Losing Candidate Appeals Florida E-voting Decision

Judge prohibits access to source code of ES&S touch-screen machines

The losing candidate in the Nov. 7 election to represent Florida’s 13th Congressional District has appealed a state judge’s ruling that the source code of e-voting machines used in the disputed contest cannot be examined.

Democrat Christine Jennings, who lost the race, last week filed an appeal of Leon County Circuit Court Judge William Gary’s Dec. 29 ruling that the source code in the Election Systems & Software Inc. (ES&S) iVotronic e-voting machines can’t be independently examined. Jennings sought the tests to determine whether the machines malfunctioned during the election.

“The issue is whether private profit and trade secrets should trump the public interest,” said Kathy Vermazen, a spokeswoman for Jennings.

Jennings had filed suit about two weeks after the election, contending that problems with the machines were the primary reason why 18,000 ballots cast — 15% of the total — did not include a vote in the disputed congressional contest.

Jennings lost the election by 369 votes to Republican Vern Buchanan.

In the suit, Jennings argued that the votes allegedly not counted by faulty machines would have reversed the election’s outcome. The suit asked the court to declare Jennings the winner or require that a new election be held.

Vermazen said backers of the lawsuit have suggested that technical glitches may have occurred during the transfer of votes from the touch-screen ballot to the machines’ memory.

An ES&S witness, Michael Herron, an associate professor of government at Dartmouth College, told the court that the problems were likely caused by flawed ballot design.

Jennings maintained in the lawsuit that the size of the so-called undervote indicates that there was likely a technical problem with the machines.

The suit sought to allow experts selected by Jennings to examine the source code of the machines to determine whether glitches had occurred.

Gary ruled that Jennings and district voters who brought the lawsuit sought access to ES&S trade secrets “based on nothing more than speculation and conjecture.” Allowing access to the iVotronic source code “would result in destroying or at least gutting the protections afforded those who own trade secrets,” the judge wrote.

Judge William Gary based his ruling in the case at the Leon County courthouse on ES&Ss right to protect its trade secrets.

Judge William Gary based his ruling in the case at the Leon County courthouse on ES&Ss right to protect its trade secrets. In addition, Gary’s decision noted that the machines were tested twice by the Florida Division of Elections after the election and were found to compile votes accurately.

“No one is suggesting the [iVotronic] material be turned over to the public or put on the Internet or made available in any way,” said Matthew Zimmerman, staff attorney at San Francisco-based advocacy group the Electronic Frontier Foundation and a plaintiff in the lawsuit. “We’re just asking for the ability to look at the machines and perform an investigation. If, at the end of the day, we’ve found nothing, that’s the end of the story.”

In an e-mail exchange, a spokeswoman for Buchanan, citing the successful test of the machines following the election, said that Jennings’ case “has no merit.”

ES&S, a co-defendant in the suit, maintains that the equipment in question worked well in the election. “There is already public scrutiny for every element of the voting system, including the source code,” said a spokesman for the Omaha-based vendor. “Unfortunately, it appears the plaintiffs only believe it’s a fair review if they themselves conduct it.”

Grant Gross of the IDG News Service contributed to this story.

Copyright © 2007 IDG Communications, Inc.

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