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Suit asks to see inside vote machine

Published December 20, 2006


TALLAHASSEE - A Leon County circuit judge is considering whether to force a private voting machine company to reveal the inner workings of its machines.

That narrow question has broad implications for the often tense relationship between public officials that run elections and private companies whose machines actually count the votes.

State law in Florida and elsewhere protects the insides of voting machines from the public eye in deference to voting machine makers, who say such information amounts to a company's trade secret.

But the disputed Sarasota congressional race between Democrat Christine Jennings and Republican Vern Buchanan is challenging that law.

In a hearing that started Tuesday, attorneys for Jennings argued that because there are questions about the results of the election, the public's right to know how the machines work trumps the commercial privacy concerns of the voting machine company.

Jennings, who lost the election to Buchanan by 369 votes but is contesting the result, contends the electronic touch-screen machines did not function properly and caused 18,000 fewer votes to be recorded in that race than were counted in other races on the same ballot.

Experts say the 18,000 "undervotes" is an unusually high number, but so far the state's review of the election has yet to find an explanation.

Jennings, and a voter group that also sued, has asked to inspect the source code for the Election Systems & Software voting machines. The source code is a written programming language that tells a computer what to do in a particular situation.

"The trade secret privilege is not absolute," said Jennings' attorney, Mark Herron of Tallahassee, during opening statements.

Election Systems & Software and the state want the law to be followed. They say that trade secret privileges are there for the voter as well as for the company. They also say that the machines worked fine and that state tests prove that.

Elections experts and voting machine companies nationwide are watching the court hearing.

"We're at the dawn of the application of highly sophisticated technology in elections, and I'm concerned about the use of the citizens as the guinea pigs to find out how it really works," said Leon County Supervisor of Elections Ion Sancho, who sat through Tuesday's hearing.

Although the plaintiffs are asking only to examine the code for defects, not that it be released to the public, Michelle Shafer, a spokeswoman for a rival voting machine company, said altering the current landscape as it relates to code review carries potential risks, which is why her industry is watching the case.

"We think that by limiting access to source code it keeps it secure," said Shafer, spokeswoman for Sequoia Voting Systems, which along with ES&S and Diebold are the three companies certified to sell machines in Florida. "Voting technology providers have spent millions of dollars and many staff hours developing products for the marketplace. This isn't something that we are just going to let everybody that has an opinion review."

On Tuesday, two academics testified for Jennings, including a political science professor who suggested the undervote in Sarasota County was more than just a statistical anomaly. But when pressed by ES&S attorneys, Charles Stewart of Massachusetts Institute of Technology, acknowledged that his statistical research couldn't conclude what went wrong.

The hearing is expected to wrap up today, although it's unclear when Judge William Gary might make a decision.

An attorney for the Secretary of State's Office, Peter Antonacci, said the state opposes opening the machines to outside review because the Legislature prohibited it.

Sarasota Supervisor of Elections Kathy Dent said she wants the source code released, because it would vindicate the machines and provide resolution for the candidates, voters and her office.

"But that's not my call," Dent said. "It's up to the judge."

What's next

- The hearing is likely to conclude today and Judge William Gary could rule, but he also could wait days or weeks to issue a decision.

- Today is the deadline for Christine Jennings to file paperwork with the U.S. House Administration Committee to formally appeal the election results to the House of Representatives. Jennings has said she will.

[Last modified December 20, 2006, 05:33:48]

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