September 16, 2013
ASSEMBLYMAN REED GUSCIORA, STEPHANIE HARRIS, COALITION FOR PEACE ACTION, and NEW JERSEY PEACE ACTION, Plaintiffs-Appellants,
CHRISTOPHER J. CHRISTIE, GOVERNOR OF THE STATE OF NEW JERSEY, (in his official capacity) and KIMBERLY GUADAGNO, SECRETARY OF STATE OF THE STATE OF NEW JERSEY, (in her official capacity), Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2691-04.
Penny M. Venetis and John McGahren argued the cause for appellants (Rutgers Constitutional Litigation Clinic and Patton Boggs, LLP, attorneys; Ms. Venetis, Mr. McGahren, Caroline F. Bartlett and Robert P. Arter, on the briefs).
Donna Kelly, Assistant Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kelly, on the brief).
Barry, Corrado & Grassi, PC, attorneys for amici curiae Verified Voting Foundation, Electronic Frontier Foundation, Common Cause and Voter Action (Frank L. Corrado, on the brief).
Pashman Stein, attorneys for amici curiae Certain Computer Science Professionals (Sean Mack and Dimitrios Kandylas (Sullivan & Cromwell), on the brief).
Pashman Stein, attorneys for amici curiae Certain Election Officials (Sean Mack, on the brief).
Before Judges Messano, Lihotz and Ostrer.
In October 2004, Assemblyman Reed Gusciora, Stephanie Harris, a registered voter in Mercer County, the Coalition For Peace Action and the New Jersey Peace Action (collectively, plaintiffs), filed a complaint alleging that the State's use of direct recording electronic voting machines (DREs) violated two provisions of the New Jersey Constitution -- Article II, section I, paragraph 3(a), conferring the right to vote upon every citizen; and the guarantee of equal protection under law, found in Article I, paragraph 1 -- as well as several provisions of our election statutes contained in Title 19. Among other relief, plaintiffs sought to enjoin the State's use of DREs until they were retrofitted or replaced with voting machines that included a voter verified paper audit trail (VVPAT). Named in their official capacities as defendants were then-Governor James E. McGreevey and then-Attorney General Peter C. Harvey. We refer to them and their successors collectively as "the State."
Injunctive relief was denied, the complaint was ultimately dismissed and plaintiffs appealed. While the appeal was pending, the Legislature enacted and the Governor signed L. 2005, c. 137, which required that, by January 1, 2008, each DRE must produce a VVPAT, unless the Attorney General waived the provision upon a showing that the technology was not commercially available. As a result, we remanded the matter to the Law Division "to consider whether the technology and resources were available to implement L. 2005, c. 137 for purposes of evaluating the issue of mootness . . . ." Gusciora v. McGreevey, 395 N.J.Super. 422, 424 (App. Div. 2006). Following the remand proceedings, now-retired Judge Linda R. Feinberg "issued a thorough and expeditious 'remand opinion' . . . which addressed the State's ability to meet the January 1, 2008 deadline." Ibid.
Although plaintiffs asserted the appeal was not moot, we observed that any constitutional challenges would be fully addressed if the new law was successfully and timely implemented. Id . at 424-26. Recognizing, however, the uncertainties regarding implementation, we reversed dismissal of the complaint and remanded to the Law Division for "expeditious consideration" of all implementation issues and, "should the legislation not be implemented as assured by the State and Attorney General, for development of a record with respect to the constitutional claims and for consideration of any appropriate remedy with respect thereto." Id . at 427-28.
After our decision, the Legislature enacted L. 2007, c. 301, and L. 2008, c. 18, each extending the effective implementation date -- January 1, 2008 -- for six-month periods. In March 2009, the Legislature enacted L. 2009, c. 17, now codified at N.J.S.A. 19:48-1(b)(2) and 19:53A-3(i)(2), suspending indefinitely the requirement "that each voting machine used in this State produce an individual permanent paper record for each vote cast[, ]" until sufficient federal or state funds were appropriated. Ibid.
Accordingly, Judge Feinberg conducted a twenty-five day trial on the merits of plaintiffs' claims, from January 27 to May 11, 2009. She issued a lengthy written opinion on February 1, 2010, that essentially rejected plaintiffs' constitutional and statutory claims for relief. The opinion also contained Judge Feinberg's specific "requirements" and "recommendations" for continued use of DREs, as well as her conclusions regarding the shortcomings of the State's then-existing "Title 19 Committee." The judge filed a conforming order on March 8, 2010 (the March 2010 order).
Among other things, the March 2010 order required the State to reconstitute the Title 19 Committee "to include two 'mechanical experts' who have understanding of computer system operations, as well as software and hardware architecture." The reconstituted committee met in April 2010, heard testimony and comments, and issued its report on June 11, 2010. The report recommended recertification of the Sequoia (Sequoia) AVC Advantage Model D DRE with firmware versions 9.00G and 9.00H.The Title 19 Committee also recommended three security procedures, which would be "relevant to DREs in general" and not only the particular models reviewed.
Judge Feinberg continued to monitor the State's compliance with other provisions of the March 2010 order during a series of court hearings that took place throughout 2010. On June 6, 2011, she entered a final order and judgment (final order), and this appeal ensued.
We granted the motions of the following groups to appear as amici curiae: Verified Voting Foundation, Electronic Frontier Foundation, Common Cause, and Voter Action (the VVF amici); Certain Election Officials (the Election Officials amici); and Certain Computer Science Professionals (the Computer Professionals amici). Amici, like plaintiffs, urge us to reverse Judge Feinberg's order because DREs are unreliable and resulting vote tallies cannot be accurately verified.
