Joshua F. Clowers, I E-vote, U I-vote, Why Can’t We All Just Vote?!: A Survey of the Changing Face of the American Election, 42 Gonz. L. Rev. 61 (2006).
The Fifteenth and Twenty-Fourth Amendments were intended to level the playing field when it came to voting in American elections; however, even after the enactment of these Amendments, states were often able to circumvent the protection they provided, utilizing methods such as “discriminatory literacy tests, residency requirements, and dilution of minority voting power through changes in election systems.” In an effort to remedy this sort of inequity, Congress passed the Voting Rights Act (“VRA”) in 1965, aspiring to rid the American electoral system of racial discrimination. Then, in 2002, Congress passed the Help America Vote Act (“HAVA”) to complement the VRA with the goal of improving upon the complicated and mistake-prone vote-recording systems in place across the United States—with particular attention paid to the chad-based system that yielded the debacle in Florida following the 2000 Presidential Election. Under HAVA, Congress planned to supply “$3.9 billion in matching federal funds” for states to invest in new electronic voting (“e-voting”) systems to replace older mechanical technology.
However, rather than settling the debate over whether e-voting is the true future of our society’s civic participation, HAVA only succeeded in intensifying it. HAVA encouraged states to spend the government funding before its benefits expired in 2006 for fear that there be no other opportunity for subsidized voting equipment in the future. Further, by its nature, HAVA demanded an instant, one-time upgrade that would require another overhaul just a few years down the road rather than providing for continuous improvements to the state’s system until perfected. Despite the fact that the voting equipment currently available has become infamous for its failures, as discussed below, advocates and critics have engaged in debate and even resorted to lawsuits in their attempts to justify their position on whether e-voting can or should be employed. The Fifteenth Amendment largely entrusts to the states the authority to enact their own procedures for conducting elections, so long as they do not infringe upon the constitutional rights of others. The implementation of regimes exclusively utilizing e-voting technologies in some forms would likely be immediately disqualified under the Constitution in general elections at both the federal level (via the Twenty-Fourth Amendment) and state level (via the application of the Twenty-Fourth Amendment through the Fourteenth Amendment’s Due Process clause). However, it appears that if a state desires to adopt an e-voting vote recording system, it is constitutionally entitled to do so. Georgia has, in fact, passed legislation that implements the use of Direct Recording Electronic (“DRE”) touch screens for all of its general elections in all precincts. Despite this, critics continue to raise constitutionality questions regarding the implementation of large-scale e-voting systems, particularly any system espousing remote Internet voting (“I-voting”); but, rather than focusing on the specific constitutionality of e-voting and I-voting, this article will instead examine some of the implications posed by this apparently inevitable movement toward e-voting, as well as the potential for progression into I-voting. %CODE2%
As we look toward the future of imminent civic-technologification, one cannot help but wonder whether America’s electoral system is proceeding in a well-advised direction. In the 2004 election season, it is estimated that approximately 30% of American ballots were cast electronically. Erik Nilsson, the chairman of the voting working group of Computer Professionals for Social Responsibility, has stated that paper-based auditing systems of e-voting machines are still necessary to ensure a secure election. Despite this warning, many of the states using e-voting technology dispensed with systems that use paper trails for verification, as they would have been too costly.
In the 2006 elections, more Americans than ever used electronic voting to cast their ballots. And, yet again, these elections have reinforced the undependability of current e-voting technology and the need for checks on the systems, as numerous failures had already incited a slew of lawsuits to be filed before polling stations were even closed. The question now becomes: Are we bringing our social system into the future, or are we just inviting ourselves into the beginnings of an Orwellian snare? And, in a more immediate and perhaps less science-fictional threat: Have we left open the door for the hijacking of our voting institutions? The goal and seeming inevitability is that “Internet voting is coming.” But is America ready to rid itself of the accountability and security locked inside of the traditional ballot box?
The purpose of this article is to show that, though e-voting may be an appealing solution to many of the problems with conventional voting, in its current state and without more checks and balances, security, and means of accountability, the American electoral system is undertaking an impermissibly dangerous, and perhaps illegal, approach to altering one of the most hallowed and essential components of its sovereignty. The second part of this article will examine the benefits of converting to an e-voting system, discussing the technologies available and the premise for why this advancement is desirable. It will then turn to the practical considerations of e-voting, specifically noting how our system of democracy might change after the implementation of an e-voting system. The third part will cover the problems with an e-voting system. First, social problems such as the cost of e-voting, discrimination in an e-voting system, potential for bribery, and voter turnout will be discussed. Then, the discussion will turn to the potential for technical problems such as internal tampering, vulnerability to outside attack, and the danger of proprietary code. The fourth part of this article will discuss the feasibility of I-voting as an alternative solution to e-voting. It will discuss the remedies that I-voting can provide for DRE e-voting’s limitations and inadequacies and list some of the new problems encountered with the implementation of I-voting. It will then discuss the possibilities for implementing a system of I-voting in the United States. The fifth part will propose a solution to the current dilemma with e-voting and I-voting, suggesting that a hybrid model which pursues on-site I-voting may present the most practical solution. Finally, the conclusion will summarize the inferences to be drawn from this information and hypothesizes as to where the future of e-voting in America is headed.
II. C:>Installing E-Vote
A. The Evolution of American Voting
There are several different voting technologies currently available in the United States. Each is different in its methodology, vulnerability, capacity to prevent overvotes and undervotes, and capability to alert voters of possible errors occurring during voting, which may, for instance, allow a voter to subsequently correct any mistake he or she may have made. However, no technology currently in use has successfully managed to curb the increasingly rampant voting vulnerabilities the American electoral system has repeatedly encountered throughout its history.
Voting began in America with the use of pre-printed paper ballots, which featured the names of candidates already marked. Voters would simply select which pre-marked ballot to turn in rather than filling out their own blank ballot. Because the problems of vote-buying as well as other scandals manifested themselves early on, the U.S. soon adopted a secret balloting system based on the Australian model, in which a voter privately marked their ballot for their chosen candidates. While the “secret” aspect of the Australian model has been retained, the paper methods on which it was based have largely disappeared. Although 12.5% of voting districts used paper ballots in the 2000 election, only 1.3% of the total voters used them. The errors that occur with this method of voting stem almost exclusively from poorly marked ballots or are the result of hand-counters misreading the ballots.
These secret paper ballots were used everywhere until the late 1800s when the mechanical lever machine was invented. Using this new machine, voters selected candidates by turning levers adjacent to their selected candidate’s name. Then, the voter pulled a larger lever to cast the vote, directing the machine to record which levers the voter had selected. This system was designed to address the apparently increasing problem of paper-ballot tampering, and featured no hard “document” at all. In comparison to paper ballots, this method was used by voters in 17.8% of jurisdictions in 2000. However, this system was prone to error as well. Common malfunctions ranged from the misreading of votes to the total failure to tally votes, both of which resulted from improper calibration of the machine. Currently, these machines are falling out of favor with many jurisdictions, which may be attributable to their expense and the difficulty of obtaining replacement parts and maintenance.
The image immediately conjured up when one thinks of “e-voting” is that of a voter sitting in front of a home computer, casting his or her vote for a politician in a public election. However, e-voting also exists in other capacities. First of all, as discussed more below, “e-voting” does not necessarily mean “voting over the Internet” (although all Internet voting is a subspecies within the broader category of e-voting). In fact, e-voting in its current incarnation is almost exclusively confined to localized mechanisms (such as a computer touchscreens at traditional polling stations) rather than some device for remote communication. Another example of e-voting involves a sort of at-home democracy, where individuals electronically cast votes on legislation or initiatives so that they are able to either (a) directly participate in the political process, or (b) communicate their thoughts and wishes to their representatives before those representatives go to cast their own votes. The underlying goal is to revive public involvement in the political process. Experts speculate that the disconnection of the public from the political process has been primarily responsible for the low voter turnout over the past few decades and that e-voting could reverse this trend. E-voting can also take the form of corporate shareholder voting, in which shareholders electronically cast their vote by proxy over the Internet. This has been done for several years in the United States and other countries, recently making its way to Canada as well, with the idea being to increase cost effectiveness, timeliness, and participation in corporate undertakings. This kind of voting, however, varies slightly in its function from what this article will discuss. This article will focus on the “public election” application of e-voting, encompassing both at-home voting and poll-site machine voting.
B. The History of E-Voting
E-voting is not a new technology. Of the several different e-voting technologies currently available, some are more than thirty years old. Invented in 1964, the punch-card voting system has remained the most popular of any method of e-voting currently employed, being used in more than 34.4% of districts nationwide. Unfortunately, despite this high percentage, punch-cards are incapable of reporting undervotes and overvotes, as no mechanism exists for finding them (as opposed to some of the other types of e-voting mechanisms discussed below).
