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)
Friday, May 20
I'll be out of the country for the next several days, without ready access to the internet. Blogging will resume on June 13.
Breaking News: EAC Names Executive Director
The three commissioners of the Election Assistance Commission have unanimously chosen Tom Wilkey to be the Executive Director of the commission. See this press release. Wilkey has 34 years of experience in election administration, and served as Executive Director of the New York State Board of Elections from 1992 to 2003. A short bio can be found here on electionline.org's website.
My take: It's hard to imagine a better choice to head the EAC than Tom Wilkey. His long experience will give him a practical sense of the possibilities and challenges in the area of election administration that's lacking in much of the public debate. I expect him to execute his reponsibilities in the nonpartisan manner that is absolutely essential for the EAC to have credibility. I also think Tom has a strong commitment to protecting the right of all eligible voters to vote and have their votes counted.
"Reform" Comes to Ohio
Ohio's will likely be making substantial changes to its election laws. But is it really "reform"?
Reacting to the state's troubled 2004 election, the Ohio House of Representatives approved a bill (Sub HB 3) that would make sweeping changes to the administration of elections in the state, by a 70-27 vote. The version of the bill as passed by the House can be found here and the Cleveland Plain-Dealer has this story. Among the changes the bill would make is to define "jurisdiction" as "precinct" for purposes of provisional voting -- meaning that a provisional ballot cast out of precinct wouldn't be counted for any races, even the ones the voter was eligible to vote for. In addition, voters would have to cast provisional ballots if a postcard sent to them before the election is returned as undeliverable. The bill would also implement "no fraud" absentee voting. My testimony on the bill can be found here.
At the last minute, a provision was added to the bill requiring counties to cross-check electronic records against the paper records generated by the attached printers to be in place by 2006, in at least one county race. One of the big questions: If there's a discrepancy between the electronic and paper records, how do we know that the paper ones are more reliable?
In related news, the Athens News reports here on a "violent" disagreement among Democrats and Republicans over whether to adopt Diebold's electronic system or ES&S's precinct-count optical scan system. Lake County would like to test Diebold's electronic system with a contemporaneous paper record in July's election, according to this story in the Plain-Dealer. It wants to see how that system performs before deciding whether to buy it -- a prudent position in my view. The problem is that, with the May 2006 deadline for having new technology in place looming, counties are going to have to make their voting machine choices very soon to ensure a smooth transition. Still pending is ES&S's lawsuit, which I blogged on here and here to extend the deadline of May 24 (this Tuesday!) for counties to select a new voting system.
My take: Ohio's election reform bill is a mixed bag. Establishing a clear rule for provisional ballots is a good idea, though I don't think there's a good reason for refusing to count provisional ballots cast out of precinct, given that a statewide registration database (which should allow easy verification of eligibility) has to be in place by 2006. It would be much better to move to in-precinct early voting than mail-in absentee voting, but it seems that Ohio doesn't want to spend the money. On the voting machine front, the provision to require paper records to be counted is probably a good idea, though it's still an open question whether the contemporaneous paper record will prove to be an effective or workable means by which to promote integrity.
One thing that's certain is that this is a precarious time to be a county election administrator in Ohio. Any decision made on voting equipment entails considerable risk, and will undoubtedly be subject to lots of second-guessing if things don't work out perfectly.
Tuesday, May 17
Does Electronic Voting Affect Turnout?
The situation on the voting technology front remains dynamic, both nationally and internationally. As election officials throughout the country contemplate how they'll meet the 2006 for the replacement of punch cards and the implementation of accessible technology, the Election Assistance Commission is contemplating new voting system guidelines according to GCN. The three remaining commissioners are presently considering recommendations of the EAC's Technical Guidelines Advisory Committee. The new recommendations reportedly include new provisions on security and accessibility
After the commissioners' initial review, the proposed guidelines will be publicly available for comment for 90 days, after which they'll go into effect. While states aren't required to follow these guidelines, about two-thirds voluntarily do so. This will likely put state and county officials, as well as voting machine vendors, in a tight spot given that the guidelines won't be final before the end of the summer and new voting technology has to be in place by the first elections of 2006.
