TRENTON – Ruling in a case that dates to 2004, a N.J. appeals court today ordered further hearings into whether the state has implemented mandatory testing procedures to show that paperless voting machine programming errors will not go undetected.
The court ruled in part against arguments presented by a group of opponents, including Assemblyman Reed Gusciora, (D-15), Trenton and the Coalition for Peace Action.
It upheld much of a prior judicial order, but ordered more hearings because of an election problem in Cumberland County in 2011.
“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,” the court said.
“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.”
The core of the opponents’ argument is that scientific studies have demonstrated that paperless machines are insecure and prone to manipulation, and that the state has not provided paper verification systems.
In part, the state had argued the case was moot due to updated software.
The appeals court in large part upheld Judge Linda Feinberg’s 2010 opinion. But it also acknowledged that since then, there have been ongoing concerns about the machines’ reliability.
As a result, the court today ordered further compliance hearings to ensure “that adequate testing protocols and all appropriate training is conducted to ensure the integrity of the election process.”
In 2010, Feinberg agreed with the contention that the machines were not secure, and ordered the state to take a series of steps such as reconstituting a committee to examine how best to improve the system, and to install anti-virus software.
The original case dates to 2004 and the McGreevey administration, and has wound through the courts since then. This latest appeal came out of a 2011 order issued by Feinberg after she had monitored the state’s compliance.
The state had informed the court it was no longer using outdated “firmware,’’ and that personnel were being trained.
The appeals court upheld Feinberg’s ruling, and said the plaintiffs failed to show that the fundamental right to vote had been violated by using electronic machines without paper verification.
But during a 2011 Cumberland County election there were 28 affidavits produced by people that showed their votes were improperly recorded for the wrong candidates in Fairfield Democratic Committee races.
As a result, a new election was held because the machines had been erroneously programmed, and new security measures were put into place.
The plaintiffs argued that the Cumberland case showed they were right about the machines’ problems, but the state countered that any such problems were discoverable and fixable and offered no basis to scrap the entire system.
“Whether the lack of sufficient, mandatory pre-election testing of all (electronic voting machines) without a (verified paper trail) amounts to a violation of Title 19 is a legitimate issue, based on the results of the (Cumberland) litigation,” the court ruled.