Technically the first “e-voting” technology ever used in the U.S., punch-card voting is divided into two variants.  The first is “Votomatic,” which utilizes a pre-scored card using “chad”-style perforations. The second is “Datavote,” which is a non-pre-scored version. Votomatic systems were, of course, the variant used in Florida during the 2000 election season. In order to use the Votomatic, a voter must place a card in a machine, lining it up with the names of candidates or ballot measures according to printed pages in the booth. The voter then uses a stylus to punch through the chad perforations on the card to indicate their choices. The card is then passed through an optical scanning machine that looks for marks on the ballots. If the card is misaligned or the stylus does not completely punch through the paper, the votes will either fail to register as they were intended, or they will fail to register at all. This monumental folly will forever be ingrained in American memory and U.S. history books, as the terms “hanging chad,” “pregnant chad,” and “butterfly ballot” still haunt the American electorate today. It is no surprise that such a complicated method of completing such a simple task produced the trouble it did in the 2000 election.
The alternative Datavote punch-card systems contain no chad perforations; instead, the names of candidates (or numbers corresponding to names of candidates) are featured directly on the card. A voter then takes a provided tool to punch holes corresponding to the candidates for whom they wish to vote. As opposed to the Votomatic system, which requires candidates to line up cards using a guide apart from the area in which they insert the card, Datavote cards are placed directly next to the candidates’ names, which gives voters a better, less error-prone frame of reference for casting their votes. One problem with the Datavote system, however, is that with the names of the candidates on each ballot, multiple cards are often necessities, thus causing confusion in states with lengthier ballots.
Another of the older e-voting technologies is the optical scan system, also known as the “marksense” and “bubble” ballot. First introduced in the 1980s, optical scan systems, similar to punch-card systems, use computers to scan ballots and record votes. Voters uses a special pen to mark boxes on a piece of paper, which is then scanned by a machine that tabulates the results. This is the same type of technology used in the scantron systems which score the SAT and many other standardized tests. The advantage of these optical systems over their punch-card counterparts lies mainly in their ability to correct for undervoting and overvoting, making them arguably more reliable to reflect an accurate vote count than other e-voting technologies. Votes are either counted at the poll-site, or they are taken to some centralized location to be counted. While undervotes and overvotes can still occur using this technology, if a precinct utilizes poll site scanning to count the votes, voters can be notified of their invalid vote so that they have a second opportunity to submit a valid vote. This is the first of such technology to allow for this kind of a “second chance vote.” However, if the vote scanning is done at a centralized location apart from the polling site, a second chance vote is not possible, as the voter will have already gone home by the time the error is realized.
C. The Next Generation: DRE Voting
The country began to move away from paper-based ballot systems after the passage of HAVA, and as a result DRE systems proliferated in the American electoral system. Though technically originating in the 1970s, the prototypical models have since been replaced with newer versions, many of which employ touch screen technology. And, though accounting for only 12.2% of the total vote in 2000, the use of DRE systems is quickly taking over as the primary form of voting in many states across the U.S. That figure more than doubled by the 2004 election to nearly 30%, making it the second most used method behind optical scan. Meanwhile, punch card use declined to a mere 13.1%, less than half of what it was just four years prior. Georgia, as well as several other states, now employ DRE touch-screens in all precincts.
All of the abovementioned forms of e-voting have been “local” in the sense that they take place at a traditional polling site. As discussed earlier, there is a difference between general e-voting and I-voting. “E-voting” refers to voting by way of an electronic system which records a voter’s secret ballot. These votes are then stored on some form of digital media and sent to a centralized location for compilation and tabulation. “I-voting” is a specific category of e-voting performed via the Internet. E-voting is not separate from I-voting, but it is distinguished from it. The most significant distinction is that I-voting is typically “remote” in the sense that the vote may be cast from anywhere outside the polling site (however, there is a type of I-voting that is “local,” which will be discussed below). DRE systems are not connected to the Internet; rather, they are stand-alone systems that use their internal memory to record and tabulate votes.
There are two types of DRE systems. The original type of DRE was a simple keypad or punch-key machine, where a voter selected a candidate using a keyboard. This is a relatively simple process, involving voters entering private terminals and simply punching keys corresponding to candidates. Punch-key machines are quickly becoming obsolete in the wake of HAVA, since it encourages states to dispose of the older technology in favor of the new DRE machines.
The newer version of the DRE machine is found in several different forms, ranging from wheel-based to touch screen systems. Regardless of their basic interface design, these work very similarly to modern ATMs. Upon arrival at a polling station, voters are given a plastic card with a magnetic strip on it for identification purposes. They then take this card to the DRE machine and insert it into a reader to begin the voting program. The program boots up and validates the voter’s access card. The voter then simply selects his or her chosen candidate, confirms the selection, and the vote is cast. The vote is then digitally stored on the internal memory of the device.
There are four primary manufacturing companies that produce these types of DRE e-voting machines. Of those four suppliers, Diebold accounts for 45% of all systems sold, with exclusive sales contracts in both Georgia and Maryland. Traditionally, DRE machines do not support any paper auditing system, as these machines contain internal memory, often in redundant independent storage areas within the machine. However, accompanying the massive public controversy over the implementation of what have come to be thought of as error-prone e-voting systems, paper-based auditing systems, known as “voter-verified paper audit trail” (“VVPAT”) or “the Mercuri method,” have begun to spring up as optional components in many of the current technologies. These systems require DRE machine manufacturers to equip DRE machines with a printer that produces a “paper receipt” shielded by a pane of glass, which a voter must review and then verify by pressing a confirmation button the DRE machine. Then, the paper is dropped into a locked box for later review in the case of a system compromise or failure.
D. What’s Wrong with Paper Ballots?
Traditional American voting procedure is time-consuming, expensive and error-prone. Proponents of DRE e-voting systems maintain that switching to a DRE system would make the election process more convenient and cost-effective. Ideally, DRE systems could also address the problem of low voter turnout. Additionally, the 2000 presidential election fiasco has established an enduring mistrust of the electoral process that DRE supporters contend can all be corrected by simply shifting the vote-counting responsibility to a computer.
Further, a system of DRE e-voting machines could provide remedies to the problems created under traditional voting method regimes. The first and most obvious goal of a DRE system would be to shift America away from the traditional paper methods of voting that have led to so much controversy throughout American history. This controversy came to a head in the 2000 presidential election in Florida, where the “hanging chad” threw the “once infallible” American electoral process into upheaval, leading to the real beginning of America’s questions regarding the integrity and prudence of the e-voting phenomenon. The Votomatic punch card balloting system used in Florida caused several problems, with two major criticisms leveled at its design. The first was that the procedure to use the system was unnecessarily confusing, causing voters to incorrectly record their vote or spoil their ballot. Second, and more controversially, the design of the perforated punch card system led to confusion over the true intent of the voter during hand recounts. In the end, the Supreme Court was left to decide how to resolve the ongoing dispute over the recount, and in a politically charged 5-4 split, the Court decided to stop the recount and adjudicate the election in favor of Bush. As a reaction to this Florida’s Governor, Jeb Bush, spearheaded an investigatory probe to ascertain where the system had gone wrong.
However, Florida seemingly has yet to rectify its electoral troubles. In the 2002 Florida congressional election, Broward County temporarily lost and failed to count over 103,000 votes, despite the prior investigation of how to improve the system. Analogous to Florida’s troubles, Ohio recently experienced election problems of its own. Hanging chads in Ohio have caused trouble with recounting as recently as December 2004. However, these problems were never as publicized, likely because the 2004 election results have never faced the same kind of criticism as the 2000 results. This is largely due to the fact that the 2004 Ohio election results never appeared to be outcome-determinative.
Notwithstanding an apparent public interest in reforming the way we vote in the United States, many precincts have chosen to continue using these same systems that gave rise to the problems in the first place. This is in spite of the fact that, in each of the four presidential elections preceding the 2004 election, approximately 2.2 million votes per election went uncounted. Then, despite having four years of harsh and constant critique to correct the problems from the 2000 debacle, 1 out of every 100 votes still went uncounted in 2004. This number is staggering and unjustifiable, and leaves no wonder as to why voter turnout, confidence, and interest remains in steady decline.
Addressing the shaken voter confidence plaguing the institution, Congressman Rush Holt of New Jersey has proposed federal legislation to require e-voting machines to produce paper records. He has stated that “[c]ynicism eats at democracy,” and that “[s]elf-government works only if we believe it does.” Holt has also stated that “the 2000 election was a real blow” to America’s trust of the electoral system. The system has repeatedly demonstrated its incapability of simply counting votes, which is the only function it is charged to execute. Moreover, many do not expect improvement based on the technologies that many precincts insisted on employing in the 2004 election. The need for a solution to this scourge on American democracy makes DRE voting an inviting avenue to explore.
DRE e-voting will allow for greater access and participation, especially in that it will allow some disabled people to vote independently, where they otherwise could not have. Some newer DRE machines, such as the eSlate 3000 system used in Australia provide features designed to accommodate voters who experience manual dexterity difficulty, such as the “sip and puff” system, “jelly switches,” and “blink recording” devices. They also provide an audio voice option that can accommodate both blind and illiterate voters, allowing for greater independence and dignity in voting.
DRE machines also provide for non-English speaking voters. DREs have the ability to display instructions, voting information, and other such text in multiple languages, thereby accommodating the significant number of non-English speaking voters that may have an especially difficult time with overly complex and convoluted ballots like Florida’s Votomatic system.
