Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- 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)
Mea Culpa Rejected
A couple weeks ago, the Edison/Mitovsky folks who brought you the now-famously erroneous election-day exit polls issued this report explaining how they went wrong. The exit polls overstated the Kerry vote significantly, nationally and in 26 states. Overall, the polls showed Kerry winning the popular vote by 3.0% when in fact Bush won by 2.5%. In a nutshell, the Edison/Mitovsky report attributes the error to Kerry voters participating in exit polls at higher rates than Bush voters. The report also concluded that "Exit polls do not support the allegations of fraud due to rigging of voting equipment," noting that the exit polls were about as far off in jurisdictions using paper-based optical scan equipment as they were in those using electronic voting machines.
Now, a group calling itself "US Counts Votes" is contesting Edison/Mitovsky's attempt to fall on their sword. USCV has issued this response suggesting that it wasn't the exit polls that were wrong in all those states but the vote totals -- and, more specifically, that a variety of "un-auditable" voting systems are to blame. The group, which describes itself as composed of "prominent statisticians," claims to have come up with statistical evidence that the exit poll reports were just the "tip of a national iceberg." USCV rejects the conclusion that Kerry voters participated in exit polls at a higher rate than Bush voters, noting that precincts with 80-100% Bush voters showed higher participation rates than those with 0-20% Bush voters. They point to the fact that precincts with hand-counted paper ballots showed no statistical discrepancy between exit polls and actual results, while those with other kinds of voting equipment -- including punch cards, optical scans, electronic machines, and lever machines -- all did. One of the statisticians responsible for the report describes this as a "coherent theory that must be explored."
My take: I'll mostly leave the explanation of the problems with the exit poll results to those more skilled in the art and science of polling, like Mark Blumenthal and his Mystery Pollster site. What I do want to respond to here is the suggestion that the statisticians who make up this group -- none of whom appear to have any particular knowledge of election administration -- have come up with any theory, coherent or otherwise, of how huge numbers of votes were shifted from Bush to Kerry in multiple states.
As an initial matter, the USCV group cites the fact that hand-counted paper ballot precincts showed no discrepancy between exit polls and actual results, while precincts using other technologies did. What they don't mention is the fact that hand-counted paper ballots were used by only about 0.6% of voters in 2004, mostly in smaller rural counties. Thus, the fact that the exit polls were close to accurate among the few voters who still use hand-counted paper ballots proves, well, pretty close to nothing.
More to the point, how in the world do they hypothesize that hundreds of thousands of votes were switched on election night, in the 13,000 or so different local jurisdictions that are responsible for administering elections, using different types of voting equipment manufactured by several different companies? Were all of these folks in on some grand conspiracy? There's no "coherent theory" offered here -- in fact, there's no theory offered at all. The decentralization of our election system has many disadvantages, but one of it's advantages is that it makes it practically impossible to pull off the sort of grand conspiracy that USCV hypothesizes. You may be able to bribe one election official or even a dozen. But how do you bribe thousands without being detected?
To be sure, some votes were undoubtedly lost due to the faulty equipment -- most notably punch cards -- still used by a significant percentage of voters in the United States. Others may have been discouraged from voting due to long lines. Still others were undoubtedly prevented from voting due to registration foul-ups and the failure properly to administer provisional voting. But none of these things even begin to explain the discrepancy between the exit polls and the actual results. Nor is there any plausible explanation offered as to how such a large number of votes could have been switched.
