Monday, October 06, 2008

Judge Suppresses Report on Voting Machine Security

Having recently been drafting a case study on electronic voting for a forthcoming Open University course I was interested to hear via Andrew Appel at Ed Felten's now multi-authored Freedom to Tinker blog that:


A judge of the New Jersey Superior Court has prohibited the scheduled release of a report on the security and accuracy of the Sequoia AVC Advantage voting machine. Last June, Judge Linda Feinberg ordered Sequoia Voting Systems to turn over its source code to me (serving as an expert witness, assisted by a team of computer scientists) for a thorough examination. At that time she also ordered that we could publish our report 30 days after delivering it to the Court--which should have been today.

Three weeks after we delivered the report, on September 24th Judge Feinberg ordered us not to release it. This is part of a lawsuit filed by the Rutgers Constitutional Litigation Clinic, seeking to decommission of all of New Jersey's voting computers. New Jersey mostly uses Sequoia AVC Advantage direct-recording electronic (DRE) models. None of those DREs can be audited: they do not produce a voter verified paper ballot that permit each voter to create a durable paper record of her electoral choices before casting her ballot electronically on a DRE. The legal basis for the lawsuit is quite simple: because there is no way to know whether the DRE voting computer is actually counting votes as cast, there is no proof that the voting computers comply with the constitution or with statutory law that require that all votes be counted as cast.

The question of whether this report can legally be suppressed was already argued once in this Court, in June 2008, and the Court concluded then that it should be released; I will discuss this below. But as a matter of basic policy--of running a democracy--the public and legislators who want to know the basic facts about the reliability of their elections need to be able to read reports such as this one...

On September 2nd we provided to the Court (and to the defendants and to Sequoia) a lengthy report concerning the accuracy and security of the Sequioa AVC Advantage. The terms of the Court's Protective Order of June 20 permit us to release the report today, October 2nd.

However, on September 24 Judge Feinberg, "with great reluctance," orally ordered the plaintiffs not to release the report on October 2nd, and not to publicly discuss their conclusions from the study. She did so after the attorney for Sequoia grossly mischaracterized our report. In order to respect the Judge's temporary stay, I cannot now comment further on what the report does contain.

The plaintiffs are deeply troubled by the Court's issuance of what is essentially a temporary restraining order restricting speech, without any motion or briefing whatsoever. Issuing such an order is an extreme measure, which should be done only in rare circumstances, and only if the moving party has satisfied its high burden of showing both imminent harm and likelihood of success on the merits. Those two requirements have not been satisfied, nor can they be. The plaintiffs have asked the Court to reconsider her decision to suppress our report. The Court will likely hear arguments on this issue sometime in October. We hope and expect that the Court will soon permit publication of our report."

That a month before a US presidential election a judge should feel obliged to veto a report on specific machines that count votes is yet another an indicator of serious fault lines in the US electoral process. If you'd like a dramatic take on how bad it gets then HBO's excellent Emmy award winning movie, Recount, which had its UK premiere on More4 over the weekend, details the shenanigans in the Florida vote count debacle in the 2000 presidential election. The depths that both the main parties will sink to in order to win the election should be prominent in voters minds when they go to the polls in November and reports on the security of the voting machines should certainly not be suppressed. Whatever the vendor might claim about trade secrets it should not be allowed to interfere with the transparency of the electoral process.

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