New Jersey residents who have been concerned about the virtual monopoly Sequoia Voting Systems has had on elections in the state will be happy to know that a court case filed by the Rutgers Constitutional Litigation Clinic before the November 2004 election may yet dislodge Sequoia from its hold on the state. As the case proceeds, questions regarding the audit capacity and security of the Sequoia AVC Advantage machines used by nearly 95% of the Counties in the State are, literally, receiving their day in court.
New Jersey passed a voter verified paper record law in July 2005 requiring all voting machines to produce a paper record of the ballot that can be verified by the voter and used for manual recounts as the ballot of record. The law has a 2008 deadline, but includes a waiver based on “commercial availability.”
Rutgers case was rendered moot due to the law being passed, but the Appellate Division did not agree and concluded that notwithstanding the new law, issues of auditability and constitutionality still might apply to the votes cast prior to the law’s deadline in January 2008, and might be yet more critical if the deadline was in fact illusory. Thus, it retained jurisdiction and ordered the Law Division to conduct an expedited fact-finding hearing as to the feasibility of the deadline being met.
The hearing recently concluded, and Judge Linda Feinberg of the Superior Court of New Jersey (pictured at right) stated in an April 19 ruling that “credible evidence” does not support a claim that a prototype of the Sequoia AVC Advantage with a paper trail retrofit will be certifiable under currently applicable standards, and that “the State’s confidence in meeting the January 2008 deadline [in New Jersey by so retrofitting this equipment] may be unrealistic.”
The Court reached this conclusion despite claims to the contrary by Sequoia Vice President of Sales Howard Cramer, during testimony given in the four day hearing.
Cramer acknowledged that the AVC Advantage is still “not quite ready for testing” as it is still a prototype, and the Court quoted Cramer’s visual description of a prototype: “its’...you know, it may have a few wires hanging out here or there... It may not be ready for environmental testing. The code might still need some cleanup. There may be, you know, some firmware that still needs to be refined.”
Testimony given by Regional Sales Manager of ES&S Voting Systems Gary Greenhalgh also affirmed that prototypes may not be certified under the current (2002) standards, and yet 13 New Jersey counties already use Sequoia AVC Advantage machines, 5 counties have committed to purchase and deploy them, and Sequoia has made promises to these Counties that paper record retrofits will soon be available.
One such promise was made to the Mercer County freeholders in February 2004, shortly after the County had committed to purchase 600 AVC Advantages.
Transcripts of that meeting and testimony from Mercer County Freeholder Lucy Walters confirm that Howard Cramer promised that the upgrade would be available for the general election in 2004. When the County asked for a status report in July 2004, however, Cramer reported that the technology would not be ready until 2005. It is now 2006, and Cramer has confirmed that the technology still is not ready.
The New Jersey Star-Ledger reported:
"The findings now go to a state appeals court, which is trying to gauge whether these machines are so unreliable that they violate voters' constitutional rights. The panel asked Feinberg to determine if the advent of paper audit trails would render the issue moot.Rutgers Constitutional Litigation Clinic Attorney Penny Venetis filed the suit on behalf of plaintiffs Stephanie Harris, Assemblyman Reed Gusciora and the Coalition for Peace Action, and was joined in her appeal by amicus briefs filed by U.S. Representative Rush Holt, a group of public interest groups, and a group a computer scientists." The case returns to the Appellate Division on May 24th.
Despite being given no opportunity for discovery, Ms. Venetis was able to convincingly demonstrate that Sequoia’s claims of readiness to unsuspecting Counties in New Jersey do not hold water. The Court concluded that, in addition to optical scan voting systems that are certified in New Jersey, only one other system -- a touch screen system manufactured by Avante Voting Systems of New Jersey -- currently meets New Jersey’s new paper record requirement and is already certified and ready for use in the State. Voting integrity activists who have long been uncomfortable with Sequoia’s monopoly and lack of adequate security features considered the ruling a substantial victory, and will continue to demand that the state re-evaluate its use of these unverifiable and insecure machines.
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