Will Your Vote Count?: Can the Current Software Withstand and Guarantee the Constituational Right to Vote?
Fisher, Matthew, The Journal of High Technology Law
The right to vote is fundamental, receiving protection under the Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth Amendments to the United States Constitution. (1) Following the 2000 election, the United States of America witnessed the disruptive power of a faulty voting system, as the results of the presidential election were delayed five weeks due to Florida's inability to count votes. (2) In response to the 2000 election, Congress enacted the Help America Vote Act of 2002 (3) (HAVA) as a vehicle of change to encourage the states to adopt more current voting technology, specifically, electronic voting machines that do not utilize punch cards or levers. (4) Protecting and guaranteeing the right to vote, a right fundamental to the operation of democracy, forms the basis for pushing the adoption of direct record electronic (DRE) voting machines in order to take advantage of the opportunities offered by the use of modern technology. (5) However, technology experts are concerned about the actual security provided by DRE machines, especially the ability of the machines' software to withstand attacks. (6)
This Note will examine the forms of electronic voting that are available and assess the ability of each to protect the constitutional right to vote promised to every citizen of the United States of America that is eighteen years of age or older. It will illustrate the need to replace the existing system with a safe and secure form of electronic voting. It is imperative to meet the constitutional standards of security required in protecting the right to vote. Adequately protecting the right to vote will require active government involvement, continual testing of voting machines and security assurances for any form of electronic voting utilized.
Part I of this Note describes the attitude of the courts towards the use of technology when casting one's ballot and traces the development of voting technology. Part II describes the types of DRE systems available and the safety concerns connected to each particular form of electronic voting. Part III analyzes previously suggested remedial measures and proffers new ideas to protect against election fraud.
I. History of Voting Technology
A. History of Court Protection of the Right to Vote
The Supreme Court formally recognized the right to vote as being fundamental to the proper functioning of American democracy for the first time in 1886 in Yick Wo v. Hopkins. (7) At the same time, the Court allowed legislatures to impose justified limitations and requirements on voting. (8) In United States v. Classic, (9) the Court stated that "included within the right to choose, secured by the Constitution, is the right of qualified voters ... to cast their ballots and have them counted." (10)
The historical line of cases firmly entrenched the importance of the right to vote while indicating a judicial impatience with any practice that would impede its exercise. Although Yick Wo was decided in 1886, it was not until the Court agreed to hear the issue under dispute in Baker v. Carr (11) that voting issues received serious consideration before the Supreme Court. (12) In Baker, the Court found the Equal Protection Clause defeated a claim that a redistricting plan created a nonjusticiable political question beyond the power of the courts to decide. (13) The Court furthered its foray into voting rights analysis in Wesberry v. Sanders, (14) by holding that a person's vote cannot be reduced in efficacy and that all citizens are entitled to have their voice heard during an election. (15) In Reynolds v. Sims, (16) the Court stated that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." (17) The Court completed the application of the one-person, one-vote doctrine by including local governments in Avery v. …