Vote Suit

Illustration By Doug Potter

On Tuesday, Judge Rose Spector, a former Supreme Court judge visiting Travis County's 353rd District Court, ruled against a temporary injunction against the county's current electronic-voting system. Without the injunction, the lawsuit will proceed to trial some time early next year, but the November election will proceed as planned.

Several plaintiffs, including the NAACP of Austin and its president Nelson Linder, activist Sonia Santana, and state attorney general candidate David Van Os, all represented by the Texas Civil Rights Project, sought a temporary injunction to block the use of paperless electronic-voting machines in Travis Co. in the November elections, requesting that they be replaced with systems that can produce a paper record of each vote. The suit targeted Texas Secretary of State Roger Williams, who sets the standards for legally permissible voting machines in Texas, and Travis Co. Clerk Dana DeBeauvoir, head of the county's elections division. The suit alleged that the machines violate the right to a re-count, are insufficient to prevent election fraud, and violate Travis voters' equal-protection rights, especially since other jurisdictions use reportedly more secure and reviewable systems that do create a paper trail.

In response, attorneys for Williams and DeBeauvoir argued in a hearing last week that an injunction is not necessary because the Hart InterCivic eSlate machines used in Travis Co. have never malfunctioned (although other jurisdictions have reported difficulties) and because the plaintiffs had suffered no actual harm. "The harm is purely speculative," said Williams' attorney, Kathlyn Wilson. Also, she argued that the machines have been certified as reliable by state examiners and meet Federal Election Commission standards and that a prior case in 1937 (regarding the old pull-lever machines) rejected the need for a paper trail.

As a possible remedy, the plaintiffs note that Hart already manufactures a printer attachment for the eSlate that is currently used in other states, which "would require little effort" for the county to purchase and would be "a relatively minor addition to the already existing equipment."

But the defense argued that altering the process in midstream is not so easy, and should the court order an injunction, the county would have no way to conduct the elections in November – certifying and testing a new system and training election workers on it could not be done in time, nor would there be time for an appeal, and the financial burden on Travis Co. would be impossibly high. "We have no options," said DeBeauvoir's attorney, Sherine Thomas. TCRP director James Harrington countered that if the only obstacle is the fall schedule, the ban could take effect in May. Following the judge's ruling, he said that if next year's Legislature again fails to act to reform the system, pressure will mount for a legal resolution.

The suit is one expression of a much larger national movement against paperless electronic voting. Many states – some to avoid such lawsuits – now require machines to print out a marked ballot after voting that allows the voter to verify that his or her ballot was properly recorded and that can later serve as a backup in case a re-count is needed. However, the eSlate machines used here – produced by the Austin-based Hart InterCivic company – produce no such paper record. While the machine can produce an image of each individual ballot cast, the plaintiffs argued that that feature – a transitory visible record of internal data – is useless if the machine is somehow tampered with or if the software is faulty.

"Voters must rely on the software used to assure their votes are recorded properly," the lawsuit says. "Once an elector enters his or her vote, there is no way to independently determine if the vote cast has been recorded correctly. The voter is forced to hope the software that records the votes is created and maintained, without mistake or fraud, to protect the integrity of the ballot. The elector's assurance that his or her votes are recorded properly relies solely on the confidence in the software used."

The main hearing witness was Rice University computer science professor Dan Wallach, who has been a crusader for requiring voter-verifiable paper audit trails. Wallach is one of a group of scientists who obtained a copy of the source code used in some voting machines manufactured by Diebold Inc. and documented numerous ways such machines could be attacked by someone wishing to alter an election. "Gambling machines and ATMs are held to more rigorous standards" than electronic voting machines, Wallach charged.

The defense attorneys objected to Wallach's testimony, saying that his research had only been on Diebold's software, not Hart InterCivic's, and thus was no better than that of a layman, but Spector acknowledged his general expertise in the field and allowed the testimony. Wallach complained that he would certainly be willing to examine Hart's software but hadn't been able to come to an agreement with the company on the terms of such an examination.

Wallach testified that the machines in use in Texas may indeed be certified by the secretary of state's office, but the standards for such a qualification are too low. He said he asked one of the state's examiners, "'Have you read the source code?' And he directly admitted, 'No, we don't have time for that.'"

He also criticized "hash-code testing," a method by which county officials supposedly ensure that the code certified by state examiners is the actual code in the machines used by the county. When Thomas tried to assert that hash-code testing is recognized as an effective countermeasure against fraud by computer experts, Wallach shot back, "Name one." Thomas had no answer.