PHOENIX — Critics who contend that touch-screen voting machines are not reliable will get a chance to make their case in court.
The Arizona Court of Appeals unanimously rejected arguments by attorneys for the secretary of state and county election officials on Tuesday that the decision to certify machines manufactured by Diebold Elections Systems and Sequoia Voting Systems cannot be challenged.
Judge Philip Hall, writing for the court, said it is proper for courts to consider the issue of whether the machines comply with Arizona law.
Hall also said there is a legitimate question of whether the machines are accurately counting votes. He said if the plaintiffs can prove not all votes are being counted, they are constitutionally entitled to seek a court order blocking use of the machines.
Tuesday's ruling, barring Arizona Supreme Court intervention, sends the case back to a trial judge who three years ago threw the case out of court.
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The lawsuit stems from federal election law changes in the wake of Florida's controversial use of punch-card technology in the 2000 presidential race.
Two years later, Congress approved the Help America Vote Act, which included funding to enable states to replace punch-card and lever-style voting machines. The law also requires each polling place to have one machine for disabled voters.
Arizona lawmakers followed suit with their own requirements. That law also directed Jan Brewer, then secretary of state, to come up with equipment that could be used by the visually impaired.
Brewer's office eventually certified touch-screen machines from three companies and awarded contracts. Pima County also acquired more than 400 of the machines, one for each precinct.
This lawsuit was one of several filed across the nation by Voter Action, a self-described nonprofit group seeking to ensure "election integrity."
Group members contended the machines from Diebold and Sequoia present "unacceptable risks of inaccuracy, vote manipulation and malfunction." They also charged that the machines were more subject to "hacking" and phantom and switched votes than optically scanned ballots are.
But Judge Barry Schneider of Maricopa County Superior Court refused to let the case go to trial, saying it wasn't his job to decide which machines are usable in Arizona. He said the lawsuit, in effect, was asking the court to substitute its opinion for those of the experts and others who participated in the selection process.
Hall, however, said the claim, assuming it can be proved, is legitimate.
"The Legislature has enacted statutes setting forth in detail the procedure the secretary of state must follow in selecting the voting machines and the substantive requirements for the electronic voting equipment," the appellate judge said. That, Hall said, allows a court to consider whether Brewer followed those laws and requirements.
The appellate court also rejected Brewer's argument that any concerns about the machines' accuracy are "speculative" because no actual harm has occurred and there is no constitutional right to an election free from all error.
Hall said the Arizona Constitution requires a "free and equal" election. And he said that right is compromised when votes are not properly counted.
The burden, however, is on the challengers to prove that is the case. Hall said they have to show that a "significant number" of votes cast on either model will not be properly recorded or counted.
Proving that may be another matter.
Maricopa County Elections Director Karen Osborne said her office has a Sequoia touch-screen machine for each of its 1,142 polling places. She said there is no evidence they are not properly recording the votes.
Osborne said her office tests those machines, along with the optical scanners, before each election. In each case, she said, the tally recorded by the machine matches the test votes made.
Osborne also said there are random "hand count" checks to compare the electronically tabulated vote with a paper trail inside the machine. Here, too, she said, there have been no problems.
Brewer, as secretary of state, defended her decision to buy the touch-screen equipment, even to the point of calling protesters at a 2006 press event "anarchists."
