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Legal and Administrative Considerations

Federal law apparently offers no impediment to Internet elections, provided they do not violate federal election day timing. 47 States determine the types of voting systems that may be used within their borders. State laws would have to be rewritten to accommodate a specific Internet system. For example, some states have laws prohibiting voting via telephone -- a certain, if correctable, hindrance to Internet voting.

The Voting Integrity Project advocates much more stringent oversight of voting system manufacturers and suppliers then currently exists in state law. There are many prohibitions and requirements that could be built into state statutes requiring a higher threshold of integrity for a company and its employees seeking to supply America's elections than generally exists today. Enabling legislation for Internet voting could provide an opportunity for states to review and strengthen their election contracting and oversight rules.

Many of the companies currently constructing Internet voting systems have never operated in a public election environment, and it remains to be seen whether they would be able to compete with the handful of existing system suppliers with well-developed political networks in place. Mergers, buyouts and bankruptcies could add additional turmoil to Internet voting.

The Federal Election Commission is charged with setting standards for election equipment. 48 Those standards are currently undergoing revision, with Internet voting standards being incorporated as well. The FEC has undertaken a feasibility study of Internet voting. The revised electronic voting standards (including the Internet voting standards) will then be let for public comment.

Privacy issues, entwined in the debate on encryption standards are another area of constant legal churn. Since the Internet is still feeling its way on many of these issues, some novel cases are bound to be brought. For example, a weekly newspaper in Tennessee sued a local government in federal court under Tennessee's public records act in an attempt to obtain cookie files, exciting a debate about whether government computer files were public records. The case was dismissed from federal court, but will undoubtedly be raised again in another form and forum as journalists and others attempt to stretch public records disclosure into cyberspace. 49

47. The Voting Integrity Project is currently challenging in federal court state laws in Oregon and Texas that permit unrestricted early voting prior to Federal Election Day.

48. The FEC approved in January 1990 the first national performance and test standards for punchcard, marksense, and direct recording electronic voting systems. More than 130 State and local election officials, independent technical experts, vendors, Congressional staff, and others contributed to this effort. Today, the National Association of State Election Directors (NASED) oversees a process for independent testing and certification of vendor election equipment and software. The resulting test reports are used by states and local jurisdictions to assess system integrity, accuracy and reliability.

49. CNET, December 9, 1997, "Are Cookie Files Public Record?"

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