Trade Secrets Trump Election Transparency

by on December 30, 2006 · 12 comments

I don’t know about the legal merits, but as a policy matter, this seems like a terrible decision:

A judge ruled Friday that congressional aspirant Christine Jennings has no right to examine the programming source code that runs the electronic voting machines at the center of a disputed Southwest Florida congressional race.

Circuit Judge William Gary ruled that Jennings’ arguments about the possibility of lost votes were “conjecture,” and didn’t warrant overriding the trade secrets of the voting machine company.

Democrats in Congress meanwhile, said they’d allow Republican Vern Buchanan to take the seat next Thursday, but with a warning that the inquiry wasn’t over and that his hold on it could be temporary.

The state has certified Buchanan the winner of the District 13 race by a scant 369 votes.

The ruling Friday from Judge Gary prevents for now the Jennings camp from being able to use the programming code to try to show voting machines used in Sarasota County malfunctioned. Jennings claims that an unusually large number of undervotes _ ballots that didn’t show a vote _ recorded in the race implies the machines lost the votes.

The source code to a voting machine in a DRE election is analogous to the voting procedures manual in a traditional paper election. It would clearly be absurd to run an election in which votes were counted in secret and no one was allowed to know what rules were used to determine the winner. Transparency demands that anyone be permitted to inspect the voting procedures to make sure they are fair and accurate.

Precisely the same principle applies here. The source code is the vote-counting procedure. It’s absurd to ask Jennings to prove there was a problem with the voting process before she can be given access to the details of how the election was conducted. Obviously her allegations of miscounting are only “conjecture” at this point, because she hasn’t been given the opportunity to examine the process by which the votes were counted.

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