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)
- 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)
Thursday, February 24
Fireworks at Columbus EAC Hearing
The Election Assistance Commission visited Columbus on Wednesday, holding a public hearing on provisional voting at the Moritz College of Law. The Cleveland Plain-Dealer has this report, the Toledo Blade this one and the Columbus Dispatch this one.
Of particular note were Cuyahoga County Election Director Michael Vu's pointed criticisms of the Secretary of State's office directives regarding provisional voting, in the days and weeks leading up to the election. Michael Vu was particularly critical of a directive that Secretary of State Blackwell issued in September 2004, requiring that voters be denied provisional ballots unless their eligibility to vote within the precinct could be confirmed. That order was the subject of a federal court injunction, which was ultimately reversed in part and affirmed in part by the Sixth Circuit in Sandusky County Democratic Party v. Blackwell.
Wednesday, February 23
Today's EAC Meeting in Columbus
The Election Assistance Commission will be meeting today here in Columbus, at the Moritz College of Law. There will be a public meeting on voting systems from 10-11:30 am, and a public hearing on provisional voting from 1-5 pm. Among those testifying at the afternoon hearing will be Florida Secretary of State Glenda Hood and Ohio Secretary of State Ken Blackwell. See here for a story from the Cleveland Plain-Dealer, which reports on the complaints of some advocates in Ohio that they and other members of public won't be allowed to express their views at the hearing. I'll also be testifying on an academic panel regarding provisional voting during the afternoon. Here's an excerpt from that testimony.
Monday, February 21
Dueling Election Reform Bills
The Senate Democrats have their own bill on election reform. As the AP reports here, it would make election day a national holiday. The bill would also require that ex-felons be allowed to vote. This is a good idea ... but one that's certain not to see much daylight in Congress.
It's also reported that the bill would require "paper receipts," but this probably isn't accurate -- what this likely means is another version of the legislation to require a contemporaneous paper record (or more euphemistically "voter verified paper audit trail") that has caused such headaches for Ohio recently, effectively forcing it to abandon its plans to replace punch cards with electronic voting systems. If so, it would join a "flurry" of state bills to propose this as-yet unproven device, as electionline.org reports here. But see here for a story on one candidate for Ohio Secretary of State who argues that the state's decision to require this device, passed last year, needs to be revisited.
My take: The Democrats' support for a contemporaneous paper record is particularly hard to comprehend, given that even the most vigorous and intelligent critics of electronic voting have acknowledged that it won't do much to solve the security concerns that have been raised, as noted here. Paper is a security blanket for some voters, but the sense of security it provides is a false one. Worse still, the move to require it has had the effect of stymying replacement of unreliable technology.
It's becoming increasingly apparent that, in terms of election reform, the best we can hope for from this Congress is that it will do nothing at all. While the Republicans are proposing measures that would place new obstacles in the path of citizens wishing the vote in the name of preventing fraud, the Democrats appear to be proposing a combination of things that have no chance of passing and things that will make the transition to better systems more difficult. If constructive changes are to be made, they're more likely to come from the states.
Thursday, February 17
The GOP's Opening Salvo on Election Reform
Republican Senators Bond and McConnell have proposed new legislation to regulate election administration. Not surprisingly the proposed bill tilts heavily toward measures purporting to curb fraud and, as for expanding access . . . well, not so much. According to their press release, the legislation would require:
. Photo ID to be presented at the polling place - with grants tostates to provide free photo identifications.The bill's being called the "Voter Protection Act of 2005."
. States to sync their databases with each other to remove duplicateregistrants and allow the use of social security numbers to facilitate this goal.
. Voter registration forms must be complete to be accepted -- affirming the registrant's citizenship.
. Forms from a voter registration drives must be submitted within 3 days after the registrant signs them.
. Polling sites to have lists of those who already voted and those who requested an absentee ballot.
. Election officials to clean their lists of non-voters.
. Absentee ballots are returned by Election Day.
. States to determine how provisional ballots are counted.
. Drivers license number, last 4 digits of social security number or photo ID to get absentee ballot.
. Pilot program for use of indelible ink at polling places to signify that an individual has voted. States can apply for grants to participate in the program.
. Penalties for individuals who pay someone to register to vote and for those who destroy property with intent to impede the act of voting are also part of the Voter Protection Act.
