[EL] Fwd: Responding to Colorado Bar coding case

[Rick Hasen]

-------- Original Message --------
Subject: 	Responding to Colorado Bar coding case
Date: 	Fri, 21 Sep 2012 16:05:59 -0400
From: 	S C Hoke
To: 	Hasen Rick <rhasen at law.uci.edu>



Rick, I'm out of town with no access to my law school email account for 
posting.

Here's a response for the Colorado bar coding litigation, in case you 
deem it useful.  Thanks, Candice


Folks,

While the US Constitution may not include a right to ballot secrecy, 
many federal and state statutes incorporate such a protection, as do 
many State constitutions.  E.g., HAVA's language is below, and applies 
to voting systems used in federal elections:

*HAVA Title III*– Section 301 = 42 USCA § 15481 */(emphases added) /*

*Subtitle A—Requirements *

*SEC. 301. VOTING SYSTEMS STANDARDS.*

(a) REQUIREMENTS.--*Each voting system used in an election for Federal 
office shall meet the following requirements*:

*(1) IN GENERAL.--*

(A) Except as provided in subparagraph (B), *the voting system* 
(including any lever voting system, optical scanning voting system, or 
direct recording electronic system) *shall-*-

(i) permit the voter to verify*/ (in a private and independent 
manner)/* the votes selected by the voter on the ballot before the 
ballot is cast and counted;

  (ii) provide the voter with the opportunity*/ (in a private and 
independent manner)/* to change the ballot or correct any error before 
the ballot is cast and counted (including the opportunity to correct the 
error through the issuance of a replacement ballot if the voter was 
otherwise unable to change the ballot or correct any error); …. [omitted 
language specifies the notices to the voter about ballot errors and 
ability to correct the ballot]

….

(C*) **/The voting system shall ensure/* that any notification required 
under this paragraph*/preserves the privacy of the voter and the 
confidentiality of the ballot./*

*******

While some might contend that these HAVA provisions only address rights 
to confidentiality during the voter's voting process at the polls, I 
would argue:

1.  The HAVA provisions seek to assure that the confidentiality of the 
vote (that was expected and traditionally protected after individually 
indistinguishable cast ballots were collected for voting) would obtain 
at the polling location as well, and would not be undermined by new 
electronic technologies; _the HAVA baseline expectation and assurance 
was confidentiality and privacy of the vote_;

2.  Bar coding is a type of electronic technology that, while not 
understood by most voters to be capable of undermining their right to a 
secret ballot that HAVA recognizes and protects, is capable of 
eviscerating that protection.  If any ballot can be traced back to an 
individual, it is not HAVA-compliant.

The right of private individuals to enforce HAVA is not clear (federal 
courts are divided; Dan Tokaji and I have both written on this 
question), but it is unquestionably the case that:

    a.  US Dept of Justice possesses the legal duty and the power to
    enforce HAVA, and
    b.  the State SoS also have the duty to manage their election
    systems consistent with HAVA.


Hence, I would suggest that  DOJ become involved in assuring that HAVA 
voter privacy/ballot secrecy rights receive judicial recognition and 
protection.  We could wax long about the underlying  policy rationales 
for ballot secrecy but most list members know this literature and set of 
arguments.

Best to all, Candice



*Professor Candice Hoke*
C|M Law, Cleveland State University
216.687.2313 office
216.798.4643 mobile
shoke at law.csuohio.edu<x-msg://80/%22mailto:>
shoke at me.com <mailto:shoke at me.com>

*/Disclaimer:/* Any opinions I may have expressed are my own and do not 
reflect the positions of any university, State or Federal institutions, 
or boards or committees with which I may be affiliated (although I may 
wish that they did).






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