Susan Marie Weber v. Kevin Shelley, in His Official Capacity as California Secretary of State Mischelle Townsend, in Her Official Capacity as Riverside County Registrar of Voters
Docket: 02-56726
Court: Court of Appeals for the Ninth Circuit; October 27, 2003; Federal Appellate Court
The Ninth Circuit Court of Appeals addressed an appeal by Susan Marie Weber challenging the touchscreen voting system adopted in Riverside County, California, which replaced traditional paper ballots. Weber, a registered voter, claimed that the absence of a voter-verified paper trail in the Sequoia Voting Systems AVC Edge Touchscreen Voting System infringed upon her rights to equal protection and due process under 42 U.S.C. § 1983. The district court ruled that there was no evidence of differential treatment among voters and determined that the touchscreen system did not impair Weber's voting rights, citing its reasonableness, fraud protection, and alignment with state interests. The court granted summary judgment for the defendants, affirming that Weber's concerns about auditing and verifying election results were largely hypothetical and had minimal impact on her voting rights.
The Secretary of State of California, as the chief election officer, is responsible for overseeing elections and certifying voting systems for safety and reliability. Voting systems must receive the Secretary's approval, which includes compliance with standards set by the Federal Elections Commission and the National Association of State Election Directors. The Secretary's procedures ensure that voting machines are suitable, preserve ballot secrecy, are resistant to fraud, and can be audited for recounts. Counties may choose any certified voting system from the Secretary's list, provided it has been approved or authorized by law.
In 1990, the Federal Election Commission (FEC) established Performance and Test Standards for various voting systems, which continue to be utilized by the National Association of Secretaries of State (NASED). Subsequently, California began evaluating touchscreen voting systems as a potential alternative to paper ballots. In these Direct Recording Electronic (DRE) systems, verified voters use an activation card to operate a touchscreen machine, with instructions displayed on-screen for selecting candidates. Voters can modify their selections and must review their entire ballot before casting their vote by touching a designated 'Cast Vote' button. Once the vote is cast, the activation card is ejected and returned to an election officer, ensuring it cannot be reused without reactivation.
After polls close, ballot cartridges are sealed for counting, and votes are transmitted to a central headquarters through a secure network. Testing in California indicated that touchscreen systems mitigate risks of fraud and manipulation through redundant data pathways and ballot images, allowing for real-time checks and printed reproductions of ballots. The AVC Edge System received conditional certification in July 1999 and again in December 2001, with all conditions met.
In 1999, following a task force's recommendation, the Riverside County Board of Supervisors adopted touchscreen voting, citing its superior accuracy and reliability, accessibility for disabled voters, improved recount efficiency, increased voter turnout through early voting, and cost-effectiveness. The AVC Edge System was first implemented in the 2000 Presidential election and has been used in subsequent elections.
Weber seeks a ruling declaring the use of paperless touchscreen systems unconstitutional, arguing they lack a paper trail, which could lead to undetectable manipulation. She contends the district court erred in distinguishing system accuracy from vote verification and has appealed the court's summary judgment in favor of the state.
Weber argues that the district court overlooked her expert declarations, which express concerns about the lack of certification standards for independent audits of paperless touchscreen voting systems. She contends that this failure infringes on voting rights and that the court misapplied the standard from *Burdick v. Takushi*, by not applying strict scrutiny to these systems. Weber asserts that without paper ballots and audits, the Secretary of State cannot ensure that voting systems are secure against fraud, citing California Election Code § 19205(c). She notes that some touchscreen systems do produce paper ballots, suggesting that addressing this constitutional issue would not be burdensome.
The court first addressed Weber's claim regarding the inadmissibility of her expert testimony, which included declarations from experts in computer science and public policy. The court found that it did not need to determine the qualifications of these experts since it focused on whether their opinions raised genuine material factual issues regarding the accuracy of Direct Recording Electronic (DRE) voting systems. It excluded references to newspaper articles and unidentified studies, determining that their absence of expert reliance did not constitute an abuse of discretion under Fed.R.Evid. 703. The remaining admissible opinions did not support the assertion that voters in Riverside County faced a lesser chance of having their votes counted. While the declarations indicated concerns about programming errors, a high “lost vote rate,” and the lack of independent verification for the AVC Edge System, they did not demonstrate that this system was less accurate or verifiable compared to others.
The excerpt acknowledges the fundamental nature of the right to vote, which is essential to preserving all other rights. However, it also recognizes that states have significant latitude to implement reasonable regulations to ensure orderly and fair elections, as established in precedent cases.
Every electoral law impacts the right to vote, and invalidating all regulations with minor effects would hinder states' ability to ensure fair elections. The Supreme Court in Burdick established a balancing test for evaluating constitutional challenges to electoral laws, requiring courts to weigh the magnitude of the injury to voters' rights under the Fourteenth Amendment against the state's justifications for the regulation. The inquiry's rigor depends on the severity of the burden on voting rights; severe restrictions require narrow tailoring to compelling state interests, while reasonable, nondiscriminatory restrictions are generally justified by state regulatory interests.
Touchscreen voting systems are not subjected to strict scrutiny solely due to potential fraud detection issues. Instead, the assessment focuses on whether these systems, which offer various benefits like increased voter turnout and accuracy, impose a severe restriction on voting rights by lacking voter-verified paper ballots. The use of paperless systems does not constitute a severe restriction, as traditional paper ballots also have their flaws. Although no voting method is infallible, touchscreen systems address several issues inherent in paper ballots, and concerns about fraud do not equate to constitutional violations. The responsibility to evaluate the merits of different voting systems lies with elected representatives, whose reasonable and neutral decisions are not subject to judicial review.
California's decision to certify touchscreen voting systems as an alternative to paper ballots is deemed reasonable, politically neutral, and non-discriminatory. Riverside County's choice to implement this system is similarly upheld, with no constitutional prohibition against such decisions. The document notes the substitution of Kevin Shelley for Bill Jones as California Secretary of State and recognizes the official capacities of the defendants, including Mischelle Townsend as Riverside County Registrar of Voters. It emphasizes that states have discretion in choosing voting methods, supported by case law indicating that local variations can be justified by cost and innovation concerns. The excerpt argues against federal court intervention in local election administration, asserting that overseeing such details lacks constitutional basis and would unnecessarily involve the court in the operational aspects of elections. The responsibility for resolving debates over voting technology lies with elected officials, who must weigh the pros and cons of various systems.