Put simply, the USCV folks may know statistics but they don't seem to know much about the administration of elections. Now I do know something about elections (or at least, in the eyes of my detractors, pretend to), but concede relatively little knowledge about statistics. Still, there's something else in the USCV report that seemed a little fishy even to my relatively untrained statistical eye. As noted above, they rely on a chart appearing at page 4 of their response showing that voters in 80-100% Bush precincts had slightly higher response rates than than those in 0-20% Bush precincts. But precincts at those two extremes are relatively rare. Thus, as Mystery Pollster Mark Blumenthal notes here, this doesn't really refute the argument that Kerry voters participated in exit polls at higher rates than Bush voters:
the two extreme precinct categories are by far the smallest (see the table at the bottom of p. 36): Only 40 precincts of 1250 (3%) were "High Rep" and only 90 were "High Dem" (7%). More than three quarters were in the "Even" (43%) or "Mod Rep" (33%) categories. Not that this explains the lack of a pattern - it just suggests that the extreme precincts may not be representative of most voters.He also points out here that the exit polls were off by almost as much in 1992 and have consistently overestimated the vote for Democratic candidates. Why might that be? Blumenthal notes here that errors favoring Kerry tended to occur in places where the interviewer was under 35, inexperienced, and had a graduate degree -- and that "it is not hard to see the underlying attitudes and behaviors at work might create and exacerbate the within-precinct bias." As he notes:
Consider age, for example. What assumptions might a voter make about a college student approaching with a clipboard? Would it be crazy to assume that student was a Kerry supporter? If you were a Bush voter already suspicious of the media, might the appearance of such an interviewer make you just a bit more likely to say no, or to walk briskly in the other direction? Would it be easier to avoid that interviewer if they were standing farther away? What if the interviewer were forced to stand 100 feet away, among a group of electioneering Democrats - would the Bush voter be more likely to avoid the whole group?Maybe this explains the higher response rate among Kerry voters, and maybe it doesn't. But at least it's a coherent and plausible explanation of how this might have happened. That's a whole lot more than the USCV folks offer
More Thoughts on the Ohio Sanction Motion
I noted here the Ohio Attorney General's motion to sanction the attorneys who filed a petition contesting the November 2004 presidential election. Here are a few more thoughts after reading the AG's brief in support of sanctions:
1. To sustain a contest in Ohio, one must show 1) one or more irregularities 2) that affected enough votes to change or make uncertain the results. The contest petition filed on behalf of the contestors raised a number of serious irregularities. But in my view, it did not identify evidence sufficient to show that the result of the election would have been different but for the irregularities.
2. Notwithstanding that, I don't think that the Ohio AG's motion for sanctions is justified. It's not accurate to assert, as does the AG, that: "Instead of evidence, Contestors offered only theory, conjecture, hypothesis and invective." To be sure, there was a lot of all those things in the petition, but there was also evidence. Most of the factual allegations set forth in the petition were true, including, from what I can tell, the allegation of a discrepancy between early exit poll results and the final reported number. At any rate, the AG doesn't really attempt to disprove those allegations. The disagreement lies in the inference that it's reasonable to draw from the alleged facts. As I've stated numerous times, I don't think that evidence supports the inference that the result might have been different but for the irregularities; but I don't think that the contest petition was so frivolous as to warrant sanctions. I'm also quite worried about the chilling effect on future contests from an award of sanctions, particularly given the inherent indeterminacy and subjectivity about judgments whether the result would have been different but for certain irregularities.
3. This point is mainly for the lawyers. It appears to me as though it's questionable whether sanctions can be awarded at all in a contest action, as the AG maintains. The closest case on this issue appears to be In re. Election of November 6, 1990, 62 Ohio St. 3d 1, in which the Ohio Supreme Court held that costs under rule 54 (similar to Federal Rule of Civil Procedurre 54) aren't available because the "procedures prescribed for elections contests are specific and exclusive." In this case, the AG seeks sanctions under rule 11 (similar to FRCP 11). It seems to me that the same rationale would apply and therefore that rule 11 can't be used to award sanctions in a contest case, but this is arguable.
4. While there's not a whole lot of case law on contests in Ohio, the State Supreme Court has said that "clear and convincing" evidence must be shown to sustain a contest petition. Contestors didn't, in my opinion, have clear and convincing evidence at the time of their contest petition. Still, it doesn't seem to me that that should be sanctionable, particularly given that they've said all along that the hoped to obtain additional information to support their claims -- and presumably to meet this high burden -- through discovery. They never got this discovery of course. While it's hard to imagine any discovery they could have received that would have sufficed in this election, it's also true that the state and counties didn't go out of their way to make information available. In a closer election, where the kind of irregularities experienced in Ohio might be sufficient to call the result into question, such stonewalling could make it impossible to resolve election contests promptly.