Tuesday, February 15
A Million Votes Saved
The Caltech/MIT Voting Technology Project has released this report by MIT's Charles Stewart, which discusses how changes in voting equipment affected the number of votes uncounted. Overall, the report estimates that approximately one million votes were counted this year that wouldn't have been, had it not been for the changes in technology and administrative practices that took place in the past four years.
The report is based on reports of "residual votes" from most of the states. That's the measure most commonly used to evaluate voting technology, and is the sum of undervotes (ballots for which no choice was registered for president) and overvotes (ballots for which more than one choice was made, thus invalidating the ballot). Nationwide, the residual vote rate fell significantly, from 1.91% in 2000 to 1.07% in 2004. Stewart derives the one million saved votes estimate by multiplying the nationwide decline in the residual vote rate (.84%) by the total number of ballots cast (122.2 million).
The places where the biggest improvements took place were those in which the entire state made the transition to new technology. For example, Georgia saw a major improvement in its residual vote rate when it moved from the hodgepodge of systems used in 2000 (including optical scans, levers, and punch cards) to an all-electronic system in 2004. It's residual vote rate declined from 3.5% to 0.4%. Florida also saw a big improvement. Counties that had used punch cards and central-count optical scan equipment in 2000 moved to electronic and precinct-count optical scan equipment in 2004, and the statewide residual vote rate declined from 2.9% to 0.4%.
Of course, not all residual votes represent mistakes. Some are the result of voters intentionally abstaining. But survey data shows that intentional non-voting is rare in presidential races, generally around .3 to .7%. Still, the dramatic declines in undervotes are a very strong indication that the new technology had its desired effect, resulting in many more Americans' votes being counted.
My take: With all the attention that's been paid to the problems in Election 2004, and there were many, it's nice to have some tangible evidence that at least one aspect of the Help America Vote Act -- the upgrade of voting equipment -- has its desired effect. If the states like Ohio that still haven't replaced their punch card and central-count optical scan systems finally make the switch, we can expect to see further improvements by 2008.
But that's a big if. USA Today reports here that there's considerable doubt as to whether all the states that are supposed to replace their punch card and lever voting equipment, as a condition of receiving money under Title I of HAVA, will actually fulfill their obligation. Although HAVA required new voting equipment to be in place by 2004, many states got waivers extending the date until 2006. Some of those states may end up having to give back some of the federal funds they received.
Friday, February 11
EAC @ Moritz
The Election Assistance Commission will be holding a public hearing on provisional voting in Columbus, right here at the Moritz College of Law, on Wednesday, February 23, 2005. The public notice can be found here. Election officials, advocates, and academics will be among those testifying at the hearing. Written comments may be sent to email@example.com.
On that subject, the ElectionLaw@Moritz project has put together with this page with various materials on provisional voting. It includes an up-to-date status report on ongoing controversies.
Thursday, February 10
House Administration Committee Meeting on Election 2004
The House Administration Commitee met yesterday to discuss the state of election reform in the wake of the 2004 election. The AP has this report and the Washington Times this one. Rep. Bob Ney of Ohio, one of HAVA's two principal co-sponsors in the House, was reportedly cool to the prospect of any new federal legislation. Members of the Election Assistance Commission also appeared before the committee to discuss best practices.
The committee invited six secretaries of state to appear before it and those from Indiana, Kansas, New Mexico and Iowa showed up. The two others -- Glenda Hood of Florida and Ken Blackwell of Ohio -- were conspicuous no shows. This peeved the committee's ranking Democrat, Rep. Juanita Millender-McDonald, who called Hood and Blackwell's failure to appear an "affront" to voters. Committee members were particularly distressed at Blackwell's failure to appear, given that he was in D.C. on other business yesterday.
Update: Since Blackwell won't come to the House Administration Commitee, they're apparently planning to come to him. Members say they'll have a special field hearing in Columbus, according to this story in the Cleveland Plain-Dealer. A spokesperson for the Secretary of State was coy about whether he'll attend, saying that Blackwell's attendance "will depend on his schedule and the topic matter they want to discuss."
Wednesday, February 9
Blackwell Ordered Not to Enforce Voting Machine Directive
Two state court judges have ordered Ohio Secretary of State Ken Blackwell not to enforce a directive that required county boards of election to choose an optical-scan voting system, or have one chosen for them. The AP has this story.
