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Not so long ago, we lived in an era of hanging chads. Yes, those nasty paper ballots from Florida had such an impact on the most recent presidential election that related issues were presented first to the Florida Supreme Court and then ultimately to the U.S. Supreme Court. Who knows, had the voting been handled differently, perhaps employing high-tech means for casting and counting votes, the election may have gone the other way — which certainly would be interesting, if nothing else, given where we are at this important juncture in history. Not surprisingly, in the aftermath of that most unusual election, where the presidency hung in the balance of several hundred votes out of many millions, different methods of voting systems have come to the fore. Yet, while high-tech voting systems are being lauded and implemented, they also have their detractors. NEW VOTING METHODS Prompted by cries for federal and state election reforms, states such as Florida, Texas, Maryland and Georgia have installed certain high-tech voting systems within the past year. These systems do away with hanging chads, pencil erasure marks and the prospect that a voter may select too many candidates by mistake. Using these systems, voters turn a dial or touch a screen to choose their candidates. They see a confirmation of their choices before they finally cast their votes, which are tallied in the computer terminal. Proponents of these high-tech voting systems state that they are easy to use and accurate. However, detractors are coming out of the woodwork. CRITICISM Critics, including scientists supposedly in the know, complain that the new voting systems are open prey to tampering, human error and computer malfunctions. Their greatest complaint is that the systems do not create a paper receipt that a voter can confirm if problems are encountered after voting. The critics state that in certain elections that already have taken place using the new voting systems, certain votes never registered, votes were cast electronically for the wrong candidates based on computer, not human error, and other irregularities occurred. While critics are worried about elections that obviously are flawed based on a simple review, such as no votes for a particular candidate being registered, they are most concerned about elections that appear to go smoothly but which inadvertently, and below the radar screen so to speak, throw votes to the wrong candidates — without anybody ever knowing. NOW WHAT? Those in favor of the new voting systems dispute the charges leveled by the critics. They also state a willingness to couple paper receipts with electronic voting as a backstop. At the end of the day, there may be no perfect way to cast and tally votes. In most elections, perfection is not required, as the voting distance between candidates normally is enough to absorb any problems without altering the right result. But as we saw in Bush v. Gore, when there is a virtual dead heat, perfection may be needed. The problem is that to err is human, and perfection is beyond our grasp. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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