Lynn Landes 
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VOTING MACHINES: Constitutional Issues, Federal & Case Law

 From July 2, 2004 to April 4, 2006, Lynn Landes challenged the use of voting machines and absentee ballots, citing the lack of public participation and oversight.  The defendants were the following: Margaret Tartaglione (Democrat), Chair of the City Commissioners of the City and County of Philadelphia,  Pedro A. Cortes (Democrat), Secretary of the Commonwealth of Pennsylvania, and  John Ashcroft (Republican), the Attorney General of the United States. 

Against voting machines:

Against absentee voting:

 Oct. 24, 20004: Landes submits Temporary Restraining Order (TRO) to United States Supreme Court - Folks: This was a long shot, but I felt I had to do something. Lynn


What constitutes a legal voting process under the U.S. Constitution and federal law? Even though I no longer believe in the "secret ballot", I believe under current law, the process should proceed in the following manner: On election day, in the polling booth only paper ballots filled out by hand, using nothing more sophisticated than a pen or pencil, then hand counted the same day at the local polling precinct in full view of poll watchers, constitutes a legal voting process. This process is called the Australian Secret Ballot and was introduced into this country in 1888, around the same time the first lever voting machine was used in American elections. There are two legal arguments against the use of voting machines: 1) By using a machine to vote, we are not really literally voting. Inputs into a machine, that may or may not mark the ballot as the voter intended, do not constitute the voter actually voting. A voting machine is an obstruction to a citizen's right to vote for themselves, and  2) Voting machines (including the Internet and optical scanners) introduces concealment and secrecy to those parts of the voting process (casting and counting the ballots) that depends on public oversight to ensure a fair and honest election. (See more discussion and specifics below)


Related Landes articles:

Comment: Why is the ACLU of Southern California litigating in favor of DREs with no printer attachment http://news.findlaw.com/legalnews/lit/recall, when it is the technology with one of the worst track records? See CalTech/MIT report


EXISTING CASE LAW 

Comment: A search of www.FindLaw.com found no cases that were brought before the Supreme Court or the Circuit Courts that addressed the constitutionality of voting machines, nor any case that involved Federal Examiners or Observers. However, perhaps the Courts refused to hear such cases (for which I have yet to discovered a record). L.Landes

What is a legal vote? And the right to contest an election through a recount:

The right to have your vote CAST and COUNTED properly:

The right to a recount:


THE U.S. CONSTITUTION & FEDERAL LAW

Enforcement of the Voting Rights Act under the Fourteen and Fifteenth Amendment may be at the heart of the constitutional issue involving the use of voting machines. Regarding the 14th Amendment, voting machines appear to constitute a secret or 'concealed' registration and tabulation of the vote which cannot be observed by Federal Examiners (as authorized under federal law), which makes the examiner's role in that regard - moot, and federal law - unenforceable. Therefore, all voting machines may be a violation of U.S. Code: Title 42 - The Public Health and Welfare, Chapter 20 - Elective Franchise, Subchapter I-A Enforcement of Voting Rights, Sec. 1973. 

The use of mechanical, electric, and/or computer devices that by their very design and structure "conceal" vote casting and/or counting and therefore cannot be observed to ensure accuracy, is an apparent violation of the following: 


INTERLOCKING ISSUES: The right to contest an election / The right to a recount / The right to paper ballots. 

The question is: Do voting machines deny candidates the right to a legitimate recount? The paper trails produced, even by the old fashioned lever machines, were a record of what the machine did, not the voter. Any machine can be rigged to accept one input, record another, and produce a third and different output. The electronic information voting machines produce does not constitute a genuine audit trail.

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U.S. Code, Title 1 Chapter 1 Sec. 5. Determination of controversy as to appointment of electors http://www4.law.cornell.edu/uscode/3/5.html 

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned

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U.S. Code, Title 1 Chapter 1 Sec. 6. - Credentials of electors; transmission to Archivist of the United States and to Congress; public inspection http://www4.law.cornell.edu/uscode/3/6.html 

It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State; and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made; and the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration

The right to contest an election through a recount? 


Federal law allows for the use of voting machines, but it appears to be in conflict with the laws above. Comment: This section should not trump a voter's right to have their vote cast and counted properly. http://www4.law.cornell.edu/uscode/2/9.html Title 2, Chapter 1, Sec. 9. - Voting for Representatives - All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law; and all votes received or recorded contrary to this section shall be of no effect. 


CURRENT LAWSUITS

The following lawsuits constitute a very limited challenge to certain types and functions of voting machine technology, but NOT the Constitutionality of using voting machines in general. Nor do they address the issue of the role of the Federal Observers and enforcement of the Voting Rights Act. Some experts believe that as long as a voter verified paper ballot gets hand counted, voting machines could be used to product the paper ballot. That may be the second best option. Once a machine is in the polling booth, the situation becomes obscured/concealed once again.

"PRAYER FOR RELIEF WHEREFORE, PLAINTIFF respectfully request that this Court enter judgment in her favor: (1) Declaring that Defendant's failure to set adequate standards for voting equipment, and in particular the continuing approval of Sequoia Pacific touch-screen voting systems for use in Riverside County California, denies and abridges Plaintiff's rights under the Fourteenth Amendment; (2) Declaring that the failure to establish adequate standards and procedures to govern manual recounts, including the circumstances under which recounts are required, denies and abridges Plaintiff’s rights under the Fourteenth Amendment; (3) Enjoining the continuing application of the standards, specifications, and regulations that Defendants have set for voting machines in the State of California to the extent that they permit the use of paperless DRE voting system machines; (4) Ordering Defendants to withdraw approval of current DRE voting system machines and to promulgate specifications, regulations, standards, guidelines, and procedures that will protect the voting rights of all Californians; (5) Requiring Defendants to ensure that DRE voting system machines are replaced or supplemented at the earliest possible moment with more reliable systems that have an original hard copy paper ballot as the primary record of the vote cast; (6) Awarding Plaintiffs their expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys fees pursuant to 42 U.S.C. § 1988; (7) Awarding such other equitable and further relief as the Court deems just and proper."  

Oct 28, 03: Ninth Circuit Rules Against Weber - http://caselaw.lp.findlaw.com/data2/circs/9th/0256726p.pdf - Weber says she will appeal.

Other cases:


Why any legal challenge to voting machines should be constitutional, not criminal

Source: Pandora's Black Box by Philip M. O’Halloran (Nov 1996)

"Many court cases involving allegations of fraud were brought against vendors of electronic systems. There were no convictions. Was there ever any proof of tampering presented? No. Part of the reason for this may be that during the litigation the plaintiffs were never given access to the vote tabulating program, and hence there was no opportunity for anyone to establish evidence to either prove or disprove the allegations. [Emphasis added]" "We should point out that even if the court allowed the plaintiff’s experts to inspect the source-code, there would be no proof that the code provided to the court was, in fact, the selfsame code used in the particular election in question. Federal election officials say that a few states are mandating that the source-code be placed in escrow so that it could be examined in the event of a particularly "fishy" election result."