Judicial Protection of Popular Sovereignty: Redressing Voting Technology
40 Pages Posted: 15 Nov 2012
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: Suggested Citation