Heindel v. Andino

The plaintiffs, represented by Protect Democracy, contend that the state’s use of the ES&S iVotronic direct-recording electronic (DRE) voting machines creates numerous documented problems when reporting votes. The system has been shown to arbitrarily count some votes twice while leaving others unrecorded. In some cases, faulty touch-screen calibration and software issues have caused the machines to incorrectly record a voter’s candidate of choice, similar to issues with straight-ticket voting in Texas in 2018. The machines are also highly susceptible to hacking, as they are manufactured abroad, lack proper encryption technology, and the software does not meet standard coding practices. Compounding these problems is a lack of a physical ballot of record that is necessary to conduct an effective post-election audit capable of reliably spotting mistakes in the tallies made by the machines.

The plaintiffs argued that the combined effect of these issues justifies a suit on the grounds of unconstitutional voter disenfranchisement, but the federal district court refused to hear the case, saying their claims were “merely speculative.”

Our amicus brief, filed on behalf of the National Election Defense Coalition and nine computer scientists and other election security experts, argues that the harm is not speculative. To the contrary, South Carolina’s use of the iVotronic system imparts real and imminent injury on the federally protected right to vote. The iVotronic system arbitrarily dilutes voting power by double- and under-counting certain votes, thereby empowering certain voters at the expense of others. It also assigns votes to incorrect candidates and lacks adequate means to audit reported results, all of which increase the system’s arbitrary treatment of ballots. In addition, known defects in the voting system make it uniquely susceptible to undetectable foreign and domestic interference by attackers. South Carolina’s refusal to guard against these attacks is tantamount to turning a blind eye to ballot box tampering. For all of these reasons, this system interferes with the ability of South Carolina residents to exercise their rights to vote.

Update: In July 2019, after the appeal was fully briefed, South Carolina’s State Election Commission announced that it had entered a contract to purchase new voting machines that would replace the iVotronic machines statewide. By October 2019, the new systems had been delivered (and the iVotronic machines removed) in most of the state, including the counties in which the plaintiffs vote, and the rollout is on track to be complete statewide before 2020. Consequently, the plaintiffs agreed to dismiss their lawsuit.

Legal Team

Free Speech For People serves as counsel for amici. We are grateful for the pro bono assistance of Covington Burling LLP.