A Florida appeals court has upheld a lower court decision that denies requests for an independent source code audit of voting machines used by Florida's 13th district, which suffered election irregularities in a highly controversial congressional race. The appeals court has chosen to support a lower court decision which asserts that forcing voting machine maker Election Systems and Software (ES&S) to provide source code access to independent security auditors would amount to "gutting the protections afforded those who own trade secrets."

It all started when candidate Christine Jennings lost to Rep. Vern Buchanan by only 368 votes in a House race last year, the slimmest margin of any congressional race in the country. Irregularities in the election, particularly high undervote rates, caused Jennings to express doubts about the validity of the outcome. During the election, approximately 15 percent (or 18,000) of the total ballots cast in the district did not include a vote in the disputed race. By comparison, the absentee ballots in the same district and regular paper ballots used in neighboring districts only exhibit a 2 percent undervote rate for congressional races. The high undervote rates have been attributed to the ES&S iVotronic machines used in the 13th district.

Although efforts to get the state to force ES&S to submit to additional independent code audits have failed, a bipartisan congressional task force working closely with the Government Accountability Office is actively scrutinizing the circumstances surrounding election irregularities in Florida's 13th district, and may decide to subpoena ES&S. The congressional task force plans to issue a progress report late next month, but the entire investigation is expected to last until September.

Could the iVotronic systems be responsible for the voting irregularities? A growing body of evidence indicates that electronic voting machines, particularly those that use touch-screens, lead to higher undervote rates. Touch-screen voting machines made by major vendors also frequently exhibit serious technical flaws and poor reliability. In response to widespread voting machine problems, Florida governor Charlie Crist is encouraging the state legislature to pass a law that would prevent districts from buying most kinds of touch-screen voting machines.

A bill that was approved by the House Committee on Administration last month includes source code disclosure requirements which stipulate that voting machine makers would be required to disclose their code to independent third-party auditors who may be required to sign nondisclosure agreements. As Tim Lee pointed out in his article on the subject last month, independent code audit requirements are important for election transparency, but nondisclosure agreements would prevent broad public analysis of source code and could potentially be used to intimidate security analysts. Considering the high level of vulnerability exhibited by mainstream electronic voting technology, Congress needs to do all that it can to help the states protect themselves from faulty products.