It has further been suggested that DRE voting may help reduce the disproportionate impact that the use of punch-cards on the voting of African-Americans, potentially in violation of § 2 of the VRA. Punch-card voting’s disproportionate impact has been argued in at least three cases, and at least one court has stated that the failure to review punch-card votes manually does in fact have a disproportionate effect on African-Americans. None of the cases discussing voting disparity among races have ruled on the merits of the VRA § 2 violation, but the implementation of DRE voting machines, which would ideally not be subject to the same overvoting and undervoting as punch-cards, certainly could remedy the disproportionate impact on minority voters.
The driving idea behind the implementation of these modern machines is to help mitigate the problems that tend to accompany other older voting methods and stabilize the American democracy. In reality, the results of their use thus far have not been error-free, as the incidents, lawsuits, and controversy seem to grow daily.
III. C:>Error: Election.dat Failed to Load. Please Reboot
A. Can We Trust the System?
There are several key components that make for a successful election: authentication and eligibility, accuracy, uniqueness of ballot-casting, integrity, verifiability and auditability, reliability, secrecy and non-coercibility, flexibility, convenience, certifiability, transparency, and cost-effectiveness. If e-voting can provide for these elements, then it is a truly feasible alternative to paper ballots. However, the suspect state of e-voting technologies in their currant manifestation keeps all of these elements at issue, rather than providing a definitive solution.
Opponents of DRE e-voting systems argue that this technology has produced something just as bad, if not worse, than Florida’s “hanging chad” from the 2000 election, wherein the differential of votes separating George W. Bush and Al Gore was less than the margin of error in the vote count. DRE E-voting introduces the potential for abuse, fraud, mistake, discrimination and error. While traditional voting may be subject to many of these things, the difference with e-voting is that we may never be able to tell whether an election has been hijacked.
In an attempt to dispel this theory, Michael Shamos, a Computer Science Professor at Carnegie Mellon University and an e-voting proponent, has gone as far as offering a $10,000 cash reward to anyone who can undetectably tamper with his DRE test system, which he claims is invulnerable in this capacity. As of 2004, the reward had lasted eight years without a challenge.
Meanwhile, DRE e-voting critics simply point to e-voting’s mistake-ridden history. Failure after failure of DRE and other e-voting systems have been documented, ranging from a system lockup resulting in voters being turned away, to a machine recording every vote in one election completely opposite from how it was cast by the voter. In the wake of several such incidents nationwide, California went as far as to decertify Diebold machines for the November 2004 presidential election. Additionally, overcounts and undercounts of votes by as much as 25% have been reported on some DRE machines.
Twenty-five percent of the vote is an inexplicable number. Yet, these are the machines that our country uses to elect its leaders. These are the machines that not only decide our domestic policy, but also tell the world what we as Americans think, what we support, and what sort of behavior we endorse. While steps are being taken to help mitigate some of these problems, such as the introduction of legislation in Georgia requiring a paper auditing system to be installed for its exclusively e-vote electoral system, many of these problems are simply going unaddressed by legislatures. Some groups are not waiting around for states to pass legislation, however, and have filed lawsuits against states that continue to employ paperless ballot systems that are without hard means of verification.
B. Technical Issues
Overall, so long as the repeated technical failures of e-voting systems continue to fuel critics’ complaints and fears, it will be unlikely to garner the support necessary to indispensably entrench itself as a legitimate public institution. The greater and more widespread the failures become, the more critical the American public will become. Taking a closer look at the technical shortcomings of e-voting today, it appears that the technology is simply fraught with vulnerabilities to attack and the potential for abuse. Thus, there are two important things to observe when evaluating the effects the implementation of this technology will have on our democracy.
The first is security. Security in voting procedure refers primarily to “the resistance of votes and vote totals to fraud and other forms of manipulation.” E-voting technology has been the repeated subject of security questions in light of the risks posed by the installation of DRE systems. Critics often voice concern about the possibility of “malicious code,” “vulnerability to attack,” and the “manipulation of vote totals” post-election. Up to this point, little has been done to quiet the concerns of e-voting opponents, which are only further aggravated by the recent proliferation of lawsuits over DRE systems and reports of their technological failings as noted above.
The second important point is transparency. The concept of transparency in voting relates to the system’s ability to produce traceable records and detect what is happening within a voting system so as to instill confidence in the system, both from voters and from candidates. Transparency literally gives us a window through which we can observe the internal workings of the mechanism so that we may understand more accurately how results are realized.
1. Vulnerability to Internal Tampering
Before employing any new technology, the first thing to do is identify where it originates. The manufacturers of these voting systems are private companies, who could very well have their own agenda in selling voting systems that will decide the outcome of what may eventually amount to every political race in the United States. As they are traditionally built without any internal or external auditing systems, tampering with the machine from within is a legitimate cause for concern. We must decide whether it is prudent to entrust the responsibility to ensure the security and accuracy of America’s public elections to private companies who are not subject to oversight.
Diebold, the leading manufacturer and supplier of e-voting DRE systems, has been at the forefront of this controversy. In January 2003, a Diebold file transfer protocol (“FTP”) site revealed the source code of their voting software, a list of Texas-registered voters, and a vote-tabulation database to at least one casual Internet user, due to the company’s failure to make any efforts to sequester those files from the public. When the user was on the FTP site, she discovered that she was able to undetectably alter votes using simple database software. Further, Walden O’Dell, former Chairman and CEO of Diebold, is a renowned George W. Bush supporter. Prior to the 2004 presidential election, before his resignation from the company, he allegedly wrote in a fundraiser invitation, “I am committed to helping Ohio deliver its electoral votes to the President next year.” He later disclaimed authorship and said that he and Diebold would refrain from aligning itself with political parties while “in the voting business.” While this particular case may or may not be cause for legitimate concern, it very clearly evidences the danger that e-voting technologies could pose to our democracy, as well as why we must exercise vigilant discretion in choosing from whom we obtain any DRE machines, should America continue to pursue such a course. Additionally, it highlights the absolute necessity for the implementation of a system to monitor the process and for paper trail auditing.
2. The Problem of Proprietary Code
DRE touch-pad machines operate entirely by computer, and completely in secret. Of the five different kinds of ballot systems used in the United States, four of them are paper-based; DRE systems are the only ones that do not use paper-based accounting systems. While it is true that there has been a recent movement toward installing paper auditing systems, these are often forgone in the interest of timing and expense, and many systems rely completely on the local internal memory of the machines.
Companies like Diebold do not release their source code—at least not on purpose—so it cannot generally be evaluated by a third person or the government to determine whether it actually does what it is supposed to do, or if it is secure from both internal and external threats. Thus, there is no accountability, and there is no way to oversee what is happening within the machine. Of course, it is always any private entity’s right to decide whether to make its proprietary code publicly available, as a basic tenet of intellectual property. However, when the proprietary code is used to decide the course of world history and politics, it is not unreasonable to allow it to be verified and checked for its dependability. We have no logical reason for simply entrusting the fate of our democracy to a private entity in this way. Yet, the HAVA legislation has effectively forced states into adopting these methods for budgetary reasons. Therefore, the DRE manufacturing companies have no real motivation to release their source code due to the fact that a choice to keep it secret has not affected whether they are able to market their product. Even with the implementation of the paper trail auditing system, without being able to access and scrutinize the source code of the machines, there is no effective way of ensuring that the votes are not tampered with internally.
Although it is something to consider, the main issue here is not necessarily one of mistrust. More importantly, America should be concerned that the voting machines we employ are going to do the simple task for which they were designed. Proprietary code machines have proven “error ridden and prone to security weaknesses” because the proprietary code is not open to inspection, the result being that there is no good way of evaluating the reliability of the machine. The only way to tell for certain whether the code is secure and clean is to allow external investigation of the code. However, the only way in which this has been thus far allowed is through closed-state evaluations. These have largely proven ineffective at solving issues, likely because they must be conducted on such a small scale.
There is a very simple and reasonable solution to this problem. Australia has released its e-voting machine’s source code to the public, and in doing so, it was largely able to address the concerns that the public formerly had about the safety, viability and dependability of the system. By making their software completely open to public scrutiny, Australians have done exactly what was necessary to garner public acceptance of their technology. Some critics have acknowledged that their primary concerns are addressed by the Australian approach, and that the United States should follow the model of the Australian “eVACS” system in developing our own e-voting technology.
C. The Other Drawbacks
Although the majority of public concern is over whether the new system will accurately record and report votes, the potential for hijacking the voting system is only one of the problems posed by e-voting. Cost, under-qualified election workers and volunteers, and identity theft also become concerns with the implementation of e-voting in the United States.
First, the cost of e-voting may prove to be prohibitive, especially to voting precincts already experiencing fiscal dilemmas. While there may be cost benefits over time manifested in savings on paper, infrastructure, etc., there would be significant cost undertakings with the implementation of the e-voting systems. There is, of course, the initial set-up cost, including the purchase of computers, identity authentication devices, software, and interface equipment. The drawback is that much of this equipment would require frequent updating, especially in light of the technology that will certainly be advancing around it. In addition, there would be training costs and technical assistance costs for the people working at the polling stations. While it is true that HAVA provided money to help fund these endeavors, the deadline restriction on HAVA funding forced states to make quicker, less-informed decisions so as to avoid even greater expenses. Consequently, the longer a state waited, the more costly the implementation of e-voting technology became.