Bottom line: The evidence didn't, in my view, support the contest petition. But it wasn't sanctionable. It's puzzling to me why the AG would want to draw out the post-election controversy by filing such a motion, rather than trying to take the moral high ground and let the matter die quietly. The only apparent reason seems to be to make an example of the contestors' lawyers. A more significant danger is the chilling effect on future contestors, in cases where it might really matter.
More Bad News for Shelley
The Election Assistance Commission today voted unanimously to audit the State of California's use of HAVA funds, according to this story from the L.A. Times. A state audit last month found that he misused some of these funds, by using it to pay for employees and consultants to attend partisan events. This follows the California State Personnel Board's scathing report on Shelley's office earlier this week, noted here. Despite the unfavorable attention, Shelley insists he won't step down, even as six California newspapers call for his resignation.
Update: The EAC issued this press release on the audit:
The U.S. Election Assistance Commission (EAC) voted unanimously today to conduct a special audit of California's use of federal funding for election reforms under the Help America Vote Act of 2002 (HAVA). Specifically, the special audit will focus on approximately $27 million disbursed to California under Title I, Section 101 of the law that was managed by the California secretary of state's office. To date, the state has reported spending roughly $6.9 million of that amount.
"I am certain that Congress and the American voters expect EAC to conduct judicious review of state HAVA spending to ensure that these funds are being spent in full compliance with the law," said EAC Chair Gracia Hillman. "The California State Auditor's report of spending by the office of Secretary of State Kevin Shelley flagged a number of egregious issues that we felt need attention now rather than later."
EAC is authorized under HAVA to conduct special audits of how states spend their funding and request involvement of other federal entities in reviewing HAVA funding matters. Before taking today's vote on California, the Commissioners first adopted general policy for the conduct of special audits (to apply to all states). Special audits differ from regular audits in both their timing and scope.
Congress created the four-member EAC under HAVA, which authorizes $3.9 billion for states to enact a variety of election reforms, including the replacement of outdated voting equipment, the creation of statewide voter registration systems, the use of provisional ballots to ensure that eligible voters are not turned away and improvements to poll worker training and voter education programs.
Based upon the outcome of today's decision on the California special audit, EAC will move forward immediately to contract with another federal agency or private firm to carry out the California special audit. Further details, including a timetable for the release of the special audit results and report, will be available when the contract is established.
Ohio Election Reform Legislation
The A.P. reports here on proposed state legislation that would require those seeking recounts to pay their full costs, absent a change in the outcome. Those seeking a recount of the 2004 presidential election paid $113,600 -- $10 per precinct as Ohio law has provided since 1957 -- although the costs to the counties supposedly totalled around $1.5 million. The bill would also reportedly provide for the creation of the statewide registration database required by HAVA, require first time voters to bring ID, and define who would receive a provisional ballot. It also contains standards for counting optical scan ballots, providing that they'd be counted even if incorrectly marked.
My take: I can certainly understand why state and county election officials would want to shift the burden of recount requests to challengers, particularly in cases where the election isn't really close. But this is about the least important reform that ought to be on the State of Ohio's agenda. Some of the other aspects of this bill, like clear standards for counting ambiguously marked optical scan ballots, sound like good ideas. It's also essential that the state address the timetable for recounts and contests in presidential elections, which in a close race could spell disaster as the Cleveland Plain-Dealer noted in this story over the weekend. I'll have more on this after I've had a chance to review the actual text of the bill.
Should Kevin Shelley Step Down?
Much attention has been directed to allegations of partisan conduct on the part of election officials in the past few years. The most conspicuous targets are two elected Republicans: Katherine Harris of Florida in 2000, and Ken Blackwell of Ohio in 2004. But the recent improprieties of California's Democratic Secretary of State Kevin Shelley make clear that the Republicans have no monopoly on partisanship, or bad behavior, when it comes to election administration.