We also granted the State's and plaintiffs' motions to supplement the record on appeal.
Briefly, in its supplementary material the State asserts through the certification of Robert Francis Giles, Director of the New Jersey Division of Elections, that since the final order was entered, all the AVC Advantage DREs used in the State were upgraded with firmware version 9.00L. The State claims this version was prepared solely for New Jersey and in response to concerns raised by plaintiffs in this litigation.
Version 9.00L was subject to a public hearing before the Title 19 committee in June 2011. In its June 16, 2011 report to the Secretary of State, the Title 19 Committee recommended certification of the AVC Advantage DRE with 9.00L firmware; the next day, the Secretary of State certified that DRE. The State asserts that the two original firmware versions "are now obsolete . . . and will not be used in any election."
Giles also certified that the State had implemented training sessions with 143 county election personnel and conducted criminal background checks on these individuals. Additionally, the State implemented a computerized asset-tracking system permitting it to monitor every voting machine and the corresponding security seals now employed.
Plaintiffs' supplementary materials included a certification from Andrew Wilson Appel, a professor of computer science at Princeton University and plaintiffs' expert at trial, essentially contesting Giles' assertion that version 9.00L firmware actually resolved significant security issues raised at trial, and which the judge attempted to address in the requirements and recommendations portions of the March 2010 order.
Both the State and plaintiffs supplied information regarding Zirkle v. Henry, No. CUM-L-000567-11, litigation that took place in the Law Division, Cumberland County. We discuss that litigation in more detail below; however, for the moment, it suffices to say that in Zirkle, the Law Division set aside an election in which DREs were used because of "human error in the programming of the voting machine."
On appeal before us, plaintiffs' arguments are essentially three-fold. They contend that Judge Feinberg committed a series of errors at trial that require reversal, and her factual findings were unsupported by substantial, credible evidence. In this regard in particular, amici supplement plaintiffs' arguments regarding continued problems with the use of DREs without a VVPAT.
Plaintiffs also argue that the judge reached erroneous legal conclusions regarding their Constitutional and statutory claims. Plaintiffs further assert that, given the nature of the Constitutional violations, we should order the Legislature to appropriate sufficient funds to ensure every DRE used in the State is equipped with a VVPAT, or that other types of voting devices be used.
Lastly, plaintiffs urge us to address events that followed entry of both the March 2010 and final orders. Specifically, plaintiffs contend that the Title 19 Committee's recertification process was flawed, and the State's failure to comply with the March 2010 order has left "voters with insecure voting machines." Plaintiffs additionally assert that the certification of version 9.00L was inadequate, conducted without meaningful participation on their part and has not adequately addressed the problems associated with DREs without VVPATs.
We have considered these arguments in light of the record and applicable legal standards. In large part, we affirm substantially for the reasons expressed in Judge Feinberg's opinion. However, since entry of the final order, ongoing concerns regarding the reliability of DREs without a VVPAT remain. Therefore, we remand the matter to the Law Division for the purpose of continued compliance hearings designed to insure that adequate testing protocols and all appropriate training is conducted to ensure the integrity of the election process.
Plaintiffs contend that the judge committed several trial errors that require reversal and made factual findings unsupported by the evidence. Before addressing the specific arguments, we set forth some basic principles guiding our review.
Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]"
[Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created By Agreement Dated December 20, 1961, ex. rel. Johnson, 194 N.J. 276, 284 (2008)) (internal quotation marks and citation omitted) (alteration in original).]
"'Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However, "[w]e review the law de novo and owe no deference to the trial court . . . if [it] ha[s] wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)(citations omitted).
Furthermore, as we have said, "[l]itigants are not entitled to perfect trials, only trials free of prejudicial error." Maleki v. Atl. Gastroenterology Assocs., P.A., 407 N.J.Super. 123, 128 (App. Div. 2009). Thus, it is axiomatic that the general conduct of a trial is uniquely reserved to the broad discretion of the judge. So, for example, "[e]videntiary decisions are reviewed under the abuse of discretion standard because . . . the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (citation omitted). We apply a similar abuse of discretion standard to our review of decisions made by the trial judge regarding discovery, and whether relaxation of the Court Rules governing identification of expert witnesses was appropriate. Bender v. Adelson, 187 N.J. 411, 427-431 (2006).
We first consider plaintiffs' allegations of trial error.
After several days of trial and while Appel was testifying, the State indicated a desire to call Edwin Barkley Smith, III, Sequoia's Vice President of Compliance, Quality and Certification, and Paul David Terwilliger, a consultant who previously worked for Sequoia on the development of the Advantage AVC voting systems, to testify as experts. After initially reserving her decision until Appel completed his testimony, Judge Feinberg permitted the testimony with some limitations.
The record reveals that plaintiffs had received a report authored by the two men well in advance of trial and had deposed Smith. Both men were identified as potential State's witnesses, albeit not expert witnesses. Judge Feinberg limited their testimony to the confines of their report. We see no particular prejudice to plaintiffs, given the decision to limit the witnesses' testimony to information contained in their report. The judge's decision was not a mistaken exercise of her broad discretion.
