Ninth Circuit Holds that Use of Touchscreen Voting
System without paper trail does not violate United States Constitution
The Ninth Circuit has decided Weber
v. Jones, challenging the certification of touch screen voting in
California. From the opinion:
We cannot say that use of paperless, touchscreen voting systems
severely restricts the right to vote. No balloting system is perfect.
Traditional paper ballots, as became evident during the 2000
presidential election, are prone to overvotes, undervotes, “hanging
chads,” and other mechanical and human errors that may thwart voter
intent. See generally Bush v. Gore, 531 U.S. 98 (2000). Meanwhile,
touchscreen voting systems remedy a number of these problems, albeit at
the hypothetical price of vulnerability to programming “worms.” The AVC
Edge System does not leave Riverside voters without any protection from
fraud, or any means of verifying votes, or any way to audit or recount.
The unfortunate reality is that the possibility of electoral fraud can
never be completely eliminated, no matter which type of ballot is used.
Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (“Voting
device malfunction [and] the failure of election officials to take
statutorily prescribed steps to diminish what was at most a theoretical
possibility that the devices might be tampered with . . . fall far
short of constitutional infractions . . . .”). Weber points out that
none of the advantages of touchscreen systems over traditional methods
would be sacrificed if voter-verified paper ballots were added to
touchscreen systems. However, it is the job of democratically-elected
representatives to weigh the pros and cons of various balloting
systems. So long as their choice is reasonable and neutral, it is free
from judicial second-guessing. In this instance, California made a
reasonable, politically neutral and nondiscriminatory choice to certify
touchscreen systems as an alternative to paper ballots. Likewise,
Riverside County in deciding to use such a system. Nothing in the
Constitution forbids this choice.
(footnote omitted)
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org