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, March 31
More ID Laws Proposed
Indiana isn't the only state mired in controversy over proposed state laws requiring voters to present photo ID when they vote. Similar proposals are now pending in Wisconsin, Georgia, and now Ohio, as the Cleveland Plain-Dealer describes here and the A.P. here.
Ohio's law would require all voters to present photo ID at the time of voting. It makes no provision for making ID available to low-income voters who don't have a driver's license.
It appears that Ohio's proposed law would be the strictest in the country, if enacted. According to the Plain-Dealer:
Nineteen states require voters to show identification, but only five of those request photo ID, according to the National Conference of State Legislatures. Those states - Arizona, Florida, Louisiana, South Carolina and South Dakota - also allow voters without a photo ID to present other forms of identification, such as a utility bill, or sign an affidavit of identity.Under Ohio's bill, by contrast, voter's without photo ID would be out of luck. It's almost certain to be challenged in court if enacted.
Monday, March 28
Should Photo ID Be Required to Vote?
One of the areas in which we can expect to see a push for legislative change is voter identification. HAVA imposes a very limited ID requirement, applicable only to first-time voters who registered by mail. Those voters can either show state-issued picture ID, such as a driver's license, or some other documentation of address. Among the forms of documentation allowed under HAVA are utility bills. government checks, paychecks and bank statements.
There's a move afoot to impose more stringent ID requirements on voters. Indiana is leading the charge in this area, with the state legislature moving forward with a proposal (Senate Bill 483) that some say would be the "strictest in the nation." As described here, "Senate Bill 483 would allow voters without a drivers license, state ID or passport to cast a provisional ballot that would become valid if the voter presents ID to the circuit court clerk or county election board within seven days."
In contrast to HAVA, a photo ID would be required. The Indiana bill also isn't limited to those who registered by mail. BNA reports:
During the day-long, bitter debate, Democrats charged that the bill woulddisenfranchise many voters, including minorities and the elderly. Republicans, meanwhile, argued that the bill was needed to instill voterconfidence.The bill passed the state house on a party-line vote. It's expected that the bill will be signed by Republican Governor Mitch Daniels.
Democrats are concerned that the real purpose and effect will be to depress turnout, particularly among minority communities, as reported here. Some liken it to the poll tax. The bill was amended to provide that, for voters who don't drive, state ID cards must be made available free of charge. Of course, that doesn't take into account the time it takes to wait in line and get your ID card -- a "tax" on one's time that many voters may not be willing to make.
What's interesting is that both sides appear to be operating in something of a factual vacuum. There doesn't appear to be any evidence that any ID will prevent any significant number of fraudulent votes. On the other hand, it's also not clear how many poeple will be discouraged from voting as a result of a photo ID requirement.
Expect a legal challenge after this bill is signed.
Friday, March 25
Reexamining Election Reform
As just about everyone recognizes, election reform is far from complete. It is instead an ongoing process that will continue at least through 2008. There's a clear need for further inquiry and research on what more needs to be done to improve the manner in which our election are conducted.
Toward that end, two groups have been created to look into the present state of election administration and to develop recommendations for further reform. The first is a working group assembled by The Century Foundation, announced here. The second is a blue ribbon commission formed by the Center for Democracy and Election Management at American University, announced here. (Disclosure: I'm a member of The Century Foundation task force and am an academic advisor to the commission organized by A.U.)
The two groups will serve complementary purposes. The Century Foundation's working group will be focusing on making recommendations to the states, particularly on how they can better implement the mandates of HAVA. In doing so, the group aims to propose improvements that will serve HAVA's twin goals of enhancing access and integrity -- or in the words of Rep. Steny Hoyer, one of the law's two principal co-sponsors, making it "easier to vote" but "harder to cheat." Not an easy task, of course, since these two imperatives frequently seem to conflict. The working group plans to complete a report by the late spring or early summer.
The A.U. commission will be jointly chaired by former President Jimmy Carter and former Secretary of State James Baker. This commission will focus on improvements at the federal level. Four years ago, former President Carter co-chaired a commission with former President Gerald Ford, which made recommendations that led to the enactment of HAVA. It will hold two hearings, one at A.U. on April 18 and the other at the Baker Institute in Houston in June, with the goal of releasing a report by September, when Congress returns from its recess.