After entry of the March 2010 order, and in an effort to rebut the State's alleged attempts to comply with requirements and recommendations Judge Feinberg included in that order, plaintiffs again produced Appel to testify about the inadequacies of certain security seals being proposed for use on the Sequoia AVC Advantage DRE. Plaintiffs also sought to introduce the testimony Dr. Roger Glenn Johnston, an expert on security issues and "security culture."
Johnston was permitted to testify extensively regarding security seals and their efficacy. Judge Feinberg, however, refused to permit Johnston to discuss the susceptibility of the DRE to a "frontal hack, " by removing the full face ballot as presented to the voter and accessing the electronics from that side of the DRE with a screwdriver. The judge excluded the testimony, essentially concluding that it exceeded the original proffer, that plaintiffs could have introduced the evidence earlier, and that it would cause more delay.
Plaintiffs argue this was a mistaken exercise of discretion because the State was aware of Johnston, had been served with his report and the report discussed a "frontal hack" of the system. The judge determined the proffer far exceeded the purpose of the hearing, and we agree.
In her written opinion, Judge Feinberg stated that plaintiffs had abandoned their request that DREs be retrofitted with a VVPAT and were now requesting that the particular DRE at issue be "decommission[ed]" and replaced with "precinct-based optical scan voting machines in all twenty-one counties." Plaintiffs argue that the judge mischaracterized the nature of the relief sought, noting they have always sought an order that "the State . . . comply with . . . voter verified paper ballot laws" regardless of whether that occurred through retrofitting existing DREs or using optical scan voting systems. We accept plaintiff's point, but it is insignificant. Judge Feinberg's characterization of the relief sought in no way affected her factual findings.
Lastly, plaintiffs argue that Judge Feinberg erred by creating constraints under which Appel could test the DREs, and then denigrating Appel's efforts by concluding in her written decision that DREs could only be hacked in such a setting. We think plaintiffs misconstrue Judge Feinberg's point.
Initially, the judge was well within her discretion to impose constraints upon the testing of the DRE. She was also free to consider whether Appel's successful "hack" of the system, which included month-long access to the DRE with a team of highly-trained computer experts working long hours, reflected the likelihood of similar success by someone attempting to hack the DRE in the face of election officials and other members of the public. Judge Feinberg's statements did not denigrate Appel's effort; they simply recognized that a successful hack of the DRE in real life was unlikely.
We next consider plaintiffs' contentions that Judge Feinberg's factual findings were not supported by substantial credible evidence. They argue that the judge's conclusion that there was no proof a DRE could be hacked outside the "academic setting" was erroneous. We fail to see any merit to the argument. R. 2:11-3(e)(2). As noted, Judge Feinberg recognized Appel's ability to hack the system. However, she correctly noted that plaintiffs produced no other evidence that DREs had been hacked in the past. The judge also recognized that a successful hack was more likely if a hacker had greater access to the DRE. She attempted to address this shortcoming in other ways through the requirements and recommendations section of the March 2010 order.
Plaintiffs also contend that the judge erroneously concluded that a pre-election logic and accuracy test, known as a "pre-LAT, " ensured the accuracy of vote tallies. The State's expert, Michael I. Shamos, agreed with Appel that the pre-LAT does not detect fraudulent firmware. The State does not mandate uniform pre-LAT standards, and the pre-LAT failed to detect problems with the "option switch bug, " which, plaintiffs contend, disenfranchised voters in the 2008 presidential primary. Plaintiffs cite the Zirkle case as demonstrating the effects of a failure to impose uniform standards upon pre-LATs.
Judge Feinberg noted Giles "acknowledged the absence of statewide standards or guidelines" that would govern training of board workers and the number of test votes to be cast during the pre-LAT. She observed that Smith confirmed "the option switch bug was not detected in [p]re-LAT." Shamos and Terwilliger both testified that fraudulent software could be created so it would not be detected during a pre-LAT test. Appel proved this in the demonstration of his vote-stealing program at trial.
We agree with plaintiffs that the lack of statewide pre-LAT standards is a serious problem, which we address below. That said, the argument does not merit reversal of Judge Feinberg's orders. The pre-LAT does minimally help determine whether a non-hacked DRE has been programmed properly, and, in that limited sense, it provides a mechanism for insuring accuracy. Judge Feinberg's conclusions, in this regard, were implicitly limited by the extensive testimony she herself cited.
Plaintiffs further contend that the Title 19 Committee's review process was seriously flawed, including use of obsolete 1990 federal Election Assistance Commission (EAC) standards that did not test software. They argue that the committee's April 28, 2010, hearing took only two hours and forty-five minutes, consisting mostly of a Sequoia product presentation, and including only six test votes being cast. The Computer Professionals amici also sharply criticize the inadequacy of the Title 19 Committee's "superficial" testing.
We choose not to address this argument squarely because of events that have transpired since entry of the final order, in particular, the subsequent certification of firmware version 9.00L, which we discuss in greater detail below.
Plaintiffs also argue the judge erred by failing to consider the inherent flaws in the certification process because independent testing authorities (ITAs), such as Wyle Laboratories of Huntsville, Alabama (Wyle), used in this case, are chosen by DRE vendors. Smith testified this is a regimen established under federal law. Without any issue having been raised about particular conflict of interest problems in this case, the judge appropriately considered these challenges to the Title 19 Committee's 2010 certification process as unfounded.
