For months, a group of election activists has complained about Secretary of State Scott Gessler's oversight of touch-screen voting machines used throughout Colorado that critics say are vulnerable to tampering and malfunctions.
Gessler argues strongly that the voting machines are reliable, but critics say that in a close presidential election in swing state Colorado, and in places like Arapahoe County - where touch-screen machines are still the principal means of casting an in-person ballot - a mishap with the devices could tilt the race. Colorado's touch-screen machines, they say, could become the "hanging chads" of 2012.
"The secretary of state has not enforced his own voting security laws and regulations for touch-screen machines since he was elected," said Paul Hultin, an attorney representing a group of voters who brought a 2006 lawsuit challenging the machines' reliability.
All counties have at least a few of the machines, which can be adapted to assist disabled voters to cast ballots, but only Arapahoe- a swing county - and Adams and Weld counties use the machines as the principal method for casting an in-person vote.
While most Coloradans now cast their ballots by mail, clerks in these three counties estimate that, together, more than 100,000 people will use the touch-screen machines to vote.
"There's a deep commitment to making sure the equipment is properly certified," said Gessler, a Republican elected in 2010. "The bottom line is our office and the clerks and the recorders do a very, very thorough job of testing and certifying the equipment. I know of no evidence in Colorado where any of these machines have ever been tampered with.
"If there is specific evidence of tampering that is brought to me, and if there is an issue where we've got a hole, I will fix that immediately."
Hultin says Gessler's office is not complying with Colorado election rules governing how the machines are to be monitored and kept secure. That includes:
Not conducting annual reviews of the voting machines in at least two counties until after repeated inquiries by Hultin, and then conducting one-day reviews only.
Not reviewing the software incident reports of the machines' manufacturers to determine if the machines are functioning properly. (Gessler said his office was trying to reach out to manufacturers before the election on the software incident reports.)
Not conducting random inspections of county records that include chain-of-custody logs and maintenance records.
The rules were put in place after the 2006 lawsuit and apply to what are called DRE, or direct record electronic, voting machines. These are primarily touch-screen machines that in most cases also print a paper readout meant as a physical record of a voter's ballot.
Many counties nationwide moved to use the high-tech machines after problems in the 2000 election, notorious for the "hanging chads" of punch card ballots used in Florida. But amid criticism over the touch-screen machines, many counties dropped the touch-screen machines and moved to other methods, such as the paper ballots used by Denver.
Hultin points to a Sept. 24 e-mail to his office from Maurice Knaizer, the deputy attorney general representing Gessler, in which Knaizer responds to inquiries about whether counties' machines have been reviewed. Gessler's office "has not strictly complied" with rules requiring the reviews.
However, in a subsequent e-mail Knaizer said Gessler's office "disagrees with the allegations that it has neglected its substantive responsibilities under the rules" and that there was no "admission that the office failed to insure the integrity of electronic voting."
National critics of touch-screen machines echo Hultin's concerns about the devices. Pamela Smith, president of the Verified Voting Foundation, a nonprofit organization based in Southern California, says that one of the problems with the touch-screen machines is it would be difficult to tell if they had been manipulated, hence the need for security protocols.
Critics point out that while there have been no documented instances of hacking into a touch-screen machine during an election, there have been instances of malfunctions, such as a machine in North Carolina that lost nearly 4,500 votes in 2004.
Yet Michael Shamos, a professor of computer science at Carnegie Mellon University argues the touch-screen machines are the best voting systems available, while paper ballots, which many voting activists favor, are the worst. Shamos said that there are no documented instances of hacking into the touch-screen machines or are there documented attempts to do so.
"Never has any rogue code been found," Shamos said.
That's because the layers of security that surround the machines are so numerous and difficult to surmount, he said, and would-be manipulators would have to access many machines to tilt an election. Meanwhile, he said, there are cases every year in which paper ballots are found to have been stolen or thrown away.
"Nothing's perfect, and the problem is the activists essentially insist upon a perfect standard," Shamos said.
Arapahoe County Clerk Nancy Doty, a Republican, also thinks the concerns about the touch-screen machines are exaggerated. Doty expects the county to use about 650 machines on election day and predicts that some 56,000 voters in her county will have used the devices to cast ballot.
"I am very confident that these voting machines are recording the votes accurately," Doty said.
She said the machines are tested before the election and audited afterward. Voters like using the machines, Doty said, and they save taxpayers money by avoiding the printing of thousands more ballots.
Weld County officials estimated 17,000 voters there would use the touch-screen devices during the election.
Adams County Clerk Karen Long, a Democrat, estimated somewhere between 45,000 and 50,000 voters in her county could use the machines during the election. Like Doty, she had faith in the machines.
"I'm not going to put something out that isn't working correctly," Long said. "I wouldn't do that to my voters."
Gessler said he has a high level of comfort with how the machines will perform, based on his experience as secretary of state but also as a former elections law attorney.
"They're big counties, they're sophisticated counties," he said. "Historically, they've done a very good job."