Both of these groups are engaged in important work. I've previously stated my view that the most important work in the next four years will likely take place at the state level. Thus, making recommendations to the states on how they can better administer elections is critical. I suspect that Congress will be reluctant to revisit HAVA until all of its key provisions go into effect in 2006. Nevertheless, it makes sense to think about improvements that can be made at the federal level now. Even if the changes suggested by the Carter-Baker commission aren't immediately enacted, they will likely help frame the discourse -- and continue what has been a lively and constructive debate over election administration -- in years to come.
Tuesday, March 22
Congress Comes to Columbus
Several weeks ago, Ohio Secretary of State Ken Blackwell declined to accept the House Administration Committee's invitation to appear before it in D.C. regarding Ohio's 2004 election experience. Yesterday, the committee -- or at least two members of it -- came to Ohio. The Ohio News Network has this report and the Cleveland Plain-Dealer this one.
House Administration Chair Bob Ney and ranking Democrat Juanita Millender-McDonald presided over yesterday's hearing at the Ohio State House. Joining them was Rep. Stephanie Tubbs Jones, a prominent critic of the irregularities in Ohio's election. Though not a member of the committee, she engaged in some of the sharpest questioning yesterday. Panelists included state legislators, local election officials, and Secretary of State Blackwell. Needless to say, Millender-McDonald's and Jones' questioning of Secretary Blackwell was one of the day's highlights. The Plain-Dealer reports:
Blackwell repeatedly interrupted a pair of Democratic questioners at a meeting of the Committee on House Administration to explain the controversial directives and divisive decisions that marked his administration of the 2004 contest.On a substantive level, one of the most important statement's came from Rep. Ney. He stated that he wouldn't consider relaxing the 2006 deadline for states to replace their punch card voting systems, if they accepted money under HAVA's Title I. I'm with Ney on this one. The states have already had more than enough time to get rid of their punch cards. The State of Ohio, for example, promised in its 2003 report to get rid of its punch cards by 2004 -- and still has yet to do so. My estimate is that approximately 48,000 to 63,000 presidential votes were lost in the last election, that would have been counted if Ohio had replaced its punch cards. Not enough to have affected this past election, but it could well be determinative in coming elections, including what may be a tight race for Governor with (yup, you guessed it) Ken Blackwell among those running.
His testimony culminated in a sparring match with Cleveland congresswoman Stephanie Tubbs Jones, a vocal critic of his rulings, in which she told him to "haul butt" if he wouldn't answer her questions.
Blackwell, a Cincinnati Republican, retorted: "I refuse to sit here and be harangued by you."
There was also an academic panel, which included my colleague Ned Foley. I was scheduled to testify, but had to leave early to catch a flight. But here's an excerpt of my thoughts:
Despite the fact that there was no post-election meltdown this year, there remains significant room for improvement in the functioning of our election system. Yet there is one thing that I would like to make clear at the outset: The fact that this state and others experienced problems, and very significant ones, in 2004 does not mean that HAVA was a failure or that the law should be amended. To the contrary, I believe that HAVA's reforms have already made our election system better in important respects, and that other aspects of the law still to be implemented will improve the system further in years to come.I closed with three lessons that I think should be drawn from Ohio's 2004 experience:
What is clear, however, is that any major change to the ecology of our elections system will initially cause some disruption in the short run – and the changes that occurred with HAVA were no exception. It follows that Congress should be extremely cautious in amending HAVA's requirements, at least until all of its core provisions have gone into effect. Put another way, HAVA should be given a chance to work before new federal requirements are imposed.
It is also clear that state election officials, in Ohio and elsewhere, could have done a much better job at implementing some of HAVA's existing requirements. In my opinion, the most important changes between now and 2008 should occur at the state rather than the federal level. Although the high level of attention to Ohio's election made the problems that occurred here particularly conspicuous, we were not the only state that had problems. I thus hope that election officials both throughout the country may learn from the mistakes that Ohio made in 2004.
Lesson 1: States should set clear standards well in advance of election day, preferably through legislation rather than administrative directive.
