Case No. 02-56726

 

UNITED STATES COURT of APPEALS

FOR THE NINTH CIRCUIT



SUSAN MARIE WEBER                               )
Plaintiff,                        )            
vs.        )
            )
BILL JONES, in his official                               )
     capacity as California                                   )
     Secretary of State,                                       )
MISCHELLE TOWNSEND, in her                 )
     Official capacity as Riverside                        )
     Country Registrar of Voters                         )
                        )
Defendants.                  )
_________________________
 
 
 
No. 02-56726
 
On Appeal From an Order of the
United States District Court
For the Central District of California
Los Angeles
 
 
D.C. # CV 01-11159 SVW(RZx)
 

  

REPLY BRIEF OF APPELLANT

 

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

 

 


TABLE OF CONTENTS

CASE OVERVIEW

RECENT DEVELOPMENTS

1.     Stanford University Professor Dill’s Online Petition

2.     Sequoia Pacific’s Offer to Santa Clara County Voting Officials

       3.     Formation of Task Force on Touchscreen Voting Machine

REPLY TO DEFENDANT-APPELLEE SECRETARY OF STATE’S ANSWERING BRIEF

1.     “Undisputed characteristics” are completely irrelevant

2.     “Accuracy” of the challenged machines

       3.     Defective definition of “audit”

4.     ATM analogy

5.     The Rule in Burdick v Takushi

6.     Conclusion

APPENDICES

     Appendix A

     Appendix B

     Appendix C

     Appendix D


Case No. 02-56726

UNITED STATES COURT of APPEALS

FOR THE NINTH CIRCUIT

 

SUSAN MARIE WEBER                   )
Plaintiff,            )
vs.        )
            )
BILL JONES, in his official                  )
capacity as California                           )
Secretary of State,                               )
MISCHELLE TOWNSEND, in her     )
Official capacity as Riverside                 )
Country Registrar of Voters                  )
                                                  )
                               Defendants.           )
                                                            )
______________________________
 

 

 

 

 

 

The purpose of this brief is to reply to the Defendant-Appellee Secretary of State’s response to Plaintiff-Appellant’s opening brief, and to inform the Court of three important developments in this case which occurred after the filing of Plaintiff-Appellant’s opening brief.

 

Case Overview

This is a case of first impression that challenges the certification standards used by Defendant-Appellee Secretary of State to certify new “touchscreen” voting systems. These standards have already resulted in certification of voting machines which were ruled unconstitutional by the court from which appeal in this case is taken (Common Cause, ACLU et al vs. Secretary of State, 01-03470SVW (RZx) as well as the “Touchscreen” Voting Machines which are challenged in this case. The Plaintiff-Appellant in this case alleges that “touchscreen” machines are not “safe from fraud or manipulation” as required in California Elections Code §19205(c). and thus violate the fundamental Constitutional Right to Vote, which that statute is intended to protect.

The Defendant-Appellee Secretary of State argues that the touchscreen machines meet important state interests, such as allowing voters to vote in foreign languages, and providing ease for the handicapped. Plaintiff-Appellant contends that all these interests will be retained if the touchscreen systems are modified to meet Constitutional requirements. By themselves, these features cannot outweigh the Constitutional requirement to allow voters to vote rather than have their votes created by a computer glitch or nefarious programmer. Plaintiff-Appellant contends that the State has no rational interest whatsoever in refusing to modify the touchscreen systems.

Recent Developments

After filing her opening brief in this court, Plaintiff-Appellant became aware of three significant events that bear upon this case.

 

1. Stanford University Professor David Dill’s Online Petition

After Plaintiff-Appellant filed her opening brief, Professor David Dill of Stanford University compiled a list of technological experts who agree with the substance of Plaintiff-Appellant’s objections to touchscreen voting systems (without necessarily being aware of or endorsing her litigation). Nearly 600 professors of computer science, technologists, and other computer experts with impeccable credentials have signed the following resolution:

Computerized voting equipment is inherently subject to programming error, equipment malfunction, and malicious tampering. It is therefore crucial that voting equipment provide a voter-verifiable audit trail, by which we mean a permanent record of each vote that can be checked for accuracy by the voter before the vote is submitted, and is difficult or impossible to alter after it has been checked. Many of the electronic voting machines being purchased do not satisfy this requirement. Voting machines should not be purchased or used unless they provide a voter-verifiable audit trail; when such machines are already in use, they should be replaced or modified to provide a voter-verifiable audit trail. Providing a voter-verifiable audit trail should be one of the essential requirements for certification of new voting systems.”

http://verify.stanford.edu/dill/EVOTE/statement.html

The resolution has been attached to this brief as Appendix A and the list of experts who have signed on, which continues to grow daily, is attached as Appendix B.

