Patent Law Would Depoliticize Election Lawsuits and Help Judges Separate Conspiracy from Reality
Election software has received a good amount of attention from academia and the press in recent years.1 Widespread concern over Russian interference in the 2016 election sparked strong interest in investigating the purported issues and securing future contests. In 2018, the National Academy of Sciences, Engineering, and Medicine commissioned a study on how our election infrastructure can be strengthened. At DEF CON (a hacking conference) in 2019, the attendees sought to highlight the vulnerability of our election machines. The attendees 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 the three largest providers of voting equipment in for testimony. An NBC article on the hearing illustrates the view of the press at the time, “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.2 They were correct. This has led to an array of election lawsuits and some high-profile defamation cases.
Central to much of the 2016 and 2020 election controversy is the plausibility of two functions: 1) remote vote changing, and 2) ballot image production. Yet patents have claimed these functions nearly verbatim, and these patents appear to have been integrated into voting systems used in almost all swing states. Because of their probative value and favorable admissibility, patents like these would be useful tools for judges seeking to discern what is plausible for a specific technology and what is conspiracy.
U.S. Patent No. 9,202,113 describes a process of remote vote adjudication using ballot images. U.S. Patent No. 8,876,002 describes a vote simulation script, which creates and sends ballot images or PDFs to a voting machine to be counted. Both would provide probative value to a judge seeking to determine whether votes can be changed or produced remotely.
U.S. Patent No. 9,202,113 claims (or asserts as its property) a process of ballot adjudication utilizing ballot images.3 This technology appears to be implemented in the ‘Digital Adjudication’ application found in a widely used voting system, the ImageCast. The patent’s specification (or the description of the invention) describes adjudication as a method by which election officials “may confirm, correct, or appropriately change one or more votes recorded for the particular ballot,”4 using “an adjudication system that is located either locally or remotely.”5 When used as designed this technology allows election officials to log in remotely and efficiently adjudicate ballots with ambiguous markings over a network. But the ability to change one or more votes recorded for a particular ballot, and do it remotely, is noteworthy to a judge seeking to determine the plausibility of remotely changing votes.
U.S. Patent No. 8,876,002 claims a process of running vote “simulation scripts” using a “wireless communication device.”6 The technology protected by this patent appears to have been implemented in the ‘Vote Simulator’ technology found in another voting system in the ImageCast family, the ImageCast X. This system is used in most of the contested swing states. According to the patent’s specification, the “vote simulation script is a set of commands that can simulate voting patterns on the machine even to the level of providing pre-canned scanned ballot images or PDF images of ballots with machine generated marks for testing the vote interpretation engine on the tabulator.”7 The specification goes on to say that the script is able to run “self-printer tests” as well.8 When used as designed, this patented ‘vote simulation script’ technology allows election workers to test voting machines over a network (without having to physically feed test ballots into each one of them). This is particularly useful in large precincts with thousands of machines. However, anytime ballot images are being mass-produced, ballot mixing can be a problem. The importance of deleting the test ballots was illustrated in New York’s 2021 Primary (though on different software), where ballot images from 135,000 test ballots were included in the ballot count until a candidate (and the ultimate winner), Mr. Eric Adams, identified the error. A judge seeking to determine the plausibility of producing ballot images over a network would find this technology noteworthy.
These patents would be helpful to a judge seeking to determine whether votes can be changed remotely, or whether ballot images may plausibly be produced over a network. When presented with patents that claim or describe methods of remotely changing votes or creating ballot images, it would become clear to a judge that the technology required to change votes remotely or create ballot images exists in many voting machines.
When introduced in election controversies, the patents discussed above would hold up well against hearsay and other evidentiary challenges. Under FRE 803(8)(B), a patent may be admissible as an official public record. Under FRE 801(d)(4), it may be admissible as an opposing party statement. Statutory support for the admissibility of patents is found at 28 U.S.C. § 1744, which says that a copy of a patent would be sufficient for FRE 901 purposes. Finally, the reliability of patents and the timing of their procurement (well-before election litigation commences) should protect them from other evidentiary challenges, such as FRE 403 balancing (where their probative value is balanced against their potential for undue prejudice). For these reasons, judges and opposing parties will find this evidence more valuable than the affidavits and expert witnesses resorted to in many election cases.