Secretary Shelley faces multiple allegations from investigative authorities for a variety of complaints, with some Democrats now urging him to resign. According to this report in the San Francisco Chronicle:
A key factor in the mood in Sacramento, associates and lawmakers say, appears to be Shelley's upcoming testimony before a legislative committee that is investigating whether he used federal voting act funds to boost his public image. The testimony will come in a public forum, and the possibility of Shelley having to invoke his Fifth Amendment rights could take a political toll.At issue is the allegation that Shelley misused funds provided to the state under the Help America Vote Act -- specifically, that "some contractors hired by Shelley's office attended Democratic fund-raisers and were helping boost Shelley's image instead of engaging in nonpartisan efforts to increase voter turnout." Shelley is to testify before a Joint Legislative Audit Committee on February 3.
But wait . . . . It gets worse. A report issued yesterday by the State Personnel Board finds that an "abusive working environment" exists within the Secretary of State's office. The
San Jose Mercury News and Sacramento Bee have details. Among the allegations are that Shelley is prone to angry outbursts at his staff. Also in question are the suspicious "disappearance" of complaints filed by a former scheduler that Shelley "made crude and sexually suggestive remarks to her in front of other employees." Finally, Shelley's office is accused of improperly hiring the son of a prominent campaign donor -- specifically by scratching out his failing score on the civil service exam and replacing it with a passing score.
The executive officer of the State Personnel Board, Floyd Shimomura, says that he plans to ask the Caliornia Attorney General's office to conduct an investigation.
My take: Shelley has got to go. Some of the allegations against him may turn out to be exaggerated, but it's hard to believe that all of them are false. The State Personnel Board's report states that various employees of the Secretary of State's office confirm his ranting, raving, and directing obscenities at staff members -- predominantly if not exclusively women employees, it would appear. Even more serious, if that's possible, are the allegations that he's used HAVA funds for partisan purposes. Chief election officials' misuse of their authority, and the money that comes with it, is something that should outrage Democrats as well as Republicans.
Do the right thing Kevin.
Democrats' Election Reform Proposal
The Senate Democratic leadership today announced its legislative priorities. Among them is S. 17, the "Democracy Begins at Home" Act. (So much for any post-inaugural second honeymoon, eh? ) Here's a summary of the bill as described by the Dems' leadership:
Democrats are united in our effort to making voting reform a reality for all Americans. It is time for the opportunity of a fair and transparent voting system to be available to every voter. The Help America Vote Act made important steps forward and now it is time to continue to make reforms that will ensure each voter gets the opportunity to vote and all votes are counted.Rep. Conyers may be introducing similar legislation in the House.
Voter Verified Ballots. All voters must be able to ensure that their vote is accurately recorded. The bill requires that all voting systems used in Federal elections provide a voter verified ballot that is fully accessible to the disabled and ensures privacy and independence.
Election Day Registration. The bill requires each state to adopt Election Day registration procedures for Federal elections.
Uniform and Nondiscriminatory Standards for Counting Provisional Ballots. The bill requires that states count any otherwise eligible provisional ballot if cast anywhere in the state.
Shorter Lines at the Polls. Numerous and often widespread reports of long lines at the polls hinder the voting process. The bill requires states to meet Election Assistance Commission (EAC) mandatory standards that establish a minimum number of voting systems and poll workers which must provide geographic distribution.
Create a National Federal Write-In Absentee Ballot. The bill creates a National Federal Write-in Absentee Ballot (NFWAB) for Federal office that every and any eligible voter is entitled to cast from anywhere inside or outside the United States and requires the NFWAB be counted without regard to which polling place, precinct, local unit of government, state, or country the NFWAB is cast in.
Accurate and Transparent Voting Rolls. The bill requires states to provide public notice of all proposed purged names from voting rolls 60 days in advance of a Federal election. It also prohibits states from purging names of voters from the list without specific notice provided in accordance with National Voting Rights Act (NVRA).
Establish Early Voting. The bill requires states to establish early voting periods for a minimum of fifteen calendar days prior to a Federal election, with uniform mandatory Saturday hours, and a minimum of four hours per day, including Saturdays.
