IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________________________________________________________________

Docket No. 02-56726

______________________________________________________________________________

SUSAN MARIE WEBER,
Plaintiff-Appellant

vs.

BILL JONES
in his official capacity as California Secretary of State,
 
MISCHELLE TOWNSEND
in her Official capacity as Riverside Country Registrar of Voters
Defendant-Appellee

______________________________________________________________________________

On Appeal From an Order of the
United States District Court
for the Central District of California

______________________________________________________________________________

BRIEF OF APPELLANT

______________________________________________________________________________

                  

Susan Marie Weber
43041 Buttonwood Dr.
Palm Desert, CA 92260-2605
760 340-2213
In propria persona

TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION

A. The Basis for the District Court’s Jurisdiction

B. The Basis for the Court of Appeal’s Jurisdiction

C. Filing Date of the Appeal

D. Assertion that the Appeal is from a Final Order or Judgment that Disposes of All Parties’ Claims

II. ISSUES PRESENTED

A. Did the District Court err in holding “inadmissible” Declarations from Plaintiff-Appellant’s Expert Witnesses?

B. Did the District Court err in finding Riverside County’s “Touchscreen” paperless voting system Constitutional, refusing to review under Strict Scrutiny, based on an application of Burdick v. Takushi 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992)?

III. STATEMENT OF THE CASE

IV. STATEMENT OF THE FACTS

V. SUMMARY OF ARGUMENT

VI. STANDARD OF REVIEW

VII. ARGUMENT

A. Introduction: Three Important Concepts

1. The Right to Vote is the Most Fundamental Right

2. Defendant-Appellees’ Definition of “Audit” is Constitutionally Infirm

3. The Court Below Confuses Two Kinds of “Accuracy”

B. The Declarations of Plaintiff-Appellant’s Expert Witnesses Should Have Been Admitted, as they Could Have Assisted the Trier of Fact in Resolving “The Heart of This Case.”

1. They were experts in the intersection of Computer Science and Public Policy

2. Their opinions were based on the kind of information reasonably relied upon by experts in their field.

C. The District Court Erred by not Applying Strict Scrutiny in evaluating Defendant-Appellee’s Paperless Touchscreen voting system.

1. The restrictions placed on the right to vote are so severe, that it triggers strict scrutiny under Burdick.

2. The opposition to Plaintiff-Appellant's demand for an independent audit of voter-verified ballots is not rationally related to any government interest.

D. Summary Judgment for Defendant-Appellee was Inappropriate

VIII. CONCLUSION


I.                   STATEMENT OF JURISDICTION  

A.    The Basis for the District Court’s Jurisdiction 

This case was brought under 42 U.S.C. §1983 and the Fourteenth Amendment to the United States Constitution. This court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiff’s action for declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202; and by Rules 57 and 65 of Federal Rules of Civil Procedure. 

B.    The Basis for the Court of Appeal’s Jurisdiction  

When a motion for summary judgment is grand and judgment entered thereon, that judgment is clearly a “final decision” and hence appealable when it disposes of all claims against all parties. 28 U.S.C §1291.  

C.    Filing Date of the Appeal  

The Notice of Appeal was filed on October 3, 2002  

D.    Assertion that the Appeal is from a Final Order or Judgment that Disposes of All Parties’ Claims  

An order of Summary Judgment is a Final Order that disposes of all parties’ claims.   

II.                ISSUES PRESENTED 

A.    Did the District Court err in holding “inadmissible” Declarations from Plaintiff-Appellant’s Expert Witnesses?  

B.    Did the District Court err in finding Riverside County’s “Touchscreen” paperless voting system Constitutional, refusing to review under Strict Scrutiny, based on an application of Burdick v. Takushi 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992) ?   

III.            STATEMENT OF THE CASE  

Plaintiff-Appellant sought an injunction in District Court against the use of paperless “touchscreen” voting machines in use in Riverside County until such machines were modified to allow voters to cast a voter-verified hard copy of their ballot, to be used as the ballot of record to provide an external independent audit of election results.

The District Court granted Defendant-Appellee’s motion for Summary Judgment and Plaintiff-Appellant timely appealed.    