As a public record under FRE 803(8)(B), patents should easily navigate a hearsay challenge. There is strong precedent for this in federal and state courts.9 A very detailed analysis of a patent’s admissibility under FRE 803(8) was performed in the Northern District of California, addressing the question in the context of a patent infringement case in Fresenius Medical Care Holdings v. Baxter Intern.10 The court held that each element of FRE 803(8)(B) was met by documents issued by the USPTO. The Federal Circuit has similarly upheld the admission of patents as public records, as in Standard Havens v. Genecor.11 But the most referenced case for the use of a patent as evidence in non-patent cases is the Texas Appellate Court’s ruling in General Motors v. Harper, which held that the Rule 803(8) public records exception applied to patents.12
Furthermore, patents should easily escape hearsay challenges as opposing party statements under FRE 801(d)(2), as the Federal Circuit ruled in Dawson v. Dawson.13 This is noteworthy for defamation litigation because the voting software company is often a party to the suit, rendering their statements admissible under FRE 801(d)(2)(D). In other cases, the voting software company is an agent of a party to the suit (as is the case in lawsuits challenging elections, where the state or county, which licenses the patented technology, is usually being sued). Per FRE 801(d)(2)(B), this renders the patent an opposing party’s agent’s statement.
There is also statutory support for patent admissibility, at least for FRE 901 purposes. Copies of the patent are just as admissible as originals, per 28 U.S.C. § 1744, which states that, “copies of letters patent . . . or any records, books, papers, drawings belonging to the United States Patent and Trademark Office . . . shall be admissible in evidence with the same effect as the originals.”14
Finally, and more generally, U.S. patents would fare well against discretionary evidentiary challenges because they are more reliable and less partisan than many forms of evidence resorted to in election cases, such as affidavits and paid expert witnesses. A patent represents 1) what the voting equipment company claimed about its own software before a specific election case arose; and 2) what the company could substantiate to the U.S. Patent and Trademark Office. As such, the documents should fare well when a judge seeks to balance the patent’s probative value against its potential for undue prejudice (a balance which may be crucial in defamation cases).
Thus, these documents, far more than expert witnesses or affidavits, can serve as a mutually agreeable baseline for the equipment’s capability. The highly partisan nature of election contests makes this a unique virtue of the documents.
When provided with patents like those described above, judges can move beyond the question whether votes can be, or were, changed remotely. Instead, judges can properly focus their time on more incisive questions, such as whether the machines were protected with strong network security, whether those changing votes were authorized to do so, or, notably, whether the ballot images match the physical ballots.
Parties in election suits should prepare for these documents to play a larger role in years to come. The days of ballot-box stuffing have evolved into complex analyses of source codes and data packets. In suits challenging elections, savvy trial judges with short deadlines to meet state safe harbor dates will find patents increasingly useful as a baseline for the capability of the technology in question. In post-election defamation suits, judges will find these documents helpful as they seek to determine maliciousness of claims about remote vote changing and vote production.
