Prof Dan Tokaji Drops Pro-DRE litigation as Moot, Calls VVPAT "Fool's Gold" says Congress should "Take a Breath" on Further Legislation

From attorney Paul Lehto:

Prof./Lawyer Dan Tokaji is lead counsel in the most potentially damaging elections case in America (Stewart v Blackwell,6th Cir.) and he is also arguably the chief legal conjurer for a world of DRE technology, having sued on behalf of the ACLU in this case to require DREs and have them held constitutional while having paper-based punchcards and central count optical scans held unconstitutional on account of their relative residual vote rates (defined as overvotes plus undervotes).

A normal 3 judge panel of the 6th Circuit had previously upheld DREs and struck down the paper based technologies that were otherwise grandfathered under HAVA for this general reason of "residual votes". I've written before that the residual vote test is tilted heavily to favor DREs, which don't allow overvotes (and so will typically win the residual vote test) but more importantly, as a different technology, DREs tend to express their problems in ways other than residual votes (though they can have occasionally high undervotes, as seen in Sarasota, Florida)

Tokaji and the ACLU decided to drop their case as moot last week, agreeing to Blackwell's long-standing earlier argument that the case was moot because all Ohio Jurisdictions had adopted "notice" voting technology, i.e. technology that pipes up and warns the voter if there's an overvote or an undervote. Various factors from the increasingly publicized undervote rates in Sarasota Florida to the recent NIST STS report probably factored into the last minute decision for Tokaji and the ACLU to agree with Blackwell that the case was moot, since Blackwell's position had been along these lines for some time now. Because the panel decision was vacated in order to gain en banc review, the moot status, if agreed to by the court, would keep the 6th Circuit opinion as vacated and dismiss the trial court action. The expected appeal to the US SUpreme Court on Bush v Gore grounds would be avoided, for now.

Tokaji also commented on the NIST STS report, and called VVPAT "fool's gold."

"The most important thing for Congress is to take a deep breath," says Dan Tokaji, an election-law expert at Ohio State University. He worries that momentum is building for something that could prove to be a mistake. "Passing paper trails at this stage, based on what we know right now is really fools gold. It may provide an initial sense of confidence. But that confidence won't be long-lasting unless we resolve some deeper issues."

I've emailed with Tokaji, and he is well aware of the legal challenges that can be brought, including but not limited to Bush v. Gore challenges (he's written a book chapter on such things) which he successfully brought in the 6th Circuit until the opinion was vacated pursuant to the normal procedures for en banc review. Brad Blog chimes in:

"Tokaji is absolutely correct. He just didn't go far enough and say that with no confidence in the paper trail there should also be no confidence in Direct Recording Electronic ( DRE) voting machines. They are both, together or singly, "fools gold"." (Bradblog)


As Tokaji notes at the end of his blog, "The doctrinal legacy of Bush v Gore remains up for grabs." http://moritzlaw.osu.edu/blogs/tokaji/2006_12_01_equalvote_archive.html

By no means does the "dicta" reference in Bush v. Gore to the general effect that it is a unique case mean that it does not provide rules of decision for future cases, as the panel in the 6th Circuit originally held. Already five major cases have been brought under Bush v. Gore and it is still up in the air, i.e. seeminly primed for further US SUpreme Court review of our elections systems.

UPDATE: 12-05-2006
To whom does this make sense?

A U.S. government board looking at ways to improve the security of electronic voting has rejected one proposal that would have required election officials to use paper-trail ballots or other audit technologies with the machines.

The Technical Guidelines Development Committee (TGDC), an advisory board to the U.S. Elections Assistance Commission (EAC), on Monday failed to pass a proposal to certify only those direct record electronic (DRE) machines that use independent audit technology. Before the 6-6 vote, TGDC members expressed concerns that a requirement would create a costly mandate to local governments.

--snip--

The proposal, advanced by NIST staff and TGDC member Ronald Rivest, a computer science professor at the Massachusetts Institute of Technology, would have required "software independent" DREs with some kind of independent audit mechanism, such as the voter-verified paper trail printouts advocated by some e-voting critics.

One advocate of paper-trail audits for DRE said he was disappointed with the TGDC's vote. The recommendation was a "much-needed step toward making certain that voting systems are secure, useable, and reliable," said Eugene Spafford, chairman of the U.S. policy committee at the Association for Computing Machinery (ACM).

First, my life is less valuable than commerce--I am 'told' this when government (legislation) blocks citizens from suing manufacturers who sell products that kill or sicken them. Now my vote--my choice--for who will write that same legislation, is less valuable than the cost for collecting my vote?! I am outraged. Are you?

HT-Paul Lehto