IV.             STATEMENT OF THE FACTS  

Plaintiff-Appellant Weber is a registered voter in Riverside County, California. Riverside County was among the first in the nation to adopt so-called “touchscreen” voting machines, also called Direct Recording Electronic (DRE) voting machines. The touchscreen machines resemble ATM machines except that after the buttons are pressed, no cash, no paper receipt, or no paper ballot is emitted. A “ballot image” is created by the computer, and neither the voter nor any poll-worker has any way of verifying that the “ballot image” reflects voter intent.

Plaintiff-Appellant became alarmed about the paperless “touchscreen” voting machines after reading a report by the combined computer experts at MIT and CalTech:

A Provocative Scenario:   A programmer at SlickVotingMachines Corp. adds malicious code to a DRE (Direct Recording Electronic device) machine for the California 2004 Presidential election, so that every fiftieth vote for a Republican candidate is changed to a vote for the corresponding Democratic candidate. This only happens when the machine is in “real” mode as opposed to “test” mode, so the election officials never discover the fraud during their testing. The electronic audit trail made by the DRE machine is also affected, so “recounts” never discover anything amiss.
July 2001 Report of the Caltech-MIT Voting Technology Project:
Voting - What Is, What Could Be
, p.43
http://web.mit.edu/newsoffice/nr/2001/VTP_report2.pdf
 

The Defendant-Appellee Secretary of State has a statutory duty to certify voting machines that are “safe from fraud and manipulation.” (Cal. Elect. Code §19205(c)). This requirement reflects the Constitutional importance of the right to vote. Plaintiff-Appellant concluded that an unverifiable voting system could never be “safe from fraud and manipulation.” and therefore violated her right to vote.

Few if any facts are in dispute in this case. Both sides agree that the touchscreen machines as deployed in Riverside County do not have a voter-verified paper ballot (neighboring San Bernardino county and Sacramento county are currently testing touchscreen machines with a paper trail). At issue is the Constitutional legitimacy of standards that are applied during Defendant-Appellees’ certification process resulting in the deployment of a paperless touchscreen voting system. Plaintiff-Appellant contends that an electronic “audit” of a paperless election is not a constitutionally proper audit. 

V.                SUMMARY OF ARGUMENT 

Plaintiff-Appellant is an accountant by profession. She knows that when the IRS seeks to audit a taxpayer, the taxpayer cannot simply press the “refresh” button on the computer to exhibit a new picture of the spreadsheet, but must produce the original source documents that form the foundation of the spreadsheet: receipts, cancelled checks, paystubs, etc. Plaintiff-Appellant contends that the Defendant-Appellee Secretary of State’s definition of “audit” is Constitutionally deficient when applied to the Constitutional right to vote.

Plaintiff-Appellant contends that virtually all experts in the application of computer science to public policy problems are alarmed at the potential for undetected fraud or manipulation in a computer voting system that has no voter-verified hard copy ballots. Plaintiff-Appellant contends that Riverside County’s machines rob her of her right to vote in an election that is “safe from fraud and manipulation.” (Cal. Elect. Code §19205(c)).

Defendant-Appellee argued that the “touchscreen” systems are more accurate, since by requiring voters to only vote once, the system will not allow “overvotes.” But even if a voter is spared the embarrassment of attempting to vote twice, there is no way for the voter to verify that her non-overvote was not negated by computer glitch, and no way for voter authorities to know that nefarious forces have not negated all non-overvotes by programming fraud.

Plaintiff-Appellant contends that the courts should impose a rule that the right to vote is infringed when the ease with which ballots can be manipulated is greater than the ease with which the manipulation can be detected. Plaintiff-Appellant contends that her panel of experts proved that paperless touchscreen voting systems violate this rule.

The District Court granted summary judgment based on an erroneous interpretation of the Supreme Court’s rule in Burdick v. Takushi , 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992). The Burdick Court held that minor infringements of the right to vote need not be corrected if those infringements were necessary to achieve a reasonable and equitable voting system. But in Riverside County the infringement of the right to vote is neither minor nor isolated, but is system-wide and affects all voters. The experts believe it seriously endangers the integrity of the electoral process. The refusal of Defendant-Appellees to add a paper trail and correct this infringement of the right to vote is not at all necessary for Riverside County to maintain the same reasonable level of equity and efficiency in its voting system. Adding a paper trail would not impair in any way the County’s ability to achieve the interests it mentions: elimination of over-votes, ease for handicapped voters, ballots in multiple languages, etc.