Plaintiffs contend that the record did not support Judge Feinberg's finding that "[v]iruses do not present a legitimate risk to the AVC." Clearly, Appel's testimony posited multiple pathways for viral propagation to and from the motherboard and daughterboard of version 9.00H, with particular vulnerability arising from the daughterboard. In her opinion, however, Judge Feinberg essentially summarized Shamos's competing testimony, i.e., that "viruses are not a legitimate risk" and that "the daughterboard virus that could spread is fictional." As fact finder, the judge was permitted to, and clearly did, find Shamos's testimony more credible on this point. This was not the equivalent of a finding that computer viruses could not infect a DRE; rather, it reflected the judge's conclusion that virus infection would require virus creation, installation and glaring security breaches, the confluence of which was not likely to occur.
Lastly, plaintiffs contend that Judge Feinberg erred when she attributed to "poll worker error" undisputed evidence that the "option switch bug" on DREs resulted in disenfranchisement of voters in the February 2008 presidential primary. Judge Feinberg referred to the option switch bug as the only exception to her conclusion that DREs produced accurate results. She noted that the placement of a plastic shield by Sequoia alleviated the potential for future problems.
Here too, the argument has been overtaken by events that have taken place since entry of the final order. We discuss these in greater detail below.
In sum, we reject plaintiffs' arguments that the judge's conduct of the trial provides grounds for reversal, or that Judge Feinberg's findings of fact were unsupported by substantial credible evidence in the record.
We move on to consider plaintiffs' other legal arguments on appeal, beginning with those that rest upon provisions of the State constitution. Plaintiffs contend that Judge Feinberg failed to apply the appropriate "strict scrutiny" review in her analysis of their claim that the use of DREs without a VVPAT denies New Jersey's citizens their right to have each and every vote accurately counted. Plaintiffs also argue that the use of DREs without a VVPAT denies voters equal protection under the law, since those who vote by absentee or provisional ballot, for example, have paper verification of their vote, thereby ensuring its accuracy. In this regard, plaintiffs contend the judge should have applied the "flexible standard" set forth in Greenberg v. Kimmelman, 99 N.J. 552 (1985). To the extent she did, plaintiffs argue the judge reached an erroneous conclusion. The State counters that the judge properly considered both constitutional claims and applied a balancing test which was appropriate in view of the broad discretion states have in regulating elections.
In addressing the constitutional claims, Judge Feinberg initially "reject[ed] the notion that vote-stealing programs are easy to make" and "almost impossible to detect." The judge further noted that "there is no system immune from potential tampering in the face of criminal activity." Utilizing those conclusions as a baseline, the judge considered the appropriate standard for review, to some extent, conflating both of plaintiffs' constitutional claims in the analysis.
Judge Feinberg noted that New Jersey courts have rejected automatic application of strict scrutiny analysis, finding, instead, that a flexible standard of review applied. She continued:
As a result, the court is left with the issue of whether the challenged system imposes only reasonable nondiscriminatory restrictions on voting rights. If so, a minimal scrutiny test applies and the state's important regulatory interests are generally sufficient to justify the restrictions. Applying that standard, the State easily meets this test.
Judge Feinberg also concluded "that even if [the court] were to analyze this case against a strict scrutiny standard under
Greenberg, supra, 99 N.J. at 552, as urged by plaintiffs, the defendants still pass this test . . . ."
We start with some basic principles regarding plaintiffs' claim that the New Jersey Constitution guarantees its citizens the right to have every vote accurately counted, and that any infringement of that right requires application of a strict scrutiny standard.
"The right to vote is among the most prized of all rights in a democracy." In re Attorney Gen's "Directive on Exit Polling: Media & Non-Partisan Pub. Interest Groups", 200 N.J. 283, 302 (2009) (citations omitted). "The right to vote holds an exalted position in our State Constitution[, ]" which "[n]otably, . . . devotes an entire article enumerating the rights and duties associated with elections and suffrage." Ibid. (citing N.J. Const. art. I, para. 2; N.J. Const. art. II); see also In re Contest of November 8, 2005 Gen. Election for Office of Mayor of Parsippany-Troy Hills, 192 N.J. 546, 559 (2007) (recognizing "the sanctity of the right to vote"). As our colleague Judge Clarkson S. Fisher, Jr., wrote while sitting in the Chancery Division:
This right has been clarified to mean, in essence, "the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Subsumed within this right is the power of the state to regulate elections to "ensure orderly, rather than chaotic, operation of the democratic process." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). That state interest has been defined as not a legitimate interest but rather "a compelling interest." Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Accordingly, state regulations in this area will not be deemed unconstitutional unless a state restriction, without compelling justification, significantly encroaches upon the right to vote and the right to associate for political purposes.
[N.J. Conservative Party v. Farmer, 332 N.J.Super. 278, 287 (Ch. Div. 1999).]
In Burdick, supra, 504 U.S. at 430, 112 S.Ct. at 2061, 119 L.Ed. at 251, the United States Supreme Court considered "whether Hawaii's prohibition on write-in voting unreasonably infringed upon its citizens' rights under the First and Fourteenth Amendments." The Court noted:
Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects -- at least to some degree -- the individual's right to vote and his right to associate with others for political ends."
[Id. at 433, 112 S.Ct. at 2063, 119 L.Ed.2d at 253 (emphasis added) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547, 557 (1983)).]
The Court rejected application of strict scrutiny review, instead applying a "more flexible standard." Id . at 433-34, 112 S.Ct. at 2063, 119 L.Ed.2d at 253.
Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance . . . . But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions.
[Burdick, supra, 504 U.S. at 434, 112 S.Ct. at 2063, 119 L.Ed.2d at 253-54 (citations and internal quotation marks omitted).]
In Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003), the court rejected application of the strict scrutiny standard and used Burdick's analytic paradigm to reject a challenge to the use of paperless DREs. The court noted, "[I]t is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing." Id . at 1107.
Similarly, in Wexler v. Anderson, 452 F.3d 1226, 1227 (11th Cir. 2006), cert. denied, 549 U.S. 1111, 127 S.Ct. 934, 166 L.Ed.2d 703 (2007), the plaintiffs alleged that the use of touchscreen voting systems that did not produce a paper record of votes violated the Due Process Clauses of the Fifth and Fourteenth Amendments because persons voting in counties using optical scan machines would have their residual votes reviewed in a recount, whereas those residing in touch-screen counties would not. The court applied the Burdick standard of review, concluding,
if voters in touchscreen counties are burdened at all, that burden is the mere possibility that should they cast residual ballots, those ballots will receive a different, and allegedly inferior, type of review in the event of a manual recount. Such a burden, borne of a reasonable, nondiscriminatory regulation, is not so substantial that strict scrutiny is appropriate.
[Id. at 1232-33 (citations omitted).]
The only case plaintiffs cite that actually applied a strict scrutiny analysis is Stewart v. Blackwell, 444 F.3d 843, 845 (6th Cir. 2006). Stewart involved claims under the federal Voting Rights Act and the Equal Protection Clause, alleging that deficient voting equipment, including punch card ballots, resulted in African-American voters being disproportionately disenfranchised. Id . at 845-53. We note that a petition for remand was granted, Stewart v. Blackwell, No. 05-3044, slip op. at 1 (6th Cir. July 21, 2006), and that the opinion applying strict scrutiny analysis was vacated as the controversy became moot when the state abandoned its use of the challenged voting machines. Stewart v. Blackwell, 473 F.3d 692, 693-94 (6th Cir. 2007). As such, Stewart is not persuasive on the issues presented.
Plaintiffs seek to distinguish Burdick, Weber, Wexler, and other cases cited by Judge Feinberg by arguing those cases involved a "facial challenge to statutes and regulations." Plaintiffs argue their claim is different because, while conceding our voting laws "do not . . . in any way inhibit access to the ballot, " they contend Title 19 is not being enforced to insure every vote is accurately counted.
First and foremost, we have noted our acceptance of Judge Feinberg's extensive factual findings. As a result, plaintiffs failed to demonstrate that the fundamental right to have one's vote counted has been violated through the use of DREs without a VVPAT. Accepting plaintiffs' concession regarding the nature of their claim, the simple fact is that, regardless of the standard of review we apply -- strict scrutiny or Burdick's flexible approach -- plaintiffs failed to prove a constitutional violation.
Moreover, even if plaintiffs demonstrated that DREs are susceptible to malicious interference that is more difficult to detect than other types of voting devices, the proper analysis to apply is the flexible approach set forth in Burdick. Utilizing that analysis results in the inescapable conclusion that the State's "important regulatory interests are . . . sufficient to justify" the "reasonable, nondiscriminatory restrictions" upon the voting process in New Jersey. Burdick, supra, 504 U.S. at 434, 112 S.Ct. at 2063, 119 L.Ed.2d at 254 (citing Anderson, supra, 460 U.S. at 788, 103 S.Ct. at 1570 75 L.Ed.2d at 557).
Plaintiffs contend that the use of DREs without a VVPAT violates the constitution's guarantee of equal protection because voters using absentee, emergency, or provisional ballots necessarily have paper verification of their vote, while those using DREs do not. Plaintiffs argue that, as a result, voters are treated differently and unequally in the event of a recount.
Initially, we agree with plaintiffs that a claim made pursuant to the equal protection guarantee of our State constitution requires analysis under the principles set forth in Greenberg, supra, 99 N.J. at 552. The Greenberg Court observed that federal equal protection analysis traditionally involves different tiers or levels of review. Id . at 564-65. However, "[t]he analysis of fundamental rights under the New Jersey Constitution differs from analysis of those rights under the United States Constitution." Id . at 567. Our courts "employ a balancing test" that considers "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Ibid.
As we understand plaintiffs' argument, application of the Greenberg balancing test demonstrates an equal protection violation because the benefits flowing from the use of voting devices that produce a paper trail far outweigh the costs associated with implementing such a program. In this regard, we recognize the specific arguments of the Election Officials amici regarding the relative cost-effectiveness of DREs and optical scan systems which, by their nature, produce a VVPAT.
However, we must assess the constitutional claim with a clear understanding of our role as a separate, co-equal branch of government, and the limitations thereby imposed. In that regard, we must carefully define the "the nature of the affected right" that plaintiffs contend is violated through the use of DREs without a VVPAT. Greenberg, supra, 99 N.J. at 567. That "right" is not the right to cast a vote and have it count; plaintiffs' asserted "right" is to have paper verification of their vote if there is a recount.
The court in Wexler, supra, 452 F.3d at 1232-33, specifically rejected a similar equal protection argument. The Wexler court noted that "[v]oters casting optical scan ballots can make a variety of mistakes that will cause their ballots not to be counted." Id . at 1233. The court also observed "that touchscreen machines have certain benefits for disabled voters and they prevent some of the voter errors that are characteristic of optical scan voting systems." Ibid. See also Weber, supra, 347 F.3d at 1106-07 (where the court engaged in a similar discussion). On balance, the Wexler court concluded the difference in Florida's recount procedures depending on whether a touchscreen or optical scan voting device was used was "justified by the State's important regulatory interests and, therefore, they [did] not violate equal protection." Wexler, supra, 452 F.3d at 1233 (citing Burdick, supra, 504 U.S. at 434, 112 S.Ct. at 2063, 119 L.Ed.2d at 254).