2. Underqualified Workers and Volunteers
A U.S. government study on the feasibility of e-voting in the November 2004 election cited under-qualified election workers and volunteers as potential problems with implementing an e-voting system. The fact is that the average election worker or volunteer is not equipped with the technical expertise required to maintain and repair the voting systems should there be some sort of glitch during the process. The infeasibility of training election workers and volunteers to perform maintenance on the machines presents the electoral system with two options. It can either accept the unreasonably expensive undertaking of hiring enough trained employees to have capable workers at each voting station, or it can simply accept the understanding that, if something breaks, it probably is not going to get fixed. As awful as it sounds, “broken and not fixed” was a prime contributing factor to the 2004 elections which resulted in voters being sent to alternate polling stations or just sent home when the voting mechanisms malfunctioned.
3. Identity Theft
In the interest of preventing the misregistration of voters, federal and state government officials have sought to streamline the registration process by conglomerating local registration systems to build statewide registration databases. However, the same government study pointed to identity theft as being another potential hazard of e-voting, as anytime a unique identifier like a social security number is used, the potential for identity theft is amplified. The study warns that we should not expect technology to simply “promote integrity and support voting rights enforcement” from its introduction into the market alone. In reality, the more workers and volunteers that see this sort of unique identifier information, the more opportunity there is for them to convert it to their own personal use. Identity theft is a rampantly growing problem in American society; the fact that voting is reliant on social security numbers to prevent fraudulent activity produces the ancillary effect of establishing a location ripe for stealing confidential information.
D. America Has Rushed the Implementation of E-voting
Based on a simple cost-benefit analysis, the potential cost to the American public of continuing to employ an e-voting system based on the present level of DRE technology is far greater than any benefits obtained from it. More and more changes have been proposed for amending e-voting’s shortcomings, ranging from the mandated paper trail to a complete overhaul and redesign of the machines to avoid the kind of overcounts and undercounts that have frequently been attributed to e-voting machines. As one expert has stated, “[o]ur democracy is too precious to entrust to an ill-conceived and flawed technology.” The lack of transparency and security cited above indicates that perhaps we have approached this new technology too brazenly and that it is time to take a step back and evaluate before we commit ourselves any further to this apparently forced social evolution.
IV. C:>Welcome to I-vote.com—Please Enter Your Password
A. Bringing Your Civic Duty to Your Living Room
Following the introduction of the modern e-voting technologies, it was not long before people began to think about the concept of voting over the Internet. The idea of being able to forgo a traditional trip to the polling station in favor of logging onto the Internet from home or work to cast a vote is both appealing to many voters and potentially beneficial to the system. The convenience offered by voting over the Internet has been met with enthusiasm in multiple studies.
However, there is confusion over what exactly I-voting means. Generally, it just means that a vote is cast over the Internet, in a sort of “online voting.” It is often mistakenly thought of as only being applicable to situations where voting takes place remotely (away from a polling station), but it actually is not limited to that definition, and for constitutionality reasons may avoid that definition entirely. Voting over the Internet is possible anywhere the Internet is accessible, from home, office, Internet café, a voting kiosk, or even from a traditional polling station.
B. Solving E-voting with I-voting
I-voting offers several solutions to the problems presented by e-voting technologies. For instance, there is not yet any evidence indicating that generalized e-voting would significantly affect voter turnout outside of select demographic groups. The problem for voters is getting themselves to the polling station, not deciding whether or not to use e-voting technology once they arrive. However, this is not necessarily the case with Internet voting. It is possible that the ease and convenience of Internet voting will decrease the hassle of voting for many citizens, which would likely lead to increased voter turnout.
Further, whereas some proponents of e-voting argue that it helps increase access for the disabled, they do not account for those disabled people who are unable to make it to the polls at all. Remote Internet voting would provide them with the ability to vote independently from their own homes, using a technology that helps them to maintain both dignity and privacy. I-voting thus provides a cost-effective solution to an otherwise difficult and potentially expensive endeavor of empowering disabled individuals to vote independently.
Moreover, I-voting will accommodate the escalating percentage of people who would choose to vote absentee. An increasingly large percentage of voters are voting with absentee ballots, including 100% of Oregon and 65% of the state of Washington. With such an interest in avoiding the polling stations, it stands to reason that giving voters a convenient, minimal-effort method of voting could increase voter participation significantly. It would also avoid the problem of absentee balloters forgetting to acquire absentee ballots within the specified time requirement. This is likely a common problem among college students, who are an underrepresented demographic at the polls.
C. New Problems with I-voting
Despite these seeming advantages to I-voting, it is important to realize that if America were to adopt an I-vote system, we would be transforming an inherently public activity into a private activity, thereby changing the face of the electoral process. We must be willing to accept the consequences and susceptibilities of such a system if we are going to institute it. While I-voting does address some of the problems encountered with the implementation of an e-voting system, it creates new problems of its own. There are unique issues encountered in fundamentally shifting the way we hold elections and they must be addressed before America can give any conscionable consideration to switching the way we elect our public officials.
Some experts have posited that, by making the civic act of voting a private act rather than a public one, the potential for voter bribing becomes a much more plausible problem. In the current system of voting, there is little incentive to bribe people for their votes because the briber cannot observe the bribee’s actual act of voting; however, in a system that allows Internet voting, the briber now can observe how a voter casts his or her ballot. Now the incentive is instantly apparent. While such bribery is unlikely to happen in isolated cases where one individual bribes another individual for his or her vote, a problem may arise when entire networks of bribers act together throughout election day and end up dramatically affecting vote totals.
To draw an analogy, Oregon’s vote-by-mail system suffers from some of the same drawbacks as I-voting in regard to the potential for bribery, as the public act has been transformed into a private act. Yet Oregon elections have not evidenced any significant occurrences of such bribes or fraud. However, it has been argued that this is of little consequence, as Oregon is not a likely candidate for a state in which fraud would occur; rather, a state with a history of election tampering may be much more susceptible to mail-in ballot fraud. Therefore, it is not necessarily dispositive of the threat of bribery that such behavior has not previously been reported in Oregon. Further, based on its very nature, the fact that vote bribery is not reported does not mean that it is not occurring.
Discrimination based on race and economic background is virtually unavoidable with Internet voting. The effect of that discrimination in the voting procedure is that it may lead to inaccurate totaling and Constitutional violations. Most notably, there are several social groups, such as the elderly, the uneducated, and the poor who may not have the same access to computers or familiarity with the system as someone outside those particular demographics. That alone may indicate that I-voting may very well discriminate against these groups, frequently based on education and economic status, which necessarily implies that I-voting would favor the wealthy and educated population. Such discrimination indicates that type of system may in fact be contrary to the Constitution and therefore illegal.
A sort of “e-divide” exists in the United States, separating people by race and economic status. These two factors largely affect whether someone has access to the Internet, and even more so whether they have a proficient enough understanding of it to use it effectively. To vote on the Internet, a voter must first have access to the Internet. In 2001, 79% of families making over $75,000 annually used the internet, whereas only 25% of families making less than $15,000 used the Internet. Additionally, 60% of whites used the Internet, compared to 40% of Blacks and 32% of Hispanics.
While the gap between these dividing characteristics seems to be shrinking, it is still very relevant to the institution of I-voting, especially in the immediate future. In the short-term, I-voting will primarily benefit wealthy Caucasians. This is a violation of the VRA, which forbids both the dilution of voting and denial to equal access in voting. Dilution of voting occurs with “a disproportionate reduction in the voting power of one segment of the electorate relative to that of another segment,” and is tested under a “totality of the circumstances” test. Very simply, to enable one demographic group to vote using a medium to which they have better access would put demographic groups that do not have that medium available to them at a specific disadvantage. Allowing citizens to vote over the Internet, despite some demographics having significantly reduced access to the Internet, creates just the kind of dilution the VRA intends to prevent.
Denial of equal access occurs when, contrary to the Voting Rights Act § 2, elections cease to be equally open to all racial groups because some “qualification or prerequisite to voting or standard, practice, or procedure” has been instituted for the conducting of an election. It too is scrutinized under a “totality of the circumstances” test. There appears to also be a denial of equal access to voting here. Although disparate access to the Internet is probably not one of the scenarios envisioned by the framers of the VRA, the principles set forth in the VRA to address disparate access still clearly apply. A basic understanding of how to use the Internet may not seem like an inordinate, unreasonable requirement. However, many people from generations preceding this digital age, or from areas in which the Internet is not such a sine qua non of society, do not have the experience or proficiency that others who were raised among computers do. Essentially, exclusive voting over the Internet would produce a modernized form of voter literacy tests, thereby leading to more possible violations of the VRA.
3. Decrease in Voter Turnout
Experts have further argued that the introduction of Internet voting may actually have very little effect on voter turnout. One theory for the decrease in voter turnout over the years is explained by the fact that voters know a smaller number of people at the polls than they would have in the 1960s, when voter turnout was higher than it is today. Because they know fewer people today at the polling stations, they are not as worried about facing the social stigma associated with failing to cast a ballot on election day. If we further exacerbate this already prevalent phenomenon by eliminating the polling stations altogether, or by at least giving the voter a way to vote without visiting the polling station, the result may be that voters will be less inclined to cast their ballots at all.