The certification standard of “audit” and the deployment of paperless computer voting systems should be viewed with “strict scrutiny” because it affects in so sweeping a way the most fundamental of all constitutional rights. 

VI.             STANDARD OF REVIEW  

When a motion for summary judgment is granted and judgment entered thereon, that judgment is clearly a “final decision” and hence appealable when it disposes of all claims against all parties. 28 U.S.C §1291. An order granting summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the nonmoving party, and determining whether there are any genuine issues of material fact and whether the district court correctly applied relevant substantive law. Smolen v. Chater , 80 F.3d 1273, 1279 ( 9th Cir.1996), Damron v. Herzog , 67 F.3d 211 (9th Cir. 1995).  

VII.         ARGUMENT  

A.    Introduction: Three Important Concepts 

1.      The Right to Vote is the Most Fundamental Right  

Although not mentioned in the Constitution or the Bill of Rights, the right to vote is the most fundamental of all our rights:

“In Westberry v. Sanders , 376 U.S. 1, 17 (1964), the Court testified to the fundamental character of the right to vote: ‘No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
L.H. Tribe, American Constitutional Law , 737n.1, (1978) 

But merely being allowed to cast a vote is not enough. The vote must be counted.

2.      Defendant-Appellees’ Definition of “Audit” is Constitutionally Infirm  

Defendants argue that the DRE systems have been “certified” as safe from fraud and manipulation. But in fact, the standards relied upon by Defendants in their certification process are deficient when it comes to paperless DRE systems. The manufacturers of these systems have included a “self-auditing” process that is an audit in name only, as it does not engage in an independent audit of voter-verified source documents (ballots).

Plaintiff is by profession an accountant, and is familiar with the normal usage of the word “audit.” She knows that a corporation cannot self-audit. Simply reprinting a spreadsheet, recalculating figures, or pressing the “refresh” button on the spreadsheet software does not constitute an “audit.” An audit requires an independent, external examination of the underlying source documents. In the case of accounting, this means receipts, checks, and paystubs. In the case of elections, this means voter-verified ballots.

Black's Law Dictionary , Rev. 4th ed., p. 166, offers the following:

Audit

     An audience; a hearing; an examination in general; a formal or official examination and authentication of accounts, with witnesses, vouchers, etc. GreenBoots Const. Co. v. State Highway Commission, 165 Okl. 288, 25 P.2d 783

     Sometimes restricted to a mere mathematical calculation or process, but, in its generally accepted sense, includes an investigation and weighing of the evidence and deciding of whether entries in books are true and correct. Lumber Mut. Casualty Ins. Co. of New York v. Horowitz, 1 N.Y.S.2d 191, 193, 165 Misc. 506. (emphasis added) 

Defendants’ certification standards substitute “a mere mathematical calculation” for an audit that meets constitutional standards. Plaintiff-Appellant contends that Defendant-Appellees’ definition of “audit” would not be “generally accepted,” and that avoiding an audit of the underlying source documents, “is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.” Bush v. Gore , 531 U. S. ____ (2000)   Defendant cannot discharge his responsibility to assure that voting systems are “safe from fraud and manipulation” (California Elections Code §19205(c)) without this rigorous an audit, and thus has deployed a voting system which unreasonably infringes on Plaintiff-Appellant’s fundamental right to vote.  

3.      The Court Below Confuses Two Kinds of “Accuracy”  

Apples: A bumbling amateur programmer could design a program that purportedly counts votes for various candidates but does not do so accurately. The Defendant-Appellee therefore tests voting machines for accuracy, to make sure the software and hardware do a decent job.

The Defendant-Appellee boasts that the touchscreen machines have a high degree of “accuracy” for two reasons:

First, in the laboratory, the machine functions smoothly and accurately when it undergoes a battery of tests that measure the functionality of the hardware and software. Second, on Election Day, the machine will not allow “overvotes” (voting twice when only one vote is permitted). This more accurately reflects voter intent as compared with voting systems that permit overvoting and result in the voter’s ballot being thrown out. When functioning properly, touchscreen voting machines are quite “accurate.” We can speak of an internal accuracy , or a test-phase accuracy , as well as “entry rate accuracy.”

Oranges: Plaintiff-Appellant wants to examine what happens when the machine is not functioning properly. How would we know if the machine is malfunctioning, either because of the inevitable “glitch” or because some nefarious party does not want the machine to be accurate and has programmed a result that obliterates our right to vote?