The U.S. isn't the only place where electronic voting is the subject of vigorous debate. See this story on the Australian Electoral Commission's plan to issue a white paper this summer on the risks and benefits of electronic voting. Australia is also spending $17 million to upgrade its electoral role and election management computer system.
Meanwhile, as I mentioned Friday, two Berkeley economists have posted this paper on the effect of electronic voting on voting participation. In contrast to some of more sensationalistic reports issued in the immediate aftermath of the November 2004 election (e.g., optical scans were used to steal votes in Florida), the Card/Moretti report seems to be a serious empirical analysis.
The study differs from most analyses of voting technology, which focus on "residual votes" -- those ballots for which no presidential vote is recorded, either because of a undervote or an overvote. That's a good way of determining whether those who went to the polls had their votes counted, but not of assessing whether technology affects turnout. By contrast, the Card/Moretti study looks at the total number of votes cast for the presidential candidates in 2000 and 2004.
The paper's findings are intriguing. On the whole, they find a slight positive correlation between support for Bush and the use of electronic voting. But why? Card and Moretti conclude that it's implausible that this correlation is the result of irregularities by Republican election officials. This is largely because there's a smaller correlation in places with a Republican governor or Secretary of State, and in swing states.
So if tampering with electronic voting doesn't explain this correlation, than what does? It could perhaps be chance, but it also might be that the considerable anxiety that has surrounded electronic voting had a differential impact on voter turnout.
This possibility is suggested by a survey released in August 2004, which I blogged on here . Although it got almost no public attention at the time, this study found confidence in electronic voting to be much higher among Republicans than Democrats -- unsurprisingly, given that most of the anxiety, and in some cases paranoia, regarding electronic voting security was among those on the left side of the political spectrum. More to the point, that study found that many more Democrats (23%) than Republicans (9%) said they wouldn't vote at all due to distrust of electronic voting.
Even the most strident critic of electronic voting would acknowledge that the likelihood of any individual's vote being tampered with is exceedingly small, not enough to warrant one's staying away from the polls entirely -- as someone put it to me, if you don't vote at all, you can be sure your vote won't count. Still, it seems quite plausible that more Democratic than Republican voters might have chosen to stay home because of the widely circulated campaigns against paperless voting that took place in the months leading up to the November 2004 election.
In other words, it may be that the pre-election worries about electronic voting turned out to be a self-fulfilling prophesy (albeit to a very small extent). Electronic voting itself may not have cost Kerry any votes; to the contrary, it's likely that of those who turned out, more had their votes counted and that Kerry voters were helped more than Bush voters. States that moved to electronic voting, like Georgia and some Florida counties, saw steep declines in the percentage of uncounted votes, particularly in heavily minority precincts. But the anxiety surrounding e-voting -- in particular, the widely propogated fear that the computer might "eat my vote" -- might have caused more Democrats than Republicans to stay away from the polls.
Friday, May 13
How Blue Can You Get?
It's been a busy week. As Doug Chapin of electionline.org puts it, following election reform activities these days is like drinking from a fire hose. In fact, following developments on the voting technology front alone has been difficult enough. I've spent most of the week in my former home state of California, where the fight over electronic voting began. But there have been plenty of things happening elsewhere, particularly in my current home state of Ohio, which remains in the throes of the voting machine blues.
On Tuesday, Ohio's Board of Voting Machine Examiners certified the first electronic voting machine to satisfy the state's "voter verified paper audit trail" (VVPAT) requirement. The Toledo Blade has this report. It may also be the last, given that today is the deadline imposed by Ohio Secretary of State Blackwell for certification of machines meeting the VVPAT requirement.
The board certified a modified version of Diebold's AccuVote TSx, with an attached printer capable of generating a contemporaneous paper record of the electronic ballot that can be used in the event of a recount. As I've previously explained, this follows Blackwell's double-reversal of course -- first allowing counties to choose either electronic or optical-scan voting machines, then mandating optical-scan, then going back and allowing counties to choose either.
Counties have until May 24 to choose a new system. The certification of Diebold's machine is good news for those Ohio counties which plan to move to that system -- assuming, that is, that it works the way it's supposed to.
Other counties still have the blues. As the Akron Beacon-Journal reports here, five counties have joined voting machine vendor ES&S's lawsuit challenging Blackwell's directive. These counties are apparently seeking relaxation of Blackwell's deadline, so that more choices will be available to those counties that wish to seek the electronic voting route. As things now stand, their only choice will be Diebold's AccuVote TSx. The Secretary of State's witness testified that the deadlines were necessary to meet funding and deployment deadlines, as the Cleveland Plain-Dealer reports here. Closing arguments in ES&S's case are set for Tuesday.
What should the court do? I've previously opined that ES&S's economic interests are not a good reason for pushing back the deadlines imposed by Blackwell. The counties' participation in the lawsuit, however, puts the case in a different light, at least from my perspective. There's something to be said for giving counties a choice. That's particularly true for counties such as Allen, which already has an ES&S machine in place. If a short extension of the deadlines would allow ES&S's paper-trail system to be certified, it might be worth granting.
On the other hand, there's a strong countervailing consideration at issue here. Ohio has an obligation to replace its punch cards and to get disability-accessible voting equipment in place by next year's primary election in May 2006. It will be a challenge to meet this deadline, even under the current schedule. Rushing the transition to new voting technology can cause problems. The more Ohio delays, the greater the risk of problems in implementing this technology.
In other voting machine news ...
- The New York legislature can't agree on what type of machine to buy and has punted, leaving it to counties to decide. The N.Y. Times has this report.
- Two U.C. Berkeley economists, David Card and Enrico Moretti, have posted this paper regarding the impact of electronic voting on participation ($5 fee to download). The paper finds a small positive correlation between levels of support for George W. Bush and electronic voting, but concludes that systemic irregularities by Republican election officials are an "implausible" explanation for this correlation. I'll have more thoughts on this shortly, after I've had a chance to digest this very interesting paper.
Monday, May 9
The Voting Machine Blues
Just can't shake 'em . . . or at least so it would appear from this USA today story. States that received money under Title I of the Help America Vote Act for the replacement of punch card and lever machines are struggling to meet the 2006 deadline for getting new voting technology in place. They also have to provide at least one disability-accessible voting unit at each polling place by 2006.
Ohio counties are in an especially difficult situation. The replacement of punch cards is being complicated by a bill enacted last year, which mandates that all voting machines have a "voter verified paper audit trail" (VVPAT). For electronic machines, this means an attached printer that will print out a copy of the electronic ballot to be used for recounts. The AP has this report on the Ohio Board of Voting Machine Examiners' decision last week not to certify (at least not yet) the electronic voting machine with VVPAT manufactured by Diebold.
This appears to be the only machine that even has a chance of getting certified this week, as it must be under the timetable set by Ohio Secretary of State Ken Blackwell. (See here for more on that issue, including the litigation filed by a rival voting machine vendor.) If Diebold's system isn't certified by this week, and Blackwell doesn't adjust the deadline, then counties will have no choice but to go with precinct-count optical scan systems. Moreover, it's unclear how counties will accommodate people with disabilities, given that there's no accessible machine that's certified and meets the VVPAT requirement.
The USA Today story also reports on an MIT study of Nevada, the only place where an electronic voting system with the VVPAT has been used on any significant scale. (I'm trying to get a copy of this study, which doesn't seem to be on the Caltech/MIT Voting Technology Project's website). Ted Selker and his associates at MIT found, unsurprisingly, that few voters actually checked the contemporaneous paper record. Selker states, "I have lost confidence in paper trails."
All of this puts counties in a very difficult position. They can opt for precinct-count optical scan systems, which will require them to have a dual voting system in place -- one type of equipment for disabled voters and another still-unknown system for non-disabled voters at each polling place. Alternatively, they can hope that at least one electronic voting machine with a VVPAT is certified this week, and take their chances with that system -- despite the lingering uncertainty over whether it will work as advertised. The best course of action would be to repeal HB 262, which imposed the VVPAT requirement in the first place, but it doesn't seem like there's much initiative in the state legislature to undo its mistake.
If you were a county election official, especially one in Ohio, you'd have the blues too.
