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Edited on Mon Oct-20-03 07:43 PM by DanSpillane
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Case # 02-56726 Weber v. Jones Rights C. Cal
Amicus Curiae
Daniel B. Spillane
(Contact info redacted)
Introduction
I believe that I am bringing “to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.” Rule 37(1), Rules of the Supreme Court of the U.S.
I am a Senior Engineer who has worked with computers for over twenty years. Most recently, I worked for a company which makes touch-screen electronic voting machines. Moreover, I have done several years of work examining the technical and legal aspects of voting machines, at both the national and state level. In this respect, and by offering this brief, I present a perspective which has not yet been heard, and is therefore profoundly relevant to Weber v. Jones.
My experience sheds light on a process that has been, up to this point, a hidden process—that of the testing and certification of voting systems prior to being used in an election, a step which is the precursor and foundation on which elections depend on in the United States. Such a step is required to realize California Elections Code 19205(c), which requires the Secretary of State to assure that any voting machine system "shall be safe from fraud or manipulation."
This brief illustrates the importance of election observation by laypersons throughout the entire voting process, in light of Bush vs. Gore, and amid recent media revelations concerning touch-screen voting systems. Moreover, this brief sheds light on widely-held misconceptions that followed Bush vs. Gore, as they apply to both electronic touch screen, and punch card voting systems.
This brief is an adjunct to another brief presented by (redacted), which quotes a Justice Department Official who could not provide adequate details on how the Department observes electronic machines.
Expert Opinion
Daniel B. Spillane
October 07, 2003
In the Bush vs. Gore opinion, the Justices devote a significant amount of discussion to "hanging chads.” Because of chads, they reasoned, the difficulty in determining proper intent on punch card ballots in the absence of consistent standards for counting made a recount unjustified. The courts conclusion is logical, and yet stops short, since it omits key practical and legal aspects related to the nature of voting equipment, and Florida law at the time.
The US Supreme Court concluded, "The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right", and goes on to suggest "The problem inheres in the absence of specific standards" . However, the court failed to note that specific standards for counting ballots after an election are only practicable in--and depend fully on--a uniform starting context established for each punch machine. My belief is that the confidence in the certification of an election result by a Secretary of State is directly dependent on the confidence in certification of election equipment prior to conducting an election. In other words, while I agree with the US Supreme Court, I believe accurate standards for counting punch cards are only possible if standards exist and are met for recording intent on the punch cards as well--not simply for counting. Remarkably, such standards did indeed exist for a full decade before Florida 2000, and were mandated by Florida statute.
Specifically, the Florida Legislature passed a law in 1989<1>, requiring "all voting systems used on or after July 1, 1993 to comply" with standards, based on the Federal Election Commission 1990 Voting System Standards, which state, in Section 3.2.4.1.2:
Punching devices "shall be suitable for the type of ballot card used" and "SHALL INCORPORATE FEATURES TO ENSURE THAT THE CHAD IS COMPLETELY REMOVED."
Unfortunately, the above statutory requirement was not cited in Bush vs. Gore. This led to a widespread misconception that punch card machines are inherently inaccurate, rather than the truth, which is that punch card machines which do not meet the standards of punching are inherently inaccurate. This blame on punch card equipment, then, took focus away from the root of the problem—namely, the dire consequence of Katherine Harris and the Florida Elections Department not meeting the standards for voting equipment, even when directed by law. But the confusion doesn’t end there.
Looking more closely at Bush vs. Gore, a simple, yet profoundly important point is also missed. That is, the public only became aware of the Florida problem because they and the recount judges could observe (as laypersons) the failed punch ballots, and the court could only render an opinion because likewise, they could observe the ballots. The converse of this is also true: If ballots are not observable, we might not know of election problems in Florida or anywhere!
Therefore, we can conclude, in the resolution of Bush vs. Gore and in all elections, the process of direct observation of ballots is of utmost importance to both the public and the courts. Moreover, due to the inherent nature of electronic voting machines--which do not produce a voter-verified paper ballot--direct verification and observation of ballots is impossible, and thus, such electronic machines represent a significant risk to the public.
Because of Florida 2000, it is reasonable to conclude that any voting machines (punch or electronic) which do not meet prerequisite equipment certification standards present a risk to final election certification, equivalent in magnitude to Florida 2000. Such risk is magnified with the use of more complex equipment, such as electronic machines, since the number of certification requirements increases dramatically. The stakes are high, since voting is a constitutional right.
Given all of the above, and recent revelations about electronic voting systems which do not meet certification requirements as claimed, it does not seem reasonable to conclude electronic voting systems meet rigorous and lengthy standards, purported to equate them in nature and reliability with Automated Teller Machines. Moreover, it is reckless to trust an industry and regulatory system with the higher level of responsibility required with electronic systems, when it hasn’t even now met or enforced a handful of simple standards for punch card systems.
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<1> Florida Voting Systems Standards, History of … Florida Department of State, 04/2002
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