Plaintiffs' retort to Wexler and Weber is that those cases "have been overruled by legislative action." If anything, that assertion validates our respect for the exercise of judicial restraint, which, in the absence of a constitutional violation, is well-founded.
In sum, plaintiffs have failed to demonstrate that the use of paperless DREs violates the New Jersey Constitution.
Plaintiffs contend that the use of DREs without a VVPAT violates New Jersey's elections statutes, specifically, several provisions of N.J.S.A. 19:48-1 and N.J.S.A. 19:53A-3, listing the mandatory requirements for voting machines and electronic voting systems. On this issue, plaintiffs point to a number of findings made by Judge Feinberg which they claim were clearly erroneous. The Computer Professionals amici also point to specific findings that they claim were in error, and the VVF amici argue that DREs without a VVPAT make a meaningful recount essentially impossible.
N.J.S.A. 19:48-1 deals generally with "voting machines" and was adopted before the State began using electronic voting systems. In those sections relevant to this litigation, the statute provides:
a. Any thoroughly tested and reliable voting machines may [be] . . . used, which shall be so constructed as to fulfill the following requirements:
(d) It shall permit the voter to vote for as many persons for an office as he is lawfully entitled to vote for, but no more;.
(f) It shall permit the voter to vote for or against any question he may have the right to vote on, but no other;
(h) It shall correctly register or record and accurately count all votes cast for any and all persons, and for or against any and all questions;.
b. (1) By January 1, 2009, each voting machine shall produce an individual permanent paper record for each vote cast, which shall be made available for inspection and verification by the voter at the time the vote is cast, and preserved for later use in any manual audit. In the event of a recount of the results of an election, the voter-verified paper record shall be the official tally in that election. A waiver of the provisions of this paragraph shall be granted by the Secretary of State if the technology to produce a permanent voter-verified paper record for each vote cast is not commercially available.
(2) The provisions of paragraph (1) of this subsection shall be suspended until: (i) the Secretary of State and the State Treasurer certify . . . that sufficient funds have been provided by the federal government . . . to offset the entire cost of ensuring that each voting machine used in this State produces an individual permanent paper record for each vote cast; or (ii) the annual appropriation act contains an appropriation of sufficient funds to ensure that each voting machine . . . produces an individual permanent paper record for each vote cast and such appropriated funds have not been reserved by the Governor under a spending reduction plan; or (iii) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government . . ., and the annual appropriation act contains an appropriation of sufficient unreserved funds, to ensure, when such funds are combined, that each voting machine . . . produces an individual paper record for each vote cast.
N.J.S.A. 19:53A-3 addresses the use of electronic voting systems, providing in relevant part:
Every electronic voting system, consisting of a voting device in combination with automatic tabulating equipment, . . . used in accordance with this act, shall:.
b. Permit each voter to vote at any election for all persons and offices for whom and for which he is lawfully entitled to vote; . . . and the automatic tabulating equipment shall reject choices recorded on his ballot if the number of choices exceeds the number which he is entitled to vote for the office or on the measure;
g. Be suitably designed for the purpose used, of durable construction, and may be used safely, efficiently, and accurately in the conduct of elections and counting ballots;
h. When properly operated, record correctly and count accurately every vote cast, including all overvotes or undervotes . . .;
i. (1) By January 1, 2009, each voting machine shall produce an individual permanent paper record for each vote cast, which shall be made available for inspection and verification by the voter at the time the vote is cast, and preserved for later use in any manual audit. In the event of a recount of the results of an election, the voter-verified paper record shall be the official tally in that election. A waiver of the provisions of this subsection shall be granted by the Secretary of State if the technology to produce a permanent voter-verified paper record for each vote cast is not commercially available.
(2) The provisions of paragraph (1) of this subsection shall be suspended until: (i) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government . . . to offset the entire cost of ensuring that each voting machine used in this State produces an individual permanent paper record for each vote cast; or (ii) the annual appropriation act contains an appropriation of sufficient funds to ensure that each voting machine used in this State produces an individual permanent paper record for each vote cast and such appropriated funds have not been reserved by the Governor under a spending reduction plan; or (iii) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government and received by the State, and the annual appropriation act contains an appropriation of sufficient unreserved funds, to ensure, when such funds are combined, that each voting machine used in this State produces an individual paper record for each vote cast.
At the outset, we acknowledge that the redundant internal memory of the DREs at issue does not provide voter verification. Plaintiffs also demonstrated that all four internal memory areas of the DRE are susceptible to manipulation once one area is hacked. We do not think the evidence supported Judge Feinberg's conclusion that these design features permitted individual voter verification.
However, it does not follow from our assessment of the evidence that N.J.S.A. 19:48-1 and N.J.S.A. 19:53A-3 were violated because the DREs do not provide "an individual permanent paper record for each vote cast." The Legislature indefinitely suspended that requirement until appropriate federal or state funding was provided and received. The Legislature need not have explicitly expressed its intention, since we have long-recognized that the Legislature may effectively "change or suspend the operation of its prior enactments through an Appropriation Act." Mid-Atl. Solar Energy Indus. Ass'n. v. Christie, 418 N.J.Super. 499, 505 (App. Div. 2011). The Legislature having expressly done what it otherwise could have implicitly accomplished, the statutes are not violated because DREs do not produce a "paper record for each vote cast."
