Why not a futuristic election system

[James Maule]

I think there are some interesting Con Law issues in this scenario:

It is 2012. It is time to vote. It is November 1. Sometime between then and November 7, you can log onto www.voting.gov (from home, from a public library, from a kiosk, from a temporary setup in a firehouse, school, etc). The computer scans your retina. You get a log-on screen that says, "After the Government Shutdown Crisis of 2000, the Congress mandated that all elections occur through digital technology. Your retina will be scanned again, and to ensure against fraud, your fingerprint will be examined...." Then some disclaimers, perhaps, etc.

Eventually, after scanning your fingerprint, the asp program checks to see if you are registered. If you are, it presents the title of an open office and the names of the candidates for that office in easy-to-read, nicely contrasted boxes (or uses some other interface for the visually disabled). There is a provision for write-in votes. After making a selection you are told what you selected and asked to confirm that choice. This is done twice. The process is repeated for each open office.

When you are done, you are given a confirmation number which you can choose to print, email to yourself, or write down. You go home. At 9:00 a.m. EST on Nov 7, the program sends an email or a Fed Ex telegram (depending on the choice made by the registrant) to all registered voters who have not voted, giving them a reminder to vote. This could be repeated later in the day. (It also can ring their cell phones, jingle their beepers, etc).

Near midnight, the results are posted on a web site (that will need a BIG server). No exit polls (impossible to get a fair sampling because so few are at any one place... cf. the Oregon everyone votes by mail system designed to thwart exit polls). No waiting for absentee ballots to arrive by Pony Express. No paper ballots. No chads (unless someone invents a cute way to have the acronym for the new system to be CHAD (Citizens Have Answer Device?)

The issues (aside from technology and security concerns and the extent to which the resolution of these and the following issues affect citizen willingness to vote this way):

Can Congress mandate this? (An issue for which discussion is, in a sense, underway).

Is there a violation of privacy rights? Imagine, an instant database owned by the government telling us who voted for whom. Is this permissible? In other words, is there a right to a secret ballot?

Are the accessibility issues any different from those that now exist or does this reduce the number of instances in which someone would find "getting to the polling place" to be a challenge?

Are there due process concerns lurking in this?

I may be somewhat off the mark, but I don't think I'm out in left field. I think the current situation will encourage efforts to put in place something like what I have described. I've tried to give a general picture without being too detailed.

p.s., feel free to use this as an exam question if you can make it work.




Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule