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
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Wednesday, August 17
Unhappy Trails, from California to Ohio
California and Ohio were among the first states to enact legislation to pass legislation requiring that electronic voting machines generate a contemporaneous paper record (CPR), or "voter verified paper audit trail." Recent developments in both states provide additional evidence that these laws were very, very bad ideas.
The Dayton Daily News has this report on the plan of several Ohio counties to go with Diebold's CPR system, despite problems that California found to exist during recent testing, including printer jams on 10% of the machines tested. Diebold, for its part, claims that only 10 times out of 10,720 ballots cast. Both could of course be true (i.e., that printer jams occurred on 10 out of the 96 machines tested but, because multiple votes were cast on each machine, a printer-jam actually occurred only 10 occasions out of the 10,720 attempted votes -- or 0.1%). Still, it's cause for concern that several printers jammed in controlled tests.
Ohio's taking a risk by requiring electronic voting machines to have a contemporaneous paper record. As I'm quoted as saying in the article, this is an "unprecedented experiment" given that this equipment hasn't been used on so wide a scale in any other state. Note that my comment refers specifically to the use of this CPR system, rather than the use of paperless electronic voting systems generally -- which have been successfully deployed in numerous jurisdictions, provided access to many people with disabilities, and contributed to the estimated million votes saved in the 2004 elections.
Even aside from the question of whether CPR systems will be workable is the question of whether they'll be effective at preventing fraud and error. California provides new reasons for doubting that they will be. Secretary of State Bruce McPherson has opposed a requirement that the contemporaneous paper records be used in recounts, according to this report. The problem, according to McPherson, is that those records don't meet the legal definition of a ballot. Also, blind voters can't see and therefore can't verify it. Paper trail advocates argue that, if the paper records aren't recounted, they'll be useless -- and I agree with them for once. Unfortunately, these advocates latched on to the CPR as the solution, without thinking through whether it would actually function as intended or solve the asserted problem.
California and Ohio would both be better off getting rid of their CPR requirements entirely. There are other mechanisms by which to promote electronic voting security -- such as parallel testing, which California already does -- which are likely to be much more effective. Unfortunately, it doesn't appear that this is likely to happen. Although the CPR may be nothing more than a placebo for voters, it's one that some prominent legislators and a vocal minority of their constituents have committed themselves to. For this reason, further elaborated on here, Ohio, California and other states may have real problems complying with HAVA's 2006 deadlines for replacing punch cards and implementing accessible technology.
Unhappy trails, paved with good intentions . . .