Judicial Protection of Popular Sovereignty: Redressing Voting Technology

My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment17 principles properly derived from Bush v. Gore18 will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, the American Republic’s future is seriously endangered.19 The argument proceeds in two parts. Part I traces illustrative empirical findings of the two comprehensive, definitive voting systems studies, offers evidence derived from actual election calamities that substantiates the experts’ findings, and translates these findings into concepts meaningful for voting rights and election law. Part II considers the judiciary’s failures thus far to understand the legal import of the scientific studies of voting systems when adjudicating the structural legal sufficiency of deployed voting systems20 and identifies questions on which scholarship is critically needed. Throughout, owing to space constraints, the argument is illustrative rather than comprehensive

Voting Technology and the Quest for Trustworthy Elections

This chapter reviews four dimensions of the still-unresolved voting technology quandary. It begins by briefly reviewing the Florida Bush v. Gore background that, combined with the tradition of state governmental control over election administration, spawned the contours and limitations of new federal regulatory apparatus. It also surveys some illustrative voting system malfunctions and their consequences surfacing predominantly from 2009–12. The second part of this chapter, Federal Compulsion to Adopt Software-Based Voting Technologies, explains the misconceptions about software and digital equipment that led to both the flawed federal mandates and the ineffectual regulatory structure. The third part of this chapter, Litigation and Enforcement Strategies, focuses primarily on the curious omission of Federal enforcement of HAVA\u27s voting technology standards. This part also considers private party litigation that has sought to invalidate the use of allegedly defective voting machines. The final part of this chapter examines Federal Promotion of Problematic Internet Voting. The chapter concludes by advancing recommendations for preparing the legal system to realize voting rights despite the wide deployment of problematic voting technologies

Judicial Protection of Popular Sovereignty: Redressing Voting Technology

My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment17 principles properly derived from Bush v. Gore18 will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, the American Republic’s future is seriously endangered.19 The argument proceeds in two parts. Part I traces illustrative empirical findings of the two comprehensive, definitive voting systems studies, offers evidence derived from actual election calamities that substantiates the experts’ findings, and translates these findings into concepts meaningful for voting rights and election law. Part II considers the judiciary’s failures thus far to understand the legal import of the scientific studies of voting systems when adjudicating the structural legal sufficiency of deployed voting systems20 and identifies questions on which scholarship is critically needed. Throughout, owing to space constraints, the argument is illustrative rather than comprehensive

Comment with the Copyright Office Regarding a Proposed Exemption Under 17 U.S.C. Section 1201 for Software Security Research (Class 25)

Professor Candice Hoke, Cleveland State University, and others (Douglas W. Jones, University of Iowa; Professor Deirdre Mulligan, University of California, Berkeley; Professor Vern Paxson, University of California, Berkeley;Professor Pamela Samuelson, University of California, Berkeley; Bruce Schneier Erik Stallman, Center for Democracy & Technology (CDT); comment addressing Proposed Class 25: Software Security Research and an exemption for software security research in order to promote the active research and testing efforts necessary to keep pace with evolving cybersecurity risks. Software and related access controls are increasingly embedded in a wide range of systems, from consumer goods to medical devices to infrastructure to industrial equipment. This trend carries tremendous opportunities, but it inevitably will bring a raft of new security flaws and vulnerabilities as well. Due to the widespread integration of software in tangible products and physical world processes, these flaws pose risks that are qualitatively different from the risks associated with traditional security defects confined to the digital environment. The emergence of the Internet of Things is one example of the spreading risk. In this rapidly evolving environment, active security research and testing are crucial

Comments on expanding civic participation in voting by expanded use of the Internet

Hoke\u27s comments to the FCC on expanding civic participation in voting by expanded use of the Internet. Hoke recommends that the FCC not become involved in election regulatory issues concerning the Internet, but will support a different federal regulatory agency with national security and technical-cybersecurity expertise receiving primary jurisdiction over election cybersecurity

Voting Technology and the Quest for Trustworthy Elections

This chapter reviews four dimensions of the still-unresolved voting technology quandary. It begins by briefly reviewing the Florida Bush v. Gore background that, combined with the tradition of state governmental control over election administration, spawned the contours and limitations of new federal regulatory apparatus. It also surveys some illustrative voting system malfunctions and their consequences surfacing predominantly from 2009–12. The second part of this chapter, Federal Compulsion to Adopt Software-Based Voting Technologies, explains the misconceptions about software and digital equipment that led to both the flawed federal mandates and the ineffectual regulatory structure. The third part of this chapter, Litigation and Enforcement Strategies, focuses primarily on the curious omission of Federal enforcement of HAVA\u27s voting technology standards. This part also considers private party litigation that has sought to invalidate the use of allegedly defective voting machines. The final part of this chapter examines Federal Promotion of Problematic Internet Voting. The chapter concludes by advancing recommendations for preparing the legal system to realize voting rights despite the wide deployment of problematic voting technologies