Judicial Protection of Popular Sovereignty: Redressing Voting Technology

40 Pages Posted: 15 Nov 2012

See all articles by Candice Hoke

Candice Hoke

Cleveland State University, Cleveland-Marshall College of Law

Date Written: November 14, 2012


The definitive scientific studies of deployed U.S. voting technologies have received substantial attention in the information security and computer science fields but virtually none from election law scholars. This Article translates the recent scientific findings into legal constructs meaningful to the fundamental right to vote, and it encourages renewed legal scholarly attention to the legal questions raised by problematic voting technologies. The scientific studies raise new bases for questioning not only whether the new equipment meets underserved voting communities’ needs but also whether it has produced serious issues of constitutional dimension. Given authoritative precedent holding that the right to vote includes the right to have vote choices correctly recorded, counted as they were cast, and correctly reported in the final tally, the scientific findings of serious deficiencies in existing electronic technologies require non-deferential judicial reassessment of their legal sufficiency. The Article contends that if the constellation of voting systems and operating procedures permit covert, untraceable electronic ballot box-stuffing, the constitutional commitment is not realized and should be actionable under strict scrutiny review. Finally, it discusses the corrective steps that courts can order short of replacement of the existing equipment and offers as a potential model the German Constitutional Court’s recent decision to invalidate similar voting equipment that had created the possibility of covert fraud on the voting public.

Keywords: elections, voting, technology, security, litigation, equal protection, accessibility, fraud

JEL Classification: H54, H56, H70, H77, K23, K29, K39, K41, K42

Suggested Citation

Hoke, Candice, Judicial Protection of Popular Sovereignty: Redressing Voting Technology (November 14, 2012). Case Western Reserve Law Review, Vol. 62, 2012; Cleveland-Marshall Legal Studies Paper No. 12-247. Available at SSRN: https://ssrn.com/abstract=2175741

Candice Hoke (Contact Author)

Cleveland State University, Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States
216/687-2313 (Phone)

HOME PAGE: http://www.law.csuohio.edu/faculty/hoke/index.html

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