The U.S. democratic system is no stranger to meteoric rises.  This is the country that pit a community organizer against a PTA mom from America’s Siberia for the leader of the free world.  Yet our penchant for the underdog doesn’t always mean a free pass.  So when Alvin Greene—an unemployed, cash-strapped veteran who is facing felony obscenity chargeswon the Democratic primary for a shot against incumbent Jim DeMint for the U.S. Senate, a concerned citizen raised some questions.  Specifically, could electronic voting machines be to blame for such a bizarre result?

On June 28, 2010, Frank Heindel, aforementioned concerned citizen, sent an email to the South Carolina Election Commission (SCEC), requesting the following under South Carolina’s Freedom of Information Act (FOIA):

1. A copy of the complete certification report done by SysTest that was mentioned in the May 30, 2007 meeting minutes as follows: ” The ES&S Unity Voting System was tested by SysTest Labs, an Independent Testing Authority (ITA), accredited by the National Association of State Election Directors (NASED).”

2. A copy of the written confirmation from ES&S stating they have their secret “source codes” placed in escrow as per SC law as stated: . F) Before a voting system may be used in elections in the State, all source codes for the system must be placed in escrow by the manufacturer at the manufacturer’s expense with the authority approved by the Federal Election Assistance Commission. These source codes must be available to the State Election Commission in case the company goes out of business, pursuant to court order, or if the State Election Commission determines that an examination of these source codes is necessary. The manufacturer shall place all updates of these source codes in escrow, and notify the State Election Commission that this requirement has been met.

3. Any and all written notices sent by ES&S to the South Carolina Election Commission(SCEC) prior to May 30, 2007 notifying the Election Commission of any de-certification, ethical, or technical violations of the ES&S voting system which had been issued by any other state(s).

4.A copy of any and all report(s) sent from ES&S to the SCEC that detail any de-certification, ethical, or technical violations against ES&S’s voting system in any state from May 2007 through June 25,2010

Heindel, it would seem, is no ordinary concerned citizen but a well-informed, computer-savvy concerned citizen.  The crux of what Heindel was after is information on the reliability of voting machines – both “out of the box” and in the event something goes awry.  Under South Carolina’s Freedom of Information Act, SCEC has fifteen days to acknowledge the request and a give a  “reasonable timeline” for production of the requested information.   SCEC did just that and responded with some of the information but not all.  This piecemeal approach did not sit well with Heindel and, ultimately, the email exchange hit the local papers and blogosphere, which branded SCEC as “foot-dragging,” intimating that it may be resisting the request in an effort to conceal some real issues with how South Carolinians vote.

Diligent in his quest for some understanding, Heindel didn’t stop at the SCEC.  On September 14, 2010, he sent another FOIA request to the Charleston County Board of Elections asking for the “paper trail” that the machines produced.  The spreadsheet he received showed numerous “events” documenting errors with the machines – not quite the spotless record election officials had touted post-primary.  Heindel has yet to receive an answer from the Board of Elections on what these events mean and if they could have influenced the outcome of the election.  Adding to the foot-dragging, obfuscating, conspiracy-theory feel of the whole incident, the executive director of the Charleston County Board of Elections abruptly resigned after Heindel brought these potential problems to light.  However, no mention of Heindel was made in the director’s resignation letter which cited personal reasons for her departure.

So what to make of all this?  Heindel is certainly not the first citizen to have qualms with paperless voting machines.  Since the 2000 presidential election fiasco, ballot administration has been a hot topic and many states have moved to electronic voting machines because they’re less prone to user-error than other voting systems (remember all those chads Pat Buchanan got pregnant in Florida because of the punch card butterfly ballot?).   The tradeoff has been that electronic voting machines, specifically direct record electronic machines known as DRE, don’t have a paper trail and, hypothetically, are vulnerable to hacking, leaving people like Heindel uneasy about the integrity of an election.

Yet, in the time that Heindel spent making FOIA requests and deciphering what information he received, South Carolina successfully administered gubernatorial and midterm congressional elections.  Voters are confident that those who won the election are, indeed, the winners and not benefitting from some sort of code error on the voting machines.  Chris Whitmire assured State of Elections that the machines “worked great” and that “no vote was lost” on November 2.  One South Carolina election lawyer, Butch Bowers of the Columbia law firm Hall & Bowers, dismissed the unreliability of voting machines out of hand saying that they’d been used for numerous election cycles without question.  The 2010 election seems to be no exception.  Democracy marches on.

The question of reliability in voting technology is long from settled – and, for that matter, the question of how Alvin Greene got on the ballot perhaps never will be settled.  To tide us over until America produces yet another bizarre candidate, we can look forward to seeing Greene’s meteoric rise and the possible voting glitches that got him there in a new movie by filmmaker Jason Smith.  Here’s hoping Alvin Greene has a DVD player.

Ashleigh Casey is a third-year student at William & Mary Law School.


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