Plaintiff, _________
CV 01-11159 SVW(RZx)
BILL JONES, in his official
capacity as California
Secretary of State, et. al.,


Plaintiff Susan Marie Weber ("Weber") sues California Secretary of State Bill Jones ("Jones") and Riverside County, California Registrar of Voters Mischelle Townsend, alleging that the voting system in use in Riverside County infringes Plaintiff's right to vote, as protected by the Fourteenth Amendment to the U.S. Constitution.

Defendants bring this Motion for Summary Judgment of Plaintiff's action pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

As set forth below, Defendants’ Motion for Summary Judgment is GRANTED

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Beginning with the November 2000 election, Riverside County began using "direct recording electronic" ("DRE") or "touch-screen" voting machines county-wide. The system employed by Riverside County is manufactured by Sequoia Voting Systems and is marketed as the AVC Edge ("AVC Edge System"). The AVC Edge System functions somewhat like an ATM. Once his or her eligibility is verified, the voter is given a card that is used to activate a freestanding voting machine. The voter then follows on-screen directions for selecting candidates or issues, which is done by touching the screen over the corresponding choice. Voters may make changes by de-selecting a response already made, and may choose to review the entire ballot at the end of the process. The voter then selects "Cast Vote" to record his or her vote. At the end of each voting period, an electronic vote tally is collected from each machine.

Plaintiff Weber is a resident and registered voter of Riverside County. Her chief contention is that "paperless" DRE systems like that used in Riverside County are more susceptible to fraud, manipulation, and error, because there is no way to verify independently the votes cast. In other words, because no hard-copy ballot is generated, those seeking to audit or recount an election must rely on the same electronic results each machine initially renders.

Plaintiff asserts that the right to vote, as protected by the Fourteenth Amendment, is violated in two respects. She first alleges that an intended voter in Riverside County is less likely to cast properly and have counted (or re-counted) a vote than are voters

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using other voting systems. Plaintiff contends that Riverside County voters are thereby denied an equally-weighted vote. Second, she argues that the right to vote includes the right of a voter to verify a hard-copy of his or her ballot, and to have recounts based on such ballots.

Plaintiff asserts that these deficiencies violate the right to vote, as protected by the Fourteenth Amendment. Plaintiff sues under 42 U.S.C. § 1983, primarily for injunctive relief barring the use of certain types of DRE systems.

Defendant Jones moves this Court for summary judgment of Plaintiff's action, to which Defendant Townsend joins. Defendants contend that Weber has failed to adduce any evidence that the AVC Edge System, or similar systems, are less accurate at gauging voter preference. Defendants argue that touch-screen systems are actually more accurate than other vote-casting methods, because electronic votes are not subject to over-voting (recording more than one vote on a ballot), mis-marking, or ballot spoilage. Defendants also argue that the AVC Edge System is protected from fraud and error through a variety of security, testing and auditing features, and complies with all California regulations and federal guidelines regarding electronic voting machines. Furthermore, Defendants contend, the System advances a number of important state interests including improved accuracy, lower cost, higher voter turnout through "early voting" programs, ballots in multiple languages, and improved access for voters with disabilities - that justify any incidental infringement of the right to vote.

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Summary Judgment Standards

Defendants seek summary judgment of Plaintiff's action. Rule 56 (c) requires summary judgment when the evidence, viewed in the light most favorable to Weber, shows that there is no genuine issue as to any material fact, and that Defendants are entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56{c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir. 1997). Defendants bear the initial burden of establishing the absence of a genuine issue of material fact. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553 (1986). That burden may be met by “’showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id.at 325, 106 S. Ct. at 2554. Once Defendants have met their initial burden, Rule 56(e) requires Weber to go beyond the pleadings and identify facts that show a genuine issue for trial. See id.at 323- 34, 106 S.Ct. at 2553; Anderson v. Liberty Lobbv, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Only admissible evidence may be considered in this regard. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002), citing Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).

B. Vote Dilution

The first aspect of Weber's constitutional claim relates to her allegation that DRE systems like that adopted by Riverside County are less accurate than other voting systems employed in California and elsewhere. Compl. ¶ 14. Defendants assert that the AVC Edge System is actually more accurate, and that no evidence supports Weber's

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contention. Because Weber has adduced no admissible evidence to support this allegation, there is no genuine issue as to whether such disparity exists, a fact material to her claim.

1. Vote Dilution Claim

Plaintiff's vote dilution claim derives from the Supreme Court's "one person, one vote" equal protection jurisprudence. In Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1963), the Court held unconstitutional an apportionment scheme under which districts of the Alabama legislature varied widely in population. Noting that "the right to suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting free exercise of the franchise," the Court in Reynolds concluded that such "alleged infringement [s] of the right to vote "must be carefully and meticulously scrutinized. 377 U. S. at 555, 562, 84 S. Ct. at 1378, 1381. See also Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963) (striking down county unit system of primary election); Moore v. Qgilvie, 394 U.S. 814, 89 S. Ct. 1493 (1969) (invalidating state nominating system that gave disproportionate weight to residents of less-populated counties).