Truly speaking, we have not a single election system in this country nor even 50, but roughly 13,000 election systems -- the approximate number of local entities with responsibility for the conduct of elections. Perhaps the most important lesson to emerge from both the 2000 and 2004 elections is the need for each state to provide specific and uniform guidance to its local jurisdictions, to ensure some semblance of consistency among counties.....
It is equally vital that the rules governing the administration of elections be transparent. Regrettably, transparency has been an area in which the Ohio Secretary of State's office has been sorely lacking. That office does not even post its directives to the counties governing the administration of elections on its website, even though these directives are obviously matters of public interest. In the controversy over whether voters who had requested an absentee ballot should be allowed to vote provisionally, the Secretary of State's office guidance came in the form of a private email just days before the election. And in some cases, such as the standards for counting provisional votes, it was not until shortly before the election that the directive was actually made public. This can only lend the appearance that the election is being run according to secret (or at least semi-secret) rules.
Lesson 2: The Election Assistance Commission has a vital role to play in the ongoing process of election reform.
Congress' decision to create the Election Assistance Commission to assist with these and other issues was a wise one. Unfortunately, the EAC got off to a slow start due to the delay in appointing the four commissioners and to a shortage of funds. However, the Commission is now engaged in some very important work. It promulgated best practices for the implementation of different voting technologies and is presently at work on the HAVA-required improvements to the testing and certification of voting equipment. These remains a great deal of research that needs to be done in such areas as the usability and accessibility of voting technology, the implementation or provisional voting, methods of registering voters, and means by which to discourage fraud. Moreover, state and local election administrators are sorely in need of guidance on how to implement the provisions of HAVA.
The EAC's ongoing work is clearly essential to the success of HAVA. I would therefore urge that the EAC be given the funding it needs to continue its vital work.
3. Lesson 3: Precipitous federal legislation should be avoided at least until HAVA’s voting systems and registration requirements are fully implemented.
If the 2004 election should teach us anything, it is that election reform is a process, not a destination. That process is not complete now, nor will it likely be complete in 2006 or even 2008. To the contrary, much of the most important work still remains to be done. In Ohio and other states, this means replacing present voting equipment with technology that is more reliable and accessible to people with disabilities. It also means finishing the massive task of implementing the statewide registration databases required by Title III, which must be in place by 2006. Many states implemented provisional voting for the first time in 2004 and will have to refine their process in response to problems that occurred in this election cycle. Even states like Ohio, which had some type of provisional voting in place before 2004 -- although a much more limited one that is now required by HAVA -- have considerable work to do in refining and improving their process.
There is reason to be optimistic that these ongoing changes will serve the goals of expanding access while promoting integrity, particularly if the EAC is given the resources it needs to provide assistance to the state and local entities that are principally responsible for implementing HAVA's mandates. It is my recommendation, however, that Congress be extremely cautious in enacting new legislation before HAVA is fully implemented. We should give HAVA's key provisions a chance to work and then measure their performance objectively, before rushing to enact new federal legislation.
A case in point is the proposal to require a contemporaneous paper record, or "voter verified paper audit trail" (VVPAT) for electronic voting technology. While there are certainly legitimate concerns regarding the possibility of fraud and error with electronic voting, it is a mistake to equate paper with security or to mandate any particular technological fix until that fix has proven workable, effective, and superior to other alternatives. That is particularly true, given that the EAC and associated bodies are still in the process of making improvements to testing and certification procedures as prescribed by HAVA. States should be free to experiment with the VVPAT, as Nevada did in the most recent election. This state's experience is worthy of careful examination. For example, did voters actually check the paper records? Should all or some significant percentage of the paper records actually be recounted in every election to check the accuracy of the electronic county? What happens in the event of paper jams? Are disabled and non-English speaking voters adequately accommodated? Is the voter's privacy protected? How much will it cost, not only to purchase this technology but to administer it properly on an ongoing basis?