Subject to our comments below regarding plaintiffs' arguments about the significance of the Zirkle case, which were not presented to Judge Feinberg and which we discuss below, we find plaintiffs' other claims of statutory violations to be unavailing. In large part, those contentions are repetitive of plaintiffs' general claims that Judge Feinberg erroneously assessed the evidence at trial. Their specific claim about the inadequate testing of version 9.00H DREs under antiquated standards is moot, in light of the undisputed evidence that 9.00H firmware is no longer in use.
We now address events that occurred after entry of the final order.
June 2011 Meeting and Report of the Title 19 Committee
The Title 19 Committee held a hearing on June 13, 2011, a week after entry of the final order. According to the Committee's June 19 report, the hearing lasted approximately three hours and fifteen minutes, and it addressed both version 9.00L firmware and changes to the WinEDS software. The report noted that committee members had received in advance "a DVD with extensive documentation" and "a 26 page Wyle Laboratories Test Report."
The Title 19 Committee's report asserted that version 9.00L firmware
was prepared solely for New Jersey but some aspects of it are either copied from the Advantage D-10 or closely follow it. The D-10 was tested by Wyle Laboratories to the 2002 FEC Voting Systems Standards and is certified in the following states:
Louisiana Version 10.5.7
New Jersey Version 10.5.2
Pennsylvania Version 10.3.5
The Committee report also referenced Smith's explanation of the changes implemented by version 9.00L. At the hearing, Smith conducted a hands-on demonstration, focusing on the option switch bug issue, with two committee members placing votes using a DRE. Ultimately, the Committee "was satisfied that the problem was fixed." Some members of the public asked questions, and the Title 19 Committee then unanimously concluded that 9.00L firmware "meets all the criteria of N.J.S.A. Title 19 and should be approved for use in the State of New Jersey."
Plaintiffs assert these proceedings were inadequate because the Title 19 Committee failed to address the most significant problem with DREs, i.e., the possibility of malicious interference. They also contend the State's claims that the new firmware iteration fixed various problems were unsubstantiated by test results or other documentation. Lastly, plaintiffs argue that the Title 19 Committee seemingly approved version 9.00L based upon Wyle's actual testing of a different version, the D-10.
Wyle's June 2011 report is part of the appellate record. It describes tests performed on the "AVC Advantage Model D Direct-Record Electronic (DRE) voting system, loaded with firmware version 9.00L." Wyle noted that it had previously tested the same DRE with the version 9.00H firmware, and that "[s]ince that time, issues were identified and modifications were made that resulted in the need for regression testing." Wyle further noted, "[t]he modified source code from version 9.00H to 9.00L and from WinEDS 4.0.175 to 4.0.178 were determined to be in compliance with the EAC 2005 . . . software standards." However, during the "Logic and Accuracy" test, Wyle noted that errors occurred in both DREs tested.
Wyle explained that a test utility program was used to automatically cast ballots on the machines, aiming to result in "at least 1, 549, 703 ballot positions correctly read and recorded." Although all of the votes were correctly counted, both DREs experienced error messages when about 1200 votes were cast on each. Wyle "could not determine the root cause of these errors" and restarted the test; no errors arose in the second test performance. Wyle concluded the DRE "was successfully subjected to all tests as required for the scope of the test campaign."
We profess some confusion over the seeming implication in the Title 19 Committee's report that Wyle tested a different firmware version. However, the Committee report specifically referenced its receipt of the Wyle report prior to the hearing. The actual Wyle report makes clear that the new firmware, 9.00L, was adequately tested to EAC security standards for electronic voting systems. The Title 19 Committee was within its statutory authority to accept the Wyle analysis. As such, we cannot conclude that it was arbitrary, capricious, or unreasonable for the Title 19 Committee to conclude that version 9.00L firmware "me[et]s all the criteria of [N.J.S.A.] Title 19 and should be approved for use in the State of New Jersey."
We see no reason to remand the matter to the Title 19 Committee for further proceedings.
The Zirkle Litigation
As noted, the appellate record was supplemented to include material from litigation that arose in Cumberland County after the final order was entered by Judge Feinberg, and which resulted in the voiding of an election in which DREs without any VVPAT were used.
In his written decision, the trial judge explained what happened:
The 2011 New Jersey Primary Election was held on June 7, 2011. In District Three of Fairfield Township, Cumberland County, four individuals ran for two open seats on the Democratic Executive Committee.
Following the election, the County Clerk certified the results as Vivian Henry, 34 votes; Mark Henry, 33 votes; Ernest Zirkle, 9 votes and Cynthia Zirkle, 10 votes.
On June 20, 2011, the Plaintiffs, Ernest Zirkle and Cynthia Zirkle, filed a Petition to declare the election void and of no effect and to order a recount or a new election.
The judge further explained that the plaintiffs produced affidavits from more than twenty-eight voters who stated under oath they had cast their votes for the plaintiffs in the election. After an order to show cause was entered and the voting systems impounded, the Attorney General filed a response on behalf of the Cumberland County Board of Elections (the Board). This response included a certification from the Board's administrator, who explained: "As a result of human error in the programming of the voting machine used in this election, the votes cast for Cynthia and Ernest Zirkle registered for Vivian and Mark Henry."