All of these experts would agree with Defendant-Appellee Secretary of State, that the touchscreen systems have been “certified” as accurate. But all of these experts would agree that the certification “standards” (or guidelines) are hopelessly outdated in light of recent changes in technology. Nearly 600 of the nation’s most preeminent computer experts would agree that there is a substantial material dispute in this case, and that the court below erred in granting Summary Judgment. It is likely that there is not a single computer scientist anywhere who would now disagree. Even the experts relied upon by Defendant-Appellee Secretary of State should agree that although the voting systems challenged in this case have been “certified” according to existing standards, the certification standards should be updated to reflect recent developments in computer science. Without guidance form this court, the standards are likely to be modified to comply with the machines. Many states and counties are jumping on the touchscreen bandwagon, but the computer experts warn that this bandwagon should be slowed down. This court should put on the brakes in order to protect the fundamental Constitutional right to vote.

 

2. Sequoia Pacific’s Offer to Santa Clara County Voting Officials

Heeding the warning of Professor Dill and the signers of his resolution, Santa Clara County officials gave second thought to adopting the touchscreen voting system in their county. According to the San Jose Mercury News, Sequoia Pacific, in an effort to encourage the Santa Clara County Board of Supervisors to approve the touchscreen machines contract, offered to modify the machines to provide a voter-verified paper ballot which could guarantee an external audit of election results. “Better yet,” the article adds, “they'll include this feature at no cost to the county.” (http://www.bayarea.com/mld/mercurynews/news/opinion/5230506.htm) This article is attached to this brief as Appendix C. County Election authorities are now awaiting word from this court as to the constitutionality of voting systems which cannot be externally audited.

Voting machine manufacturers seem willing to absorb the minimal costs of adding printers if that’s what it takes to secure the multi-million dollar contracts to supply voting machines for an entire county. But even if additional costs are involved, the overwhelming majority of computer science experts believe the cost is necessary to protect the most fundamental of rights, the right to vote, and to ensure the integrity of the election process.

Given these cost considerations, Plaintiff-Appellant argues that Defendant-Appellee Secretary of State can offer no rational basis for opposing the modification of touchscreen machines to provide an external audit of voter-verified ballots.

 

3. Formation of Task Force on Touchscreen Voting Machines

Several years ago, the Defendant-Appellee Secretary of State Bill Jones formed a Task Force on Internet Voting to study the feasibility of the then-popular idea of conducting voting over the Internet. One of Plaintiff-Appellant’s expert witnesses was chosen by the Defendant-Appellee Secretary of State to be a member of that Task Force, which concluded that despite the popular misconceptions, Internet Voting jeopardized the right to vote and was not feasible.

In her opening brief before this court, Plaintiff-Appellant suggested that Defendant-Appellee Secretary of State should similarly have assembled a Task Force on Touchscreen Voting Machines, because county officials, relying on the State’s outdated certification standards, were being seduced by vendors of paperless touchscreen voting machines. After Plaintiff-Appellant’s brief was filed, the newly-inaugurated Defendant-Appellee Secretary of State Kevin Shelley convened just such a Task Force, and again one of Plaintiff-Appellant’s expert witnesses was invited to serve on that Task Force. This news report, from the San Jose Mercury News, http://www.bayarea.com/mld/mercurynews/news/local/5136511.htm,  is attached as Appendix D.

Convening such a Task Force is the political equivalent of admitting that a Summary Judgment in this case was inappropriate. It admits that there are material issues in dispute surrounding touchscreen voting machines. The lower court’s order in this case granting summary judgment in favor of the Defendant-Appellee Secretary of State Bill Jones should be reversed.

Despite convening a Task Force to study touchscreen voting, the Defendant-Appellee Secretary of State has submitted a brief that is utterly oblivious to the concerns of computer science experts, concerns which prompted the formation of the Task Force on Touchscreen Voting. By ignoring these concerns, the Defendant-Appellee’s brief is disturbingly misleading and inaccurate. The remainder of this brief considers a couple of important defects in Defendant-Appellee’s answering brief.