However, social stigma is not likely to be as much of a motivating factor on an individual’s decision to cast his or her ballot as it may have been in the past. In fact, voter apathy and the choice not to vote is now a commonly accepted and occasionally celebrated phenomenon.
4. Technical Susceptibilities
It has been said that the security risks associated with I-voting are insurmountable, including such threats as Trojan Horses and Denial of Service (“DoS”) attacks. It has also been said that nothing on the Internet has ever been considered totally secure. Some experts in the field have gone so far as to say that the mere fact that computer security has evolved so slowly and so little over the past twenty years in relation to the massive evolution in technology is enough to dissuade them from endorsing a system of e-voting, and especially I-voting, despite the lack of raw quantifiable evidence of the potential for tampering with an I-voting system. The mere nature of Internet security and its constant and changing susceptibilities is enough to convince experts that it is not the appropriate or even justifiable solution. From a skeptic’s point of view, the current situation more closely resembles a game of cat and mouse where the mouse is chasing the cat, in that security and encryption appear to have evolved at the prodding of those who threaten it rather than in an attempt to stay ahead of foreseeable threats. This, however, is a common occurrence in the world of computers. Microsoft, for instance, distributes “patches” to fix the vulnerabilities in their software rather than distributing patches preventatively. In that sense, they are always playing catch-up to correct the security threats. That fact alone should alert us to the dangers of hosting something as important as our presidential election on something that we know we cannot trust to be ahead of its threats. Until security finds a way to lead its race with that which threatens it, we are always going to be in danger of a voting hijack.
The test programs for I-voting in Arizona and Alaska have not demonstrated serious flaws in the security of I-voting to this point. However, this should not bring us any comfort. The fact that no computer hackers were motivated enough to try and hijack the Alaska straw poll does not necessarily mean that they would lack that motivation if the I-voting were for a major race, such as a federal election, or especially a presidential election.
Such stealthy threats against the voting system are not the only way in which I-voting technology is susceptible to tampering. For instance, there is also the danger of identically-characterized fake websites that are intended to trick voters, essentially amounting to a permutation of cybersquatting. For instance, www.vote.gov may hypothetically be the official voting website, but someone may register www.vote.com to trick a voter who forgets the .gov and replaces it with .com. They may also then register www.voet.com, www.vite.com www.vot.com, and any other number of misspelled or mistyped website addresses in a similar ploy to distract the American electorate. This sort of political cybersquatting could have potentially dramatic results on an election, and makes a rather poignant case about the dangers of remote I-voting.
D. How Can America Implement I-voting?
There have been two suggestions regarding the implementation of I-voting. One is to establish the ability to vote from the Internet in addition to retaining traditional polling stations. The second is to switch voting to a strictly Internet-based system. The second option would seem to clearly violate the Twenty-Fourth Amendment via the Voting Rights Act at this point in time, as there is not equal access to the Internet for all people (as discussed above). However, optional I-voting has been considered in several states. For instance, California has considered a plan to implement a system for its residents to be able to have the option to vote on the Internet.
I-voting has been tested in real elections on two notable occasions, as briefly mentioned above. The Arizona Democratic Primary in 2000 was conducted using optional Internet voting. In that primary, given four different voting options, I-voting was the most popular, being utilized by 41% of the voters. Traditional poll site voting only accounted for 21% of the votes in the primary. The second occasion where I-voting has been used was in an Alaska Republican party straw poll that was conducted regarding the election of a presidential candidate. Thirty-five voters used the Internet to cast their vote, and a spokesperson for the party explained that “Internet voting opens up a completely new domain to an Alaskan population that is handicapped by vast distances, lack of land transportation routes, and slow or interrupted postal service in winter months.” Overall, both instances were characterized as rousing successes.
However, the success of these experiments are not what is most important in the debate over I-voting. The most important problem for which I-voting must provide a resolution is the unreliability of other e-voting methods. Remote I-voting, as it is now contemplated, does little to curtail these problems. While some dependability problems are unique to e-voting, such as the frequent undercounting and overcounting of votes, other dependability problems are unique to I-voting, such as the potential for remote users to exploit technical susceptibilities, and some are shared, such as the possibility of a technical breakdown resulting in lost votes. If no solution to e-voting’s dependability problems can be found in I-voting, we would need to simply look elsewhere for an effective cure for our electoral system. There is a solution that addresses all of these problems: poll-site I-voting.
Poll-site I-voting has been suggested as an alternative to haphazardly subjecting the electoral system to the unpredictable nature of the Internet and of the average Internet user’s computer. This technology requires a voter to actually come to a traditional polling site and cast their ballot from there over the Internet. It is a compromise between remote I-voting and traditional voting at a polling station; however, one of the major benefits of I-voting is to allow a voter to vote from anywhere at any time, and the trend appears to be that poll-site I-voting is not receiving as much attention as remote I-voting. Despite this trend, poll-site I-voting perhaps requires further examination, as it may present a valuable hybrid between e-voting and I-voting that would benefit the electoral system for its immediate viability while not raising the same potentially debilitating constitutionality issues.
In order to conduct poll-site I-voting, users would simply appear at their traditional polling station and proceed to a closed-network terminal, which would then be connected to a centralized server to record identification information and ballot results. The notion, in that sense, is not that dissimilar from e-voting. The difference is that, if we switch to a system of poll-site I-voting, states would no longer need to implement the controversial proprietary DRE systems from companies like Diebold (and the technological flaws and vulnerabilities surrounding them) at every station in every poll site, instead opting for a traditional, more familiar Internet interface.
The advantages are numerous in this sort of hybrid between remote Internet voting and traditional voting. First, there are improvements over both e-voting and remote I-voting from a practical standpoint. States could forgo the exorbitant expense of these proprietary systems in exchange for cost-efficient, simple, and easily maintainable remote systems, which voters would only use to “log in” to the centralized network computer. Costs would also be trimmed as a result of more streamlined methods of ballot counting, which would be conducted at the centralized hub, and would reduce the number of election officials and volunteers required to carry out the election. This would allow for nearly instantaneous vote totaling and result reporting. Further, the centralized operating hubs could be monitored by election officials in secure locations. Because the voting would be conducted from the polling site, election officials would have the capability of ensuring security and administrative control over the voting environment, as well as guaranteeing privacy and authenticity of votes. This separates it from some of the potential hazards of remote Internet voting.
There are also improvements over e-voting and remote I-voting from a technical aspect. Maintenance of these systems becomes much more feasible with centralized operating hubs. The potential for network outages could be easily addressed by utilizing a system that stores votes for transmission once a network connection is restored. In the event that a remote network connection cannot be restored at all, the local network server could act as a backup tallying system, equipped with a paper auditing mechanism, which could total the votes at the polling site and be hand-counted if there was any question as to its accuracy. Last, the code used for the closed-network voting system could still be privately developed, but this closed-network system alleviates the necessity of proprietary equipment. Therefore, the code could (and should) be simple, open to public scrutiny, and without the controversial baggage accompanying the present state of DRE malfunction. Additionally, the possibility of miscounting votes (both overcounting and undercounting) becomes greatly diminished if not eliminated. This is largely due to the fact that the e-voting and traditional mechanisms that allowed for such overcounts and undercounts are removed with the implementation of a poll site I-voting system. Poll-site I-voting as described here does not present the opportunity for miscounts because of the simplicity and auditability of the system. Without the mechanisms in place to provide the opportunity for miscounts, the miscounts will be extinguished.
However, this method, like any other voting method, has its drawbacks. As mentioned, the argument for the convenience of being able to vote from home loses all of its merit under a poll-site voting system. Additionally, it is reasonable to question introducing the extra element of Internet security to the voting process. It is true that any poll-site Internet voting setup would use a closed network, ideally thwarting the potential hazards of rogue attacks on the system’s security; however, as cited by security expert Erik Nilsson, Internet security evolves slowly. We are delving into unexplored territory with the introduction of the Internet to the electoral process, a medium which, according to some, has never been secure. That unknown element could easily become parlayed into a major security glitch, rendering the closed network vulnerable to external attack and jeopardizing the integrity of the electoral process. No matter what kind of computer system, there has always been a means by which to compromise its security. Rather than dismissing the concept altogether based on the fact that any system is susceptible to attack, it may instead be more advantageous to charge the government with turning this game of cat and mouse back around. The government should have the responsibility to stay ahead of the curve in an attempt to eliminate security flaws rather than just accepting the shortcomings as unavoidable, as seems to be the current trend with the DRE machines.
V. C:>Running System Test… Please Wait
There is a potential solution that balances the efficiency offered by electronic voting with the considerable public interest involved in the oversight of election procedure. Uniform standardization and government oversight will produce secure electronic voting technology. This solution involves a departure from the HAVA framework as it existed in form and function, alternatively prescribing guidelines for the implementation of poll-site, localized Internet voting in a manner that is safe, dependable, and auditable. Congress should again make available the same matching funds as it made available under HAVA, but only if the minimum guidelines are met. Additionally, rather than imposing artificial deadlines (e.g. HAVA’s January 2006 deadline for implementation), the new Act should supply matching funds for states to continue to maintain these systems over time, as is necessary for the maintenance of any computer system. To adequately prepare for this next evolution in e-voting, Congress must prescribe specific standards and procedures for States to adopt in order to qualify for funding.
