On Oct. 5, Federal District Judge Cameron Currie dismissed Brett Bursey’s complaint against the voting machines used in South Carolina. Bursey had argued that the machines, which do not produce a paper ballot that can be recounted, violate federal statutes.

Bursey is the Director of the South Carolina Progressive Network, a 16-year-old coalition that promotes good government and civic participation.

“The voting machines we use have been decertified in other states, for the very reasons we believe they are unreliable and unverifiable,” Bursey said.

Federal law requires: “The voting system shall produce a permanent paper record with a manual audit capacity for such system (Help America Vote Act 42 USC 15481).” The voting machines in South Carolina do not produce a permanent paper record, nor do they allow a manual audit, or recount.

Federal laws also require the preservation of all records in federal elections for 22 months. Since the machines in use in South Carolina do not produce a paper record, and the original memory cards in the machines were erased two weeks after the June 8 primary, Bursey asserted that they violate federal laws.

“We presented the court with expert testimony that the results of the June 8 primary in the US Senate race were statistically improbable,” Bursey said. The questions surrounding the unusual vote totals and patterns could not be resolved, because the machines don’t produce a paper ballot that can be recounted.

“Voters in South Carolina have lost confidence that their votes are counted accurately,” Bursey said.

Judge Currie dismissed the lawsuit against the Election Commission, ruling that Bursey doesn’t have a “private right of action” to enforce the statutes on voting records; only the US Attorney General does.

“I provided the judge with a time-line of my efforts to get the US Justice Department to take up the case,” Bursey said. “I noted that the US Attorney told me that the case was ‘too politically charged’ for him to intervene.”

In dismissing the case, prior to hearing arguments on the merits of the complaint, Judge Currie wrote, “While this court takes no position on whether South Carolina is in compliance with the statute, the fact that a federal statute may have been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.”

Bursey said, “We presented expert testimony to the Election Commission in 2003, prior to the purchase of these machines, that they were unreliable. We remain convinced that contracting our elections out to a private company, with proprietary codes and software, is contrary to an open and transparent democracy.

“The good news, is that the malfunction rate of these machines is so far beyond the guidelines set by the US Election Assistance Commission, that they need to be replaced. We will be introducing legislation this year for a voting system that doesn’t depend on secret software, produces a voter verifiable paper ballot and is much cheaper to own and maintain.”