In Bush v. Gore, 531 U.S. 98, 105-10, 121 S. Ct. 525, 530-33 (2000), the Court struck down recount procedures ordered by the Florida Supreme Court, effectively holding that the scheme represented "arbitrary and disparate'l treatment of voters, and would have resulted in "unequal evaluation of ballots.”Although the language of arbitrariness suggests a somewhat different inquiry, the Court analogized the effect of using different recount standards to the vote "dilution” at issue in the apportionment cases. 531 U. S. at

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105, 121 S. Ct. at 530. The BushCourt made explicit, however, that its holding did not reach the question whether "local entities, in the exercise of their expertise, may develop different systems for implementing elections." 531 U.S. at 109, 121 S. Ct. at 532.

2. Evidence of Vote Dilution

A claim of vote dilution, premised on the alleged relative inaccuracy of a balloting system, may therefore be cognizable under the Fourteenth Amendment. This Court need not reach that issue, however, because Plaintiff has adduced no admissible evidence to support her claim that the use of the AVC Edge System by Riverside County effects differential treatment of voters or vote dilution.

A motion for summary judgment may be opposed by any type of evidence listed in Rule 56(c), except the pleadings themselves. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986). Only information in pleadings based on personal knowledge may be considered in a motion for summary judgment. Fed. R. Evid. 56(e); Block v. City of L.A., 253 F.3d 410, 419 (9th Cir. 2001).

Plaintiff's evidence consists of declarations by three people: Rebecca T. Mercuri, Peter G. Neumann, and Kim Alexander, though Plaintiff has not identified any as supporting her dilution claim. Although the Court is not obligated to scour the record in search of such support, see Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996), none of the declarations appear to contain admissible evidence that would create a genuine issue of triable fact.

The Alexander Declaration itself is irrelevant because it contains no statements regarding the relative accuracy of DRE voting systems. Attached to the Declaration are a number of newspaper

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articles which, in addition to being inadmissible hearsay, see Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991), likewise fail to address the issue of relative accuracy. Indeed, the only attachment to broach that issue an inadmissible hearsay report apparently issued by the non-profit group Declarant heads actually suggests that Riverside County has one of the lowest rates of “non-votes” in the state, a rate less than half the 2000 state average. Alexander Decl. Attach. F-l.

The Neumann Declaration makes an oblique reference to "[i]nput error rates" of electronic voting systems, Neumann Decl. at 5, but likewise does not include any information that would suggest Riverside County's voting machines are less accurate than other voting systems.

Only the declaration by Rebecca T. Mercuri makes any mention of this material issue. Mercuri has an extensive background in computer programming, design and analysis, and has written and testified widely regarding election equipment. Mercuri has not seen or inspected the AVC Edge System employed in Riverside County, though on the basis of documents in the record and the Sequoia web site, believes it to be similar to other Sequoia models she has inspected. Mercuri Decl. at. 1-2. Mercuri makes two statements that would bear on the relative accuracy of the DRE system employed by Riverside County.

First, she answers Defendants' contention that touch-screen systems are actually more accurate than other technologies as follows: "[T]his is untrue. In a study performed by MIT/CalTech in 2001, it was revealed touchscreen/DRE systems had the worst residual

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('lost') vote rate, exceeding ALL other varieties of voting systems (except for punch card).” Mercuri Decl. at 3.

This statement may not be considered by the Court in deciding this motion. Rule 703 of the Federal Rules of Evidence allows an expert to rely on an otherwise inadmissible hearsay report only if the report is "of a type reasonably relied upon by experts in the particular field. . ." SeeUnited States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975) (source of information must be "of a type reasonably relied upon by similar experts in arriving at sound opinions on the subject.") Even assuming Mercuri is qualified as an expert on this issue,[1] her reference to an outside study thus only is permissible if it comports with the requirements of Rule 703. Although a foundational requirement is not explicit in the Rule or advisory notes, the Court necessarily must be satisfied that the report cited is of a type "reasonably relied upon" by experts in the field. See, e.g.Elcock v. Kmart Corp., 233 F.3d 734, 756 n.14 (3d Cir. 2000) (foundational requirement for expert testimony rules "found in the interstitial gaps among federal rules"); United States v. Tran Trong Cuong, 18 F.3d 1132, 1143 (4th Cir. 1994) (foundation required to show report is type "reasonably relied upon" by experts). Plaintiff has offered no foundation upon which the Court could conclude that the study cited is of such a stripe. Indeed, the study is not even

[1] This is not self-evident. Although an expert need not have first-hand knowledge of the facts upon which her opinion is based, nor rely only upon admitted evidence, see Fed. R. Evid. § 703, the foundation for Mercuri's opinion regarding system accuracy is not well-laid. Mercuri asserts that the System at issue is "similar or functionally equivalent" to other models she has inspected, but refers vaguely to documents produced by Defendants, to discussion with Plaintiff, and to an inaccessible Web URL for this conclusion.
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identified by name. Reference to the study therefore is not admissible as evidence for purposes of this motion.