The first step toward implementation of the new system should be poll-site I-voting, which must require an auditing system. It is indispensably necessary to include something akin to a VVPAT paper trail to allow verification of the voting and to provide a backup plan in case of potential network inaccessibility, as discussed above. While the systems used to tally the I-voting systems can come from the private sector, they should be purchased from a neutral company without political affiliations, and only with a non-proprietary source code, so that we take the voting process out of the private sector and allow the public domain to reclaim it. The conducting of governmental elections is an inherently public activity that, because of its fundamental necessity to our system of government, should not be undertaken by the private sector.
Emphasizing the above point, a publicly available source code must be a fundamental rock of the system. Proprietary, private code has proven that it is not an effective way of ensuring security and reliability in many venues, not just with e-voting technology, while open source has flourished on the basis of its self-policing nature, making it a more secure solution. Additionally, there must be a set of evolving standards for the technology, requiring it to be kept currant in an effort to ensure the ongoing viability of the voting systems as they are implemented. Ideally, due to the utilization of a “closed network,” this will never be a problem; however, that by no means indicates that it is something that can be ignored.
Because the Internet provides us with the capability to vote remotely, and there are considerable public policy advantages to this (as discussed above), the next phase of the plan should be to gradually work toward the future possibility of remote I-voting. As of now, the data available on remote I-voting is extremely limited. The government should have a role in commissioning studies to examine the feasibility and security of conducting remote elections. Based on the findings of these studies, the proposed congressional act should provide guidelines for remote I-voting, requiring the use of decentralized (but government controlled and owned) state hubs. Voters would dial in to these hubs, supply identity verification information and cast their votes. The state hubs would tally votes and print paper receipts, and then send their reports to the national hub (if appropriate or necessary). Certified technicians should be available to monitor the hub sites to deal with any technical issues, and would be supervised by election officials. Training for these technicians should be conducted by state or federal election boards. With centralized hubs, maintenance of these systems becomes much more feasible than with DRE e-voting systems that impractically demand the availability of maintenance at each individual polling site.
The past decade’s Internet revolution has demonstrated that we are in fact capable as a society of conducting major aspects of our lives via the Internet. Over today’s Internet, we bank, pay bills and track finances; we communicate with our families, friends and colleagues, and foster relationships; we get our news, trade stocks and manage accounts; we form interest groups, clubs and organizations; we engage in international commerce, and we run our own businesses of all sizes. While there is much that still must be examined before barging ahead into the largely unexplored (and potentially disastrous) territory of Internet voting itself, it is apparent that the Internet is a viable medium for conducting other aspects of our lives, and the possibility that it may favorably translate to a medium for voting warrants exploration.
However, it is decidedly unclear whether remote I-voting is in fact a feasible next step for the American electoral system. If it is found that a system of remote I-voting is an impracticable, unsafe, or unconstitutional evolution beyond the poll-site I-voting method, then Congress and state governments have a duty to take precaution to not proceed further. Congress has made this mistake once with HAVA, spurring the premature implementation of DRE systems for which our electoral system was clearly not ready. If further evolution is to take place, it must be because it is the right thing to do, not simply because we are capable of doing it.
VI. C:>Click to View Error Report
When it comes to America’s reliance on e-voting in our electoral institution, as one expert stated, “like it or not, there’s no turning back. America has entered an age when you won’t just vote with your head and your heart. From now on, you’ll also be voting with your finger.” Though e-voting may be an appealing solution to many of the problems with conventional voting, in its current state and without more checks and balances, security, and means of accountability, the American electoral system is undertaking an impermissibly dangerous approach to advancing one of the most hallowed and essential components of its sovereignty.
America is not ready for DRE e-voting the way it has been implemented. We have access to the technology, but the technology is not ready. The security, transparency, and dependability that would make it practical is simply not yet in place. At minimum, the simple and effective Mercuri method of paper auditing should be requisite to the further use of any DRE e-voting machines. I-voting appears to be a viable alternative on its face, based on the cursory evidence available, but it has not yet been explored in enough detail to immediately implement it.
Regardless of what path America chooses, we must be careful not to institute a change simply because we are capable of doing it, but rather because it really is for the betterment of the electoral system. However, that being said, there is no apparent reason why we should be unable to implement a system of poll-site I-voting in the United States. The control that the electoral officials could still maintain would provide a beneficial, yet forward-thinking solution to the problems that remote I-voting may otherwise pose if implemented today.
Internet voting does in fact seem to be on its way, but its arrival does not necessarily signal the grave consequences that its opponents have suggested. The groundwork for I-voting has developed within the continued implementation of e-voting technologies. Despite the clearly evidenced problems with the DRE systems, their proliferation has persisted. The systems have proven so undependable that we cannot in good conscience trust them to perform as promised.
Therefore, we must plan accordingly and try to implement a system that is not at the mercy of an unchecked body, but rather one that the people and the government control and oversee. Poll-site I-voting may be that system. It provides a compromise between the controllability of polling station voting and the convenience of e-voting. In the future, remote I-voting may be feasible, but the most important thing at this point is to make sure it actually works before we start using it. We have made the mistake of ignoring this advice once, but as experience has taught us, we should never do that again.
*. Mr. Clowers is an Associate at the firm of Dunton, Simmons & Dunton, LLP, in White Stone, Virginia. He completed his J.D. in 2006 at the University of Richmond T.C. Williams School of Law, where he served as the Annual Survey Editor for the Richmond Journal of Law & Technology. He completed his B.A. in Political Science in 2003 at Virginia Tech, and has an extensive technical and computer background. He wishes to thank Professor James Gibson for his guidance and support in this endeavor, and Beth, for her constant inspiration and for convincing him to go over Future Interests one more time the night before the Bar.
. Brett Stohs, Is I-Voting I-Llegal?, 2003 Duke L. & Tech. Rev. 13, ¶ 12 (2003).
. 42 U.S.C. § 1973 (2000); see South Carolina v. Katabach, 383 U.S. 301, 308 (1966).
. Elizabeth Heichler, E-Voting Critics Grow Louder, PC World, Dec. 15, 2003, http://www.pcworld.com/news/article/0,aid,113879,00.asp.
. Kim Zetter, How E-Voting Threatens Democracy, Wired, Apr. 2, 2004, http://www.wired.com/news/evote/0,2645,62790,00.html.
. Daniel P. Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 Fordham L. Rev. 1711, 1712-13 (2005).
. Id. at 1732-34.
. See id. at 1713-14.
. See, e.g., Online Policy Group v. Diebold Inc., 337 F. Supp. 20 1195, 1197 (N.D. Cal. 2004).
. U.S. Const. amend. XV.
. Stohs, supra note 1, at ¶ 13, n. 25.
. Tokaji, supra note 5, at 1731.
. Anne Saita, E-Voting: Have We Rushed to Market?, SearchSecurity.com, Nov. 1, 2004, http://searchsecurity.techtarget.com/originalContent/0,289142,sid14_gci1020948,00.html b.
. Heichler, supra note 3.
. Saita, supra note 12.
. Scattered Computer Glitches Slow Voting, CNN, November 8, 2006, http://www.cnn.com/2006/POLITICS/11/07/election.voting/index.html.
. Richard L. Hasen, Internet Voting and Democracy Introduction, 34 Loy. L.A. L. Rev. 979, 980 (2001).
. Overvotes occur when a ballot displays votes for more than the allowable number of candidates for a specific office. Overvotes can happen in several ways. For example, if more than one candidate is marked for the same office or if there is a write-in vote in addition to a mark for one of the pre-printed candidates on the ballot, that is an overvote.
. When a ballot is missing votes for a specific office, that is an undervote. This generally does not invalidate the voting record of the remainder of the ballot.
. Tokaji, supra note 5, at 1718. Mr. Tokaji’s article provides a particularly cogent and useful summary of the history of voting in America, which is cited here passim for background reference.
. Id. at 1718–19.
. Id. at 1719.
. There have been several test-runs of remote e-voting and I-voting systems. Among these are the remote voting procedures used in both an Alaska Republican party presidential straw poll and an Arizona Democratic Primary, as discussed later in this article. Bryan Mercurio, Democracy in Decline: Can Internet Voting Save the Electoral Process?, 22 J. Marshall J. Computer & Info. L. 409, 414-15 (2004).
. Colette Luchetta-Stendel, The E-vote: A Proposal for an Interactive Federal Government, 17 J. Marshall J. Computer & Info. L. 1101, 1118 (1999).
. Id. at 1118-19.
. See generally Thomas E. Patterson, The Vanishing Voter: Public Involvement in the Age of Uncertainty (2002).
. E-voting Arrives in Canada, 8 Corporate Couns., Oct. 1, 2001, at 152.
. The National Commission on Federal Elections Reform, To Assure Pride and Confidence in the Electoral Process 51 (2001), http://millercenter.virginia.edu/programs/natl-comissions/comission_final_report/fullreport.pdf.
