ATLANTA, Georgia, Aug 25 (IPS) -

A case brought by election integrity advocates in Georgia claiming that unverifiable electronic voting, or E-voting, is unconstitutional could spell trouble for the controversial practice, as it heads to the Georgia Supreme Court for a ruling.


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E-voting first started in Georgia. In 2002, the state became the first to use the Diebold AccuVote TS-R6 machines statewide after then-Secretary of State Cathy Cox entered into a 54-million-dollar agreement with Diebold.

About 50 million U.S. citizens used some kind of E-voting technology in the 2008 election cycle.

Today, Georgia remains the last state slated to use E-voting equipment statewide in the 2010 elections, unless the Georgia Supreme Court intervenes.

Other states like California, Maryland, Ohio initially followed in Georgia's footsteps. Since then, "California received a 2.5-million-dollar settlement from Diebold and de-certified them three times. Maryland filed an 8.5-million-dollar lawsuit. And Ohio filed for punitive damages after they found accumulation discrepancies and Diebold admitted to a critical programming error that can cause votes to be dropped," Garland Favorito, founder and lead plaintiff for VoterGA, an elections integrity group, told IPS.

"They were all using Diebold Accu-vote TS voting machines," he said.

Of the 13 counts listed by VoterGA in their lawsuit, two argue that E-voting is in violation of the U.S. Constitution's 14th Amendment, which states that "No State shall... deprive any person of life, liberty, or property without due process."

Count 12 also claims that E-voting violates the U.S. Constitution's guarantee of equal protection under the law because Georgians who choose to vote with an absentee ballot are able to do so on paper, while those who vote on Election Day must use the E-voting machines.



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"The electronic-only voting cannot provide equal protection in terms of voter verification, investigation of discrepancies, recount completeness, and production of evidence for contested elections. Absentee ballots [which are paper] can protect the voters because the ballot that is directly created is retained as physical evidence of their vote," Favorito said.

The appeal stress that the Diebold machines "do not produce independent paper ballots or tangible records at the actual time of voting but rather 'report' electronically compiled, accumulated votes later when called upon to do so."

"The chain of custody has been broken between the voter and their ballot," Favorito said. "What you see on the screen disappears. Those votes may or may not have been recorded in the machine and on the memory card that accumulates the votes."

"In a recount all they do is reprint the previous unverifiable results. Prof. Britton Williams [of Kennesaw State University, an expert witness for the State] admitted that the reprint will always provide the same totals as the original. Therefore, it subverts the intent of a recount," he added.

"And the recount is not as complete as with paper ballots, which starts with what the voter verified. Mr. Ray Cobb [also of KSU] admitted that a recanvass of electronic votes starts with the votes on the memory card," he said.

VoterGA originally filed the complaint on Jul. 13, 2006. The plaintiffs included Favorito, Mark Sawyer, Ricardo Davis, Al Herman, Frieda Smith, Kathryn Wietzel, Cathie Calabro, and Adam Shapiro, who is blind.

In 2006, an online news service, the Atlanta Progressive News, reported exclusively on numerous voters who testified, some in affidavits, that they watched as the Diebold machines flipped their votes before their very eyes.

It took Fulton County Superior Court two and a half years to rule on the case. On Feb. 20, 2009, Judge Michael Johnson ruled against VoterGA, dismissing the claims.

Judge Johnson stated that Georgia acquired the touch screen voting machines in compliance with the federal Help America Vote Act passed in 2002, that they were certified and tested in accordance with the law, and that "following the election, each voter's ballot can be displayed and printed."

"The touch screen voting machines also have a paper printout (internal to each machine) which records the votes cast," Johnson ruled. "The paper trail created by each voting machine allows their results to be physically audited, as does the electronic information from CES servers, voter cards, and PCMCIA cards."

VoterGA says that many of the claims made by Johnson in his argument, however, are simply not true.

"We disputed that. There's no evidence the defendants entered to show that whatever is printed is the candidate the voter actually selected and in fact that would be impossible. You can recreate the images but there is no evidence that the images recreated and reprinted actually contain what the voter selected," Favorito said.

"The machines do have a paper printout (in addition to the so-called votes it records), but they only contain the total, they don't contain the original ballots that were cast. The ballot was not captured independently before the vote's cast. The audit was simply a reprinting... produced internally from the machine, not independently," he explained.

If the court upholds VoterGA's claims, the case could have a national impact "because these are federal charges involving the U.S. Constitution. If upheld, it would set a precedent of case law that can be used in other states," Favorito said.

While other states have sued E-voting companies before, those cases were "more towards contractual and state-related issues, versus a fundamental right that is granted to all people in the United States via the Constitution," Favorito said.

VoterGA and the State of Georgia made oral arguments before the Georgia Supreme Court on Jul. 13, 2009. Activists said the justices listened intently and asked no questions. They also said the State's attorney seemed to get upset as they presented corrections for the record to the State's claims.

"We had already disputed in the lower court every key assertion made... and we had to enter the disputes again with the Supreme Court because their counsel simply ignored them," VoterGA said in an email obtained by IPS.

If the Georgia Supreme Court rules against VoterGA, the group can take parts of the case related to the 14th Amendment to the federal level, all the way up to the Supreme Court.

In the meantime, "We're going through the motions of conducting elections without having any capability of knowing whether the recorded results are in fact true," Favorito said.

*Matthew Cardinale is the editor of Atlanta Progressive News.