Mercuri also includes in her Declaration replies to a number of "undisputed material facts" included in Defendant Jones's Statement of Uncontroverted Facts and Conclusions of Law. Mercuri Decl. at 6. In response to Defendants' assertion that vote "tally accuracy" is improved by the AVC Edge System, Mercuri responds: "The Sequoia DRE does not provide increased tally accuracy, since its 'lost vote rate' is significant, thus displacing much if not all of the benefits achieved by eliminating the rejection of spoiled, mis-marked, and over-voted ballots.” Mercuri Decl. at 6.

The otherwise admissible opinion of an expert, even as to a material issue, may be considered as evidence. Fed. R. Evid. Rules 702, 704. Assuming its admissibility, however, this statement at best suggests that Riverside County's DRE system is no more accurate than other voting methods. It certainly does not tend to show that voters in Riverside County have a lesser chance of having their votes counted.

Defendants assert the absence of a genuine issue of material fact on the issue of relative accuracy and consequent vote dilution. Plaintiff has failed to adduce any admissible evidence tending to show the dilution of vote-weight claimed in her Complaint. As a result, there is no genuine issue as to this fact, and summary adjudication of the vote dilution claim is appropriate.

B. Impairment of the Right to Vote

The second aspect of Plaintiff's constitutional claim relates to the security from fraud, manipulation and error that Plaintiff claims

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is lacking in the AVC Edge System. Plaintiff alleges that, unlike other methods of voting, DRE systems result in "unobservable, unverifiable, non-recountable, untestable, non-public voter tallies" via computer systems that are not "safe from fraud or manipulation." Compl. ¶¶15, 16. Indeed, Plaintiff describes as "the heart of the case" the question whether the audit/recount capabilities of Riverside's system are constitutionally adequate. Pl.'s Amend. Stat. Of Gen. Issues in Opp. to Def.'s Mot. for Sum. Judg., at 2.

As discussed supra, Plaintiff has presented no admissible evidence that Riverside County's DRE system is less likely to gauge accurately voter preference than any other voting system. Absent evidence of such differential treatment, the question thus becomes whether what Plaintiff demands - an independently-verifiable audit and recount system - is required under the Fourteenth Amendment. Because the use of a DRE voting system is not a severe impediment to the exercise of the franchise, and because it is reasonable and pursuant to legitimate state interests, the Court concludes it is not.

1. Standard of Review

State action that treats citizens differently is subject to varying standards of review. When a government classification "operates to the peculiar disadvantage of a suspect class.” such as a racial minority, strict scrutiny of the classification is appropriate under the Equal Protection Clause of the Fourteenth Amendment. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566 (1976). Likewise, the Supreme Court repeatedly has identified strict scrutiny as the appropriate standard of review for

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classifications that "impermissibly interfere[]" with the exercise of a fundamental right. Id."Routine" state classifications not relating to a suspect class or fundamental right, on the other hand, are subject to highly deferential "rational basis" review. See, e.g., Board of Trustees v. Garrett, 531 U.S. 356, 366-67, 121 S. Ct. 955, 963-964 (2001).

The right to vote clearly is a fundamental right, and classifications that impair its exercise are subject to exacting review. See. e.g., Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988), citing Harper v. Virqinia Bd. of Elections, 383 U.S. 663, 666-67, 86 S. Ct. 1079, 1081 (1966) (poll tax that disproportionately bars poorer voters from exercising the franchise violates equal protection).

However, not every election regulation impairs the right to vote, and, therefore, merits an elevated level of scrutiny. In Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992), the Supreme Court observed that "to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently." Rather, a court considering a constitutional challenge to an election rule "must weigh 'the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against 'the precise interests put forward by the State as justifications for the burden imposed by its rule.'" Id.at 434, 112 S. Ct. at 2063, guoting Anderson, 460 U.S. 780, 789, 103 S.

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Ct. 1564, 1570 (1983), Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 213-14, 107 S. Ct. 544, 548 (19B6). The Burdick Court concluded that severe restrictions on the right to vote would be subject to strict scrutiny, while reasonable and nondiscriminatory restrictions pursuant to important state interests generally would be permissible. 504 U.S. at 434, 112 S. Ct. at 2063.

Thus, in Hussey v. City of Portland, 64 F.3d 1260 (9th Cir. 1995), the Ninth Circuit struck down a subsidy under which the City of Portland offered reduced sewage rates to those who signed an irrevocable consent to annexation, because such a statute "severely and unreasonably" interferes with the right to vote. Id.at 1266. However, the "need to regulate the process of holding elections will generally justify enforcement of 'complex election codes [that] govern[] the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself. . ." Davies v. Grossmont Union High School Dist., 930 F.2d 1390, 1397 (9th Cir. 1991), quoting Burdick, supra (emphasis added).

The selection of a balloting system, particularly in the absence of evidence of reduced count accuracy, does not typically effect a severe restriction on the right to vote. Thus, the question before the Court is whether Riverside County's use of the AVC Edge System is reasonable, nondiscriminatory, and pursuant to legitimate state interests.

2. Application of Burdick

It is manifest that the AVC Edge System constitutes a "reasonable" choice of voting systems. The Court does not have before it, and need not conside