A New Jersey Superior Court judge is currently presiding over a case brought by the Rutgers Constitutional Litigation Clinic that seeks to decommission New Jersey’s electronic voting machines. (New Jersey mostly uses direct-recording electronic (DRE) machines manufactured by Sequoia Voting Systems, one of the country’s top e-voting machine vendors.) The lawsuit contends that because the DRE machines fail to produce a voter verified paper audit trail, there is no way to know whether the machines, in fact, record the votes as cast. In June, the judge issued a protective order, requiring Sequoia to turn over its source code to plaintiffs’ expert Andrew Appel and assuring the company that its trade secrets would be protected. The order asserted that Appel could publish his report 30 days after its delivery to the court. On September 2, Appel and his team of computer scientists delivered the report to the court, assuming that they could publish it on October 2.
On Freedom to Tinker (where fantastic guest blogger Paul Ohm is now blogging permanently), Appel reports that the judge has now changed her mind. On September 24, the judge, ruling from the bench, told plaintiffs that they cannot release the report or discuss its findings.
Because the court ensured that the report would not reveal the company’s trade secrets, this eleventh-hour reversal does not appear based on a desire to protect the company’s legitimate interests. Instead, this new veil of secrecy seems intended to delay the bad news that the New Jersey voting machines are troubled until after the election. (Doesn’t it seem unlikely that the judge would delay the report’s release if it gave the machines a glowing review?) Perhaps the judge reversed course in the hopes that keeping the report secret would avert a crisis of confidence in the state’s voting apparatus. But such a crisis seems inevitable. And, more importantly, New Jersey voters deserve to be told that the machines may not count their votes accurately. This would allow them to decide for themselves whether they want to cast their votes as absentees, which would be counted on optical scanning machines and not DREs. Further, as Andrew Appel argues, the Governor and members of the New Jersey legislature need to read the report so they can protect their constituents’ right to vote. Hiding the results of the report can only cast doubt on the legitimacy of the returns in November.