A machine that appears accurate under laboratory test conditions and does not allow over-votes might not be accurate on election night, but we wouldn’t know if we couldn’t subject the machine to an external audit. A machine which tests high on internal accuracy might lack verifiable accuracy and be unconstitutional because it is not “safe from fraud or manipulation” (Cal. Elect. Code §19205(c)). “Safety” depends on verifiability .

Plaintiff-Appellant urges as a constitutional rule of thumb that a voting system is unconstitutional when the ease with which ballots can be manipulated is greater than the ease with which the manipulation can be detected. It was to this question primarily, not “test-phase accuracy,” that Plaintiff-Appellant’s experts directed their Declarations.

Some of Plaintiff-Appellant’s experts could not resist the temptation to nit-pick the Defendant-Appellee’s claims of greater internal “accuracy,” but this “accuracy” issue is largely irrelevant. Verifiability is the issue. The touchscreen machines are accurate only in the absence of glitches, fraud, or manipulation, which, unfortunately, are undetectable.

The District Court further confused the use of the term “accuracy” by mingling issues of the legitimate state interests, such as “early voting programs,” multiple language ballots, and ease for handicapped voters, which touchscreen machines are designed to meet. We will see this in the discussion below. 

B.    The Declarations of Plaintiff-Appellant’s Expert Witnesses Should Have Been Admitted, as they Could Have Assisted the Trier of Fact in Resolving “The Heart of This Case.” 

The District Court correctly observed:

Plaintiff alleges that, unlike other methods of voting, DRE systems result in "unobservable, unverifiable, non-recountable, untestable, non-public voter tallies" via computer systems that are not "safe from fraud or manipulation." Compl. ¶¶ 15, 16. Indeed, Plaintiff describes as "the heart of the case" the question whether the audit/recount capabilities of Riverside's system are constitutionally adequate.
(ER, p.59, Order, p. 10)  

Defendant-Appellee repeatedly boasts of certain advantages of touchscreen systems, and the District Court correctly observed:

Plaintiff does not dispute that the System eliminates loss of votes due to spoiled, mis-marked, or "over-voted" ballots. . . . Moreover, Plaintiff concedes that touch-screen systems improve the ability to conduct early-voting programs (thereby encouraging higher turnout), facilitate ballots in multiple languages, and improve access to voters with disabilities. (ER, p.062, Order, p. 13)  

The advantages listed by the court above completely miss the constitutional deficiency at the heart of this case. To wit,

·         Even if a voter does not over-vote, the voter cannot verify that her ballot recorded her intentions, rather than the intentions of a nefarious programmer, as indicated by the CalTech/MIT Report, supra .
·         Even if a voter participates in an “early-voting program,” her vote is not safe from “fraud or manipulation”   (Cal. Elect. Code §19205(c)).
·         Even if a voter votes in a more familiar language, a glitch, which alters a vote for her candidate into a vote for a rival, cannot be detected by voter authorities.
·         Even if a handicapped voter appreciates the ease of touchscreen voting, her vote may be negated by forces that escape the current definition of “audit.”  

The Declarations of each of Plaintiff-Appellant’s experts were treated by the District Court in the same way the court treated the Declaration of Peter G. Neumann:

The Neumann Declaration makes an oblique reference to "[i]nput error rates" of electronic voting systems, Neumann Decl. at 5, but likewise does not include any information that would suggest Riverside County's voting machines are less accurate than other voting systems.   (ER, p.xxx, Order, p. 10) 

The central thrust of Dr. Neumann’s Declaration concerned the impossibility of an independent external audit of system accuracy, not the “accuracy” of the system in the test phase of its operation.

In the case of Rebecca Mercuri, the court similarly latched on to a surplus reference to “accuracy,” and declared:

the foundation for Mercuri's opinion regarding system accuracy is not well-laid. Mercuri asserts that the System at issue is "similar or functionally equivalent" to other models she has inspected, but refers vaguely to documents produced by Defendants, to discussion with Plaintiff, and to an inaccessible Web URL for this conclusion.
(ER, p. 057, Order, p. 8n.1)

It is not necessary for Prof. Mercuri to inspect the internal operation of Riverside County’s machines. Prof. Mercuri’s comments on “system accuracy” were peripheral to the main thrust of her Declaration.