Investigate a Federal Election Day Holiday. The bill requires the Election Assistance Commission to study and make recommendations for a national voting holiday within six months of enactment of this Act.
Upgrade Voting Machines and Improve Ballot Designs. The bill requires punch card voting systems to provide in-person notice of over-votes and prohibits central count optical scan systems from meeting the voter verification requirements through an education system to ensure all votes are counted.
Create Uniform and Inclusive Voter Registration Standards. This bill establishes the right of a citizen to use the Federal voter registration form under NVRA to register to vote in Federal elections and directs the EAC to issue a revised form that requires a mandatory affidavit/signature attesting to both citizenship and age.
Establish Fair and Uniform Voter ID Rules. This bill expands the means for establishing voter identification to allow a voter to execute a written affidavit attesting to their identification.
Impartial Election Administrators. The bill requires notice provisions, public statements, and other transparency/accountability measures with regard to election administrators, changes in state election laws prior to Federal election,; modifications to polling places, and denial of requests by international and other non-partisan observers for access polling places.
Increase Funding to States. The bill provides additional appropriations to states for the requirement grant payments to meet the new requirements included in this bill.
My take: While I've not yet seen a final version of the bill, it sounds like a great package. Of particular note is that the proposed bill apparently mandates a voter verifiable audit trail without requiring that the audit trail be paper. If so, this is a wise choice given the practical difficulties of implementing electronic voting systems with a contemporaneous paper record, particularly for people with visual disabilities. Witness the difficulties that Ohio is having as a result of the hastily passed legislation to require a contemporaneous paper record -- a direct result of which was the decision of several counties to stand pat with punch cards in 2004. It's quite possible that the state won't have accessible technology in place by 2006, as HAVA requires.
Other good ideas in Dodd's proposed legislation include election day registration, uniform standards for provisional ballots, early voting, and additional funding to the states. The last is particularly important, since it's becoming increasingly clear that -- between new voting equipment, the statewide registration databases mandated by 2006, and other infrastructural changes -- local election officials don't have all the funding needed to do election reform right.
So how much chance does all this have of getting enacted? Well, it's probably about the same as my waking up tomorrow and finding that all the snow here in Columbus has melted and spring has arrived. Hence my tentative belief that most of the election reforms between now and 2008 are likely to come from the states. Still, Dodd's bill sounds like a worthy starting point which, at the very least, will kick off the vital discussion about what can be done to make our election system function better in 2008 than it did in 2000 or 2004.
Ohio AG Seeks to Sanction Contest Attorneys
The office of Ohio Attorney General Jim Petro has filed a motion with the state supreme court to sanction four attorneys who filed a contest petition challenging the results of the 2004 presidential election. The AP has this report and the Cleveland Plain-Dealer this one. The AG's sanctions motion contends that the contest petition, filed on behalf of 37 voters by attorneys Cliff Arnebeck, Robert Fitrakis, Susan Truitt and Peter Peckarsky, was "meritless." The AG also accuses the contesters of having partisan motives. Arnebeck responds that the AG's sanctions motion is "frivolous" and accuses Secretary of State Blackwell of "stonewalling."
My take: I've noted my skepticism of the claims made in the contest petition from the time it was filed (see here). But the true outrage here isn't the contest petition. Rather, it is the AG's office abusing its authority by seeking sanctions. While the AG may disagree with the petition's claims that the flaws in Ohio's election were enough to swing the election -- as I do -- his disagreement doesn't remotely justify sanctions against the attorneys who filed that petition. That's particularly true, given the paucity of case authority on what's required to sustain an election contest. The uncertain state of the law in this area makes the AG's assertion that the contest petition was sanctionable even more tenuous.
Particularly galling is the AG's office accusation that the contest was filed for "partisan political purposes." Any election contest is likely to be driven by partisan motivations of some sort -- most often the belief that your party's candidate really won. Moreover, the accusation of partisanship seems to rest on the very same sort of "conjecture" that the AG's office sanctimoniously purports to condemn. And does anyone seriously believe that the AG is acting on nonpartisan motives in seeking sanctions?