These and other questions ought to be asked and answered before new federal requirements in the area of voting technology are enacted. One of the great advantages provided by our federalist system in general, and our decentralized system of elections in particular, is that it allows different jurisdictions to experiment. To mandate any particular technological fix, let alone one that has yet to be proven workable and effective, would not only short-circuit this process but would stifle innovation by requiring a particular device that may not turn out to be the best one -- or even a satisfactory one. In fact, the headaches that Ohio is now experiencing in trying to conform to its VVPAT statute enacted last year demonstrate the dangers of legislating specific requirements that have not yet proven workable.
These thoughts one the VVPAT are just one example of a broader point: that Congress should be very reluctant to impose new federal requirements until HAVA is fully implemented. State and local entities should instead be given some breathing room that will allow them to comply with HAVA's key provisions, with guidance from the EAC. That is the approach that you most wisely took when you enacted HAVA more than two years ago, and I would urge you to stay that course today.
Sunday, March 20
House Administration Committee Comes to Ohio
The U.S. House of Representatives' Administration Committee will be in Columbus tomorrow, for a hearing on Ohio's 2004 election experience. The agenda can be found here. Among those testifying will be Ohio Secretary of State Ken Blackwell, who had earlier failed to appear before the committee in Washington as the A.P. notes here. I'll be appearing on a panel in the afternoon.
Electionline.org's Provisional Voting Report
Electionline.org has released this report on the implementation of provisional voting in the 2004 eleciton. The A.P. has this story. This is required reading for anyone interested in provisional voting or the implementation of HAVA generally. While the authors make clear that this isn't the "final say" on provisional ballots in 2004, the report offers some revealing and important information. Here are a few highlights.
- Nationwide, electionline.org finds that more than 1.6 voters received provisional ballots in the 2004 general election, and that almost 1.1 million were counted. Many of these voters would have been turned away, were it not for provisional ballots.
- The report finds wide variations in the way that provisional ballots were handled from state to state. In 18 states, provisional ballots were counted if cast in the proper county (or other registrar's jurisdiction); in 28, however, provisional ballots were counted only if cast in the correct precinct. The percentage of provisionals counted varied from a low of 6% (Delaware) to a high of 97% (Alaska). Unsurprisingly, states that counted provisional ballots cast out of precinct counted a higher percentage than those that did not.
- There were also wide variations in how many voters received provisional ballots, according to the HAVA report. For example, in Alaska, provisionals accounted for 7% of all ballots cast. By contrast, in Michigan, provisional ballots were less than 0.1% of the total vote. It's not completely clear, at least to me, which way this cuts. On the one hand, a high percentage of provisional ballots (per total voters) suggests that there may be significant problems with the state's registration list -- in other words, that a lot of eligible and registered voters arrive at the polls to find their names on the list. On the other hand, a very low percentage of provisional ballots issued suggests that there's less-than-complete compliance with HAVA's requirement that voters not be turned away, but instead receive a provisional ballot, if they arrive at the polls to find their names not on the list. Thus, my instinct would be that either an unusually high or an unusually low ratio of provisional ballots to total ballots is cause for concern.
- For those who think that the statwide registration databases, required by 2006, will reduce the importance of provisional voting ... it may not be so. States without registration databases counted a slightly higher percentage of provisionals (68%) than states with them (65%).
Wednesday, March 16
N.C. Provisional Ballot Fight in Federal Court
The fight over the counting of provisional ballots in the North Carolina Superintendent's race has now moved to federal court. The A.P. has this report. Democratic candidate June Atkinson leads Republican candidate Bill Fletcher by 8,535 votes, but the election is still in dispute due to the outstanding provisional ballots. The Republican-majority state supreme court ruled that provisional ballots cast in the wrong precinct shouldn't be counted, but the Democratic legislature thereafter passed legislation requiring those ballots to be counted.
Now, Republicans have sued in federal court, alleging that the laws can't constitutionally be applied retroactively without violating the equal protection and due process clauses. A temporary restraining order is being sought.
Tuesday, March 15
More on the Automark
Yesterday's post on optical scan voting technology raised questions about the ES&S Automark, a hybrid system in which the voter uses a touchscreen interface to generate a ballot printout which may then be inserted into an optical scanner. A reader passed along this letter from the American Association of People with Disabilities to Ohio Secretary of State Ken Blackwell, raising some of the same concerns. The AAPD notes that the ES&S Automark isn't federally certified, which is a requirement for states using HAVA funds. Also, the AAPD points out that voter's who can't handle paper won't be able to use the Automark without assistance, and therefore asserts that its purchase would violate the ADA.
