Judges hand Sequoia Voting foe defeat -- and victory

[Front paged by NM. Thanks to Cydney Gillis for this valuable reporting and to Paul Lehto, plaintiff and Randy Gordon, Counsel for Plaintiffs, for their in-depth comments.]

"Remember, you live in this country, too."

Those were attorney Randy Gordon's parting words to opposing counsel as he walked out of a Seattle courtroom where he had just lost a major battle: On April 18, three judges of the Washington State Appeals Court wasted no time telling Gordon there was no reason to order Snohomish County to reveal the software code of touch-screen machines made by Sequoia Voting Systems.

When Gordon left the dias, he sat down with a thud, his face reddened. Within minutes, however, the judges would hand the Seattle University law professor a moral, if not legal, victory.

The case, Paul Lehto vs. Sequoia Voting Systems and Snohomish County, stemmed from the mega recounts of the 2004 election, which gave Christine Gregoire the governship by mere 133 votes. During the election, which Democrats feared might end in a debacle like Florida's in 2000, Lehto, an Everett lawyer and voting rights activist, was among dozens of poll watchers dispatched to keep an eye on the Sequoia machines that Snohomish County had purchased in 2002. At day's end, he discovered a math error in the final count at his precinct and later heard reports of voters pressing the screen for a Democrat, only to see a check come up for a Republican.

He spent the fall researching the irregularities, co-authoring a report that later documented widespread vote-switching as well as statistics that Lehto called impossible: In a number of precincts with Democratic voting histories, a vast majority of the electorate that had used Sequoia's AVC EDGE machines voted for Republican candidate Dino Rossi, a trend that ran wildly counter to the majority of votes cast on paper for Christine Gregoire.

At the time, Snohomish County Auditor Bob Terwilliger said the data proved nothing and denied Lehto's request to see the machine's underlying software code on the grounds that the county couldn't: It was bound by a clause in its Sequoia purchase contract that required it to maintain -- and, if necessary, legally defend -- the trade secrets of Sequoia's software.

With Gordon's help, Lehto sued Sequoia and Snohomish County in 2005, using a new and novel argument: The two called on the court to declare the Sequoia contract an illegal delegation of a critical public function and order the software code be released for inspection, arguing that the constitutional guarantee of open elections trumps any contract law.

Last March, Superior Court Judge Mary Roberts dismissed the case based on Sequoia's arguments: The company said its trade secrets were paramount and, because no one had filed a challenge to Snohomish County's 2004 election, the case was moot -- nothing would change. Gordon filed an appeal, but, before he had uttered two sentences of his arguments on April 18, the judges jumped in.

"Moot!" Judge C. Kenneth Grosse declared. "It's a case that is not justiciable" -- meaning there is no issue of law to consider.

Gordon later tried to convince the judges there was -- or, more precisely, that it was within their power to address the issue of "black box" voting if they wanted -- but Judge Anne Ellington and the others were not swayed.

"We don't have a motivation to work on this," she said. Early on, however, Ellington had posed a key question that would come back to bite Sequoia: Why hadn't Gordon filed a public disclosure request for the software code?

Gordon sat down in defeat, only to watch his opponents from Snohomish County and Sequoia get much worse.

When Snohomish County Deputy Prosecuting Attorney Gordon Sivley stood up and began to argue that Lehto had no case, Judge Grosse cut him off. "Not if he goes back to public disclosure," Grosse told Sivley. "We don't like this [contract]," he said. "Under public disclosure, you're in a world of hurt."

When Sequoia's lawyer, Scott Berman, took the dias and said he was trying to protect his company's trade secrets, Judge Ellington was equally swift: "What we're trying to protect," she said, "is the right to vote."

Despite their sympathy, Gordon said after the hearing, it appears the judges are taking a conservative tact and do not intend to "legislate from the bench." But in pointing out that they would favor a public disclosure argument, he said, the panel provided a clear roadmap for how to ultimately beat Sequoia -- by filing a new lawsuit based on the public's right to know.

For his part, Paul Lehto says it's impossible to tell how the judges will ultimately rule in the case and points out what he considers major weaknesses in a public disclosure argument.