Blackwell had required the counties to select a precinct-count optical scan system from one of two vendors, reversing an earlier order that allowed the counties to choose either precinct-count optical scan or electronic voting equipment. Ohio Attorney General Jim Petro yesterday issued an opinion saying that Blackwell lacked the authority to make counties choose an optical scan system by today, February 9. Judge Laurie Pittman of Portage County and John Bessey of Franklin County both issued orders requiring that Blackwell hold off on enforcing his directive.
Meanwhile, Blackwell offered some choice words for those who are challenging his authority to mandate precinct-count optical scans. In response to the opinion of A.G. Petro, who he's expecting to face in the 2006 gubenatorial election, Blackwell's spokesperson accused Petro of "playing politics with a federal mandate," namely the requirement that states receiving HAVA Title I money get rid of punch cards by 2006.
Blackwell himself directed some pointed criticism of Ohio Republican Party Chair Bob Bennett, who's also Chair of the Cuyahoga County Board of Elections. The Cleveland Plain-Dealer reports here that, after Bennett announced Cuyahoga's intent to move forward with Diebold touchscreens despite Blackwell's directive ...
Blackwell fired back, suggesting that Bennett's decision to spend more money on touch-screens is driven by the companies that make the machines.No love lost there, I guess.
"Having owned a couple of coal mines in my career and having married into a coal mining family, I know that coal mining is an honest day's work," he said. "I would prefer being in the darkness of a coal mine than in the darkness of some vendor's hip pocket."
Tuesday, February 8
Ohio AG Says Blackwell Lacked Power to Make Counties Choose Optical Scans
The voting machine wars in Ohio continue, with Attorney General Jim Petro getting into the act. The A.P. has this report.
Secretary of State Ken Blackwell announced last month that he was requiring Ohio counties to select a precinct-count optical scan system, reversing a previous order that would have allowed them to choose electronic voting machines instead. More specifically, Blackwell issued a directive (2005-11) requiring that county boards of election choose one of two precinct-count optical scan vendors by February 9, 2005, or have the Secretary of State designate one for them. Blackwell asserted that this was necessary, given the legislation passed last year to require a contemporaneous paper record (euphemistically known as the voter verified paper audit trail) for electronic voting machines. That device, Blackwell claimed, would make the purchase of electronic machines too expensive.
In an opinion issued today (A.G. Opinion 2005-006), Petro concluded that Blackwell was without power to issue the directive requiring the counties to choose an optical scan system or have the choice made for them. Franklin County, which has used electronic voting systems for years, asked the A.G. for this opinion.
The opinion rests on a provision of Ohio state law, R.C. 3506.02, empowering county boards of elections to make decisions about voting equipment. The Secretary of State has the power to certify voting equipment and, under the VVPAT legislation passed last year (H.B. 262), isn't allowed to force counties to purchase electronic voting equipment or to purchase that equipment except when acting as an agent for the counties. In brief, the A.G. finds that Blackwell didn't have the power to make the counties choose an optical scan system.
My take: What a mess!
I'll avoid speculation about whether Ohio's gubenatorial politics may underlie the latest tiff between Attorney General Petro and Secretary of State Blackwell (both of whom are Republicans planning to run in 2006). I'm also not sure whether or not A.G. Petro's interpretation of Ohio law is correct. It does appear that the legislature intended to limit the powers of the Secretary of State, preventing him from dictating to the counties what type of voting equipment they may use.
The net effect of this may, however, be that Ohio will fail to comply with the Help America Vote Act. If the counties don't choose some type of voting equipment soon, then they may not be able to replace the punch card ballots, still used in 68 counties, by 2006. Ohio is required to get rid of this equipment by 2006, as a condition of having received money for the replacement of this equipment under Title I of HAVA. And that's to say nothing of HAVA's requirement that Ohio provide at least one accessible unit at each polling place, which will be very difficult if not impossible to meet in light of H.B. 262's mandate that the equipment generate a contemporaneous paper record. There's no DRE system currently certified in the state that meets this requirement, nor is it clear that any will meet certification requirements in time for them to be implemented by 2006.
Could Ohio have to pay back the money it received under HAVA? At this point, it seems like a distinct possibility. And H.B. 262 looks worse and worse by the day.
Monday, February 7
Equal Vote Is One!