Monday, March 14
Are Optical Scans the Answer?
Today's N.Y. Times published these letters responding to its editorial last week extolling the virtues of optical-scan technology. They include one from Prof. Michael Shamos of Carnegie-Mellon, which is more worthy of reading than the NYT's editorial.
The NYT's editorial page was among the first to drink the paper-trail Kool-Aid, having insistently editorialized for over a year that contemporaneous paper records should be required for electronic voting technology. During this period, they've exhibited an almost willful blindness to the practical difficulties in implementing this technology, as well as the serious questions about whether it will really do much to enhance security -- see here and here for my earlier criticisms of the NYT's simpleminded approach to the problem.
Without renouncing its previous position, the NYT's editorial page has now found religion on something else. Its latest editorial argues that the State of New York should adopt optical scan voting technology, a hand-marked but machine-read ballot similar to SAT tests. The NYT touts the optical scan as the "most reliable and cost-effective of the current technologies." It's true that some types of optical scan equipment do pretty well in terms of accuracy. Yet the NYT's latest editorial continues to present an overly simplified and misleading picture in several respects. Let's take a closer look:
- While optical scans are better than punch cards, the evidence doesn't support the claim that optical scans are the most accurate method of voting. It's true that optical scans did better than first-generation electronic voting machines, but the available evidence indicates that they don't do as well as the present generation. As set forth in this report by MIT's Charles Stewart III, counties that switched from punch cards to optical scans saw their uncounted vote rate decline by 1.12%. That's good, but not as good as counties that went from punch cards to electronic voting, which saw their uncounted vote rate decrease by 1.46%. Strange, isn't it, that we've not seen the NYT acknowledge the dramatic improvement in states like Georgia, which converted to electronic voting statewide and saw a dramatic decrease in uncounted votes, particularly in heavily minority precincts.
- The NYT's editorial makes no attempt to distinguish between two different kinds of optical-scan systems: precinct count and central count. With a precinct-count system, the voter can check for overvotes before casting her ballot, by feeding it through a counter that will alert the voter if she's cast more than the allowed number of votes for a particular race. The counter can also be programmed to notify voters if they've undervoted (i.e., failed to make any choice in a particular race) though this isn't normally done because it would slow down the voting process too much. With a central-count system, there's no mechanism by which to check for overvotes or undervotes. By contrast, contemporary electronic voting systems don't allow overvotes, and have a verification screen that allows voters to check their work -- and to correct mistaken undervotes.
- The NYT presents a misleading picture of the costs associated with optical scan vs. electronic voting technology. It's true that the optical scan system will generally entail smaller up-front costs, because the equipment is less expensive. But the Caltech/MIT project found that those costs even out over time, around 15 - 20 years. That's because optical scan systems have "much higher operating cost" due to the cost of printing out paper ballots in each election.
- Continuing its disdain for the rights of disabled and non-English proficient voters, the NYT makes no mention of the fact that contemporary electronic voting systems are accessible while optical scans are not. DREs have disability access features for those who can't read or use their hands and arms, and are easier for non-English speaking voters to use independently. There is a hybrid system called the Automark being marketed by ES&S (one of the big bad voting machine companies that the NYT has repeatedly attacked), which is supposedly accessible to people with disabilities and non-English speakers. Basically, this system allows voters to make their choices using an electronic voting interface, then prints out a ballot that the voter can place in an optical-scan counter. This system isn't yet certified in many states and, as far as I can tell, hasn't been implemented on any significant scale in any real election. Also, it's not quite clear to me how a blind voter would insert the printout into a counter while preserving the privacy of her ballot -- or whether there's a mechanism on the counter to ensure that her vote was correctly counted (maybe the implicit argument is that voter verfiability is important for able-bodied voters, but can be dispensed with for those with disabilities). The Automark is a promising technology, but not yet a proven one.
