December 30, 2006 - An Election Lost (or Won) Due To Bad UI Design?

Who says usability isn't important?

• An election won by 368 votes, where 18,000 electronic ballots had blank votes.
• The Judge in the case decided that the software was not buggy.
• The expert witness for the voting machine's maker, Electronic Systems & Software Inc, testified that the poor ballot design swung the election.

Fla. judge rules against election challenger

Denies access to voting machines

By Alan Wirzbicki, Globe Correspondent  |  December 30, 2006

WASHINGTON -- A Florida judge yesterday ruled that a losing congressional candidate couldn't examine the inner workings of voting machines, even though the machines had no paper backup and produced 18,000 blank votes in a House race.

The ruling dealt a setback to the campaign of Christine Jennings, a Democrat who lost a Sarasota-based House seat by 369 votes.

Jennings has mounted the most prominent legal test so far of the effectiveness of high-tech voting machines, an issue that has aroused concern in many states.

The judge, William L. Gary, ruled that the voting machine's maker, Nebraska-based Electronic Systems & Software Inc., could keep the computer program secret to protect its code from competitors, provoking outrage from voting-rights groups.

"The idea that this is an impenetrable trade secret can't hold up," said Judith E. Schaeffer, the associate legal director for the liberal People for the American Way Foundation. "We're not talking about the recipe to Coca-Cola, we're talking about people's right to vote."

In a statement sent to reporters last night, Jennings attacked Gary's decision, saying it was "shocking that there is more concern for protecting a company's profits rather than protecting our right to vote."

"The secrecy and question marks surrounding electronic voting is creating a real crisis in confidence among America's voters, and the only way to resolve this is by conducting a thorough review by outside experts," she said.

Jennings said she would appeal Gary's decision immediately. She has also asked Congress to investigate the election.

The House Committee on Administration, which is in charge of investigating contested elections and could order a revote or declare the seat vacant, has begun looking into the election. But its investigation is expected to take weeks or months .

Meanwhile, Florida officials certified Republican Vern Buchanan as the winner last week. He is expected to take the oath of office in Washington next week, even as challenges to the validity of his election continue.

At least one Democratic representative -- Rush Holt of New Jersey -- has said he will seek a vote on the House floor next week that would deny the seat to Buchanan if the House investigators find flaws in the election process.

The mysterious undervote in Sarasota likely cost Jennings the election, according to witnesses for both her campaign and ES&S, the voting-machine manufacturer, because the blank ballots were in disproportionately Democratic areas. But ES&S apparently convinced the judge that a confusing ballot designed by local officials, not a software problem, was a more likely cause for the undervote.

In his ruling, Gary said that suggestions of bugs in the software were "conjecture" and not supported by any "credible evidence" that would justify "gutting the protections afforded those who own trade secrets."

A spokesman for ES&S, Ken Fields, said the company was vindicated by the decision. "The court's ruling reaffirms our position all along that the equipment is very carefully evaluated and tested before the election, and that it performs accurately," he said. "We're pleased, because it's another indication that the voters can certainly have confidence in the equipment ."

Voting machine companies have historically gone to great lengths to keep their software codes secret, said Rebecca Mercuri, a voting machine consultant, and have usually been successful.

Many voting machine makers insist on confidentiality clauses in their contracts with state voting authorities, and states usually acquiesce. Only one state -- New York -- requires that companies agree to release their source code in the event of a contested election like the Florida race, Mercuri said.

A bill sponsored by Holt would forbid companies from keeping the source code secret. The bill did not come up for a vote this year, but a spokesman for Holt has said he would try again.

But the judge felt there was no cause to question the workings of the machines.

A witness for ES&S, Dartmouth College professor of government Michael Herron, said there was significant statistical evidence that the undervote occurred because of the way the ballot was designed rather than a glitch with the equipment. He said that precincts with more confusing ballots showed higher numbers of undervotes, not just in Sarasota but elsewhere in Florida.

"Where the format appears very confusing, you get large undervotes," Herron said in a telephone interview. "In addition, when the format is mildly confusing, we get mild effects."

Herron said that the higher incidence of undervotes in precincts with large numbers of elderly voters was also a sign that the computers were probably not at fault.

The Jennings-Buchanan race, Herron said, underscored the need to develop standards for easy-to-understand ballots, regardless of whether they are paper or electronic.

Without the confusing ballots, a paper co-authored by Herron concluded, there was a "100 percent chance that Jennings would have won."

Schaeffer, of the People for the American Way Foundation, said it was scandalous that Buchanan was on the verge of entering Congress when even ES&S's witness conceded that Florida voters had intended to elect Jennings.

"The court was presented with expert testimony from both sides agreeing that the will of the voters was thwarted ," Schaeffer said.

http://www.boston.com/news/nation/articles/2006/12/30/fla_judge_rules_against_election_challenger/