Let's hope that the Ohio Supreme Court sees fit to reject the AG's motion outright. In my view, there are strong First Amendment interests at stake here, including the right to petition the government for redress of grievances. Put simply, sanctioning the attorneys would have a chilling effect on future contest petitions. This may be just what the AG and his client Secretary of State Blackwell are hoping for.
I think the contestors were wrong to assert that Kerry would have won the election if not for the problems -- and they were serious -- that occurred in Ohio before, on, and after November 2, 2004. But those citizens had a right to make that claim without being subject to retaliation by the powers that be in state government.
Washington State Election Reform Proposals
The contested gubenatorial race in the State of Washington has prompted a flurry of proposed legislation, according to this story in today's Seattle Times and this one in the Post-Intelligencer. Out of over 3 million votes, Democrat Christine Gregoire was declared the winner by a microscopic margin of 129 votes. Among the problems identified are:
- more than 300 provisional ballots erroneously run through tabulating machines,
- inconsistencies in the counting of absentee ballots,
- allegations that some ineligible felons voted, and
- allegations that some people voted under the names of deceased voters.
A contest of the election results is pending, and is expected to reach the Washington Supreme Court. The GOP is seeking a statewide revote.
My take: There's no such thing as a perfect election. And in an election of 3 million people, there are going to be some problems. The truth of the matter is that, in an election decided by such a small number of votes, the margin of error is always going to be larger than the margin of victory. That doesn't mean that there aren't problems that Washington needs to address. There may even be issues that should be addressed legislatively. But state legislators would be well-advised to take a deep breath, rather than precipitously act to pass legislation that may not, in the end, make the voting system function any better.
Kerry Asserts Votes Were Suppressed
Former Democratic candidate John Kerry took the occasion of Boston's annual Martin Luther King, Jr. breakfast to state that "thousands" of votes were suppressed in the November 2004 general election. The Boston Globe has this story. Kerry cited the long lines at predominantly Democratic polling places, misinformation about which polls to show up and questionable decisions by "some election officials" particularly in Ohio. (Hmmm, wonder who he could be talking about?) Yet Kerry maintained, correctly in my view, that these differences weren't likely enough to swing the election. Massachusetts' Republican Governor Mitt Romney, who attended the event, acknowledged that "there are many improvements to be made in our electoral process." But, predictably, Gov. Romney said he's at least as concerned about ineligible people voting.
Fallout from Blackwell's Electronic Voting Decision
Ohio Secretary of State Ken Blackwell's decision last week to require counties to move to precinct-count optical scan voting equipment has some county election officials fuming. See this report from the Cleveland Plain-Dealer and this one from the News Herald for details. The News Herald also has this editorial criticizing Blackwell's decision. Among the counties upset by the decision are Cuyahoga County (Cleveland area) which uses punch cards but was planning to make the transition to touchscreens and Lake County which has been using an electronic system since 1999. Michael Vu, director of Cuyahoga County's elections board, says Blackwell's decision is "arbitrary" and "not acceptable." My views on the subject are reported in the Akron Beacon-Journal and Canton Repository.
My take: Either precinct-count optical scan or electronic voting equipment is a big improvement over punch cards. Used by about 70% of Ohioans in 2004, punch cards result in many lost votes and have an especially negative impacts on racial minorities. We dodged a bullet, only because the margin of victory (around 118,000 by the final count) exceeded the punch card's margin of error in this election. If the margin had been 18,000, it would have been an entirely different story.
Both electronic voting and precinct-count optical scan allow "second chance" voting that prevents mistaken overvotes . Electronic voting doesn't allow overvotes and provides verification screens allowing voters to check their work at the end of the voting process. Precinct-count optical scan systems will tell voters if they've overvoted, allowing them to correct their ballots before they're cast. Either technology would have resulted in many fewer uncounted votes than the 76,000 or so recorded with Ohio's punch cards in Election 2004
Blackwell's spokesperson correctly notes that the up-front costs of electronic voting machines are higher than precinct-count optical scans. But taking that fact in isolation is somewhat misleading. Due to the higher printing costs associated with paper-based optical scan systems, the differences tend to even out over time. In other words, Ohio's decision may be penny-wise but pound foolish.
