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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, June 21
 
Today's Senate Hearing, and the Daily Kos
The Senate Rules & Administration Committee heard testimony today on the auditability of electronic voting. Computerworld has this report. The committee heard from MIT's Ted Selker, L.A. County Registrar Conny McCormack, the American Association of People with Disabilities' Jim Dickson, Stanford's David Dill, and Senator John Ensign. The first three are opponents of legislation that would require electronic voting machines to generate a contemporaneous paper record (CPR, aka, the "voter verified paper audit trail"), while the last two are proponents. The witness list and their prepared statements can be found here.

Computerworld's report suggests that the committee's chair Republican Trent Lott and its ranking Democrat Chris Dodd are both skeptical, to say the least, of proposals to require a CPR. Sen. Lott cited the added complexity that would result from a printer add-on -- the more complicated you make a voting system, the more things can go wrong. Sen. Dodd noted the CPR's inaccessibility to people with visual impairments who, with contemporary paperless systems, can verify their votes through an audio component.

Also worth a look is this post on today's hearings in the Daily Kos. Aside from the photos, the post is notable not for its insight but rather for its exemplification of some of the common misconceptions of some CPR proponents. The post by DC Pol Sci takes both the AAPD's Dickson and Sen. Dodd to task for opposing CPR legislation. Here's a sample:
[Dickson] claims that any attempt to "tamper" with the provisions of the Help America Vote Act will hurt the disabled. From his testimony: "The disability and civil rights communities oppose opening up HAVA for any amendments."

WHICH civil rights community?!? Certainly not the ones who advocate every vote counting....
Count me among the civil rights advocates who believe that every vote should count and largely for that reason think federal legislation to require a CPR is a terrible idea. There's no serious question that HAVA's provisions for upgrading voting technology have saved hundreds of thousands of votes. One study found that a million votes were saved by moving to new technology and better procedures in 2004. States like Georgia, which moved to paperless electronic voting statewide, saw huge drops in the percentage of uncounted ballots, particularly in heavily minority precincts. So, actually, the civil rights rights community -- at least those of us who care about every vote counting -- has pretty good reasons for supporting the transition to electronic voting.

Why might adding a CPR to electronic voting units be a problem? Even putting aside the unrealistic transition date of 2006 being proposed by some CPR advocates (which I discussed in this comment), the likely effect of such a requirement would be to compel states to stick with inferior paper-based equipment. This can best be seen by looking at what's happened in states that have legislated a CPR requirement. In California, the CPR requirement has led the state's -- and for that matter the nation's -- largest county of Los Angeles to stand pat with a non-notice optical scan system. It's a step up from the punch card, but results in many more lost votes than paperless electronic systems. And in Ohio, which also legislated a CPR requirement, virtually every county in the state decided to stick with the bad old "hanging chad" punch card in the 2004 election. It wasn't enough votes to have made the difference, but had the election been closer ... flashback to Florida 2000.

Because of their CPR laws, states like Ohio and California are running a real risk of not complying with HAVA's 2006 deadlines for the implementation of accessible voting technology and (for those which took federal funds) the replacement of punch card and lever voting machines. Notwithstanding the regrettably typical and patronizing tone of the Daily Kos comment -- which suggests that committed disability advocates like Jim Dickson really don't know what's good for them -- the disability community has legitimate reasons to be concerned. It's quite likely that technology allowing visually and manually impaired people to vote independently won't be in place by this deadline, if a CPR requirement is imposed.

None of this is to deny that there are genuine risks with electronic voting. It is instead to question whether strapping a printer onto electronic voting machines is the best way to deal with those concerns -- as opposed to better testing and certification procedures, parallel monitoring (where random machines are taken out of service and tested on election day), and maintaining a chain of custody for software and voting units. These measures aren't as sexy as paper. They require an understanding of the voting process that would make most bloggers' eyes glaze over. But they are likely to be much more workable and effective than a CPR, without compromising anyone's voting rights.

This leads me to the most stupefying remark in today's Daily Kos post, a comment on Sen. Dodd's opposition to the CPR requirement:
*Dodd* is against a voter-verified paper audit trail. Why? Well, he wrote what became HAVA, and he says that it's not necessary; that HAVA itself requires enough accountability. Guess ol' Chris is committed to our being in the minority for the foreseeable future...(emphasis added)
Huh? Assuming that the "our" here refers to the Democrats, the implication is that Dodd's unwillingness to reopen HAVA is what will keep Democrats from winning election. Maybe this is a joke, but if not ... well, the writer is living in Wonderland.

That's not only because the transition to electronic voting has reduced the number of uncounted votes, particularly in minority communities -- a constituency we'd expect the Democrats to care a great deal about. It's also because the likely consequence of reopening HAVA would be to undo the balance between access and integrity struck by that legislation, and isn't likely to do much good for Democrats' core constituencies. Part of the HAVA compromise was a limited ID requirements, which is applicable only to first-time voters who registered by mail and which doesn't require photo ID.

If HAVA is reopened, given the current composition of Congress, the ID requirement isn't likely to be relaxed, but made stricter. Anyone who's been following election administration developments since the 2004 election knows that the "reform" that Republicans are most vigorously pursuing is to impose stringent photo ID laws. As I noted here and here, such requirements would hit seniors, people with disabilities, poor people, and people of color hardest.

So what's the likely effect of reopening HAVA? The Democrats might get a CPR requirement, which would be detrimental to voting rights; and in exchange, the Republicans would get a stricter ID requirement, which would be destructive to voting rights. A bad deal all around, if you ask me.

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Moritz College of Law The Ohio State University