New Jersey Lawsuit Challenges Electronic Voting

The New York Times
October 19, 2004

New Jersey Lawsuit Challenges Electronic Voting
By TOM ZELLER Jr.

With just two weeks remaining before the Nov. 2 presidential election, a coalition of private citizens and local elected officials in New Jersey plan to file a lawsuit today to block the state's use of electronic voting machines.

At its heart, the complaint - a draft of which was provided to The New York Times - will ask the State Superior Court in Trenton to block the use of nearly 8,000 electronic voting machines, because they "cannot be relied upon to protect the fundamental right to vote."

More than three million registered voters in 15 of New Jersey's 21 counties are scheduled to use the electronic voting machines, which have been dogged nationwide by concerns over their reliability and fairness. Five New Jersey counties use the old mechanical lever machines, like the ones in use in New York and Connecticut. One New Jersey county uses optically scanned ballots. Most counties also have optical scan machines in place for handling absentee ballots, and the draft lawsuit suggests the expanded use of these in lieu of the electronic machines.

"The right to vote is simply too important to not try to get some sort of court intervention to protect it," said Penny M. Venetis, a law professor with the Constitutional Litigation Clinic at Rutgers University and the lawyer representing the plaintiffs in the suit.

Her complaint holds that the electronic voting machines used in New Jersey provide no means for verifying that they are recording votes properly, and that they are too easy for rogue programmers to manipulate.

"There's just too much at stake," Ms. Venetis said.

Fifteen electoral votes are up for grabs in New Jersey, which traditionally leans toward the Democratic candidate. But according to a recent poll conducted by Fairleigh Dickinson University in Teaneck, Senator John Kerry and President Bush remain in a virtual tie in the state.

The state's attorney general, Peter C. Harvey, a Democrat, whose office oversees elections in the state, said yesterday that it would simply be imprudent to make the kinds of wholesale changes suggested by critics of electronic voting.

"Our experience in New Jersey has not revealed any problem with the electronic voting machines," Mr. Harvey said, adding that the state, as part of a more deliberative process, will be holding a forum this month to consider all of the available voting options. He also said that even if the state wanted to, it would be impossible - and unwise - to introduce new rules and new technologies with just two weeks remaining before the election.

"You're just asking for trouble," he said.

About half of the 15 New Jersey counties using electronic technology this year upgraded to the systems after the 2000 presidential election. Few irregularities have surfaced in New Jersey counties that have used electronic voting in past elections, but the lawsuit cites numerous problems in other states using similar machines.

Efforts to halt the use of electronic machines in other states have thus far failed, giving rise to requests for special monitoring of elections in precincts where the machines are used. Last month, for instance, the Maryland Court of Appeals rejected a suit brought by a voter group, TrueVoteMD, which sought to force the state to further improve security on its machines and offer voters a paper-ballot alternative. The group is now locked in a legal battle with the state to gain poll-watching credentials.

And a federal court in Florida is scheduled to begin hearings this week in a lawsuit that challenges the constitutionality of electronic voting. The suit, brought by Representative Robert Wexler, Democrat of Florida, seeks to require a paper record for touch-screen machines in case a manual recount is needed.

The lawsuit planned in New Jersey claims that the state's use of the electronic machines comes despite repeated efforts to require that they be retrofitted to produce a voter-verifiable paper ballot, which could be used to verify the vote in the event of a recount.

A group of voting-rights advocates and computer professionals collected 20,000 signatures over the summer for a petition seeking paper verification for electronic voting machines. The signatures were presented to representatives of Gov. James E. McGreevey on July 13, according to the complaint. And a letter, which requested a paper ballot alternative for all voters seeking one, was signed by several public interest organizations and submitted to state election officials in late August.

Assemblyman Reed Gusciora, a Democrat from Trenton and one of the plaintiffs named in the suit, says there are too many reports that the machines are unreliable and can be tampered with.

"Our slot machines in New Jersey are more secure," Mr. Gusciora said.

But the Election Technology Council, a group of leading election systems vendors, including Sequoia Voting Systems and Election Systems and Software, which manufacture New Jersey's equipment, have said the complaints about their machines are in keeping with "popular misconceptions about electronic voting."

"These are groups that would like us to return to the days of the 2000 election and having election officials holding ballots up to the light to determine voter intent," said Bob Cohen, a spokesman for the council. "It's amazing to us that a technology that wrings out so much ambiguity from the voting infrastructure is the target of so much criticism."

But according to Professor Venetis, the new technology does not eliminate ambiguities so much as make it impossible, given the lack of a paper ballot and the proprietary software that runs the machines, to know when irregularities have occurred.

"It's rather ironic that these machines, which were supposed to answer the problems caused by antiquated voting systems," she said, "are simply making the problems invisible."