In a case that illustrates the technological and legal uncertainties about electronic voting, a California county has agreed to share data stored on computer voting machines in a disputed election.
The deputy counsel for Alameda County revealed in a state court hearing Friday in Oakland that it has tracked down 307 of 420 voting machines that may still contain vote tabulations from a disputed 2004 election in Berkeley, Calif.
A number of public interest groups sued Alameda County for failing to properly maintain and disclose data on those voting machines of the results of a local referendum in Berkeley, called Measure R, which would have established procedures for opening medicinal marijuana dispensaries in that city. The measure lost by less than 200 votes in November 2004, but advocates of the measure sought a recount.
State Superior Court Judge Winifred Smith ruled a month ago that the county violated state election laws by not sharing voting records with the plaintiffs that could verify whether the election results were accurate.
Pending the examination of the voting machines, Smith took no action Friday on the plaintiffs' request to impose sanctions on the county, including paying the plaintiffs back US$22,000, plus legal fees, for the cost of the recount and lawsuit, and ordering that the marijuana measure be put before voters again.
Despite a recount being sought in December 2004, Alameda County sent back to Diebold Systems the electronic voting machines it used without downloading election results from flash memory chips on each of the machines. Deputy County Counsel Nancy Fenton said Friday that most of the 420 machines have been found and expected all of them to be located soon. County officials and representatives of the plaintiffs are expected to travel to Diebold headquarters in Dallas to witness and verify the downloading of the election results.
The suit was brought by the Electronic Frontier Foundation, a public advocacy group on technology issues, a medical marijuana group that backed Measure R and Americans for Safe Access, which works to protect the voting rights of Americans.
Alameda County has resisted sharing electronic data on the election results, prompting the lawsuit, said Gregory Luke, an attorney for Americans for Safe Access. He wants to be able to reconcile election results from the machines' memory with data on a PCMCIA card (better known as a Wi-Fi card) that wirelessly sent data from each machine to a central server, and with the data on the server.
In court, he accused the county of "a pattern of misrepresentation of material fact" about what data they had and what they were willing to disclose.
Fenton told the judge that the county's reading of state election law only requires that county elections officials preserve "ballots and rosters [of voters], but not these unique documents being sought."
Smith asked Fenton, "No one thought outside the box on this?" meaning that the county should have preserved records of electronic voting even though it was not explicitly stated in the statute.
Alameda County Counsel Richard Winnie, said in an interview that the visit to Diebold is still unconfirmed but that the county made the offer "as a good faith effort."
"It's a new day. Electronic voting has had an impact on what our responsibilities are. It's unknown territory," Winnie said.
Despite plaintiff claims that the county has been withholding information, he said the county has made every effort "all along" to provide the information being sought, including tracking down those voting machines at Diebold.
Other U.S. states have grappled with legal issues surrounding electronic voting, which was adopted widely after the disputed 2000 presidential election.
Luke said California and other states have since revised election laws to require that electronic voting systems must also produce a paper record for verification.