"Were we to follow the court's suggestion," Lehto wrote in an e-mail, "that would mean two important things that are not good: 1) Implicitly, citizens would have no right to cancel [a] contract [like Sequoia's]" -- which is why he and Gordon took the route of arguing the contract is illegal -- and "2) If the right to know ... exists ONLY as a matter of [a] public records request, [that] would mean that the right to know existed only because of legislative 'grace,' or the passage of a statue, and NOT because of any underlying fundamental right of we the people to publicly supervised elections."

Gordon, however, said that he is done with the contract argument and is now working with a new client on making a public records request that will likely lead to a new lawsuit.

"This is the best possible result," Gordon said after giving Sequoia's lawyer a piece of his mind. "I consider it a moral victory."

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Will suing Sequoia Voting and Snohomish County under the Public Disclosure Act make any difference?

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As a reporter for Real Change and other outlets, Ms. Cydney Gillis has provided to date the most accurate and informed coverage of this case overall -- Real Change has Real News.

however, I wish to quibble with the presumption of the article that questions from the bench signal a decision or constitute "victory" or "defeat".  While later on, after the decision, in retrospect one may feel that they do, we don't have a decision yet.  Stories among lawyers (of which i've been one for about ten years) are common in which especially hostile questions from the bench only led to a favorable opinion.  Part of the feeling of "due process" litigants are supposed to get is that they were "heard", as reflected in part by the questions the bench doles out to the other side.  

I personally don't agree that a statutory Public Records Act (aka FOIA) claim would be the "solution" here.  In fact, the whole case was already styled to (1) void out the purchase contract on (2) 12 diffferent  legal grounds, many of which reflected the lack of any ability to tell what was going on in the secret vote counting software.  This software operates, in different versions, on optical scans as well (which no human being can really verify what the count is on these, either).   The grounds for the requested disclosure were constitutional and public policy grounds, basically saying that the vendor should cough up the information or else the contract would be an illegal, void, contract.  The govt servants in our govt can not purport to hide information from their public Masters without turning our entire system on its head.

If we were reduced merely to a statutory Public records claim, instead of a rights claim, that would mean that 51% of the Legislature would have the power to end democracy as we know it.  To outsource democracy and vote counting to a private corporation, whoc can then claim, as Sequoia does, that vote counting is its PRIVATE INTELLECTUAL PROPERTY and the public is not welcome.   This would be a very low standard, and the same legislature that purports to authorize e-voting could also throw in an amendment to the public records act to insure that all trade secretes are protected.  They contend that the present trade secrets exception will ALREADY cover them, so this is not all that difficult.

We shall see what the judges who are sworn to uphold our constitutional representative democracy do.  They have several inviting paths open to them.

by paullehto on Sun Apr 22, 2007 at 08:35:51 PM PST

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When Randy Gordon was standing before the "Honorable" Judge C. Kenneth Grosse, he was standing before a true political whore.

If Randy brings a suit under the Public Records Act, he had best plan to appeal it to the Supreme Court.  Division I of the Washington Court of Appeals does not enforce this Act, regardless of the "slapdown" that the judges pretended to give to Sno. County.  

Of the many farces that the State of Washington pulls on its citizens, the Public records Act is probably the worst.  No judge in this State will endanger his (or her) campaign contributions by ruling against their bureaucrat buddies.

by bhelverson on Sun Apr 22, 2007 at 08:36:05 PM PST

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sooooooooooooooooooooooooo many wrong things going on with voting.

since I already am deeeeply involved in an area of public service which is collapsing from dumb dumb dumb unfinanced mandates, and the subsequent stupid stupid processes,

I don't have the energy for the way too complicated dumb dumb unfinanced mandates and stupid stupid processes of voting.

voting should NOT be such a freaking fiasco.



by rmdSeaBos on Sun Apr 22, 2007 at 09:19:02 PM PST

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Hi Cydney Gillis-

Thank you for attending the trial as well as the write up.

Alas, a moral victory and $2.00 will buy you a cup of coffee.

The judge asks an important question. The issue of government hiding behind corporate intellectual property rights came up at a citizens for open government (washingtoncog.org) event last year.

