Vote Simulation Scripts and Test Deck Generators: Patents and User's Manuals May Play A Role in the 2020 Election Litigation

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Introduction As judges seek to separate the fantastical from the plausible in election suits and related defamation cases, patents and user’s manuals may be a strong tool. When characterized as public records, business records, or opposing party statements, these documents may avoid many of the admissibility challenges that have plagued election cases. The documents also provide a level of neutrality and reliability that affidavits and expert witnesses do not—as it is what the voting equipment company claims about its own software, these documents serve as a mutually agreeable baseline for the equipment capability. The especially partisan nature of election contests makes this a unique virtue of the documents. As such, parties in ongoing and future cases should not overlook them in preparing for litigation. Background and Summary The question whether election machines can plausibly be electronically manipulated was once a less exceptional view in academia and the mainstream media. After widespread concern of Russian interference in the 2016 Election and bipartisan interest in securing future contests, significant private and governmental resources were aimed at investigating our country’s voting infrastructure. In 2018, the National Academy of Sciences, Engineering, and Medicine commissioned a study on how our election infrastructure can be strengthened. At DEF CON in 2019, the conference attendees famously hacked every single machine present “in ways that could alter stored vote tallies, change ballots displayed to voters, or alter the internal software that controls the machines.” As recent as January 2020, Congress called in the three largest providers of equipment for testimony. In an article on the hearing, NBC wrote “The three companies . . . are almost entirely unregulated. But in recent years, policymakers and election advocates have begun to question who owns the companies, how they make their machines and whether they could be susceptible to remote hacking.” Many in academia predicted that these claims and concerns would continue beyond the 2020 Election. They were correct. This has led to a slew of lawsuits and some high-profile defamation cases. Central to most of them is the question whether vote manipulation using an algorithm or vote simulation script is sufficiently plausible to adjudicate. Patents and user’s manuals often describe these functions and may be useful tools to judges seeking to answer this question. Two documents, a patent and a user’s manual, in particular will be used as a case study. Beginning with the patent, these documents’ usefulness and admissibility are each described in turn.