The first post of this blog was one year ago today. As set forth in that post, the blog's original purpose was to address the debate surrounding voting technology, focusing on its implications for people of color, citizens with disabilities, and those whose first language is not English.
Since then, the blog's focus has expanded considerably. While the voting technology remains a vital subject, over which the public debate is as lively as ever, it's just one aspect of our elections system. Actually, "system" should probably be pluralized, since the last election season showed that, for better or for worse, the administration of elections remains highly decentralized in the United States, with responsibility vested in literally thousands of state and local officials dispersed throughout the country. We have not one election system but many election systems. Enactment of the Help America Vote Act was an important stage in the transformation of these systems. But it was only one step in the process of election reform, and that process is far from complete.
As Equal Vote moves into its second year, it will continue to address the implementation of HAVA. It will also address other areas of our election administration systems in need of scrutiny or repair, with a special eye toward those that effect traditionally disenfranchised or underenfranchised groups. The problems that emerged or continued in the 2004 election, upon which I intend to focus on in this space in coming months include:
1. Voting Technology. States that received money under Title I of HAVA are required to replace their punch card and lever voting equipment. That deadline was originally set for 2004, but almost all the states requested waivers extending the date to 2006. That means that there's a whole lot of work yet to be done in the next year. In addition, HAVA requires that every polling place have at least one electronic or other disability accessible voting unit in place by 2006. Many states will struggle to meet that requirement, particularly those that have enacted laws requiring a contemporaneous paper record (the voter-verified paper audit trail or "VVPAT"). Speaking of which, there will undoubtedly be continuing pressure to require a VVPAT in Congress and several states.
2. Provisional Voting. The bumpy implementation of provisional voting was arguably the story of the 2004 election. HAVA required provisional ballots to protect the votes for those who, due to administrative error or for some other reason, appear at the polls on election day to find their names not on registration lists. Civil rights advocates in a number of states were outraged, when state and county election officials refused to count provisional ballots cast out of precinct. This led to litigation in Missouri, Florida, Ohio, Michigan, Colorado, and Arizona. In addition, the failure of some states to promulgate clear rules for counting provisional ballots has led to equal protection claims based on Bush v. Gore. We've not heard the last of provisional ballots, which are only likely to become more important in the coming year due to . . .
3. Statewide Registration Databases. One of the most important changes wrought by HAVA is the requirement that each state have a statewide voter registration database. Until now, voter lists have been administered at the local level in most places. This requirement was supposed to be in place by 2004 but, as with the voting equipment requirement, most states got waivers extending the effective date until 2006. Statewide registration databases are a good idea, since they'll make it easier to keep track of voters who move from county to county within a state. But in the short run, expect them to cause more problems than they solve. There will undoubtedly be a lot of problems with the lists the first time through. Don't be surprised if a lot of voters show up at the polls in 2006 to find that their names aren't on the rolls. And for those states that have felon disenfranchisement laws, there will undoubtedly be voters who appear at the polls only to find that their names have been purged -- some because they really are ex-felons, but others by "mistake."
4. ID Requirement. Another big change effected by HAVA was the imposition of a limited identification requirement. In particular, first-time voters who registered by mail on or after January 1, 2003, and didn't produce some form of identication at the time of their registration, were required to bring with them photo ID, a utility bill, or other proof of name and address. There was considerable confusion on the part of both election administrators and members of the public as to this requirement. And in some states, there were controversies over laws purporting to impose even stricter ID requirements, with proponents citing the need to prevent fraud. Expect considerable attention over the imposition of stricter ID requirements, if not in Congress then in several of the states.
5. Challenges to Voter Eligibility. One of the major issues that blew up in the weeks preceding the 2004 general election was the plan to challenge voter eligibility. Republicans indicated their intent to place challengers at the polling places in several states, where loosely written laws still on the books allow voter eligibility to be challenged -- sometimes without even a minimal showing of good cause. Many people, particularly in communities of color, saw this as part of a concerted strategy of voter intimidation. In Ohio, civil rights advocates and the Democratic Party went to court to challenge the challengers. Four different trial courts issued orders limiting the challenges, yet each of these four court orders was reversed on appeal. In coming months, look for civil rights advocates to seek the repeal or revision of vaguely worded challenge laws. There may also be calls to strengthen these laws, on the ground that they're needed to prevent fraudulent voting.
