In recent years, election law has assumed a particularly prominent role in American political life.1 For example, election-related litigation has sharply increased during the past decade, and the winner of a number of high-profile elections has been determined following litigation, including, most prominently, the presidential election of 2000 and the gubernatorial election in Washington in 2004. 2 This issue of the William & Mary Bill of Rights Journal is devoted to a consideration of various legal issues that arise out of the way in which we vote in the United States, with a particular focus on issues that arise out of the use of electronic voting technology. Because of the multi -disciplinary aspects of the question of how we vote, this symposium includes scholars from the fields of law, political science, and computer science.
One of the most interesting developments in election law in recent years has been the increasing use of electronic voting technologies. Although promoted for their vote-counting accuracy, electronic voting technologies have raised concerns in recent years about system failure, or worse, system fraud. As one contributor to this symposium, computer scientist Dan Wallach, has noted, "[a]ny voting system must be designed to resist a variety of failures, ranging from inadvertent misconfiguration to intentional tampering."3 Several of the contributors to this symposium address questions that arise out of the use of electronic voting technology.
In his Article, "Voting System Risk Assessment Via Computational Complexity Analysis," Wallach examines the security risks posed by a variety of different voting technologies, and considers which technologies require "more attention to countermeasures and mitigation strategies" to avoid fraud.4 Among the voting methodologies that Wallach considers are electronic voting (with and without paper trails), optical scanned paper ballots (either with in-precinct scanning devices, or off-site scanning devices), and Internet-based voting schemes. Wallach also explores future cryptographic techniques that might help prevent voter fraud. Wallach' s work contributes to the growing literature addressing means of ensuring voting integrity in the wake of the use of increasingly sophisticated electronic voting technologies.
Three contributions to this symposium examine the use of electronic voting technology in the context of specific elections. In their Article, "Voting Technology and the 2008 New Hampshire Primary," three political scientists, Michael Herron, Walter Mebane, and Jonathan Wand, explore claims that the vote counts in the 2008 presidential primaries in New Hampshire were affected by the type of vote-tabulating technologies in use in various precincts across the state.5 During that primary, Democratic candidate Hillary Clinton, compared to her chief competitor Barack Obama, fared considerably better in precincts using Accuvote optical scan vote-tabulating technology than she did in precincts using hand-counted paper ballots. Similarly, Republican candidate Mitt Romney, compared to his chief competitor John McCain, fared considerably better in precincts using Accuvote optical scan technology than he did in precincts using hand-counted paper ballots. The authors conclude that these tabulation discrepancies are not due to the type of tabulation method used, but rather can be explained by the demographic and political differences between precincts using optical scan technologies and those using hand-counted paper ballots that reflect different voter preferences. They specifically note that precincts using optical scan technologies were disproportionately from southeast New Hampshire and tended to be more densely populated and affluent than those precincts using paper ballots. Hence, demographic differences explain the variation in result, a conclusion supported by an examination of prior New Hampshire elections that produced similar divergent voting patterns. …