1. Robert S. Mueller, III, U.S. Dep’t of Justice, Office of Special Counsel, Report on the Investigation into Russian Interference in the 2016 Presidential Election 191 (Mar. 2019), https://www.justice.gov/storage/report.pdf; Lawrence Norden, How to Secure Elections for 2020 and Beyond, BRENNAN CENTER (Oct. 23, 2019) https://www.brennancenter.org/our-work/research-reports/how-secure-elections-2020-and-beyond; Guy Rosen et. al, Helping to Protect the 2020 US Elections, FACEBOOK NEWSROOM (Oct 21, 2019) https://about.fb.com/news/2019/10/update-on-election-integrity-efforts/. Return
2. Daniel Barabander, Cyberattacks and Election Integrity, 4 GEO. L. TECH. REV. 665 (2020); Suman Malempati, The Elections Clause Obligates Congress to Enact A Federal Plan to Secure U.S. Elections Against Foreign Cyberattacks, 70 EMORY L.J. 417 (2020); Eric Manpearl, Securing U.S. Election Systems: Designating U.S. Election Systems As Critical Infrastructure and Instituting Election Security Reforms, 24 B.U. J. SCI. & TECH. L. 168 (2018). Return
3. U.S. Patent No. 9,202,113 (issued Dec. 1, 2015), [https://perma.cc/PU6F-EUWH]. Return
4. Id. at Section 8, Lines 46-50 ("Ballots identified as requiring adjudication may be provided to an election official who may confirm, correct, or appropriately change one or more votes recorded for the particular ballot based on thier review of the ballot optical image."). Return
5. Id. at Section 14, Lines 20-24 (“Votes requiring adjudication may be identified, in some examples, by a central server computer system, or by an optical scan ballot system, with adjudication of the votes performed with an adjudication system that is located either locally or remotely.”). Return
6. U.S. Patent No. 8,876,002 (issued Nov. 4, 2014), Section 15, Claims 1 and 5, [https://perma.cc/D553-TV3M]. Return
7. Id. at Section 5, Lines 22-33 ("[T]he communication device enables the voting machines to be provided with a vote simulation script over the network. A vote simulation script is a set of commands that can simulate voting patterns on the machine even to the level of providing pre-canned scanned ballot images or PDF images of ballots with machine generated marks for testing the vote interpretation engine of the tabulator."). Return
8. Id. at Section 5, Lines 33-40 ("The communication device also enables the voting machines to be remotely instructed to run pre-LAT activities such as interpreting vote simulation scripts and images, performing image calibration procedures, verifying all system components for readiness and proper funciton, self printer test etc. Finally, results of all [p]re-LAT tests can be communicated back to the EMS through the communications device."). Return
9. Dawson v. Dawson, 710 F.3d 1347, 1355 (Fed. Cir. 2013); Standard Havens Prod., Inc. v. Gencor Indus., 953 F.2d 1360, 1372 (Fed. Cir. 1991) (because patent was “a public document and of particular relevance, it was not improper for the trial court to admit the certificate into evidence.”); Yanbin Yu v. Apple Inc., 392 F. Supp. 3d 1096, 1105 (N.D. Cal. 2019) (collecting cases); Hay & Forage Indus. v. New Holland N. Am., Inc., 25 F.Supp.2d 1170, 1176 n.2 (D. Kan. 1998) (holding that patents “would be subject to the public records exception to the hearsay rule.”); Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 125–26 (Tex. App. 2001) (“[T]he patents themselves were admissible under the public records exception to the hearsay rule”). Return
10. 2006 WL 1330003 (N.D. Cal. 2006). Return
11. 953 F.2d 1360, 1372 (Fed. Cir. 1991) (finding “Certificate of Correction is part of the patent,” it is a public document, and “it was not improper for the trial court to admit” into evidence). Return
12. Harper, 61 S.W.3d at 125-126 (“[T]he patents themselves were admissible under the public records exception to the hearsay rule”). Return
13. 710 F.3d at 1355 (“UCSF objects that the Board erred in considering statements from the specifications of the . . . patents on the ground that those statements were inadmissible hearsay. [H]owever, ‘[a]n admission should not be confused with hearsay,’ and UCSF adopted the words in the ′113 and ′443 patents as its own when it ‘copied’ those words into the patent application that provoked these interferences.”). Return
14. 28 U.S.C. § 1744 (2018) (“Copies of letters patent or of any records, books, papers, or drawings belonging to the United States Patent and Trademark Office and relating to patents, authenticated under the seal of the United States Patent and Trademark Office and certified by the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, or by another officer of the United States Patent and Trademark Office authorized to do so by the Director, shall be admissible in evidence with the same effect as the originals.”). Return