Appellate courts rightly give great deference to lower court rulings on expert testimony. But the court in this case refused to admit evidence based on its relevance to a subject the court admits was not at “the heart of the case.” The Plaintiff-Appellant could not have gathered three experts who were more qualified to assist the trier of fact on the issue that is at the heart of this case.

The Court below thus made two errors concerning Plaintiff-Appellant’s panel of experts:  

1.      They were experts in the intersection of Computer Science and Public Policy

Although the panel of experts brought in by Plaintiff-Appellant could easily qualify as experts in the inner workings of the touchscreen system as laboratory-tested by Defendant-Appellee, they were not brought in for that purpose. They were brought in as experts in the emerging field of the intersection of Computer Science and Public Policy. Their Declarations emphasized how computer technology could be applied to the Constitutional questions posed by electronic voting. These macro-questions are much broader than the micro-questions of “input error rates,” and do not require any examination of the actual voting machines beyond the admission of Defendant-Appellee that the machines do not produce a voter-verified paper ballot, which can serve as the source document of record for an independent external audit.

Plaintiff-Appellant’s experts are not mere technicians who run a narrow battery of tests on software and hardware performance. These experts have studied on a professional level the intersection of computer science and public policy, and have focused on the proper deployment of computer technology in public settings.

An analogy can be drawn with the question of Internet Voting.

A few years ago, the nation was buzzing about the possibility of voting over the Internet. Defendant Secretary of State Bill Jones assembled an “Internet Voting Task Force” of computer and public policy experts, including plaintiff-Appellant's expert witness Kim Alexander, to research and report on the possibilities of Internet Voting. Today’s greater understanding of the Internet, and a greater appreciation of its inherent limitations, has eliminated nearly all advocates of Internet voting. The “new” of the Internet has worn off. A more realistic appraisal of the usefulness of computers to the ideals of Democracy has set in.

A hacker, or a mere expert in servers (hardware) and HTML browsers (software) would be helpful but inadequate to resolve questions about Internet Voting, having never considered in a rigorous and systematic manner the inherent tension between verifying accuracy and maintaining a secret ballot (for example). Defendant-Appellee Secretary of State Jones recognized this, and gathered experts in the intersection of Internet technology and public policy. The Defendant-Appellee should have called Plaintiff-Appellant’s experts to participate in a “Touchscreen Voting Task Force” as well. Having failed to do so, and having deployed a voting system that is not “safe from fraud and manipulation.” (Cal. Elect. Code §19205(c)), the Defendant-Appellees’ unconstitutional actions should have been corrected by the court below (whether based on the Declarations provided by Plaintiff-Appellant, or on the basis of the “generally accepted” definition of “audit”). 

2.   Their opinions were based on the kind of information reasonably relied upon by experts in their field.  

The Federal Rules of Evidence require that the opinion of an expert be based on the kind of information reasonably relied upon by experts in their field.

The field of the application of computer science to public elections is a relatively new and undefined field. Few standards exist to determine the kind of information reasonably relied up by experts in this field. In a very real sense, the experts Plaintiff-Appellant has assembled are literally defining the field. Their Declarations are based on the kind of information they relied upon when they testified before Congress and worked on Defendant-Appellee’s Internet Voting Task Force.

It is not necessary for any of Plaintiff-Appellant’s experts to perform an internal examination of the machines in use in Riverside County. It is an indisputable fact, one boasted of by Defendant-Appellee for its savings in paper costs, that the voting system deployed by Defendant-Appellee does not have a voter-verified hard copy ballot, which can be used in an independent external audit to detect irregularities.

None of Plaintiff-Appellant’s experts are concerned exclusively with the inner details of the touchscreen system, nor need they directly examine the touchscreen machines manufactured (in this case) by Sequoia Pacific, to compare the Riverside machines with similar touchscreens manufactured by SP, or similar touchscreen systems manufactured by competitors Diebold, Avanti, Global Elections Systems, or Elections Systems & Software. Plaintiff-Appellant’s experts are sufficiently informed on how these machines work. The minute differences between all these machines are irrelevant compared with the bold similarities: there are no voter-verified ballots, and without an external audit of voter-verified ballots, these experts conclude that no simple touchscreen system can be deemed “safe from fraud and manipulation.” (Cal. Elect. Code §19205(c)), because the ease with which ballots can be manipulated is greater than the ease with which the manipulation can be detected.