In an attached memorandum dated June 24, 2011, the administrator noted that, since 2006, she personally had programmed the DREs before each election "to avoid the cost [to] the county of hiring a programmer." Regarding the election at issue, she explained:
On this occasion, I received the necessary data as usual for me to begin programming the election. It is with this information that I have always followed to program the electronic voting machines. What I did not realize at that time was that the document given to me for the contest of Democratic County Committee for Fairfield Township District 3 had shown Cynthia and Ernest Zirkle before Vivian and Mark Henry, but the voting machine should have been programmed with Vivian and Mark Henry first, then Cynthia and Ernest Zirkle. Therefore, I mistakenly placed the position for Vivian and Mark Henry onto the position of Cynthia and Ernest Zirkle and vice-versa. I then created the voting machine cartridge and sent it to our warehouse for testing.
At that point, the voting machine technicians inserted the cartridge into the voting machine and began the necessary testing. Along with hardware and software tests that are performed, this examination involves the technicians pushing every button for the contests, candidates, and personal choice selections to check for accuracy. Like me, these voting machine technicians are human and did not catch the error that I had made. Consequently, the machine was sent to the polling location with this error undetected. On Election Day, the votes cast for Vivian and Mark Henry registered for Cynthia and Ernest Zirkle respectively and the votes cast for Cynthia and Ernest Zirkle registered for Vivian and Mark Henry respectively. This concludes that Candidates Cynthia and Ernest Zirkle are the actual winners for Democratic County Committee for Fairfield Township District 3 receiving 34 and 33 votes respectively and Candidates Vivian and Mark Henry receiving 10 and 9 votes respectively.
The memorandum further explained that Cumberland County had checked all ninety-one of its districts involved in that election, ascertaining that the same error had not arisen elsewhere. The administrator wrote: "I am deeply saddened that due to my mistake, I put doubt in the voter's mind about our election process and the integrity of our voting machines. I can assure you that this was human error and not a voting machine problem."
The Law Division judge entered an order on July 11, 2011, setting aside the election. The order further permitted the plaintiffs to conduct discovery, including inspection of the particular DRE involved, and he ordered a plenary hearing.
Appel served as the plaintiffs' expert. During his inspections, Appel discovered that certain files had been recently erased from the Board's WinEDS laptop computer. In a certification, the county's computer systems analyst admitted erasing those files.
In an oral decision on September 1, 2011, the judge ordered a new election, which the plaintiffs subsequently won. He also referred the matter to the Division of Criminal Justice for further investigation. Apparently, the Division declined any criminal prosecution.
In a letter to the judge, Giles asserted that new security measures were put in place after a meeting with the County Board of Elections and its staff. The State took the position that no further action was required because the problem was solely the result of human error.
In a comprehensive written opinion dated December 15, 2011, the judge denied the plaintiffs' request for sanctions, their motion for reconsideration regarding the appointment of a special master, and their request for attorney's fees.
Plaintiffs assert the Zirkle litigation demonstrates that Judge Feinberg's conclusions regarding the reliability of DREs and their historical performance were erroneous. They assert the case demonstrates the serious flaws attendant to the continued use of DREs without any VVPAT. Plaintiffs claim the litigation demonstrates that the use of DREs without VVPATs violates the election statutes we discussed above. The State, to the contrary, argues that the Zirkle litigation resulted from human error, and that no voting device is immune from such problems. The State argues the litigation demonstrates that such errors are discoverable and properly addressed on a case-by-case basis in the courts, and, as a result, the Zirkle litigation provides no basis to scrap the continued use of DREs without VVPATs in New Jersey.
We express deep concern as a result of the Zirkle litigation, not as to the fallibility of DREs relative to other voting devices, but rather as to the efforts made by the State to minimize the likelihood of error. It is obvious that but for the very limited pool of voters involved in the Zirkle litigation, the human error that led to completely erroneous election results would never have been detected. In other words, had the election involved 10, 000 votes, the fact that the DREs were erroneously programmed would never have been discovered, because it is highly unlikely that a challenger could have established the results were wrong through the affidavits of voters or other proof.
Even though the DRE involved in the Zirkle litigation performed as it was programmed to do, the pre-LAT failed to reveal the programming error. Ironically, Appel spoke to the limits of a pre-LAT during the trial before Judge Feinberg. The Zirkle litigation demonstrates how a pre-LAT performed in an inattentive or otherwise non-thorough manner can result in the wrong candidate winning.
Whether the lack of sufficient, mandatory pre-election testing of all DREs without a VVPAT amounts to a violation of Title 19 is a legitimate issue, based on the results of the Zirkle litigation. For example, N.J.S.A. 19:48-1(h) requires that every voting machine used "correctly register or record and accurately count all votes cast for any and all persons, and for or against any and all questions[, ]" and N.J.S.A. 19:53A-3(h) requires that every electronic voting system "record correctly and count accurately every vote cast . . . ." Because the Zirkle litigation arose after the final order was entered in this case, there is no record for us to review regarding the State's efforts to ensure mandatory pre-election testing of every DRE used such that these statutory requirements are met.
We do not believe we can exercise our original jurisdiction on the record provided from the Zirkle litigation itself. R. 2:10-5. We are compelled to remand the matter to the Law Division for a further hearing that shall focus on whether the State has devised and implemented mandatory statewide preelection testing procedures to provide reasonable assurance that programming errors will not go undetected. We urge the Law Division to conduct its remand with due speed, but we leave the conduct of the remand to the sound discretion of the judge.
Affirmed. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.