Hawaii Judge Joseph E. Cardoza has issued a written order dated September 10, 2009 following his May oral injunction against Hawaii’s use of electronic voting machines. His order also prohibits the illegal transmission of vote results over telephone lines or over the Internet.
Judge Cardoza's order comes at a time when Hawaii's Office of Elections has no budget to conduct the 2010 elections, and possibly no contingency plan to deal with the requirements of this lawsuit.
Yet... elections must be held in 2010... right??
Will the Hawaii Office of Elections be ready for the 2010 election? At an Elections Commission hearing held on July 22, 2009, Bart Dame asked a question about this lawsuit:
An unofficial copy of Cardoza’s order in Babson v. Cronin, made searchable, is available here. The case was argued by Maui attorney Lance Collins on behalf of plaintiffs Robert G. Babson, Jr., Ann C. Babson, Joy Brann, Paula Brock and Daniel Grantham.
In his analysis, Judge Cardoza noted that there are many administrative rules related to voting, but none cover electronic voting machines, though a place is reserved for them:
The Hawai'i Administrative Rules are replete with rules governing voting procedures and vote disposition. See, HAR §§ 2-50-80, et seq., §§ 2-51-90, et seq. These sections of the HAR contain detailed rules pertaining to, among other issues, how to correctly mark a paper ballot (HAR § 2-5-1-80), how to correctly administer punchcard ballots (HAR § 2-51-83), how to properly handle spoiled ballots (HAR §§ 2-51-81, 2-51-84, 2-51-85, 2-51-85.2), how to correctly mark a marksense ballot (HAR § 2-51-85.1), how to collect and transport ballots (HAR § 2-51-86), counting and tallying paper ballots (HAR §§ 2-51-90, 2-51-91), counting center procedures and centralized counting regarding electronic voting systems (HAR §§ 2-51-92, 2-51-93, 2-51-94, 2-51-95, 2-51-96, 2-51-96.1, 2-51-96.2), and auditing (HAR § 2-51-95.3). Section 2-51-99 of the Hawai'i Administrative Rules is reserved for rules regarding "Direct recording electronic." The necessity for rules regarding DRE voting systems has been clearly anticipated.
The judge’s order notes that the Office of Elections in effect tried to create rules for voting equipment requirements and specifications by writing them into the RFP for new equipment, instead of by creating new administrative rules as required by law.
Although not mentioned explicitly in the order, the adoption of the HART mark-sense readers used in the 2008 election might also be called into question if they are not covered by the administrative rules. Among the rules cited above are old rules that do not conform with the way elections are currently conducted, for example, regarding the marking and folding of paper ballots. There are probably quite a number of old rules that need to be updated in addition to the creation of new rules specifically related to electronic voting systems, yet the process had not begun as of the July 22 hearing.
The present rules also call for a "logic and accuracy test" to be performed on all computer equipment prior to use in an election (§2-54-4). If these procedures have been followed at all for the mark-sense devices such as were used in the 2008 election, the Office of Elections will still have a hard time conducting the tests in 2010 unless its budget woes are substantially relieved.
Lawsuit aimed to protect integrity of the voting process
One objective of the Babson lawsuit was to protect against "man-in-the-middle" attacks. This phrase describes a subterfuge in which data is sent to a third location, which may alter the data, before forwarding it to the intended location. The ultimate receiver would not know that the data did not come from the source or if the data had been altered.
If administrative rules are proposed which would permit voting equipment to be vulnerable to this or other form of attack, then the rules may meet with challenges, further delaying the use of electronic computers for voting in Hawaii.
In addition to this lawsuit, the Office of Elections has been challenged by other suits (ES&S v. Cronin, Hart InterCivic v. ES&S, Cronin v. ES&S) that will also require attention. These relate to procurement of the electronic machines that now cannot be used anyway.
State Legislature to hold hearings tomorrow
Budget cuts imposed by Governor Linda Lingle on the Hawaii state Office of Elections have left them without funds to prepare for the 2010 general elections next year. The Senate Ways and Means Committee has scheduled a hearing for Tuesday at 1:30 in room 211 of the State Capitol (hearing notice is here).
While the legislature can provide budget relief in a number of ways, the governor holds the ultimate card in that she can delay or fail to release the money apportioned by the legislature. The governor’s staff has already said that she will not release further funding to the Office of Elections. Whether this will continue up until election day 2010 is a question the legislature may have to ask.