South Jersey voting-machine incident makes waves

When the returns came in for the Cumberland County Democratic Committee last summer, Cynthia Zirkle couldn't believe what she was seeing.

Only 86 votes were cast in the race to represent her district in Fairfield Township, and despite assurances from dozens of friends, Zirkle and her husband, Ernest, had managed to win just 19 votes between them.

"I can't believe that's correct," Zirkle told her husband, a retired veterinarian and the town's deputy mayor.

The couple sued the Cumberland County Board of Elections and discovered that due to a programming error, their results had been switched with those of their opponents. In a rare turn of events, a new election was ordered, which the Zirkles handily won.

The case caught the eye of a Rutgers law professor who has spent years arguing that the touch-screen voting machines in use across New Jersey are prone to malfunction and hacking and need a paper backup that would allow for manual recounts.

Provided with that real-life example of the machines' fallibility, Penny Venetis, codirector of the constitutional litigation clinic at Rutgers-Newark Law School, is fighting to get the state Appellate Court to reopen her 2004 lawsuit and rewrite the rules on how elections are conducted in New Jersey.

"The issues involved extend way beyond Cumberland County," Venetis said. "It's only because it was such a small election we know about this. If it was Newark, forget it. But that's our point, stuff like this happens. Computers can be told to do whatever you want. They can play Jeopardy!; they can cheat in elections."

The most famous case of voting-machine malfunction was in Florida during the 2000 presidential election, when the infamous "hanging chads" resulted in a series of election challenges that ultimately were decided by the U.S. Supreme Court. Congress responded with legislation ordering states to improve voting technology.

With the advent of electronic voting machines, other problems have arisen. Computers can mix up candidates' results and touch screens go on the fritz. In 2004, a voting machine in North Carolina stopped counting ballots, disenfranchising more than 4,000 voters, said Pamela Smith, president of Verify Voting Foundation, a nonprofit headquartered in San Diego.

In response, the majority of states have installed voting systems with paper backups that allow for a manual recount in the event of computer error or manipulation.

"When someone has a personal experience with a major malfunction or a near miss, it tends to change how they look at their system," Smith said. "Nobody wants to be the next Florida."

New Jersey is one of six states where paperless voting machines are in use statewide, though such machines are still in limited use in 11 other states, including Pennsylvania.

In 2007, the New Jersey Legislature had voted to install a paper backup on its machines at an estimated cost of $26 million. But two years later, lawmakers decided to hold off until federal money was made available, said a spokesman for the state Division of Elections.

New Jersey has approximately 11,000 voting machines, the majority of which are a model of the machine criticized in Venetis' original 2004 lawsuit as particularly prone to hacking. That analysis appeared to be upheld by Mercer County Superior Court Judge Linda Feinberg's 2010 ruling, which said the machines were not secure and needed to have their security systems upgraded. The ruling did not require paper backup.

U.S. Rep. Rush Holt (D., N.J.) has petitioned the U.S. Attorney General to begin forcing states to use paper backup with mandatory audits. But the Attorney General's Office has demurred, arguing that federal voting laws do not give it legal authority to do so.

"Reliable elections with integrity are priceless," Holt said. "The right to vote is the right through which we secure all our other rights. How can we use the argument having auditable successful elections is a luxury?"

In Cumberland County, the question of what happened to the Zirkles' original results remains a matter of debate.

The county Board of Elections has maintained the mistake was the result of a human error in programming the lone voting machine used in the election.

The day after Superior Court Judge David Krell ordered that machine impounded, a Cumberland County computer technician erased a number of files on the laptop used to program the voting machine to try to improve its slow processing speed, according to testimony submitted to the court.

"At no time did I delete any information concerning the programming of the voting machine," read a sworn statement the technician signed.

The next day, Princeton University professor Andrew Appel, who was hired by the Zirkles' legal team to evaluate the voting machine, found that the log that records the computer's history had been erased.

Sam Serata, attorney for the Zirkles, who once served as county counsel, believes those logs contained the truth about how the voting machine switched the results.

"It smells," Serata said. "If this goes on in rural Cumberland County, what must go in Newark or Jersey City? That's my question."

Serata is asking the court to impose sanctions against the county elections board and appoint an independent investigator to look into what happened.

A hearing is scheduled for Dec. 2. Criminal investigators from the state Attorney General's Office have already reviewed the matter and decided not to pursue charges, according to court filings submitted by Deputy Attorney General George Cohen, who is representing county officials in the case.

Nancy Sungenis, a member of the elections board and also vice chairwoman of the Cumberland County Democratic Party, dismissed the allegations of intentional wrongdoing.

"It was a human mistake and so forth, and it had nothing to do with the machines," she said. The Zirkles "could have easily said this is a human mistake. We know what happened; it's quite obvious what happened, but then they want to blow it up."

Cynthia Zirkle doesn't see it that way, and says she plans to continue her case.

"Without a verified paper backup trail, there is no way of knowing whether it's human error . . . Challenging these machines is virtually impossible," she said.

"People should at least," she added, "have assurance that their vote counts."