The plaintiffs argued that the use of Direct Recording Electronic (DRE) voting machines without a voter-verified paper ballot is both unconstitutional and illegal in New Jersey.
The plaintiffs, represented by Professor Penny Venetis of the Rutgers University School of Law, argued that the use of Direct Recording Electronic (DRE) voting machines is both unconstitutional and illegal. DRE's are unconstitutional, because they violate the New Jersey constitution's requirement to (accurately) count every citizen's vote; illegal, because New Jersey law explicitly permits the use of paper ballots, mechanical lever-action machines, and optical-scan machines, but does not provide any procedure by which the chief voting official of New Jersey (the Attorney General) can authorize the use of DRE machines. The plaintiffs argued in particular that one cannot trust a paperless DRE machine to count the vote.
The case was dismissed by the trial court in January 2005. The dismissal was appealed. While the appeal was pending, in the summer of 2005 the New Jersey legislature passed (and the governor signed) a bill requiring that, no later than January 1, 2008, any DRE machine in New Jersey must be equipped to print a voter-verified paper ballot. However, if the technology to so equip the machines is not commercially available by 2008, the law gives the Attorney General power to grant a waiver permitting paperless DRE machines to be used.
In the appellate hearing in the fall of 2005, the defendant (the Attorney General of NJ) argued the legislation made the case moot. However, the Appellate Division said, in January 2006, that it would defer passing judgment on whether the lawsuit was moot until it had the following information:
I testified in this trial, which was held in March 2006. The trial court found that it is not at all clear that upgrades for New Jersey's existing machines will be available, but that other brands of DRE voting machines that produce voter-verified paper ballots are commercially available. During the trial, the state failed to present any evidence on issues 3 and 4, which the judge noted in her opinion.
Based on these facts, the appellate court heard arguments in May 2006. In those arguments the plaintiffs asked the court to decommission all DREs in New Jersey that are not capable of producing a voter-verified paper ballot; that is, the ESS iVotronic, the Sequoia AVC Advantage, and the Sequoia AVC Edge. (The Avante Vote-trakker, purchased by Warren County, is the only DRE used in NJ that can produce a paper ballot.)
In June 2006, the appellate court vacated the dismissal of the case, and ordered the lower court to monitor compliance with the new legislation for the next year and a half. In 2006 and 2007 this took the form of regular conferences between the Court (The Hon. Linda Feinberg), the Plaintiffs (represented by Penny Venetis), and the Defendants (attorneys from the Office of the Attorney General of New Jersey).
In 2008, the Attorney General missed the deadline originally set by the legislature for implementation of a voter-verified paper trail, and asked the Legislature for two successive 6-month extensions. The Court ordered a trial, originally set for May 2008, on the constitutional issues relating to the continued use of paperless voting machines. However, in April 2008 the Court ordered the State (and Sequoia Voting Systems, Inc.) to provide voting machines and voting-machine source code to the Plaintiffs' experts for a detailed study.
Therefore in July-August 2008 I led a team of computer scientists in a study of the software and hardware of the Sequoia AVC Advantage. Our report is available here:
Insecurities and Inaccuracies of the Sequoia AVC Advantage 9.00H DRE Voting Machine, by Andrew W. Appel, Maia Ginsburg, Harri Hursti, Brian W. Kernighan, Christopher D. Richards, and Gang Tan. October 2008.
Unredacted version: EXPERT REPORT OF ANDREW W. APPEL August 29, 2008.
What happened next...,