. Tokaji, supra note 5, at 1720-21.
. Id. at 1719–20.
. Id. at 1720. The Votomatic systems were used by approximately 30.9% of voters in 2000. Id.
. Datavote systems were used by 3.5% of voters in 2000. Id.
. Daniel P. Tokaji, Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 Geo. Wash. L. Rev. 1206, 1210 (2005).
. Tokaji, supra note 5, at 1720.
. U.S. Comm’n on Civil Rights, Office of Civil Rights Evaluation: Is America Ready to Vote? (2004), http://thememoryhole.org/usccr/usccr_is_american_ready_to_vote.htm [hereinafter “U.S. Comm’n on Civil Rights Report”].
. Tokaji, supra note 5, at 1721.
. Zetter, supra note 4.
. Tracey Denton, Voting Machines in NY State: Contact Your Reps and Update on Feedback, Democracy for New York City, Mar. 29, 2005, http://www.dfnyc.org/cms/node/86850; see also Tokaji, supra note 5, at 1721.
. Tokaji, supra note 5, at 1722.
. Id. at 1738.
. Id. at 1722-23.
. Id. at 1737.
. Tod Newcombe, Putting the “E” in Elections, Gov’t Tech., Dec. 20, 2002, http://www.govtech.net/magazine/story.print.php?id=36408.
. Search CRM.com, e-voting http://searchcrm.techtarget.com/gDefnitn/O,294236,sid11_gci491925,00.html (last visited Sept. 7, 2006).
. Stohs, supra note 1, at ¶ 2.
. Tokaji, supra note 5, at 1722.
. Zetter, supra note 4.
. Annalee Newitz, Sorry, Your Vote Has Been: Lost, Hacked, Miscast, Recorded Twice, Popular Science, Nov. 13, 2004, http://www.popsci.com/popsci/technology/generaltechnology/pc959aa138b84010rgncm1000004eeabcdred.html.
. Tokaji, supra note 5, at 1723. Though most DRE systems employ a touch screen, one of the new DREs uses a wheel, which a voter turns to select a candidate on a screen in front of them, similar to a wheel-button on a mouse. For more information on this, see California Secretary of State eSlate-DRE Voting System, http://www.ss.ca.gov/elections/voting_systems/eslate.htm (last visited Mar. 31, 2005) (demonstrating the use of eSlate voting machines).
. Tokaji, supra note 5, at 1723.
. Saita, supra note 12.
. Tokaji, supra note 5, at 1735.
. Id. at 1724.
. The Mercuri method comes from the proponent primarily responsible for the popularity of paper-based auditing for e-voting DRE machines, Harvard Computer Science Professor Rebecca Mercuri.
. Newitz, supra note 67.
. Pamela A. Stone, Electronic Ballot Boxes: Legal Obstacles to Voting Over the Internet, 29 McGeorge L. Rev. 953, 959 (1998).
. CRMDaily.com, E-voting Software Raises Question, http://www.crm-daily.com/story.xhtml/story_title=self-service-voting-tech-raisesquestions&story-id=28027 (last visited Sept. 8, 2006).
. Mercurio, supra note 28, at 409.
. Id. at 410.
. Id. (noting that the lack of standardized procedures for determining voter intent led election officials to create their own procedure when questionably marked ballots appeared, such as those ballots where a perforation had not been completely punched through).
. Bush v. Gore, 531 U.S. 98, 110 (2000) (per curiam). For a more detailed discussion regarding the court’s decision in Bush v. Gore and the surrounding political controversy, see Richard Posner, Florida 2000: A Legal and Statistical Analysis of the Election Deadlock and the Ensuing Litigation, 2000 Sup. Ct. Rev. 1, 40-48 (2000).
. Jeb Bush Appoints Task Force to Recommend Improvements in the Way Florida Votes, CNN, Dec. 14, 2000, http://archives.cnn.com/2000/ALLPOLITICS/stories/12/14/fla.elections.
. Election Glitch Missing 103,000 Votes in Florida County, CNN, Nov. 8, 2002, http://archives.cnn.com/2002/allpolitics/11/07/elec.02.floridavotes.missing.
. John Nolan, Return of the hanging chad: Recount Continues in Ohio, Dec. 16, 2004, http:www.boston.com/news/politics/president/articles/2004/12/16/return_of_the_hanging_chad_recount_continues_in_ohio?mode=pf.
. Vicki Haddock, The Vote You Cast May Not Be Tallied 1 out of 100 Shown Uncounted in 2004, S.F. Chronicle, Feb. 27, 2005, http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/02/27/ingumftsc1.dtl.
. Darrell Rowland, Punch Cards May Hurt Blacks: More Votes Went Uncounted in Black Areas in 2000, Columbus Dispatch, Oct. 17, 2004, at 1A.
. Mercurio, supra note 28, at 410.
. Haddock, supra note 91.
. E-Voting: Is the Fix In?, CBS News, Aug. 8, 2004, http://www.cbsnews.com/stories/2004/07/28/sunday/mainb32436.shtml.
. See generally, C. Virginia Fields, Voting Technology for People with Disabilities (2003), http://www.eff.org/Activism/E-voting/Benavidez/20040518-benavidez-Amicus-Exh_C.pdf.
. Id. at 17. The “sip and puff” system relies on a user sucking in or blowing out through a tube to select options on a screen. Id. The “jelly switches” are flexible buttons that can be easily manipulated to select options, using elbows, feet, or an adapter stick. Id. For people who are unable to control breathing and who are not able to use the dexterity assistance implements from the “jelly switches,” “blink recording” devices can monitor the number of times a voter blinks and use this information to record the voter’s entries. Id.
. Tokaji, supra note 5, at 1724.
. 42 U.S.C. § 1973 (2006).
. See Black v. McGuffage, 209 F. Supp. 2d 889, 896-97 (N.D. Ill. 2002); Common Cause Southern Christian Leadership Conference of Greater Los Angeles v. Jones, 213 F. Supp. 2d 1106, 1108 (C.D. Cal. 2001); Roberts v. Wamser, 679 F. Supp. 1513, 1514 (E.D. Mo. 1987).
. Roberts v. Wamser, 883 F.2d 617, 620 (8th Cir. 1989).
. Tokaji, supra note 5, at 1742–43.
. Many critics of the use of e-voting systems, based on the machines’ inconsistency and failure to accurately record votes, posit that this inconsistency and failure is in fact outcome determinative and therefore should call the 2004 election results into question. See e.g., Lynn Landes, Faking Democracy: Americans Don’t Vote, Machines & Ballot Printers Can’t Fix That, Online Journal, Apr. 7, 2004, http://www.onlinejournal.com/evoting/040704landes/040704/landes.html.
. See VotersUnite.org, Voters Unite! Continues its Compilation of Problems Reported in the Media by Adding Stories About Elections in 2005, http://www.votersunite.org/election/electionproblems.asp (last visited Aug. 27, 2006).
. Internet Policy Institute, Report of the National Workshop on Internet Voting: Issues and Research Agenda 11, (2001) http://fl1.findlaw.com/newsfindlaw.com/cnn/docs/voting/nsfe_voterprt.pdf.
. Paul Boutin, Is E-voting Safe?, PC World, Apr. 28, 2004 http://www.pcworld.com/article/10,115608_pg,1/articl.html.
. Andrew Massey, “But We Have to Protect Our Source!”: How Electronic Voting Companies’ Proprietary Code is Ruining Elections, 27 Hastings Comm. & Ent. L.J. 233, 235 (2004).
. Robert Lemos, E-Voting Critic Calls on Hackers to Expose Flaws, CNET News, July 29, 2004, http://news.com.com/e-voting+critic+calls+on+hackers+to+expose+flaws/1152100-0128_3_5289146.html.
. Saita, supra note 12.
. VotersUnite.org, supra note 109.
. U.S. Election Assistance Commission Public Hearing on the Use, Security, and Reliability of Electric Voting Systems Statement of Demos: A Network for Ideas and Action 8 (2004), http://www.demos.orgpubs/HAVA_-_EAC_Hearing_May_5_2004_-_Demos_statmt.doc.
. Id. at 9-10.
. Carlos Campos, Vote Paper Trail Gains Support, Atlanta Journal-Constitution, March 8, 2005, available at http://www.ajc.com/search/content/auto/epaper/editions/today/metro_2402e53ef50311cc000f-html.
. For a variety of cases brought against state governments for employing e-voting systems without paper trail auditing systems, see, e.g., Weber v. Shelley, 347 F.3d 1101, 1103 (9th Cir. 2003); Wexler v. LePore, 385 F.3d 1336, 1338 (11th Cir. 2004).
. Tokaji, supra note 5, at 1774.
. Id. at 1798.
. Id. at 1774–75.
. O’dell Resigns from Voting Machine Maker Diebold, USA Today, Dec. 14, 2005, http://www.usatoday.com/tech/news/2005-12-14-diebold.-odell_x.htm.
. Zetter, supra note 4.
. John Schwartz, Executive Calls Vote-Machine Letter an Error, N.Y. Times, May12, 2004, http://www.nytimes.com/2004/05/12/politics/campaign/12vote.html?ex=1399780800&en=3a6d8256d9d8b03b&ei=5007&partner=USERLAND.