 

Reply to Defendant-Appellee Secretary of State’s Answering Brief

The Secretary of State repeatedly refers to the “undisputed characteristics of the touchscreen voting systems in question,” claiming that the Plaintiff-Appellant “did not dispute the material facts presented by the Secretary of State” (answer, p. x). These “facts” fall into two categories: (1) ease of use; (2) meet current certification standards.

“Ease of use” includes such features as “early voting programs,” “foreign language voting,” “easy for handicapped,” etc. That these characteristics are “undisputed” is misleading. Yes, many voters like to input their vote on a touchscreen system. Adding the capability for an external audit of voter-verified ballots would not alter in any way these characteristics. These characteristics are completely irrelevant in this appeal, for they would exist even if the Plaintiff-Appellant won.

Current certification standards are met, and Defendant-Appellee Secretary of State mentions this fact repeatedly, without dealing with the following: First, these same standards certified voting systems (MarkSense, Votomatic, etc.) which were held to be unconstitutional by the very same lower court appealed from here in a case argued by the same attorneys for Defendant-Appellee Secretary of State,  Common Cause, ACLU et al vs. Secretary of State, 01-03470SVW (RZx) It is these certification standards which are challenged in this case. Those standards simply do not guard against the wholesale denial of the Right to Vote as described by computer experts such as those from CalTech and MIT who warned of this

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   

In order to be Constitutional, these certification standards must mandate an external audit of voter-verified ballots. They presently do not, whatever else they may certify.

Defendant-Appellee Secretary of State’s brief repeatedly touts the “accuracy” of the challenged machines. This accuracy, due in part to the impossibility of “over-votes” is not in any way affected by adding an auditable paper trail. But “accuracy” means nothing, and the “right to vote” means nothing, if systematic glitches or tampering cannot be detected on Election Night. Such is currently the case, and this represents a severe county-wide impairment of the right to vote, and threatens the integrity of the elections and of our government itself. The warnings of virtually all computer science experts have been completely neglected in Defendant-Appellee Secretary of State’s brief, including the warnings of Kim Alexander 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, based on her service on Defendant-Appellee Secretary of State Bill Jones’ Internet Voting Task Force, as well as her continued professional experience).

As an accountant, Plaintiff-Appellant is quite disturbed that the State is redefining the term “audit” in order to permit paperless touchscreen voting. Defendant's brief has completely ignored Plaintiff’s analysis of the Secretary of State’s defective definition of “audit,” a central issue. The Defendant claims that the election results can be “audited,” but a self-audit is not acceptable in any other context. For everyone in business, the IRS, and standard legal authorities such as Black's Law Dictionary, etc., an “audit” entails looking at a paper or other source document to confirm that it was recorded correctly. When the Election Code allows a computer to print out a document AFTER an election, which the voter never verified as accurately reflecting his/her vote, then it is in fact the computer that has created the vote, not the voter. If the computer generates the vote/ballot; counts it; gives a report, and then self-audits itself to “prove” that everything is correct, the right of human beings to vote has been infringed. No computer scientists are in the record as disagreeing with this. Hundreds deny the legitimacy of a “self-audit” of computer-generated ballots.

Defendant-Appellee Secretary of State’s comparison of the touchscreen machine with ATM machines makes for a good vendor’s brochure, but is intolerably superficial analysis. An ATM gives the customer cold cash (or a deposit receipt). Touchscreen machines give neither the voter nor election officials any externally auditable assurance on Election Night that voters created the ballots rather than the machines.

Defendant-Appellee Secretary of State rests his entire case on a short-sighted interpretation of Burdick v. Takushi 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992). That case stands for the principle that if a tangential feature of an otherwise reasonable voting system results in the disenfranchisement of a few voters, the otherwise-reasonable voting system will be upheld. But that court recognizes that a severe impairment of the Right to Vote by an unreasonable system must be justified by a compelling state interest as an infringement on a fundamental constitutional right. A paperless touchscreen voting system, allowing no external audit of voter-verified ballots, is not a reasonable system. It denies the voter the right to create a ballot that accurately reflects voter intent, substituting the “intent” of a computer glitch or nefarious programmer. The overwhelming majority, if not absolute unanimous opinion of computer science experts is that Defendant-Appellee Secretary of State’s system is unreasonable. The standards which certify such a system are unconstitutional. The Court below erred in granting Defendant-Appellee Secretary of State a summary judgment.