6. Long Lines at the Polling Place. Many voters waited for hours on or before November 2, 2004 in order to exercise their right to vote. The problems appeared to be particularly bad in some urban precincts, where voters reported waiting for up to four or five hours. And at one polling place near Kenyon College in Knox County, Ohio, voters waited as long as ten hours. Almost everyone agrees that such lengthy wait times are inexcusable. What's less clear is what to do about it. Is it as simple as mandating that a certain ratio of machines to voters -- say 150:1 -- not be exceeded? But how would such a requirement be enforced, given the uncertainty that sometimes exists about how many people will actually show up on election day? And might the ratio vary, depending on the type of voting equipment used? Are equipment shortages the only thing that might have caused long lines at the polling place? Could poll worker shortages or other glitches at the polling place be to blame? That there's a problem is clear enough, but there's a need for further research on what's causing it, whose most severely affected, and what to do about it.
7. Recounts and Contests. Many people across the political spectrum are as upset about what happened after the results were announced as what came before. In Ohio, advocates (but not the Kerry campaign) first sought a recount of the vote and then filed a petition contesting the result. Many others believed that the recount and contest were a waste of time -- and taxpayer money -- given the over 100,000 vote margin of victory in that state. County election officials were particularly upset by the administrative burden imposed by the recount request. What both sides largely overlooked is the fact that, if the election had been closer, there might well have been a complete meltdown. That's because Ohio's recount and contest laws don't allow enough time for post-election controversies to be completed by the time the Electoral College meets. Thus, had the election been closer, the voters might have been disenfranchised entirely and the election effectively handed to Congress. That's something that people of every ideological persuasion should be concerned about -- and that should prompt a reexamination of recount and contest laws throughout the country.
Finally, there's an overarching problem implicated by each of these controversies. That's the partisanship that affects the administration of elections, particularly at the state level. In the 2000 election, Katherine Harris was viewed as the villain by many for interpreting and applying the rules in favor of her preferred candidate (allegedly). Similar allegations were levelled against Ohio's Secretary of State Ken Blackwell in 2004. But it's not just those on the left who are irritated by partisanship, real or perceived, in the administration of elections. California Secretary of State Kevin Shelley, a liberal Democrat, resigned under fire just a few days ago. One of the most serious allegations against him is that he misused HAVA funds for partisan purposes. There are of course disagreements about whether election officials in this state or that one are really acting in a partisan manner. What can't seriously be disputed is that there's a perception of unfairness, one that threatens voter confidence in the integrity of election results.
In the long run, moving toward nonpartisan election administration is one of the most substantial challenges facing our systems of democracy. But as with so many of the other issues noted above, identifying the problem is a lot easier than understanding its causes and figuring out what the best solution ought to be. I hope that this blog can help in that process in the months to come.
Thanks for reading!
Saturday, February 5
So Long Kevin
California's Secretary of State Kevin Shelley finally stepped down yesterday amid allegations of various misdeeds, including financial improprieties and boorish conduct. The L.A. Times has this story on Shelley's fall from grace. Nine California newspapers had called for this resignation, as did I in this post last month.
Once viewed as a rising star in the Democratic Party, Shelley resigns under a cloud of controvesy with hardly any supporters left -- and with a record as California's chief election official that can most generously be described as spotty. He came into office citing the need to improve the state's voting system, but he leaves being accused of having misused HAVA funds for partisan political purposes. The L.A. Times also discusses the State Personnel Board's finding that he was "abusive, humiliating, unreasonably demanding, or demeaning" to members of his staff, and that he circumvented state rules to give a job to the son of a prominent donor.
Secretary Shelley did the right thing early in his tenure by convening an ad hoc task force to look into security concerns regarding electronic voting. The task force produced this report in 2003 which at that time was the most thorough to that date. The task force recognized the advantages of electronic voting while suggesting several measures that could be taken to improve security.
Unfortunately, Secretary Shelley chose to disregard the advice of the task force's majority, and caved into public pressure by mandating that electronic voting machines have the unproven voter verified paper audit trail. He imposed this requirement against the advice of the Attorney General's office, which warned that it might well bring the state into conflict with the Americans with Disabilities Act and other disability access laws. As noted in yesterday's post, the VVPAT has yet to prove workable or effective, and it's becoming increasingly clear that Shelley's decision to impose this requirement was a mistake.
