Ninth Circuit Holds that Use of Touchscreen Voting System without paper trail does not violate United States Constitution

The Ninth Circuit has decided Weber v. Jones, challenging the certification of touch screen voting in California. From the opinion:

We cannot say that use of paperless, touchscreen voting systems severely restricts the right to vote. No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, “hanging chads,” and other mechanical and human errors that may thwart voter intent. See generally Bush v. Gore, 531 U.S. 98 (2000). Meanwhile, touchscreen voting systems remedy a number of these problems, albeit at the hypothetical price of vulnerability to programming “worms.” The AVC Edge System does not leave Riverside voters without any protection from fraud, or any means of verifying votes, or any way to audit or recount. The unfortunate reality is that the possibility of electoral fraud can never be completely eliminated, no matter which type of ballot is used. Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (“Voting device malfunction [and] the failure of election officials to take statutorily prescribed steps to diminish what was at most a theoretical possibility that the devices might be tampered with . . . fall far short of constitutional infractions . . . .”). Weber points out that none of the advantages of touchscreen systems over traditional methods would be sacrificed if voter-verified paper ballots were added to touchscreen systems. However, it is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing. In this instance, California made a reasonable, politically neutral and nondiscriminatory choice to certify touchscreen systems as an alternative to paper ballots. Likewise, Riverside County in deciding to use such a system. Nothing in the Constitution forbids this choice.

(footnote omitted)

Posted by Rick Hasen at October 28, 2003 11:50 AM