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Court Fights Loom Over E-Voting Paper Trail

Tuesday's primary elections in Florida could underscore the last minute scrambling by voting rights groups to guarantee that some 50 million Americans who will electronically cast their votes in November leave more than a digital footprint.

Until late Friday, Florida election rules prohibited a manual recount of votes in counties using touch screen technology. Election authorities reasoned that there are no physical ballots to count in an electronic voting system. More than 50 percent of the state's registered voters live in the 15 counties that will be using the paperless voting systems of Election Systems and Software (ESS) and Sequoia Voting Systems.

A state court tossed out the rule, saying it contradicted Florida state law mandating manual recounts when certain thresholds are met. The ruling has the fundamental effect of requiring precincts using e-voting to produce some sort of paper trail in case a recount is needed.

The ruling was a backdoor victory for the American Civil Liberties Union (ACLU) and other groups that have campaigned against e-voting technology because of security concerns with the systems. A similar case is pending in Maryland where state election officials are opposing a paper trail requirement for its Diebold voting machines.

"It's more about what Maryland can do between now and the election than how Maryland can fix the actual problem," said Cindy Cohen, the Electronic Freedom Foundation's (EFF) lead attorney on e-voting issues and a consultant on the Maryland case.

According to Washington consulting firm Election Data Services, approximately 29 percent of registered voters in November will use an electronic voting system consisting of hardware and software that interacts through flash technology to tabulate votes. The number of Americans predicted to cast e-ballots is the second largest percentage behind optical scan ballots at 32 percent. Punch card and lever technology will be used by about 22 percent of registered voters.

After the Florida recount controversies in the 2000 election, Congress appropriated $3.9 billion for state election officials to join the digital age by 2006. E-voting was used in the 2002 elections to no major reports of problems, but with anecdotal evidence of bugs and software glitches.

In an election where many predict a presidential race as close as 2000, critics of the e-voting systems say the very technology designed to eliminate recount controversies may very well create more problems than it solves.

The ACLU, EFF and the other groups want states to order Sequoia, Diebold and the other electronic voting companies to activate their printers. The companies say they stand at the ready but can't do it unless so ordered by the states. In any event, they point out, with only two months before the general elections, time is growing short to program the machines.

Hopkins Report Spurs National Debate

The debate over the security of the proprietary code used in e-voting systems was already underway in security circles when researchers at Johns Hopkins and Rice University claimed in July of last year that Diebold's systems could be compromised. Their work was based on Diebold code obtained over the Internet.

"The most fundamental problem with such a voting system is that the entire election hinges on the correctness, robustness and security of the software within the voting terminal," the Johns Hopkins report stated. "The only solution to this problem is to introduce a voter-verified audit."

The study fueled a firestorm of controversy. Maryland, for instance, had already invested more than $68 million on 15,000 Diebold AccuVote-TS electronic voting machines. Two days after the final Diebold purchase, the Hopkins report said the Diebold systems contained "significant and wide-reaching security vulnerabilities."

The Hopkins findings were widely reported throughout the summer of 2003 and the report was used by voting rights activists in state after state as a platform to demand paper verification of e-votes.

By November, Maryland commissioned RABA Technologies, a consulting firm, to review the findings of the Hopkins report. RABA said it generally agreed with the Hopkins report on "purely technical matters" but harshly criticized the authors' use of "sound bites" instead of "actual statements of fact."

"The single most relevant finding is that the general lack of security awareness as reflected in the Diebold code is a valid and troubling revelation," RABA said, adding that Diebold had made a number of changes since the publication of the report addressing many of the researchers' main concerns.

"However, we strongly believe that additional actions must be taken to mitigate increasing risks incumbent on a system that will receive wide scrutiny. Ultimately, we feel there will be a need for paper receipts, at least in a limited fashion," RABA concluded.

As for the Johns Hopkins research team and the wider public debate generated by the report, RABA found that "even a cursory review" of the documents "indicated that the analyses were undertaken with less than full knowledge of the technical, operational and procedural components that must be considered together in assessing any voting system."

RABA found particular fault with the Johns Hopkins premise that the Diebold systems were particularly subject to the unscrupulous actions of voters and election officials without verified voting receipts.

"We are confused as to how the existence of paper receipts would not be subject to the same results," the RABA report said. "For example, unscrupulous voters could easily create their own receipts, substitute them in the ballot box, and then later claim the machines malfunctioned."

Paper Receipts Not Initially Anticipated

John Bear, a spokesperson for the Ohio-based Diebold, told internetnews.com that paper receipts were never anticipated in the original bidding requirements for the Maryland e-voting contract.

"But let's face it, it is a market-driven economy. If the customers demand it [a verified paper trail], then that's what we're going supply," Bear said. "I have no problem with those who question security but [elections] are not a sanitary environment. There's much activity and much oversight before, during and after elections."

Bear said Diebold electronic votes are immediately encrypted, randomized and stored on both a flash memory card and flash memory installed in the machine for redundancy. If Maryland ultimately decides to require a paper receipt, Bear said Diebold machines could be programmed to print out a copy of the vote. Bear added Diebold would not do that without a specific order from Maryland officials.

"[Without receipts]", the EFF's Cohen countered, "you just don't know if the vote is accurately recorded."

With local election officials locked into deadlines for programming and training ahead of electronic voting in 2004, a close election without verified e-voting results could prove irresistible to court challenges.

Although Congress is returning to work next week, the issue is far more likely to be settled by local courts.



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