was not punched all of the way through. (42) Any type of voting error, whether by undervote (where all possible votes are not recorded) or by over-vote (where multiple votes are marked on a question), will most likely result in the ballot not being counted and numerous voters being disenfranchised. (43)

      The newest voting technology utilizes direct recording electronic systems that are completely computerized. (44) These machines typically function much like an automatic teller machine ("ATM") at a bank, utilizing touch screen technology that creates an electronic record of each vote without a paper printout. (45) The DRE machine stores votes electronically, with the votes being submitted periodically throughout the day of the election or collected on data storage cards that can be removed as they are filled. (46)

      Further taking advantage of technological developments, internet voting allows for online access of ballots any place that a voter can access the internet. (47) Internet voting can be divided into two main categories: remote, where the voter logs onto the appropriate website anywhere online access is available, or polling station, where a voting machine transmits votes over a closed network. (48) The two main criticisms associated with internet voting focus on network integrity and the difficulty in verifying the identity of remote voters. (49) A more complete description of electronic voting methods can be found in Part II of this Note.

   3. The Help America Vote Act and Voting Technology

      HAVA encourages states to utilize DRE voting machines through the provision of economic incentives. (50) The stated purpose of the law is to replace all punch card ballot systems across the United States of America with the creation of baseline standards for federal elections. (51) HAVA establishes the Election Assistance Commission (EAC), which is designated with the task of certifying and testing different voting system hardware and software. (52) HAVA also requires that testing and certification occur periodically to ensure that machines continue to operate at acceptable levels and that an accurate tally of votes can...