Their conclusion is based on the kind of information reasonably relied upon by experts in the intersection of computer science and public policy.

Again, while great deference should be shown to the court below in its evidentiary rulings, the court admits that “the heart of this case” is the question of verifying voter intent through an external audit of source documents. The Court’s evidentiary ruling misses the heart of the case entirely and focuses on parenthetical quibbling over tangential issues regarding the narrow inner workings of the machines and discrepancies in claims made about these machines, allowing the significant public policy question of verifiability to be overlooked or wrongly decided.  

C. The District Court Erred by not Applying Strict Scrutiny in evaluating Defendant-Appellee’s Paperless Touchscreen voting system.  

We can follow the Court’s discussion of the Constitutional issue:

[T]he Supreme Court repeatedly has identified strict scrutiny as the appropriate standard of review for    [begin p.11]    classifications that "impermissibly interfere[]" with the exercise of a fundamental right. Id. "Routine" state classifications not relating to a suspect class or fundamental right, on the other hand, are subject to highly deferential "rational basis" review. See, e.g., Board of Trustees v. Garrett , 531 U.S. 356, 366-67, 121 S. Ct. 955, 963-964 (2001).   

The right to vote clearly is a fundamental right, and classifications that impair its exercise are subject to exacting review. See. e.g., Clark v. Jeter , 486 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988), citing Harper v. Virginia Bd . of Elections , 383 U.S. 663, 666-67, 86 S. Ct. 1079, 1081 (1966) (poll tax that disproportionately bars poorer voters from exercising the franchise violates equal protection).   

However, not every election regulation impairs the right to vote, and, therefore, merits an elevated level of scrutiny. In Burdick v. Takushi , 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992), the Supreme Court observed that "to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently." Rather, a court considering a constitutional challenge to an election rule "must weigh 'the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against 'the precise interests put forward by the State as justifications for the burden imposed by its rule.'" Id. at 434, 112 S. Ct. at 2063, quoting Anderson , 460 U.S. 780, 789, 103 S.    [begin p.12]    Ct. 1564, 1570 (1983), Tashijan v. Republican Party of Connecticut , 479 U.S. 208, 213-14, 107 S. Ct. 544, 548 (1986). The Burdick Court concluded that severe restrictions on the right to vote would be subject to strict scrutiny, while reasonable and nondiscriminatory restrictions pursuant to important state interests generally would be permissible. 504 U.S. at 434, 112 S. Ct. at 2063.   

*   *   *  

The selection of a balloting system , particularly in the absence of evidence of reduced count accuracy, does not typically effect a severe restriction on the right to vote. Thus, the question before the Court is whether Riverside County's use of the AVC Edge System is reasonable, nondiscriminatory, and pursuant to legitimate state interests.

(ER, p. 059-061, Order p.10 - 12, emphasis added)  

Before continuing with the Court’s application of the Burdick Standard, we must ask whether the restrictions placed on the right to vote by a paperless touchscreen system are “severe” or “typical.” This is not just an “election regulation,” or the selection of slightly different voting system. The complete elimination of paper ballots and the substitution of a computer generated “ballot image” represents a dramatic departure from traditional voting systems, and permits systematic fraud in a way not possible before.

1. The Infringement of the Right to Vote is So Severe, that it Triggers Strict Scrutiny Under Burdick .

Normally an infringement of the right to vote is examined under “strict scrutiny.” Infringement of the right to vote must be outweighed by a compelling state interest. Burdick v. Takushi , 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992) held that a minimal infringement of the right to vote was permissible if the State’s efforts to create an equitable voting system were reasonable. The Plaintiff in Burdick wanted to write in the name of his candidate of choice, but write-ins were not possible in the voting system deployed by Hawaii. Hawaii said that they did the best job they could of creating a “reasonable,” “equitable,” and “efficient” voting system, and modifying the system to permit write-ins would have intolerably complicated their efforts. The Court sided with the State.