Moreover, due to Blackwell's decision, there will still have to be at least one electronic voting machine at each polling place, in order to ensure secret and independent voting by people with disabilities. Modern electronic voting machines have an audio capacity for people with visual or cognitive impairments that prevent them from reading. They can also be adapted for people with manual dexterity impairments. And HAVA requires each polling place to have at least one accessible voting unit by 2006. What that means is that counties that use precinct-count optical scans will have to have a dual system in place: one machine for people with disabilities and another type of equipment for able-bodied voters at each polling place. As noted in a prior post, it's far from clear that this can be done by 2006, as HAVA requires, while still providing an accessible paper record of the electronic ballot that Ohio law requires.
So is that why county election officials are so upset by Blackwell's decision? I think that's a part of it. But there's also something more to it. During the past two or three years, I've spoken to lots of local election officials about voting technology. These are the people who are on the front lines of democracy, responsible for doing the hard work of running of elections. While they're rarely unanimous on anything, most of the election officials I've spoken to prefer electronic voting to other systems. From an administrative standpoint, it makes their jobs easier. That's especially important in large urban counties with a shortage of poll workers -- a big problem in many places. A precinct-count optical scan system requires a fleet of well-trained poll workers, if it's to function properly. Poll workers have to be on hand to help voters insert their ballots in the counters property (without violating voter privacy) and to let them know what to do if they've inadvertantly overvoted. If there aren't enough well-trained poll workers, then precinct-count optical scans could result in bottlenecks at the polling place, particularly in places like Cleveland.
I suspect that we've not heard the last salvo in Ohio's voting equipment battles. We may well see a coalition develop between local election officials who want to adopt electronic voting and disability advocates intent on ensuring that every citizen -- including those with disabilities -- are able to vote independently.
The Future of Election Reform
While some advocates are looking to Congress to fix some of the problems that emerged in the 2004 election, this report from electionline.org suggests that they may have better luck in the states. House and Senate staffers suggest that Congress isn't in much of a mood to reopen the Help America Vote Act. The story also suggests that more legislation, even at the state level, may not be the answer:
My take: While I wouldn't rule out the possibility of federal legislative action, it's not at all clear to me that Congress is the most promising venue for improving many of the problems with our election system. There are clearly changes to be made, particularly in such areas as provisional voting and registration databases. The Election Assistance Commission, created by HAVA, has a critical role to play in addressing these problems. Part of its responsibilities include funding research and making recommendations as to best practices.
Legislative action, said election officials, does little to address apprehension over the lack of voting system technology standards, looming HAVA deadlines, costs incurred to meet these deadlines, and the future of funding for statewide registration databases and voting systems. It now appears that there is little possibility that any of these cost concerns will be met in the coming year.
Passing federal legislation setting specific rules could give rise to unintended and unfortunate consequences. A case in point is the proposed legislation to require that all electronic voting machines generate a contemporaneous paper record (CPR), euphemistically known as the "voter verified paper audit trail." It's far from clear that this will appreciably enhance voting security, given that it will only function effectively if the integrity of the paper records can be assured and -- most important -- that the paper ballots are actually counted at the end of the day. Moreover, requiring any particular security fix will have the effect of locking that technology in place -- discouraging innovation, including the development of technologies that may turn out to be much more effective in promoting security and transparency.
What the CPR can certainly be expected to do is to discourage counties from moving to electronic technology, as has recently happened in Ohio which passed a CPR requirement last year. That legislation precipitated Secretary of State Blackwell's decision to mandate that counties go to precinct-count optical scans. The big losers from these developments are likely to be people with disabilities, since there's no certified technology that can meet the requirements of state law and it's doubtful at best whether it can be implemented in time for HAVA's 2006 deadline for providign accessible technology.
