Prof Dan Tokaji Drops Pro-DRE litigation as Moot, Calls VVPAT "Fool's Gold" says Congress should "Take a Breath" on Further Legislation

Prof./Lawyer Dan Tokaji is lead counsel in the most potentially damaging elections case in America (Stewart v Blackwell, 6th Cir.)  and he is also arguably the chief legal conjurer for a world of DRE technology, having sued on behalf of the ACLU in this case to require DREs and have them held constitutional while having paper-based punchcards and central count optical scans held unconstitutional on account of their relative residual vote rates (defined as overvotes plus undervotes). 

A normal 3 judge panel of the 6th Circuit had previously upheld DREs and struck down the paper based technologies that were otherwise grandfathered under HAVA for this general reason of "residual votes".  I've written before that the residual vote test is tilted heavily to favor DREs, which don't allow overvotes (and so will typically win the residual vote test) but more importantly, as a different technology, DREs tend to express their problems in ways other than residual votes (though they can have occasionally high undervotes, as seen in Sarasota, Florida)

Tokaji and the ACLU decided to drop their case as moot last week, agreeing to Blackwell's long-standing earlier argument that the case was moot because all Ohio Jurisdictions had adopted "notice" voting technology, i.e. technology that pipes up and warns the voter if there's an overvote or an undervote.   Various factors from the increasingly publicized undervote rates in Sarasota Florida to the recent NIST STS report probably factored into the last minute decision for Tokaji and the ACLU to agree with Blackwell that the case was moot, since Blackwell's position had been along these lines for some time now.  Because the panel decision was vacated in order to gain en banc review, the moot status, if agreed to by the court, would keep the 6th Circuit opinion as vacated and dismiss the trial court action.  The expected appeal to the US SUpreme Court on Bush v Gore grounds would be avoided, for now.

Tokaji also commented on the NIST STS report, and called VVPAT "fool's gold." 

"The most important thing for Congress is to take a deep breath," says Dan Tokaji, an election-law expert at Ohio State University. He worries that momentum is building for something that could prove to be a mistake. "Passing paper trails at this stage, based on what we know right now is really fools gold. It may provide an initial sense of confidence. But that confidence won't be long-lasting unless we resolve some deeper issues."

I've emailed with Tokaji, and he is well aware of the legal challenges that can be brought, including but not limited to Bush v. Gore challenges (he's written a book chapter on such things) which he successfully brought in the 6th Circuit until the opinion was vacated pursuant to the normal procedures for en banc review.  Brad Blog chimes in:

"Tokaji is absolutely correct. He just didn't go far enough and say that with no confidence in the paper trail there should also be no confidence in Direct Recording Electronic ( DRE) voting machines. They are both, together or singly, "fools gold"."

As Tokaji notes at the end of his blog, "The doctrinal legacy of Bush v Gore remains up for grabs."   By no means does the "dicta" reference in Bush v. Gore to the general effect that it is a unique case mean that it does not provide rules of decision for future cases, as the panel in the 6th Circuit originally held.  Already five major cases have been brought under Bush v. Gore and it is still up in the air, i.e. seeminly primed for further US SUpreme Court review of our elections systems.