The Defendant-Appellee Secretary of State has not offered a minor change of the status quo, preserving an otherwise-reasonable and constitutional system. This is a wholesale change, incorporating a systematic defect in design, resulting in county-wide disenfranchisement.

Defendant-Appellee Secretary of State’s position is Un-American, for it violates our nation’s basic assumptions about human nature and the need for “checks and balances” to guard against the temptation and corrupting influence of power. When politicians routinely raise war chests of tens of millions of dollars, we must consider the ease with which these paperless voting systems can be manipulated. We need the “check” of voter verified ballots and the “balance” of an external audit of those ballots. The entire paperless touchscreen system stands indicted by the near-unanimous warning of computer science professionals that the ease with which ballots can be manipulated is greater than the ease with which the manipulation can be detected. This is the mark of a constitutionally defective voting system.

Conclusion

The Court below erred in granting a Summary Judgment to Defendant-Appellees Secretary of State and Registrar of Voters. Plaintiff-Appellant's request for injunctive relief should be granted, or the case remanded.

 

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

 

Dated:  April 4, 2003

 

Respectfully submitted,

 

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

 


Appendix A
Resolution on electronic voting

Introduction

As a result of problems with elections in recent years, funding is being made available at all levels of government to upgrade election equipment. Unfortunately, some of the equipment being purchased, while superficially attractive to both voters and election officials, poses unacceptable risks to election integrity - risks of which election officials and the general public are largely unaware.

We are in favor of the use of technology to solve difficult problems, but we know that technology must be used appropriately, with due attention to associated risks. For those who need to upgrade, there are safe, cost-effective alternatives available right now, and the potential for vastly better ones in the future. For these reasons, we endorse the following resolution:

"Computerized voting equipment is inherently subject to programming error, equipment malfunction, and malicious tampering. It is therefore crucial that voting equipment provide a voter-verifiable audit trail, by which we mean a permanent record of each vote that can be checked for accuracy by the voter before the vote is submitted, and is difficult or impossible to alter after it has been checked. Many of the electronic voting machines being purchased do not satisfy this requirement. Voting machines should not be purchased or used unless they provide a voter-verifiable audit trail; when such machines are already in use, they should be replaced or modified to provide a voter-verifiable audit trail. Providing a voter-verifiable audit trail should be one of the essential requirements for certification of new voting systems."

We elaborate below.

The Problem

In response to the need to upgrade outdated election systems, many states and communities are considering acquiring "Direct Recording Electronic" (DRE) voting machines (such as "touch-screen voting machines" mentioned frequently in the press). Some have already acquired them. Unfortunately, there is insufficient awareness that these machines pose an unacceptable risk that errors or deliberate election-rigging will go undetected, since they do not provide a way for the voters to verify independently that the machine correctly records and counts the votes they have cast. Moreover, if problems are detected after an election, there is no way to determine the correct outcome of the election short of a revote. Deployment of new voting machines that do not provide a voter-verifiable audit trail should be halted, and existing machines should be replaced or modified to produce ballots that can be checked independently by the voter before being submitted, and cannot be altered after submission. These ballots would count as the actual votes, taking precedence over any electronic counts.

Election integrity cannot be assured without openness and transparency. But an election without voter-verifiable ballots cannot be open and transparent: The voter cannot know that the vote eventually reported is the same as the vote cast, nor can candidates or others gain confidence in the accuracy of the election by observing the voting and vote counting processes.

All computer systems are subject to subtle errors. Moreover, computer systems can be deliberately corrupted at any stage of their design, manufacture, and use. The methods used to do this can be extremely difficult to foresee and detect. Current standards and procedures for certifying electronic election equipment do not require unambiguously that equipment provide a voter-verifiable audit trail. Without a voter-verifiable audit trail, it is not practical to provide reasonable assurance of the integrity of these voting systems by any combination of design review, inspection, testing, logical analysis, or control of the system development process. For example, a programmer working for the machine vendor could modify the machine software to mis-record a few votes for party A as votes for party B, and this change could be triggered only during the actual election, not during testing. Many computer scientists could list dozens of other plausible ways to compromise computerized voting machines.

Most importantly, there is no reliable way to detect errors in recording votes or deliberate election rigging with these machines. Hence, the results of any election conducted using these machines are open to question.

Available alternatives to DRE machines

When a reasonably reliable, accurate, and secure voting technology is already in use, such as optical scan ballots, acquisition of DRE machines would be a major step backwards. However, many areas urgently need to upgrade their equipment before the 2004 elections. In these cases there are several acceptable options available now.

