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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...