But the rule in Burdick is broader. Burdick grants support to Plaintiff-Appellant’s case. In Burdick the Supreme Court held that “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens [fundamental] rights.” Id . at 434. The complete absence of an external audit and the "provocative scenario" which concerned the experts at MIT/CalTech is a far greater threat to our democracy than the omission of a few write-in ballots. Defendant’s refusal to permit an independent audit of voter-verified ballots is a potentially wholesale negation of Riverside County voters’ intent and thus their right to have their votes counted. Not just the votes of a few are infringed, but the danger is systemic and affects every voter. The magnitude of the warnings raised by the CalTech/MIT Report and confirmed by Plaintiff-Appellant’s panel of experts – a systematic overthrow of an election through fraud or manipulation – trigger Burdick’s requirement that Defendants’ standards “be narrowly drawn to advance a state interest of compelling importance.” Id. Thus, even Burdick would call for strict scrutiny. In Burdick the impact and infringement of the right to vote is scattered, but in this case the infringement is universally institutionalized.

Constitutional standards are not being articulated as rapidly as touchscreen vendors are making appointments with Registrars of Voters. Without direction from this court, more paperless touchscreen machines may soon be deployed.

Here is how the district court applied Burdick to the case now before this court:

It is manifest that the AVC Edge System constitutes a "reasonable" choice of voting systems. The Court does not have before it, and need not consider the Constitutional implications of,    [begin p.13]    a voting system without any protection from fraud, any means of voter-verification, any audit/recount procedure, or any external testing standards. Plaintiff has not disputed Defendants' voluminous evidence that the AVC Edge System has such elements. See Townsend Decl. ¶ 25; Dedier Decl. ¶ 30; Def.'s Exs., Exs. G, H § 7.4.2, I § 103, K, L § 103(a) (3) (protections from fraud or manipulation); Townsend Decl. ¶ 22; Dedier Decl., 32; Def.'s Exs., Ex. L § 103(a) (4) (count accuracy, storage and verification procedures); Dedier Decl., 33 (ballot verification by voter); Townsend Decl., 22; Dedier Decl. ¶¶ 2-28 (state certification and testing, and compliance with federal guidelines).   (ER, p. 061-062, Order p.12-13,)

Plaintiff-Appellant did not dispute the details of Defendant-Appellee’s “voluminous evidence.” All their “apples” miss our “oranges.” None of their evidence explains away the concerns of the experts brought to court by Plaintiff-Appellant.

Plaintiff-Appellant, assisted by her panel of experts, applying computer technology to public policy issues, contends that as a matter of law, a true “audit” must include voter-verified records of voter intent.

1.      The opposition to Plaintiff-Appellant's demand for an independent audit of voter-verified ballots is not rationally related to any government interest.  

The court continues:

Moreover, it is undisputed that the AVC Edge System advances a number of important state interests. Plaintiff does not dispute that the System eliminates loss of votes due to spoiled, mis-marked, or "over-voted" ballots. Townsend Decl. 1 21. Moreover, Plaintiff concedes that touch-screen systems improve the ability to conduct early-voting programs . . . , facilitate ballots in multiple languages, and improve access to voters with disabilities. pl.'s Amend. Stat. of Gen. Iss. in Opp. to Def.'s Mot. for Sum. Judg., at 2.
(ER, p.062, Order p.13,)  

According to Burdick , strict scrutiny is triggered by a massive infringement on the right to vote, and a systematic threat to election integrity. Plaintiff-Appellant is not suggesting that some of Defendant-Appellees’ interests must be sacrificed in a delicate balance of state interests versus Plaintiff-Appellant’s right to vote. The scales are tipped completely in Plaintiff-Appellant’s direction, because not a single one of these state interests are at all affected by adding an external audit of voter-verified ballots to the Defendant-Appellees’ touchscreen system .

Defendant-Appellee claims that the advantages of the touchscreen system are rationally related to the government’s legitimate interest in “efficient” elections. True enough. But none of the advantages of Riverside County's touchscreen machines as listed by Defendant-Appellees or the court would be lost, and no government interest sacrificed, by attaching a printing device to these same touchscreen systems to provide an independently auditable paper trail.

In Burdick , the equity and efficiency of the state’s system would have been lost if the state had been forced to accommodate write-in ballots. In stark contrast, not a single one of Riverside County’s interests would be lost by attaching a printer to the touchscreen system so that a voter-verified ballot could form the basis for an independent external audit. There would still be no “over-votes,” there could still be “early voting programs,” voters could still vote in multiple languages, and the handicapped, after enjoying improved access, could enjoy verifying their ballot and knowing that a genuine re-count in the event of a hotly-contested election was possible. In light of the fact that none of the state’s interests would be impacted by Plaintiff-Appellant’s modifications, and in light of the dangers of not doing so, it becomes unreasonable to deny Plaintiff-Appellant relief. The opposition to Plaintiff-Appellant's demand for an independent audit of voter-verified ballots is not rationally related to any government interest.   