I honestly don't know what purpose an open records request for the source code would have served. The Sec of State (SOS) had a rule (WAC) requiring that the source code of computerized voting machines be held in a state escrow. At the time, none of the vendors had complied with this rule. So all of the computerized voting machines in Washington State were improperly certified. Since then, I'm nearly certain they simply changed the rule in order to bring the systems into compliance.

A small group of us considered suing the sec of state for violating this rule. Alas, it's a rule, the SOS has rulemaking authority, and the moment we sued, they'd moot the lawsuit by changing the rule. (Just like they recently did with the rule prohibiting unique marks like barcodes on ballots when San Juan County got sued.)

Even with the escrow rule, we still don't have the right to see the source code. We started floating the idea of state-based escrow and "disclosed" source code laws down in Olympia this last session. But we're not organised and didn't get anywhere.

The trouble, as I see it, is the enemies of democracy have built up fortifications to protect the secret vote count over time, fortifications that must be dismantled brick by brick. And that's not going to happen easily. We must apply pressure and keep it up until democracy is restored.

Again, thanks for reporting on election integrity.

Cheers, Jason Osgood

by zappini on Sun Apr 22, 2007 at 10:23:05 PM PST

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Hi, Paul:

There's little left in the article for you to quibble with. Since the first draft you saw, I incorporated your thoughts and comments into the final.

To wit, I quote judges' precise words to Randy, note your position that it's impossible to tell how they will rule, and faithfully repeat the points you made in an e-mail to me about the public diclosure argument and its two chief weaknesses, which you repeat in your post as if oblivious to their presence in the article!

Think of the time you'd have saved by reading it!

Best, your less-than-humble reporter.

by Cydney Gillis on Sun Apr 22, 2007 at 11:14:46 PM PST

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Our decision at the outset was the vindicate the right of voters as voters - this is why we eschewed an approach that claimed "standing" based on being a taxpayer.  We believe that one's ballot is as important as one's wallet.  Cydney Gillis and Real Change are to be commended for their coverage, which far surpassed other "mainstream" outlets and their commitment to public service.  Paul Lehto's analysis is, as usual, right on. The public's right to know has constitutional underpinnings.  Cases of first impression often do not meet with early success.  While I passionately believe in the position of my clients, I am committed to try alternative approaches until the law is settled.  

As Justice Chambers of our Supreme Court once told me: "The law is not settled ... until it's settled right!"  

I pursued this case pro bono publico without hope of compensation - and I consider the opportunity to hear our Court of Appeals justices state in ringing words their support for our right to vote - if not our legal theory in this case - was heartening.  Paul is quite correct that we are not certain how the written opinion will set forth their views, but I feel obliged to state to all readers that I did not feel that the court was in any way compromised in terms of its integrity.  Despite the outcome and my view that another result could have obtained, what we saw was a keen legal analysis by honest jurists who simply were not "activists" on the bench but construing their powers narrowly.  There are all sorts of tyranny - rule by judges is one of them - and these judges were protective of that element of our democracy and open to protecting voting rights vigorously in a different procedure.  So far and I am concerned, I believe the citizens of Washington are well-served by these jurists and we will have another chance to vindicate these important rights.  I intend to carry on. - Randy

by Randy Gordon on Mon Apr 23, 2007 at 12:10:58 PM PST

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If the public's right to know is rooted in the Constitution -- wouldn't the public disclosure laws of the state also have an underlying Constitutional basis that could be invoked in a followup case on a disclosure basis?

It is interesting to me that this could be declared a moot case -- as what is at issue is not the 2004 election, but the public's right to know how their votes are collected, tabulated, counted, reported etc.  

It's also interesting to me that mainstream media simply will not report on this case.  As with the Iraq war, our courts and the media -- and also the legislative branch -- all seem exceedingly cautious to enter into any new territory -- no matter how clear the issue is.  In times when our rights are under assault from so many directions and with such sophistication -- it seems that this pattern of exceedingly slow response poses a real danger.  

I've forwarded the link to this piece to various listservs.  The news should be read..  even if mainstream media won't report it.

by noemie maxwell on Mon Apr 23, 2007 at 12:52:57 PM PST

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