Some individuals who claim that touch-screen voting machines are not reliable will get a chance to make their case in court.
In a unanimous decision Tuesday, the Arizona Court of Appeals rejected arguments by attorneys for the Secretary of State's Office and county election officials 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.
Potentially more significant, Hall 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, unless overturned by the Arizona Supreme Court, sends the case back to a trial judge who three years ago threw the case out of court.
The lawsuit stems from changes enacted at the federal level after the near constitutional crisis due to Florida's 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 those with disabilities.
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.
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 claimed the machines from Diebold and Sequoia present "unacceptable risks of inaccuracy, vote manipulation and malfunction." They also charged the machines were subject to "hacking" and that these machines were more subject to phantom and switched votes than optically scanned ballots.
But Judge Barry Schneider 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 the experts and others who participated in the selection process.
Hall, however, wrote that the claim - assuming it can be proven as true - 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 wrote. That, wrote Hall, allows a court to consider if Brewer followed those laws and requirements.
The appellate court also rejected Brewer's arguments that any concerns about the machines' accuracy is "speculative" because no actual harm has occurred and there is no constitutional right to an election free from all error.
Hall, however, said the Arizona Constitution requires a "free and equal" election. And he said that is imperiled 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.
In fact, Osborne said the contrary appears to be true.
She said her office tests those machines, along with the optical scanners, prior to 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."