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September 2, 2008

An August 29th ruling by California’s Fourth Appellate District Court bans Secretary of State Debra Bowen’s regulation requiring a 10 percent manual tally of ballots counted by Sequoia, Hart and Premier-Diebold. California will return to a 1% manual audit, as enacted in 1965.

An August 29th ruling by California’s Fourth Appellate District Court bans Secretary of State Debra Bowen’s regulation requiring a ten percent manual tally of ballots when election results fall within a half percent between victor and loser, and when the margin of difference between jurisdictions exceeds a half percent.  California will return to a one percent manual audit, as enacted in 1965.  The grounds for this decision rest on Bowen’s failure to follow public notice guidelines required of all proposed “general” regulations that apply across the board.  Bowen also had the option of issuing this 10 percent audit regulation as an emergency, thereby avoiding public notice requirements.

After the 2007 scientific studies commissioned by Bowen confirmed that all the tested computerized voting systems could not be secured, Bowen decertified and conditionally recertified them, based on several conditions.  In October she issued her Post-Election Manual Tally Requirements (PEMT) as one of those conditions.  The County of San Diego (with other counties joining) sued on several grounds, including:

*  The regulation exceeded Bowen’s authority (rejected by the Court);

*  A ten percent ballot audit is cost-prohibitive (also rejected by the Court); and

*  The regulation didn’t undergo public comment and scrutiny (accepted by the Court). 

The Administrative Procedures Act (APA) mandates that regulations must undergo the following steps to become a legal directive: 

“The requisite procedures under the APA include providing public notice of the proposed regulatory action; issuing a complete text of the proposed regulation with a statement of the reasons for it; granting interested parties an opportunity to comment on the proposed regulation; responding in writing to public comments; and forwarding a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law, which reviews the regulation for consistency with the law, clarity and necessity.”

General or Specific Requirement 

Secretary Bowen unsuccessfully argued that the ten percent ballot audit requirement was not a “general” regulation applying universally to all voting systems, and is therefore not controlled by the APA.  It only applies to specific voting systems (the easily hacked computers that the Top To Bottom Review studied: Diebold-Premier, Hart InterCivic, and Sequoia).  She also argued that because Los Angeles and San Francisco counties have more stringent audit requirements, the PEMT does not apply to them. 

The Court was unconvinced, claiming that because most counties in California use the easily hacked systems her regulation seeks to audit, it rises to the level of a “general” regulation and is therefore subject to APA.

Los Angeles is far and away the largest county in California, being nearly three times more populous than any other county.  San Francisco is the 12th most populous county. (Both based on 2006 statistics.)  Three other counties don’t use the targeted systems: Lake, Madera and Sonoma.  

The Court traveled beyond the bounds of common sense when considering the popularity of the item being regulated.  Imagine fifty different snowmobiles are on the market, and three of them explode when impacted from the rear.  The state issues a regulation requiring those three snowmobiles be fitted with some protective gear that would prevent rear-impact explosions.  Clearly, this is a specific regulation.  Does it matter that those three snowmobiles happen to be the most popular?  How can ‘popularity’ enter into the definition of a general or specific regulation?

The Court’s ruling further entrenches non-securable software driven voting technology to the detriment of the public and of democracy.   

Bowen may be well advised to reissue the PEMT as an emergency.  With two stolen elections behind us, a spate of expert reports corroborating that software cannot be made secure, and another election two months away, voters cannot rely on reported election results.  Apparently, they cannot rely on the courts, either.