At this time, the only tried-and-true technology for providing a voter-verified audit trail is a paper ballot, where the votes recorded can be easily read and checked by the voter. With appropriate election administration policies (for example, ensuring the physical security of ballots), voters can be reasonably confident of the integrity of election results. Two specific alternatives that are available now are:

Of course, use of appropriate equipment is not sufficient to guarantee election integrity. Elections must be administered to minimize the possibility of error and fraud, and maximize the likelihood of detecting them if they occur. In particular, even with an audit trail, audits must actually be conducted. If electronic counts are used from machines that also print ballots, or if paper ballots are counted electronically, manual recounts must be conducted with enough frequency to make the detection of error or fraud likely.

Future Alternatives

There is certainly room for improvement in voting technology. Elections pose several unique technological challenges, especially simultaneously achieving auditability while preserving ballot secrecy. Voting technology is an active research area that has already produced several proposals that promise to be much better than any system currently in use. For example, there are proposals that may be able to eliminate the possibility of "ballot box stuffing." Unfortunately, if available funds are spent on fatally-flawed "high-tech" voting equipment, it will be a long time before there is more funding to adopt truly superior voting technology.

Conclusion

The conduct of elections has been taken for granted for too long. Election reform is now receiving much-needed attention, but we must guard against changes that inadvertently create even worse problems. Unauditable voting equipment will erode confidence in our elections, causing further disillusionment of the voting public.

Click here if you would like to endorse this statement.

Please email questions and comments to "elections@chicory.stanford.edu"

Last modified 1:00 PM, 1/20/2003


Appendix B
Endorsements of the Resolution on Electronic Voting

Affiliations are listed for identification only.

Technologists:

Name (and link)

Title

Affiliation

Ronald L. Rivest

Andrew and Erna Viterbi Professor of Electrical Engineering and Computer Science

Massachusetts Institute of Technology

Peter G. Neumann

Principal Scientist

SRI International

Rebecca Mercuri

Assistant Professor of Computer Science

Bryn Mawr College

Arnold B. Urken

Professor of Political Science

Stevens Institute of Technology

Michael Reiter

Professor of ECE and CS

Carnegie Mellon University

Douglas W. Jones

Associate Professor and Former Chair of the Iowa Board of Examiners for Voting Machines and Electronic Voting Systems

University of Iowa

Lorrie Faith Cranor

AT&T Labs-Research

Principal Technical Staff Member

Dan Boneh

Assistant Professor of Computer Science and Electrical Engineering

Stanford University

Avi Rubin

Associate Professor, Computer Science and Technical Director, Information Security Institute

Johns Hopkins University

 

For convenience of court, pages 2-39 have been omitted.

As of April 3, 2003, there were 593 signatures to the Resolution.

 

Scott Schram

 

 

David Sheres

 

 

Doug Sibley

Computer Science Student (Security and Cryptography interests)

University of Waterloo

Warren D Smith

 

 

Ted Sowinski

Computer Programmer

Greens of Oak Park, CPSR

John Springer

Technology Consultant

DigitalMX.com

Charles Talk

Sr. Technical Trainer

 

Erich Tompkins

Software Test Engineer

 

Guillaume Vambenepe

R&D Project Manager

Hewlett-Packard

Patrick Vinograd

PhD Student

Stanford University

Scott Wakefield

 

 

Rudy Werlink

 

 

Troyce Wilson

Microcomputer Specialist

Texas A&M University

Jeffrey Woldan

Computer Science Undergraduate

Messiah College, Grantham PA

Tom Woodward

President, U6 Technologies

 

 


Posted on Fri, Feb. 21, 2003

 

Suddenly a paper trail is possible

COUNTY SHOULD REQUIRE IT ON ANY TOUCH-SCREEN VOTING SYSTEM TO PROTECT AGAINST FRAUD

IN a major turn of events, all three voting machine makers competing for Santa Clara County's contract have told election officials that they're prepared to offer paper copies of touch-screen ballots for voters to inspect. Better yet, they'll include this feature at no cost to the county.

The vendors' concession is a big victory for computer scientists who've been clamoring for a voter-verifiable paper audit. It's also an offer supervisors have no reason to refuse.

On Tuesday, when they take up the issue, the supervisors should amend the proposed voting machine contract to require what the vendors are offering. Taking such a step, in the heart of Silicon Valley, would set an important precedent for counties nationwide to follow.