- Finally, it's not at all clear that optical scans are any more reliable or secure than electronic voting. Prof. Shamos' letter makes this point, noting that "Despite the fact that the voter personally marks the ballot and has the chance to verify his or her choices, no machine has ever been built that can read a ballot the way a human eye does, and there is no assurance that the machine will count the ballot the way it was marked by the voter." Shamos expands on this point in a post on the VSPR listserv, which he's given me permission to quote:
What we're not discussing is the variant marks that are NOT caught by the machine and which the voter has no opportunity to correct. This occurs most often in straight-party voting where the voter has attempted unsuccessfully to override the straight-party vote in a particular office. If the override mark is not read by the machine, there is no indication of either an overvote or an undervote and the ballot will not be rejected. Even the rejection of an undervoted ballot depends on the scanning equipment not having been tampered with. If the DRE opponents are correct, and we can't rely on any machines, then why couldn't an intruder set the scanner never to reject a ballot that contained a vote for his favorite candidate, even if some other race were undervoted? This would never be caught in a manual audit since there is no indication on the ballot that the voter voluntarily asked for it to be counted with an undervote despite having been rejected initially....Points well taken, in my opinion. Although precinct-count optical scan is preferable to punch cards, it's a mistake to equate paper with integrity or accuracy. This isn't to say that precinct-count optical scan is a bad system ... only that it's not without its problems and risks.
The whole problem with optical scanning is that opscan ballots can be marked in an infinitude of ways, but there are only a finite number of choices solicited. The mapping from the infinite space to the finite space is ambiguous and, in many jursidictions, undocumented. We need a binary method of voting in which each ballot position is either marked on unmarked without ambiguity. DREs, whatever else may be wrong with them, provide this. I'm not saying it's impossible with document ballots, but no one has yet designed one that has this property.... In fact the range of marks is so diverse that the different states have developed no consensus on what actually constitutes a vote, and some states haven't even tried to do so. Why should it ever be necessary to decide what constitutes a vote? Is this the best that technology can offer -- an endless debate about how to blacken an oval?....
With respect to things "going awry" on DREs, the voter review screen is perfectly adequate, provided that the voter looks at it. (Likewise, the reviewability of an opscan ballot is of little value unless the voter reviews it.) For things to go awry on a DRE, the vote has to be recorded incorrectly internally but reflected correctly on the review screen. This is of course possible but there's no evidence that it ever even happened once. Once we add voter verification to DREs (which I'm all for), we then have a non-problem. The difference between me and the paper trail advocates is that I believe there are numerous and better ways of providing verification than relying on unsecured little pieces of paper. If we really want every vote to count, let's design a system that has a chance of achieving it, and optical scan isn't it.
Friday, March 11
"Vote Word" and Encrypted Receipts
No, this isn't about the contemporaneous paper record or "voter verified paper audit trail." A company called Voteword is marketing a system that purports to give voters a means by which to check that their votes were not only correctly captured, but also correctly counted. Their website describes this method of verifiability as follows:
State governments are poised to spend an enormous amount of money on the next generation of electronic voting booths. Many are considering systems that require printers in the voting place. This would be a good idea if printed ballots actually gave voters the ability to audit an election. But only one approach does this: the use of a "Vote Word".As described, the system sounds similar, though not identical, to the encrypted receipts proposed by David Chaum and Votehere (see here).
Not only does a Vote Word give you the ability to check that your vote was registered correctly, it also allows you to look up your ballot days or weeks after the election to make sure that your vote hasn't been changed. And it does this without the need for scanners, "Smart" cards or printers.
Here's how it works. After you cast your vote, the electronic voting booth says:"Thank you for voting! Your Vote Word is... house"
That simple word, "house", is then recorded along with your selection(s). No one else gets that word at your polling location. Also, no one knows what your word is, just as you don't know anyone else's Vote Word.
Later, at home, you get on the Web, look up your polling location and scroll through everyone's votes (yes, everyone's). You'll find, listed alphabetically, the word "house" - along with your vote. You confirm that your selections were recorded correctly - and you can even check again after a re-count.
