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Ruling Issued in Constitutional Litigation Clinic Challenge to New Jersey’s Electronic Voting Machines

Judge Orders Re-evaluation of 11,000 Machines by Panel of Computer Experts Within 120 Days

February 01, 2010 – 

A ruling was issued today in a lawsuit challenging computerized voting machines that do not produce a paper record. Mercer County Superior Court Judge Linda Feinberg held that New Jersey’s 11,000 voting machines have to be re-evaluated by a qualified panel of experts within 120 days to determine whether they comply with NJ law requiring that they be accurate and reliable. Unlike the panel that currently evaluates voting machines, the new panel must have requisite knowledge of computers and computer security. 

Judge Feinberg also ordered that all voting machines and vote tally transmitting systems be disconnected from the Internet immediately. Judge Feinberg also required that criminal background checks be performed on personnel who work with voting machines and all third-party vendors who examine or transport the machines. Currently, no such checks are in place. Judge Feinberg further required that a protocol be put in place for inspecting the voting machines to ensure that they have not been tampered with. Judge Feinberg found that the State of New Jersey should no longer leave voting machines unattended in polling places, to prevent tampering. Currently they are left unattended at polling places for up to two weeks before and up to two weeks after each election.

The lawsuit was started in 2004 by Rutgers Clinical Professor Penny Venetis, co-director of the Constitutional Litigation Clinic, who filed suit on behalf of a group of voting rights advocates led by the Princeton-based Coalition for Peace Action. Evidence was presented during the 15-week trial, held between January and June 2009, showing that the voting machines were not properly examined and that they were insecure. Although the Court did not de-commission the machines, as Plaintiffs requested, the panel of qualified experts Judge Feinberg ordered to re-evaluate the voting machines can recommend that they be de-commissioned. Plaintiffs’ expert witness, Princeton Computer Science Department Chair Professor Andrew Appel, who evaluated the machines, created a fraudulent chip that stole votes and installed that chip in less than 10 seconds. The voting machines could not detect the fraudulent chip. The Plaintiffs fully expect that the panel of experts convened to evaluate the voting machines will study Professor Appel’s report and consult with him.

The trial was the culmination of a 5 ½-year effort by the principal plaintiffs, represented by Professor Venetis and the law firm of Patton Boggs LLP, to improve election security in New Jersey. Venetis is pleased with the ruling, but disappointed that the Court did not go far enough. “We proved at trial that the voting machines we use cannot be trusted, and must be evaluated by knowledgeable computer security experts. It is unfortunate that the Court did not believe it was her place to order the State to immediately enforce the 2005 state statute requiring that all voting machines produce a voter-verified paper ballot. A voter-verified paper ballot system would detect tampering, and would obviate the very extensive security measures that the Court ordered.” 

Although happy with the new security requirements, Plaintiff Stephanie Harris believes that “until a voter-verified paper ballot system is in place, I cannot fully trust that NJ’s Sequoia voting machines are counting my vote properly.”

The Plaintiffs in the case are: The Coalition for Peace Action; Stephanie Harris, who attempted to vote on a Sequoia Advantage voting machine in 2004, but received no indication that her vote was recorded after multiple attempts; Assemblyman Reed Gusciora; and New Jersey Peace Action.

For more information, contact Professor Penny Venetis at 973-353-5687 (office) or 917-617-3524 (cell); Irene Goldman, chair of the Coalition for Peace Action, at 609-505-7554 (cell); or Stephanie Harris at 802-598-8039 (cell).