Congress should stay far away from mandating this or any other specific security fix. What it should do is to fully fund HAVA, and provide the resources that the EAC needs to accomplish the worthy goal of equal voting access for all. It would also be worthwhile to explore the possibility of giving the EAC or some other federal agency responsibility for setting standards. This might have the effect of taking away chief election officials' power to engage in partisan decisinmaking. But to enact rigid election adminstration rules into federal law is a dangerous game, one that could well end up doing more harm than good.
Ohio Will Go to Optical Scans, Not Touchcreens
More news from the Buckeye State. Ohio Secretary of State Kenneth Blackwell has announced that counties in the state will move to precinct-count optical scan machines, rather than touchscreens. The Cincinnati Enquirer has this report. Up until now, most Ohio voters -- 72% in 2004 -- have used the infamous punch card ballot. Ohio's 2003 HAVA plan indicated that they'd have better equipment in place by 2004, but that didn't happen.
The Secretary of State's office had previously allowed counties to choose either precinct-count optical scan or electronic voting technology. Both types of systems give voters notice and the opportunity to correct errors, thereby reducing the number of unintentional undervotes and overvotes. But legislation passed last year would require electronic voting machines to generate a contemporaneous paper record (CPR) of the electronic ballot (aka, "voter verified paper audit trail"). That complicated the transition, given that no CPR systems are currently certified in Ohio, according to Blackwell. The state's standards for this device can be found here. Blackwell attributes his decision to the lack of certified CPR systems, along with the increased costs expected to arise from this device.
My take: Both electronic voting machines or precinct-count optical scan ballots can reduce the number of lost votes. It also appears that either type of system can reduce the racial gap in uncounted votes -- although the evidence on this point is less ambiguous with respect to electronic voting than precinct-count optical scans.
I've estimated that Ohio lost around 50,000 votes due to the failure to replace its punch cards. Had the election been closer, we would almost certainly have faced a contested election, and genuine reason for doubting who really won the state and therefore the election . . . again. (I know that some people do doubt that Bush really won Ohio as it is, but that's another story.)
The important thing is for Ohio and other states that still use punch cards to get rid of those systems as soon as possible. Ohio has been talking about doing so for a long time, but has thus far failed to deliver. If Ohio doesn't replace its punch card and lever machines by January 2006, it risks forfeiting money that the state received under HAVA.
Of course, the state will still have to make electronic voting machines available for disabled voters, particularly those with visual impairments. HAVA mandates that, by 2006, states provide at least one machine per polling place that allows people with disabilities "the same opportunity for access and participation (including privacy and independence) as for other voters." Right now, electronic voting machines are the only available type of system that provides truly accessible voting -- including notice and the opportunity to correct errors. These machines have an audio capacity for people with visual impairments or cognitive impairments that prevents them from reading. If accessible technology isn't provided, then states can expect to be sued under HAVA and possibly the Americans with Disabilities Act.
Ohio Contest Petition Dropped
Lawyers for the 36 Ohio voters challenging the result in that state have dropped their contest petition. See this report. The contestors cite the impossibility of getting any relief that would prevent Bush's inauguration.
I Went Back to Ohio
But the election was gone. Well, not really, as it turns out . . . I've now returned from L.A. to Columbus and, believe it or not, it's great to be back.
Much has happened in the weeks since I last blogged. Although the general election ended more than two months ago, there's continuing attention to alleged improprieties in the process. Tova Wang of the Century Fund describes the problems that occured in Ohio in this comment. Also noteworthy is the release of the Conyers report, formally the "Status Report of the House Judiciary Committee Democratic Staff." The report describes problems that allegedly occurred in Ohio's 2004 election -- from hanging chads, to long lines, to irregularities in the recount. Much of this has been reported previously, but the report does a thorough job of cataloguing the incidents that have been reported.
Did they affect the outcome? I don't think so, but the allegations are certainly worthy of investigation and some of the problems describe need to be addressed. Some of my views on the continuing controversy are reported here. More to come, as I catch up on the election-related developments in the past few weeks. Among the things I'll be considering in coming days is what direction election reform should take, given the serious problems that came to light in this past election.