Patton Boggs



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Patton Boggs (80)


Stephanie Harris cast her ballot in New Jersey's presidential primary election on a touch-screen voting machine in 2004—or at least, she tried to. The machine malfunctioned three times before recording her vote on the fourth try, or so an election worker told her. But she never found out if her ballot actually counted, because the Direct Recording Electronic (DRE) machine she used, one of over 10,000 The Am Law Pro Bono 100Sequoia AVC Advantage machines in New Jersey at the time, does not provide a paper record of the vote.

Harris, along with Assemblyman Reed Gusciora and two public interest organizations, the Coalition for Peace and the New Jersey Peace Action Coalition, became a plaintiff in a lawsuit against the state seeking to have the DRE machines decommissioned throughout New Jersey. State court judge Linda Feinberg first dismissed the case, but the dismissal was reversed on appeal. For the trial, the plaintiffs—originally represented by Penny Venetis of the Constitutional Law Clinic at Rutgers School of Law—brought in partner John McGahren of Patton Boggs, who had filed an amicus brief on their behalf in 2004.

At trial last fall, McGahren and associate Caroline Bartlett challenged the DREs' constitutionality on the grounds that they are unreliable and susceptible to hacking. The plaintiffs also argued that the machines are illegal under New Jersey law, which permits the use of paper ballots, mechanical levers, and optical-scan machines but does not address DRE machines. Since the DRE machines do not provide a paper record of each ballot cast, the machines also make recounts impossible.

"If Al Franken had lost in New Jersey, he would've been out of luck," says McGahren, referring to the U.S. Senate candidate whom a Minnesota court has declared the winner of the November 2008 election on the basis of a recount. (Franken's opponent, incumbent senator Norm Coleman, is currently challenging that decision in the state's supreme court.)

New Jersey, however, disputes expert witnesses' largely unfavorable conclusions about the machines, claiming that the experts tested the DREs without the security measures that are in place during elections. The trial wrapped up in April, and though both sides are still giving post-trial briefings, McGahren expects a decision by November.

(In 2005 the lawsuit prompted the New Jersey state legislature to enact a statute requiring all voting machines to provide voter-verified paper audit trails by 2008. However, that deadline has been moved back indefinitely, and more than a dozen states, including New Jersey, used paperless voting machines in the November 2008 election.) McGahren, Bartlett, and their clients hope that their case will lead to the DREs being decommissioned everywhere. "It's vital that there's an independent voter paper trail, so [people] know their vote has been directly cast and accounted for," McGahren says.

—Vivian Yee | July 1, 2009

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