The problem with a plain old receipt showing all a voter's choices, of course, is that such a receipt could easily be used as proof of how the voter voted. They could thus be used in vote-buying or vote-selling schemes, or for purposes of voter intimidation (e.g., employers demanding that their employees provide proof that they voted for the correct candidate). Thus, no one seriously suggests using receipts showing the voter's actual choices that voters could take home with them. The idea behind these methods, if I understand them correctly, is to allow the voter -- but no one else -- to verify his or her choices.
The challenge, it seems to me, is to develop something that will both (a) be understandable enough to the voter that it will provide confidence that their votes were accurately counted, and (b) protect the anonymity of the ballots, so that votes can't be bought and sold. The question I still have is whether these receipts might not still be used for vote-buying and selling. For example, with the "Voteword" technology, couldn't a hypothetical vote-buyer demand to see the voter's "receipt" after she leaves the polling place, check it on the web to make sure that she voted for the right candidate, and then provide payment if so?
Still, these are intriguing ideas, worthy of further exploration.
Update: Paul Pazniokas who runs the voteword site writes in with two clarifications:
The most important is that there's no receipt whatsoever when you get your Vote Word. It's just something that displays on the screen. This tremendously cuts down on the possibility of vote selling, since you cannot prove who you voted for.Thanks for the clarification, Paul, and apologies for the original misunderstanding.
Some people have said, though, that you could still sell your vote: as you exit the polling location, you're the only who knows your Vote Word (it hasn't yet been posted to the web). But the simple addition of a display terminal at the polling site would permit people to see all the Vote Words and the associated votes. Thus, a person exiting the polling location could no longer claim to "prove" who he/she voted for because everyone has access to the list of votes before leaving the building....
The second point is that I'm not a company. I'm just one guy trying to figure out how to get this very simple solution into as many hands as possible.
Maybe this will work, though I can still imagine means of sophisticated vote buyers defeating the system. For example, the would-be vote buyer could give each would-be vote seller a list instructing her on exactly what choices to make, from the top of the ballot all the way down to the bottom. Then, if the vote seller's reported "vote word" didn't match all of those choices, the vote buyer would know that the seller is lying and could deny payment. Of course, the vote seller could go through the list of all "vote words" and associated votes while at the polling place, until she found one that's a "match" for all the choices she'd been been instructed to make. But there might not be such a match among those who've previously voted and, in any event, trying to find that match for the appropriate ballot permutation would be very time-consuming where there's a lengthy ballot.
Thus, it seems to me, one could develop an almost foolproof system of vote-buying. On the other hand, it might be difficult to carry off in practice without being detected. And in any event, pulling off such as scheme would probably be more difficult than is the case with absentee ballots in their present form. This is the place in our system that's most suseptible to vote-buying, given that the anonymity of the ballot can be compromised -- i.e., someone can watch you mark your absentee ballot and sign the envelope, then can pay you $X and then place it in the mailbox for you. It's probably a whole lot easier to buy and sell absentee votes than it would be with the "Vote Word" system. So, the argument might go, if we tolerate absentee ballots, then we should be more than willing to bear the risks associated with this type of verification system, if the payoff is greater security and public confidence.
Tuesday, March 8
Paper Trails, in Theory and Practice
This week's electionline.org weekly features a rundown on congressional paper trail legislation. There are now several bills pending in Congress pertaining to voting technology. Among them are proposals by Rep. Rush Holt and Sen. Hilary Clinton to require electronic voting machines to have a contemporaneous paper record ("CPR," more commonly referred to as the "voter verified paper audit trail").
This legislation is still being pushed, despite the fact that even some of the strongest and most thoughtful critics of electronic voting have raised serious questions about the workability and efficacy of this method of verification, as I noted here. Moreover, as I noted in the same post, the enactment of a CPR requirement has been causing serious headaches for the State of Ohio -- and may end up causing the state to miss the 2006 deadline for replacing the punch card voting equipment used by over 70% of voters in the state.