Shelley's actions also had the effect of alienating several county election officials, few of whom had any kind words for him in the end. The strife that developed between the Secretary of State's office and local election officials is described in this Sacramento Bee story. While not all the decisions of state election officials will or should be popular with county election officials, the manner in which Shelley dictated to the counties -- particularly with respect to voting equipment -- made it very difficult for the state and local election officials to work cooperatively, as they must. The resulting distrust was yet another nail in Shelley's coffin.
Shelley deserves some credit for seeing the handwriting on the wall. He has done Californians a favor by stepping down. Let's hope that Governor Schwarzenegger now appoints someone who will execute the important responsibilities of the office with fairness, integrity and nonpartisanship.
Friday, February 4
More Controversy Over Electronic Voting
Hart Intercivic has sued Ohio Secretary of State Ken Blackwell over his decision to require counties to convert to precinct-count optical scan voting equipment. The Cleveland Plain-Dealer has this story. Hart and other voting machine makers are miffed because they spent considerable time and effort getting their electronic voting machines ready for the Ohio market, only to have the state reverse course last month by mandating optical scan voting instead. Hart's in an especially difficult position because, unlike Diebold and ES&S, it doesn't have a precinct-count optical scan system that it can market in Ohio.
Some local election officials are upset about Blackwell's mandate that they choose a precinct-count optical scan system by February 9, as the Cincinnati Enquirer reports here. They're also angry at Blackwell because the optical scan requirement effectively shifts the costs of new technology from the state to the counties. While electronic voting machines are more expensive up front, optical scan ballots involve higher ongoing costs due to the expense of printing new ballots in every election. Thus, going with optical scan rather than electronic voting equipment means lower frond-end costs, but higher prospective costs for the counties.
The Secretary of State's office asserts that it wasn't Blackwell but the legislature that changed the rules of the game. Last year, the Ohio legislature passed HB 262 which requires a contemporaneous paper record (euphemistically known as the voter-verified paper audit trail or "VVPAT") for electronic voting machines. Enactment of that law effectively halted counties' plans to convert to electronic voting systems, and resulted in about 72% of Ohioans using punch cards in 2004. According to Blackwell's office, the complications and added expense resulting from the the VVPAT requirement left him no choice but to mandate optical scan voting instead.
One of the other states to require the VVPAT is California. Yet the prototype being developed by voting machine manufacturer Diebold doesn't satisfy some electronic voting critics, according to this AP story. That story reports that the Diebold prototype "seeks to reassure voters by displaying their selections under a piece of glass or plastic alongside the touch-screen machine." This prototype has drawn criticism from some computer scientists who note (correctly in my view) that the security improvement that comes with a contemporaneous paper record is marginal at best. Avi Rubin, for example, calls the printer "very, very small step forward" for electronic voting security. David Dill notes that "breakdowns and paper jams are possible" with the VVPAT system.
My take: I'm putting this one in the "hate to say I told you so" file . . .
It's good to see some of the most prominent critics of electronic voting technology acknowledging publicly that paper isn't a panacea. Not only is the security enhancement of the contemporaneous paper record questionable, but the device may actually cause more problems than it solves. This is a point that I've been trying to make for some time -- see here for a post almost a year ago (have I really been blogging for that long?), criticizing the assumption that election system security issues can be solved simply by attaching a printer to electronic voting machines. That post also included some suggestions of other means by which to promote security without sacrificing the access and accuracy advantages that electronic voting offers.
The truth is that election security is much more complicated than VVPAT proponents have argued. Unfortunately, some prominent media outlets like the N.Y. Times latched on to the VVPAT as the answer to electronic voting security early on and never let go. Worse still, a few states like Ohio and California passed legislation to require the VVPAT, before its workability or efficacy had been established. (Electionline.org has this up-to-date list of the status of paper trail laws.) Now the hasty enactment of VVPAT laws is looking like a huge mistake. Even the most vocal critics of electronic voting security are questioning, properly in my view, the workability and efficacy of this supposed solution.
My hope is that the debate can now move beyond the simplistic assumption that paper and security are synonymous. A serious examination of other means by which to promote the democratic values of security, transparency and equality is long overdue.