. Massey, supra note 112, at 234.
. Id. at 236-37.
. Newitz, supra note 67.
. But see Zetter, supra note 4.
. Massey, supra note 112, at 241-42.
. See David S. Evans & Bernard J. Reddy, Government Preferences for Promoting Open-Source Software: A Solution in Search of a Problem, 9 Mich. Telecomm. & Tech. L. Rev. 313, 320 (2003).
. See Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. 15301–523) (offering states $3.9 billion to implement e-voting systems, so long as they do so before January 2006). See also U.S. Commission on Civil Rights Report, supra note 44.
. Massey, supra note 112, at 244-45.
. Id. at 234.
. Id. at 235.
. Id. at 248.
. John Schwartz, Security Poor in Electronic Voting Machines, Study Warns, N.Y. Times, January 29, 2004, http://www.nytimes.com/2004/01/29/technology/29CND-SECU.html.
. Kim Zetter, Aussies do it right: E-Voting, Wired, Nov. 4, 2003, http://www.wired.com/news/ebiz/0,1272,61045,00.html.
. U.S. Commission on Civil Rights Report, supra note 44.
. California Counties Bemoan Costs of E-Voting Printers, American City & County, Feb. 7, 2004, http://www.americancityandcounty.com/news/californiacounties_evoting-prntrs/.
. Kristen E. Larson, Cast Your Ballot.com: Fulfill Your Civic Duty Over the Internet, 27 Wm. Mitchell L. Rev. 1797, 1807 (2001).
. Id. at 1807-08
. U.S. Commission on Civil Rights Report, supra note 44.
. Dan Verton, Where E-Voting Went Wrong, Computer World, Oct. 18, 2004, http://www.comoputrworld.com/securitytopics/security1story/0,10801,96652,co.html.
. VerifiedVotingFoundation.org, Testimony of David L. Dill before the Commission on Federal Election Reform, Apr. 18, 2005, http://www.verifiedvotingfoundation.org/article.php?id=5907.
. See Six Out of Ten Young Voters Say Yes to Internet Voting: How Do You Get Young Voters to Vote? Give Them a Mouse, Business Wire July 23, 1999, http://www.hghbeam.com/doc/1a1-55243028.html. See also ITAA E-Voting: New Poll Shows Voters Support Modernizing Voting Technology, Apr. 2001, http://www.itaaorg/itaa/pubs/a20014-03.pdf.
. Mercurio, supra note 28, at 412.
. Hasen, supra note 15, at 982; see also Larson, supra note 149, at 1808-09.
. Mercurio, supra note 28, at 418-19, 425-26.
. See News Release, Washington Secretary of State, Northwest Secretaries of State Advocate Voting at Home, (Mar. 15, 2005) available at http://www.secstate.wa.gov/office/osos_news.aspx?i=u7awEbop%2bnbiaxfuhawivg%3d3d.
. See Alternative Ballot Techniques: Hearing Before the H. Subcomm. on Elections of the Comm. on H. Admin., 103rd Cong. (81, 91) (statement of Margaret Rosenfed, Elections Consultant, offering testimony on certain remote voting systems in which tests have demonstrated increased voter turnout among young people who are otherwise underrepresented).
. Rick Valelly, Voting Alone: The Case Against Virtual Ballot Boxes, New Republic, Sept. 13-20, 1999, at 21.
. Hasen, supra note 15, at 982.
. Priscilla L. Southwell & Justin Burchett, Vote-by-Mail in the State of Oregon, 34 Willamette L. Rev. 345, 351-52 (1998) (suggesting that there have not been reports of any significant or concentrated vote-tampering as a result of the Oregon mail-in voting system).
. See Larry Sabato & Glenn R. Simpson, Vote Fraud!, Campaigns & Elections, June 1996, at 22, 29.
. Mercurio, supra, note 28, at 423.
. R. Michael Alvarez & Jonathan Nagler, The Likely Consequences of Internet Voting for Political Representation, 34 Loy. L.A. L. Rev. 1115, 1121 (2001).
. U.S. Department of Commerce, A Nation Online: How Americans Are Expanding Their Use of the Internet, 28 (2002), http://www.ntia.doc.gov/ntiahome/dn/ (basing the report of Internet usage on date from the Census Bureau’s 2001 report).
. Stohs, supra note 1, at ¶ 11.
. Voting Rights Act, 42 U.S.C. § 1973 (2000).
. Stephen B. Pershing, The Voting Rights Act in the Internet Age: An Equal Access Theory for Interesting Times, 34 Loy. L.A. L. Rev. 1171, 1176, 1187 (2001).
. See Heide B. Malhortra, Revisiting the 1965 Voting Rights Act, Epoch Times, Mar. 1, 2006, http://www.theepochtimes.com/news/6-3-1/38788.html.
. Voting Rights Act, 42 U.S.C. § 1973a(c).
. Stohs, supra note 1, at ¶ 19.
. Malhortra, supra note 184.
. See VIP Files Voting Rights Lawsuit to Block Internet Voting in AZ Dem Primary, US Newswire, Jan. 21, 2000, http://www.highbeam.com/library/doc3.asp/DOCID=161:58943624ltrInfo=Row20%3AProd%3ADOC%Aresult&ao=.
. Rebecca Mercuri, A Better Ballot Box?: New Electronic Voting Systems Pose Risks as Well as Solutions, IEEE Spectrum, Oct. 2002, at 46, 48, http://www.notablesoftware.com/papers/1002evot.pdf.
. Richard L. Hasen, Voting Without Law?, 144 U. Pa. L. Rev. 2135, 2147-51 (1996).
. Id. at 2154-55.
. Hasen, supra note 15, at 983.
. See, e.g., Stephen E. Landsburg, Don’t Vote, Slate, Sep. 29, 2004, http://slate.msn.com/id/2107240/.
. Aviel D. Rubin, Security Considerations for Remote Electronic Voting Over the Internet, Addison Wesley, June 22, 2001, http://www.awprofessional.com/articles/article.asp?p=21849.
. See Macmillen Computer Publishing, Maximum Security, Oct. 16, 2004, http://www.windowsecurity.com/whitepapers/maximum_security_chaptr_4_just_who_can_be_hacked_anyway_html.
. See, e.g., Heichler, supra note 3.
. See Michelle Madigan, Dreaming of a Digital Democracy, PC World, Nov. 5, 2002, http://www.pcworld.com/article/id,106734/article.html.
. These patches are like digital band-aids for software. They “cover up” vulnerabilities of specific portions of software code to prevent hackers from exploiting it. While these have been issued preventatively in some cases, in the majority of cases, they are issued in response to already-exploited threats in an attempt to dampen the effect of the exploit.
. Stohs, supra note 1, at ¶ 6.
. Madigan, supra note 197.
. Stohs, supra note 1, at ¶ 13.
. Id. at ¶ 1.
. See Bill Jones, Cal. Internet Voting Task Force, A Report on the Feasibility of Internet Voting: January, 2000, http://www.ss.ca.gov/executive/ivote/home.htm (last visited Sept. 2, 2006).
. Stohs, supra note 1, at ¶ 6.
. Lance J. Hoffman, Internet Voting: Will it Spur or Corrupt Democracy?, Computers, Freedom & Privacy 2000: Challenging the Assumptions, Apr. 2000, http://www.cfp2000.org/papers/hoffman2.pdf.
. Parisa Jave Bahorca, Internet Voting: Early Efforts, PBS News Hour, Feb. 7, 2004, http://www.pbs.org/newshour/media/interviews/internetvoting/states.html.
. Mercurio, supra note 28, at 428.
. Madigan, supra note 197.
. Mercurio, supra note 28, at 416.
. Verton, supra note 160.
. See Mercurio, supra note 28, at 416.
. Id. at 417.
. Verton, supra note 160.
. See Mercurio, supra note 28, at 416.
. See Heichler, supra note 3.
. See McMillen Computer Publishing, supra note 195.
. See B. Poole, VA Attacks Highlights Vulnerability of Macs, Tucson Citizen, Mar. 13, 2006, http://www.tusconcitizen.com/news/local/0313obal_computers.
. Tokaji, supra note 5, at 1214.
. Kim Zetter, Paper Trail Urged as E-Voting Fix, Wired, Sept. 23, 2005, http://www-wired.com/news/politics/1,68954-O.html.
. See Sam Williams, Linux in Government, Linux Devcenter.com, July 15, 2002, http://www.linuxdevcenter.com/1pt/a/2535.
. Kathy Bartis Hoffman & Rachel Konrad, E-Voting Research Delegated, Experts Say, Dangerous Citizen, Oct 10, 2004, http://www.dangerouscitizen.com/articles/1245.aspx
. See Jeff McDonald & Luis Morteagudo, Jr., Poll Workers, Voters Cite Tied-Up Hotline, Poor Training, Confusion, San Diego Union-Tribune, Mar. 7, 2004, http://www.signonsadiego.com/news/politics/20040307-9999-/nfvok.html.
. Mercurio, supra note 28, at 413.
. See U.S. Const. amend. V, XIV.
. Verton, supra note 160.
. E-Voting: Is the Fix In?, supra note 95.