By Kathleen Hunter, CQ Staff

No one may ever know if Rep. Vern Buchanan ’s disputed, 369-vote win over Democrat Christine Jennings in Florida’s 13th District last year was caused by a failure of electronic voting machines to properly tally all ballots. But Jennings insists that was the case, and that it cost her a seat in Congress.

Earlier this month, malfunctioning machines disrupted polling in a northwestern Ohio county, delaying the results in a tight Republican primary contest to succeed the late Rep. Paul E. Gillmor.

Concerns about the reliability of touch-screen voting are gaining attention since these machines became the country’s most popular balloting method after the controversial 2000 presidential election. Urged on by Congress, state and local governments spent millions of dollars on new equipment to make voting — one of the basic rights of all citizens — less subject to questions of fraud or machine failure.

Critics of electronic voting systems cite the most recent snafus as evidence that changes in procedures wrought earlier this decade weren’t sufficient, bolstering calls from lawmakers — particularly Democrats — to make machines more reliable. Advocates of additional changes in procedure want to require that new machines produce a paper trail that can be used to backstop electronically reported results.

State and local officials are complaining about the prospect of the federal government directing them to purchase yet another round of new equipment, with little guarantee of financial assistance.

But now they have help from an unlikely source. An alliance of voting machine manufacturers has joined with local officials in an attempt to sink a proposed overhaul of election requirements.

This would seem to be in contradiction to their own economic interest. But their opposition stems from a provision in House and Senate overhaul bills that would require manufacturers to give candidates, interest groups and academic researchers access to largely secret source codes, the software that each company writes to drive its devices.

Supporters of source code disclosure contend that such information would illuminate how electronic voting machines work — or don’t work — in specific instances, instilling confidence in the reported results.

But manufacturers argue that disclosure would harm their competitive position and render their equipment vulnerable to hackers. They are trying to enlist the help of other software-vulnerable companies, such as banks, whose profits and credibility are linked to protecting their intellectual property.

“For whatever reason, the industry itself is being seen as the bad guy,” said David Beirne, executive director of the Election Technology Council, the alliance that represents the major voting equipment makers.

Sources of Trouble

With the integrity of elections at stake, equipment makers argue that requiring them to reveal their source codes to any interested party would make their systems vulnerable to people intent on manipulating the technology to achieve nefarious political ends.

“Making source codes universally available creates a whole raft of security issues,” said Chris Riggall, a spokesman for Premier Election Solutions, a subsidiary of Diebold Inc., which says it has sold more than 126,000 touch-screen voting stations.

The companies say state and federal certification requirements already require access to source code information in appropriate circumstances, adding that current proposals in Congress would open the door to abuse.

Their fear is that if source codes fell into the hands of computer hackers, they could be corrupted to disrupt elections or to cause a specific outcome.

“Once a disclosure occurs, it’s very hard to pull back that information,” Beirne said.

Democrats, led in the House by Majority Leader Steny H. Hoyer of Maryland and Rush D. Holt of New Jersey, and in the Senate by Bill Nelson of Florida, say almost the opposite: that broad access to source codes is essential to ensuring the reliability of voting machines. In particular, they favor independent assessments of whether the devices functioned properly in disputed instances, such as the Buchanan-Jennings race. Holt and Nelson are sponsors of bills that would require electronic voting machines to produce a paper trail and would mandate source code disclosure in certain circumstances.

Nelson’s bill would go further, banning touch-screen machines by the 2012 election. Industry officials certainly don’t favor a ban, but because their companies are set up to produce many different types of machines, they don’t fear one, either. “It certainly would be a waste of public dollars, but I don’t think the industry is going to lose if they decide to inject millions and millions of dollars into the marketplace,” said Beirne.

For them, the source issue is paramount. Democrats often cite Jennings’ inability to access source code information after her narrow 2006 loss as a symptom of what they see as a crisis of confidence in the U.S. electoral system.

“I’m convinced she won that election,” Hoyer recently told a gathering of Florida Democrats, according to the Sarasota Herald-Tribune. “There’s not one of us that doesn’t believe that.” The Government Accountability Office is still investigating the election.

And Holt says his measure, which the House Administration Committee approved in May, would require an interested party to sign a non-disclosure agreement before accessing the source code. That safety valve would keep source codes from getting into the wrong hands, he says.

Looking for Allies

Manufacturers aren’t convinced, however. Beyond the issue of security, they contend that a mandate for source code disclosure would undermine their competitive advantage, which stems not only from the design and comparative cost of their machines but also from the software written by their programmers.

They say other industries have a similar stake in aggressively safeguarding their proprietary information from government-mandated intrusion. Election equipment makers are reaching out to banking and software trade groups to find allies in this fight.

They point out that Holt’s bill would carve out exceptions to protect off-the-shelf software from source code release, even as it would place disclosure requirements on voting machine manufacturers.

Lawmakers agree that a balance should be struck between ensuring transparency of elections and protecting proprietary information. But determining where to draw that line is tricky.

David S. Levine, a law professor who has studied the application of trade secrets law to public infrastructure, says the fight over voting machine source codes is a prime example of the sort of legal issues increasingly raised by the collision of public and private interests.

“As government works with the private sector . . . more and more of these commercial doctrines are going to connect and intersect with democratic values,” said Levine, a fellow at Stanford University’s Center for Internet and Society.

He says changes in trade secrecy laws are needed to safeguard election transparency. “Trade secrecy — the intellectual property doctrine that allows businesses to keep commercially valuable information secret for a potentially unlimited amount of time — is increasingly intruding in the operation of our public infrastructure, including voting machines, the Internet and telecommunications,” Levine wrote in a recent article for the Florida Law Review.

Lawmakers say pending proposals won’t place an unfair burden on voting machine makers. They say companies that turn a profit by building and selling the machines that tally votes should be held to a higher disclosure standard than companies that manufacture technology for private activities, such as banking and running home computers. Some even contend that voting machine source code shouldn’t be proprietary at all.

“This is the public system of voting and the basis of our democracy,” Holt said. “So it has to be made available.”

The voting machine industry organized its lobbying effort in 2003, the year after Congress passed a sweeping election overhaul law known as the Help America Vote Act, which was intended to move the country away from machine-counted paper ballots and onto electronic voting systems.

After the Democrats’ takeover of Congress last November and the disputed election in Florida’s 13th District, that lobbying effort intensified, and the Election Technology Council was created to represent the four companies that make voting systems used by 90 percent of the nation’s voters.

Council members include Election Systems and Software, the company that made the machines used in the Florida race and in the recent Ohio GOP primary. Premier Election Solutions, Hart InterCivic and Sequoia Voting Systems are the other members.

In concert with opposition to a new election mandate from state and local governments, equipment makers say they are optimistic that they can fend off disclosure requirements.

House leaders, who were intent on bringing Holt’s bill to the floor earlier this fall, now are holding back. And Hoyer recently said it was unlikely to come to a vote before early 2008.

But the companies aren’t conceding that the delay necessarily guarantees them a win.

Grass-roots liberal organizations, such as MoveOn.org and People for the American Way, are urging lawmakers to act.

“The perception of our elections is at stake,” said Tanya Clay House of People for the American Way.

And equipment hiccups, such as those encountered earlier this month, “obviously show there are more outstanding problems with the voting machines,” Holt said. Absent additional changes in procedures and equipment, recent problems may foreshadow a much broader breakdown in 2008, he warned.

FOR FURTHER READING:

Holt bill (HR 811), CQ Weekly, p. 1452; the Nelson bill is S 2295; 2002 election law overhaul (PL 107-252), 2002 Almanac, p. 14-3.