It was only a month ago that Stanford University computer science professor David Dill began circulating a petition urging the supervisors not to buy a touch-screen system without a paper audit, as a protection against undetectable fraud and errors.

At first, Dill's campaign appeared futile. The county was well into the contract process, up against a March 2004 deadline to replace its antiquated punch-card system. Its registrar of voters mocked the need for a paper audit.

But after Dill collected signatures from a couple hundred respected technologists, and Secretary of State Kevin Shelley announced a task force on voting machine security, vendors understood they faced a potential crisis of confidence in their technology.

Sure enough, as if by magic, a next-generation electronic voting machine appeared in San Jose last week. Sequoia Voting Systems displayed its prototype, with a paper audit, even as, in an adjoining room, company officials and other vendors continued to dismiss Dill's warnings as implausible and alarmist.

Sequoia's machine produced a paper copy of a voter's choices behind a glass screen that the voter could look at but not touch. Even Peter Neumann, an authority on computer security and leading critic of the current technology, was impressed. Diebold Election Systems, another vendor, exhibited a less elaborate version.

Precisely when a voter-verifiable paper copy will be available isn't clear, since state and federal regulators have yet to certify what the vendors are offering. And, preceding certification, Shelley's task force of vendors, computer scientists and election officials must decide exactly how a paper audit should work. There are difficult, but not insurmountable questions to resolve, such as whether a paper copy of a ballot should serve as the official count or held only for a recount in disputed elections.

The supervisors can wait awhile to negotiate the details of a paper audit. What's important is that on Tuesday they approve, in principle, a system that voters and technologists can trust.

 


Posted on Sat, Feb. 08, 2003

Security of e-vote machines targeted

By Katherine Corcoran
Mercury News

Responding to Silicon Valley computer scientists' concerns that state elections could be tampered with or compromised with new electronic voting machines, the state's top election official is convening a task force to look at making the ATM-like, touch-screen machines more secure.

Secretary of State Kevin Shelley took the action Friday in Oakland after meeting with a Stanford professor who organized a petition drive questioning a move in Santa Clara and other counties to install the high-tech voting machines.

Shelley said he will bring the scientists together with voting officials, voting rights advocates and county representatives because voter confidence -- not technology -- will ultimately determine the future of the electoral system.

``We need to get these scientists together because they're scaring the crap out of Santa Clara County, and the board of supervisors is saying, `We don't know what to do,' '' he said. ``We have a political problem as well as a technology problem that's going to happen in county after county, and we need to address it right now.''

Answers needed

Shelley told a group of registrars and county clerks in Oakland that charges made by the scientists that electronic voting machines are prone to tampering, error and fraud must be answered quickly. Santa Clara County, like counties across the country, is under court order to replace its punch-card voting system by the March 2004 presidential primary. The nine-month process to select a $20 million electronic voting system was nearing completion when the scientists, led by Stanford University Professor David Dill, delivered a petition stating that voters have no way to verify that the decisions they punch on the screen are the same as those recorded by the computer.

The scientists want the electronic voting machines to print a paper copy of each ballot cast electronically so voters can review it for accuracy. The copies would be collected and stored, to be compared with machine results in cases of recounts or suspected irregularities.

``There's no way of knowing if an election is stolen, manipulated or if mistakes cause the votes to be miscounted,'' computer scientist Barbara Simons, past president of the Association for Computing Machinery, told the supervisors in a hearing Tuesday.

Some safety measures

But some supporters of electronic voting portrayed Simons, Dill and other critics as Luddites and conspiracy theorists, saying there are plenty of safeguards and security measures programmed into the machines, as well as checks and balances required by the federal and state commissions that certify them.

The machines are programmed and tested before, during and after elections, and have more safeguards than the old lever machines still used in 330 counties nationwide. Last week, Santa Clara County Registrar of Voters Jesse Durazo was quoted in Wired News as saying the scientists were creating ``this UFO effect.''

``I'm as paranoid as anyone about making these systems as secure as possible,'' said Paul Terwilliger, a premier designer of electronic voting systems and a computer scientist with Sequoia Voting Systems, the Oakland-based vendor Santa Clara County is considering. ``But what's so great about a piece of paper? If the paper takes precedence, what's the purpose of having an electronic vote?''

Contact Katherine Corcoran at kcorcoran@sjmercury.com or (408) 920-5330.