D.   Summary Judgment for Defendant-Appellee was Inappropriate  

In a motion for Summary Judgment, Fed. R. Civ. Proc. 56(c) requires the moving party to show not only the absence of a disputed issue of fact, but also that he is entitled to judgment as a matter of law. His showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. ( Calderone v. United States (6 th Cir. 1986) 799 F2d 254, 259). The Defendant-Appellee by no means made such a showing. Plaintiff-Appellant contends that Defendant’s definition of “audit” would not be “generally accepted” by a "reasonable trier of fact."

Plaintiff’s opposition to Defendant’s motion for Summary Judgment should prevail notwithstanding any doubts that might remain concerning the final verdict of the reasonable trier of fact, because the “burden of establishing that there is no genuine issue of material fact lies initially with the moving party and resolution of all doubts should be in favor of the party opposing the motion.” ( British Airways Board v. Boeing Co ., (9 th Cir., 1978) 585 F.2d 936, 951)  

VIII.      CONCLUSION  

Political cynicism is widespread. People don’t trust government, and don’t feel that voting matters. Computer voting systems are attractive to Registrars of Voters because they are an easy answer to the declining numbers of people willing to volunteer as poll-workers, necessary to ensure the security of paper ballots (compare ER p. 023, Declaration of Kim Alexander, p. 3, ¶7). Based on her service on Defendant-Appellee Secretary of State Bill Jones’ Internet Voting Task Force, as well as her continued professional experience, Kim Alexander raises informed and serious warnings about the collapse of voter confidence in elections where an audit (in the “generally accepted” meaning of that term) is impossible (ER p.022, Declaration of Kim Alexander, p. 2, ¶5).

It has sometimes been said that we must trust our government and its decisions to be best for our society because (to use the words of James Madison) “If men were angels we need not have a government.” (Federalist, #51) In context, Madison was saying the exact opposite : that because power corrupts, we need checks and balances and a separation of powers to guard the government . Madison was limiting government, not extolling its virtues. The modern application of Madison’s message in Federalist 51 is clear: “If candidates and their supporters were angels, we wouldn’t need internal audits of voter-verified paper ballots.”

In a public forum on voting machines, Defendant Townsend, when asked how voters can be assured their votes will not be negated by fraud or manipulation in a paperless voting system, told the audience that they would have to trust her.

Nothing herein is intended to cast aspersions on the personal character of either defendant in this case. Madison and the Founders spoke of human nature in general . It is un-American to ask voters to “trust” election officials. Our entire system of government is based on “the consent of the governed” and check and balances and a separation of powers based on a distrust of politicians.

Plaintiff would have this court extend the analysis of previous courts to apply Madison’s insights to the rights of voters.

Without access to Lexis-Nexis or Westlaw, Plaintiff has not been able to find a court which has discovered the right of the People to count their own votes, but Plaintiff believes it is intuitively true. Imagine George III attempting to pacify colonial dissent by putting The Stamp Act (1765) up for a vote. However, agents of the King (the Redcoats) would mark the ballots for the colonists, and those ballots will be counted exclusively by the Redcoats behind closed doors, in a manner “not detected by human eye,” and the “results” announced by the king. An “efficient” royal election, in which the colonists were prohibited from counting their own votes, would have raised the ire of the colonists more than the original stamp act, and generated the Declaration of Independence a decade earlier. Defendants’ certification standards are just as offensive to American values.

The right of the people to vote, to have their votes counted, and to count their own votes is the right to cast a voter-verified ballot, and the right to have voter-verified ballots independently audited in event of a contested election.

Dated this 21st Day of January, 2003

 

____________________________________

Susan Marie Weber


I am the appellant in the above action, and I do hereby certify that the foregoing is true to the best of my knowledge.

Susan Marie Weber
43041 Buttonwood Dr.
Palm Desert, CA 92260-2605
760 340-2213
Fax 760 568-9855
In propria persona

____________________________________

Susan Marie Weber


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