Judicial protection of popular sovereignty: redressing voting technology.

• Author: Hoke, Candice
• Position: Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

Over the past decade, Ohio, California, Florida, and other states commissioned over a dozen separate, independent scientific assessments of their deployed or contemplated electronic voting systems. Each published report documented grave deficiencies that relate to these systems' capacity to accurately record vote choices, produce correct tallies, and function reliably and securely in other ways that integrally relate to the fight to vote. (1) The most comprehensive and definitive of these studies, the California Top to Bottom Review and the Ohio Project EVEREST assessment, each evaluated three major voting systems in nationwide deployment. (2) Collectively, these two studies confirm prior studies' findings detailing significant deficiencies in the voting equipment used by over 90 percent of all American voters. (3)

While information security specialists and computer scientists have published numerous peer-reviewed articles and held conferences devoting significant attention to these two studies, (4) rather surprisingly no election law scholar has published a law review article that considers the legal import of these comprehensive findings from top scientists. (5) This stunning silence from the election law scholarly community sharply contrasts with the profuse legal scholarship that evaluated Bush v. Gore's handling of punch card voting inadequacies and the Florida presidential debacle. (6) The scholarly muteness also differs markedly from the rapt attention accorded to campaign finance, (7) redistricting, (8) and voter registration cum voter fraud. (9) Election law scholars recognize that each of these constellations of issues offer rich opportunities for partisan gaming and tools for structurally insulating incumbents from meaningful election contests. As such, they pose serious risks to realizing the constitutional promise of popular sovereignty. (10) Yet, if each of these issues were resolved in a hypothetically ideal manner but the voting technology status quo remained uncorrected, the individual and aggregated right to vote would be seriously threatened, with federal elections potentially transformed into mere theatre.

This Article seeks to rally legal scholars with election law expertise to dedicate a portion of their considerable intellectual firepower to legal questions raised by problematic voting technologies. After minority undervote rates and disability accessibility issues appeared to have been solved, or at least far better managed by newer computer-based technologies, (11) almost all election legal scholars apparently lost interest in voting technology questions. (12) But the scientific studies raise new bases for questioning not only whether these underserved communities' needs are met by the deployed technologies, but also whether the well-meant electronic cure (13) for Floridian punch card irregularities has led to dramatically more serious legal issues.

The Supreme Court has frequently delineated the fundamental right to vote as including the right to have vote choices correctly recorded, counted as they were cast, and correctly reported in the final tally. (14) While its ballot box-stuffing cases repeatedly underscore these subsidiary steps as integral to the right to vote, (15) these cases and their principles generally do not surface in lower court opinions adjudicating the constitutional sufficiency of challenged e-voting technology. This omission warrants correction, and the principles thereby rescued will assist courts in applying the correct standard of review. If the constellation of voting systems and operating procedures permits covert, untraceable electronic ballot box-stuffing, the constitutional commitment is not realized and should be actionable under the Fourteenth Amendment Republic-protecting strict scrutiny review. (16)

My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment (17) principles properly derived from Bush v. Gore (18) will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, the American Republic's future is seriously endangered. (19)

The argument proceeds in two parts. Part I traces illustrative empirical findings of the two comprehensive, definitive voting systems studies, offers evidence derived from actual election calamities that substantiates the experts' findings, and translates these findings into concepts meaningful for voting rights and election law. Part II considers the judiciary's failures thus far to understand the legal import of the scientific studies of voting systems when adjudicating the structural legal sufficiency of deployed voting systems (20) and identifies questions on which scholarship is critically needed. Throughout, owing to space constraints, the argument is illustrative rather than comprehensive.

1. THE SCIENTIFIC AND PERFORMANCE RECORD RELEVANT TO THE CONSTITUTIONAL SUFFICIENCY OF DEPLOYED VOTING SYSTEMS

   Problematic voting devices that produced ambiguous vote totals and inconsistent recounts famously triggered the U.S. Supreme Court's intercession into Florida's 2000 presidential election tabulation. (21) In response to Bush v. Gore (22) and the resulting public furor, Congress passed the Help America Vote Act of 2002 ("HAVA"). (23) Its statutory standards requiring that voters be allowed to correct balloting errors before casting a ballot virtually mandated the replacement of existing voting devices with new computer-based voting. (24) Most states moved from punch cards or lever systems in 2004-05 after receiving an allotment from the $3 billion in federal monies designed to incentivize the change. (25) The first scientific assessments of the software and security features in the new voting systems that were conducted independent of the manufacturers occurred in 2003 and 2004. (26) In 2007, after the earlier studies had identified grave deficiencies, the California and Ohio Secretaries of State convened definitive, multi-system studies with teams of prominent computer scientists and other experts from across the nation. This Part briefly reviews the findings in these two major studies and offers some illustrative examples of how these documented flaws affect real elections.

   1. The Comprehensive, Definitive Voting Systems Reviews

      HAVA provided substantial financial incentives for states to replace their existing punch card and lever voting systems, but it required new systems to satisfy specified functional criteria. (27) These requirements included provision of notice to the voter of errors such as "overvoting" a race by marking too many choices, (28) so that the voter might correct any errors before the ballot is cast. To satisfy notice or "second chance" voting and other requirements, HAVA led states to authorize purchases of three kinds of voting systems: (29) optical scanners for reading paper ballots, (30) direct recording electronic ("DRE") machines that normally offer a touch screen for marking electronic ballot choices, and computerized ballot-marking devices designed primarily for disability access. Each system's software generates the electronic ballot "styles" or "definitions" (31) by assembling the election data so that it can be printed (for optical scan ballots) or copied to memory media for display on DRE voting devices. (32) The software later tabulates and reports the election totals from both types of voting devices into one election results report.

      California's Secretary of State, Debra Bowen, contracted the Top to Bottom Review ("TTBR") to the University of California shortly after she was inaugurated in 2007. The project was led and staffed by nationally recognized computer scientists, of whom a number of had amassed high-profile voting systems forensic experience in problematic elections. The TTBR evaluated three proprietary voting systems--Diebold, Hart, and Sequoia systems--that were deployed not only in California, but also nationwide with only minor differences. (33) Its scientists discovered both serious engineering and coding errors (software "bugs") as well as security design and coding errors, all of which can manifest in reporting false vote tallies or in rendering the system unavailable for voters' use. (34)

      Software constitutes a critical component of these digital election systems. It provides instructions to a computer that include delineation of the functions to perform, their order of operation, what audit logs will be maintained, and many others. In a database program like that used in voting systems, software creates the "buckets" within which votes will be "deposited" or recorded in humanly unreadable language. The buckets for each candidate and question on the ballot must be properly mapped to a "button" or an oval that the voter uses to identify vote choices. The voter's selections must be translated by a chain of electronic interactions into records kept in electronic buckets, which are thereafter copied and interpreted by a chain of additional electronic transactions until ultimately reported as cast vote reports in humanly comprehensible language. Computer science and engineering experts stress that election officials and voters have no method by which to determine whether all steps in this electronic chain have been completed correctly. (35) The accountability functionality available through automatic logging can assist in identifying transaction errors if engineered appropriately, but would require the systems' designs to...