Advocates of a CPR/VVPAT requirement have cited Nevada's experiment with a Sequoia voting machine with an attached printer. Such experimentation ought to be encouraged, but what we know about Nevada doesn't do much to support the case to mandate a CPR nationwide. The Los Angeles County Registrar-Recorder has produced this video demonstrating some of the problems that became evident during the implementation of this system in Clark County, Nevada. The video definitely has a discernable anti-CPR point of view, but raises some serious question, including 1) whether voters will actually check the paper record, 2) paper jams, 3) possible invasions of voter privacy, 4) the high cost of equipment and storage, 5) the enormous person-hours required to recount the paper records, and 6) whether or not the CPR will actually provide an effective check on fraud and error, unless all (or at least some substantial sample) of the paper records are actually recounted. The Holt and Clinton bills mandate a 2% manual recount, but this analysis by Andrew Neff suggests this won't provide much confidence in the results -- and I've yet to see any I've yet to see contrary analysis by those supporting the 2% solution. Isn't this something we ought to figure out before we legislate?
The most carefully considered version of the bills in Congress appears to be the ones proposed by Sen. Chris Dodd (S. 17) and John Conyers (H.R. 533). These would require verifiable audit records, without requiring that those records be paper. This would avoid the problem of locking in a particular technological fix -- and one that's likely to prove very expensive -- without knowing for sure whether it will actually work.
Update: Prof. David Dill of Stanford University, writes in response to the above post:
While, of course, printer breakdowns are always possible, so are failures with other kinds of equipment, including DREs (and we see them -- frequently). The critical question with contemporaneous paper records is how often problems would occur. This depends on machine design, procedures, and poll worker training. I believe it can be done well, but I don't know how current products have performed. I know there were some problems in Nevada this year, but there don't seem to have been as many as in some of the places that used DREs (based on the EIRS reports we collected).My thanks to Prof. Dill for taking the time to express his views. He was indeed who I had in mind above, in referring to thoughtful critics of electronic voting, and I hope that I've not left a misimpression as to his opinions.
As I have said, DREs with voter verifiable printers are an expensive and relatively risky way to have a paper trail, and precinct-count optical scan is to be much preferred. Hence, I applaud Secretary Blackwell's decision to require the use of optical scan systems (although I don't understand why he limited the vendors so severely, since almost everyone makes these machines).
As for the substance of his views, I share his concern about how well the present generation of DREs with a contemporaneous paper record function. Where we may differ is in our optimism on how well such a system can be implemented -- both in terms of its efficacy in promoting integrity and its workability in real-world election environments. At least until we figure this out, it's a bad idea to enact legislation, such as that which Sen. Clinton and Rep. Holt have proposed, that would require all DREs to have this unproven device.
Prof. Dill's response is that counties can move to precinct-count optical scan. Although that may work well for some jurisdictions, particularly those without substantial non-English speaking populations, I'm not sure that it's the best answer for larger, urban counties . . . but more on that later.
Friday, March 4
North Carolina Provisional Ballot Fight
Blogging has been sporadic over the past few days, because I'm in Minneapolis coaching our civil rights moot court team, but there's news from North Carolina over an election from November that's still unresolved. As noted here, a judge in Wake County, North Carolina is hearing argument in a case involving the disputed race for state superintendent of public instruction. The Democratic candidate led by about 8500 votes at the end of November, but the state supreme court ruled that some 11,000 provisional ballots cast out of precinct shouldn't be counted. Then on Tuesday of this week, the General Assembly gave final approval to a law providing that such provisional ballots should be counted and the bill's going to the government for approval.
My take: The North Carolina case demonstrates that it's essential to have clear rules prescribed in advance for the counting of provisional ballots. The absence of such rules leaves open the possibility of such post hoc gamesmanship, on the part of either courts or legislative bodies.
Tuesday, March 1
More on Democratic Election Reform Legislation
Computerworld has this story on the Clinton/Boxer "Count Every Vote Act" that purports to address problems relating the electronic voting security. It would mandate, yup you guessed, it the so-called "voter verified paper audit trail." The bill would also mandate voting machines that are accessible to people with disabilities and non-English speakers and restore voting rights for ex-felons.
Meanwhile, the San Francisco Chronicle has this report on uncounted votes in the 2004 election. Overall, about one in 100 votes cast didn't register a valid vote for President. As noted here, this is down significantly from 2000, largely due to the implementation of new voting equipment.