A Superior Court judge in New Jersey this week opened the door for the state to test some of its electronic voting machines for security and accuracy before the November elections. But the order prevents the findings from being disclosed to the general public.
Judge Linda Feinberg issued a protective order on Monday in Trenton that will permit computer experts selected by the plaintiffs in the case to examine two direct recording electronic machines, or DREs, used in the state.
DREs have raised concerns because not all are equipped to produce a paper trail that voters can use to confirm their vote or that election officials can examine to verify results. More than a dozen states plan to utilize paperless electronic voting machines to some extent in November.
Protecting Trade Secrets
Any examination of the DRE machines will take place at New Jersey state police headquarters in Ewing, N.J. The location reflects an effort to protect trade secrets and confidential information belonging to the manufacturer of the machines, Sequoia Voting Systems Inc.
The order restricts the dissemination of "any conclusions or comments concerning the inspection or testing" of the voting machines while the case is still making its way through the courts.
But so far, no date has been set for testing. That's because experts for the plaintiffs refuse to test the machines under the restrictions set by the court.
The case was brought in 2004 by a group of individuals and citizens' groups. It challenges New Jersey's use of DRE machines without a paper trail that lets voters verify their choices in the voting booth.
In 2005, the New Jersey Legislature passed a law requiring such a paper trail, but the state attorney general's office said it needed time to implement the program. The deadline has been pushed back a few times, most recently from June 2008 to January 2009.
"It's a pyrrhic victory, because the conditions under which our experts have to examine them are untenable," says Penny Venetis, a professor at Rutgers Law School who represents the plaintiffs. "Under this order, it is information that cannot be reported to anyone other than the court. We believe this is highly problematic, because the public has a right to know."
An attorney for Sequoia did not respond to NPR's request for comment.
Concerns Raised on Super Tuesday
No date has been set for the examination of the two machines. Venetis says there are 10,000 Sequoia AVC Advantage machines in New Jersey. These machines are used in the majority of the state's counties. New Jersey uses four different kinds of voting machines, Venetis says.
New Jersey's electronic voting machines came under scrutiny again in February, when county clerks noticed discrepancies in the machines' performance during the state's Super Tuesday primary. The clerks notified Edward Felten, a computer science professor at Princeton University's Woodrow Wilson School. Felten is also an expert for the plaintiffs in the 2004 lawsuit against New Jersey.
Felten analyzed the results tape from one of the Sequoia AVC Advantage machines used in Pennsauken, N.J., in District 6. It revealed a discrepancy between the number of votes cast and the total number of voters shown as participating on the printout from the machine. The discrepancy, however, did not affect the final vote outcome, according to state officials.
In a statement released in April, New Jersey's secretary of state said that Felten had misread the tape and that he had "rushed to judgment."
But in a briefing on electronic voting pitfalls on Capitol Hill on Monday, Felten said these kinds of anomalies were seen on dozens of machines across New Jersey on Super Tuesday.
"This is a voting machine disagreeing with itself about how many voters there were," Felten said.
New Jersey has scheduled a public hearing for Thursday on the subject of establishing a paper trail for the Sequoia AVC Advantage machines.
There are two predominant voting systems used in the United States. One is a paper- ballot voter system, whereby voters physically mark a paper ballot that is then counted by an optical or digital scanner.
There are two kinds of optical scan systems: precinct count and central count. An advantage of a precinct count optical-scan system – where the ballots are scanned at each precinct — is that if a voter makes a mistake and casts an invalid ballot, they will be notified and can fix it on the spot. With central count optical-scan systems, the voter's paper ballot goes back to a central office, such as that of the county clerk, and is counted there.
The other type of voting system utilizes direct recording electronic machines, or DREs, whereby votes are recorded electronically — directly into computer memory.
Because DREs are "software dependent," they are vulnerable to bugs, just like any other software, says Warren Stewart, senior project director for the Verified Voting Foundation, a nonprofit organization that supports the creation of a paper trail for e-voting.
According to Felten, the rule of thumb for estimating the number of bugs in industrial-quality software is that one bug appears for every 10,000 lines of code.
"One of these voting machines is likely to have hundreds of thousands of lines of code," Felten said. "That means tens of bugs in the voting system, even if the software development levels are up to industrial best practices."
Paperless Voting in the Fall
While many states are moving toward the use of optical-scan ballot systems, which create a paper trail for voters, 17 states and the District of Columbia will be using paperless systems to some extent in November, according to the Verified Voting Foundation.
Voters in six states — Delaware, Georgia, Maryland, Louisiana, New Jersey and South Carolina — will use entirely paperless machines.
The majority of machines are paperless in seven other states — Indiana, Kansas, Kentucky, Pennsylvania, Tennessee, Texas and Virginia.
And four states – Arkansas, Florida, Mississippi and Wisconsin — have only a small number of paperless systems in place; the majority of voters in these states will use systems that create a paper trail.
In the District of Columbia, voters can choose to vote on either a machine utilizing the ballot optical-scan system or on a touchscreen machine, which does not create a paper trail that the voter can check.