Wednesday, February 2
Florida Non-Votes with New Equipment
For all the bad press (much of it deserved) that Florida's election system has received since 2000, it's a pleasure to report some good news. The number of non-votes declined dramatically from 2000 to 2004, going from 2.9% to 0.4%, as reported in this story from the Palm Beach Post and this analysis by the Florida Department of State.
The decline in non-votes or "residual votes" -- the sum of overvotes (for which more than one vote was cast) and undervotes (for which not vote was recorded) -- is largely attributable to the change in voting equipment. In 2000, Florida voters used a variety of different types of equipment, including central-count optical scan and the infamous punch card. There were over 180,000 residual votes statewide, many times the margin of victory as you'll no doubt recall.
This year, Florida voters used either precinct-count optical scan or electronic touchscreen voting systems. Both systems provide "second chance" voting, meaning that voters are given the opportunity to correct errors. With the touchscreen systems, inadvertant overvotes aren't allowed and voters have the chance to see their choices, and thereby check their work, before voting. With precinct-count optical scan (in contrast to its central-count cousin) voters put their ballots through a counter at the polling place, which will notify them if they've overvoted.
Both systems registered minuscule non-vote rates: around 0.42% with electronic machines and 0.40% with precinct-count optical scan. This is about the lower limit of what it's possible to accomplish with technology. That's because the remaining residual votes are probably intentional undervotes -- that is, voters who intentionally abstained from the presidential race. Surveys in prior elections show that the rate of intentional undervoting is around 0.3-0.7%, varying slightly by race and income levels.
An especially noteworthy improvement occurred in Palm Beach County, where in which 6.4 percent of ballots cast by punch card recorded no vote for President in 2000. This year, only 0.4 percent of votes recorded no vote, using the county's touchscreen voting machines. We know that in 2000, a disproportionate number of those who didn't have their votes recorded were racial minorities. While the reports released thus far doesn't include an assessment of race, expect the so-called "racial gap" in uncounted votes to have declined dramatically once such analyses are conducted -- as was the case in Georgia, when it converted to an electronic voting system.
The bottom line: Despite all the security concerns surrounding electronic voting, and some of them are real, moving to electronic and precinct-count optical scan voting technology has been a very good thing for Floridians. More of their votes, many more, were counted in 2004 than was the case four years ago.
Tuesday, February 1
Consumer Reports for Voting Machines?
Cryptographer David Chaum has started a group called the Voting System Performance Rating Project (VSPR), the goal of which is to provide ratings for voting systems. CNET.com has this story. It would presumably supplement the work of the Election Assistance Commission's Technical Guidelines Development Committee.
The VSPR includes four main "working groups": Advocates & Social Scientists, Election Officials & Experts, Technology & Security Experts, and Vendors. (I've joined the Advocates & Social Scientists group.) Thus far it appears that most, though certainly not all, of the people who've joined the group are electronic voting skeptics. If the VSPR is to have credibility, it's absolutely essential that mainstream election officials participate. It's also critical that this group move quickly if it's going to have any effectiveness, given the requirement that new voting equipment be in place by the first federal election in 2006, for those jurisdictions that accepted HAVA Title I money.
The big danger forthe VSPR is that it will become so dominated by the paper-is-the-only-answer crowd as to become irrelevant. On that subject, and related to my post yesterday on the exit poll flap, see this editorial in the Akron Beacon-Journal, which a reader called to my attention. Here are some of its choice words, in reference to those who cite exit polls as evidence that the election was stolen:
Many of the conspiracists have pointed to the exit polls, suggesting that the surveys reflect the more accurate count of Ohio voters. The irony is delectable. Aren't these conspiracists also critical of electronic voting machines, demanding paper receipts, spinning theories about hackers denying the will of the people, ignoring the record of electronic machines producing fewer errors than other voting methods?Maybe a little bit over the top, but it's interesting how people can be very selective in what they choose to believe.
Yet they celebrate exit polls. Might those polls be vulnerable to tampering? After all, there is no paper receipt. The polltakers engage in the equivalent of checking boxes. Were there scoundrels among their ranks? Marking the wrong boxes? Which is more reliable, the exit poll or the actual vote?
Follow the absurd logic, and you are asked to believe that electronic voting is dangerous yet polling is rock solid.
Still, the VSPR is an intriguing idea. It's essential that voting technology be evaluated from a variety of perspectives -- including not only security and transparency, but also accessibility, accuracy, and administrability.