Whether Americans will be able to verify electronic vote counts in 2008's presidential election will vary from state to state, as underscored by a little-noticed lawsuit that goes to trial this week in Pima County, Ariz., where Tucson is located.
There, in a fast-growing region, the local Democratic Party is suing the Pima County Board of Supervisors -- including its three Democratic members -- to release the complete electronic records of a 2006 election that included a ballot question on raising taxes for a $2 billion transportation bond. The measure, favored by developers, won even though it lost in prior elections and was trailing in pre-election polls.
The county's Democratic Party and local election integrity activists believe pro-growth local officials may have tampered with the electronic vote count to win. They have sworn evidence a long-time county employee who tallies the electronic vote totals took home backup tapes of the 2006 vote and accessed those vote count files before the official election results were announced. It is seeking the complete electronic voting record to determine if vote count fraud occurred.
"We are asking to get a database," said William Risner, attorney for the Election Integrity Committee of the Pima Democratic Party. "It is not our goal (in this trial) to attempt to prove that anything has happened. We want the data that would help us show that. What we are trying to do is establish our right to get the data and do an analysis. And certainly the fact they are fighting tooth and nail suggests that they have something to hide."
Pima County officials say the election records are not public documents and releasing them could actually reveal ways for partisans or the public to alter future vote counts.
"If the Pima Democratic Party or any member of the public gets access to that programming information, they could affect the outcome of an election," said Amelia Cramer, Pima County's chief deputy attorney.
The litigation brought by the Pima County Democrats raises many issues that will be relevant for the 2008 presidential election, when much of the country will be voting on electronic voting systems. In the first instance, the suit highlights that electronic voting records are often withheld from public view until long after winners have been declared and recounts and other legal challenges have ended. There is no nationwide standard.
Doug Jones, an election technology expert with the University of Iowa Department of Computer Science, said some states, counties and cities provide access to databases from their recent elections. In Miami-Dade County, Fla., he said those disclosures have kept "the county's internal audit department on it toes." "Don't expect a copy of the password file," he said.
But the Pima County case also is notable because local Democrats have sworn evidence that their county's election officials accessed the electronic vote-counting process, which shows security flaws in their electronic voting system and election procedures. Equally notable is the county's contention that electronic voting records are not public documents, despite a state open records law that grants access to most paper records.
Cramer said there were two legal bases for the privacy assertion. First, there is an Arizona law that says any electronic election record with software programming in it, such as an election database, is confidential. Many states have similar laws, passed after lobbying by voting machine and software makers to protect their "trade secrets" and "proprietary software."
Cramer also said Arizona's public records law allows government officials to decide whether any document's release serves the public interest. She said public officials have to decide whether the public interest is best served by releasing or withholding records. She said the database sought by local Democratic Party could reveal ways to tamper with future election results, which was not in the public interest.
"The Pima County Board of Supervisors and the county election director feel the privacy interest outweighs the public interest," Cramer said.
Pima County Democrats take the opposite view, contending that keeping the database secret conceals insecure voting systems and possible vote count fraud.
"We are requesting the database under the state's public records law," Risner said. "We will show these are public records. If that is the case, the other side has to show that the public interest is served by keeping it secret and that political parties don't need to know what is going on. There are other Arizona statutes where the election software is sent to the secretary of state, who keeps it for six months and then sends it back to the county. They say that allows the data to be kept secret."
Risner and some of his colleagues in the election integrity movement, including voting software expert Jim March of BlackBoxVoting.org, have said the Pima County case is significant because it shows how election insiders -- public officials, not members of the public with computer hacking skills -- can access vote counts at various stages of an election and use that information for partisan advantage.