Your vote counts! Or does it? It took 36 days to recount the ballots in Florida during the last presidential election. Aside from being an unwanted test of our democratic construct and judicial process, the pundits took it a step further and de- bated whether a constitutional crisis would ensue. In the end, the U.S. Supreme Court settled the issue as the election turned from a political battle into legal one. The upshot of the "hanging chad" and "butterfly ballot" debacle was that the punch-card system and antiquated voting machinery took a beating in the national media and with elections officials and the voters.

As a result, the federal government made close to $4 billion in funding available through the Help America Vote Act to aid state governments in upgrading voting equipment and systems.

The CalTech/MIT Voting Project pointed out in a statement made in February that any new voter technology has to be built on two tenets that are really the bedrock of the democratic process: (1) confidence in the result and (2) the ability to audit the election through a "voter-verifiable paper trail." Paperless versus a paper-trail system is where much of the voting-technology debate is centered.

For example, the state of Maryland has taken steps to promote E-voting and to make the entire state election process electronic, swapping voting machines and punch ballots for computer systems. Maryland's reported $55 million dollar investment made it one of the first states to switch to computer voting. The move hasn't been easy. Activists who want voter-verifiable paper trails staged a statewide "Computer Ate My Vote Day." A team of computer scientists from Johns Hopkins University produced a paper that suggested if flaws were introduced or were pre-existing in the voting software "then the results of the election cannot be assured to accurately reflect the votes legally cast by the voters." Although questions about voting technology continue to be raised, the highest court in Maryland recently decided a case that will allow a paperless system to be used for the time being.

Interestingly, although polling suggests that voters have confidence in E-voting technology, some members of the Senate don't, including Barbara Mikulski, D-Md. The MercuryNews.com reported in September that after a touch screen she tested at a local folk festival produced an erroneous result, Mikulski signed on as a co-sponsor to legislation called the Voter Confidence and Increased Accessibility Act of 2003. The act, still in committee, would require all voting machines to produce a paper record, a so-called voter-verifiable paper trail, so that voters can make sure their vote is accurate and elections officials can audit the vote in case of a malfunction or hacking.

Both presidential camps are attempting to ensure victory this year by establishing teams of lawyers in case it's necessary to contest close elections. Instead of sending staff to oversee the recounting of ballots and engaging lawyers to file suits, perhaps the two sides should be sending computer geeks. If the ballot is paperless, that may be the only way to ensure that your vote does indeed count.

Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at [email protected]. (Any opinions expressed in this article are solely those of the author and do not necessarily represent those of the George Mason University School of Law.)

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