Friday, May 6
ES&S's Ohio Lawsuit: The Public Interest Should Come First
Voting machine vendor Elections System & Software (ES&S) brought suit this week in an Ohio state court, challenging Secretary of State Blackwell's orders regarding voting technology. See here for my initial thoughts. The complaint can now be found here on electionline.org's website. Attached to the complaint are ES&S's contract with the Secretary of State's office, which they claim was breached, and other documents that the Secretary of State has issued on the subject of voting technology. The Secretary of State has responded by releasing its correspondence with ES&S and other vendors, which can be found here.
The crux of ES&S complaint is that the Secretary of State's office has unfairly changed the rules about what voting technology will be used in Ohio, to the the detriment of the company's ability to compete for business in the state.
It's certainly true that Secretary of State Blackwell has reversed course, not just once but twice. His office originally had allowed counties to choose either electronic or precinct-count optical scan technology, which was supposed to be implemented by 2004. In January 2005, after the Ohio legislature passed a bill (H.B. 262) mandating a "voter verified paper audit trail" (VVPAT), the Secretary of State issued a new directive mandating that counties choose optical-scan, citing the costs and uncertainty attending a VVPAT for electronic voting.
Then in April 2005, the Secretary of State reversed course again, going back to the original plan of allowing counties to choose either precinct-count optical scan or voting technology. This new order was ostensibly based on the pending certification of at least one electronic voting system with a VVPAT, made by Diebold, for which the Secretary of State had negotiated a lower price than had previously been offered ($2700 per unit, down from $2965). Voting machines must be certified by May 13, 2005 to be selected, and the counties then have until May 24, 2005 to make a choice.
The most serious allegation in ES&S's complaint is that Blackwell's office gave preferential treatment to Diebold over the other two vendors competing for Ohio counties' business. ES&S seeks a court order that would prevent Blackwell from enforcing his directive requiring counties to choose a voting system, either a precinct-count optical scan or electronic with VVPAT, by May 24, 2005. A TV news story I saw yesterday indicated that ES&S's request for a TRO had been denied, but I've not yet found confirmation of this in any published reports.
My take: While ES&S may have a legitimate breach of contract claim, I think its argument for an injunction stopping Blackwell's directive is weak. Whatever harm ES&S's business interests may have suffered, the first consideration here ought to be the public interest -- not the private interest of a voting machine company.
In my opinion, the relief ES&S seeks would be harmful to the public interest. It's simply not correct to assert that there's no reasonable justification for the Secretary of State's requirement that counties choose a voting system by the end of this month. As a condition of accepting federal funds, the State of Ohio obligated itself to get rid of punch cards by the first federal election in 2006, which will take place next May. It takes time to implement a new voting system and, if counties don't make a choice soon, the ability to make a successful transition by this deadline will be imperiled.
In an ideal world, it would certainly be preferable for Ohio counties to have a choice among electronic voting systems. But Ohio's world is far from ideal. At this moment, it appears that the only available electronic system will be Diebold, given that the other two companies competing for Ohio's business (ES&S and Hart) probably won't have a electronic voting system ready that's certified and meets the requirements of Ohio's VVPAT law by the end of this month. As I stated earlier this week, Diebold's apparent lock on the electronic voting market in Ohio is a direct consequence of the state's ill-advised decision to enact a law requiring the VVPAT.
The Secretary of State and ES&S seem to be pointing the finger of blame at each other, on the question of why the company doesn't yet have an electronic VVPAT system that's certified. But at this point, the question why is less important than the apparent fact that it is so.
It may well be the case that ES&S will "lose its current business" in many if not all Ohio counties if the Secretary of State's May 2005 order stands. That allegation, however, doesn't justify a court order that would impede an expeditious and orderly transition to new voting technology. ES&S may be entitled to monetary relief from the State of Ohio. But in determining whether to issue injunctive relief, the public interest rather than ES&S's economic interests should come first.
Wednesday, May 4
Hearing on Ohio Election Bill
The Ohio House Elections and Ethics Committee today held a hearing on Sub HB 3, which makes significant changes to various aspects of the state's election laws. Among the areas affected by this 685 page bill are provisional voting, absentee voting, challenges to voter eligibility, recounts and contests. My testimony on the bill can be found here. Others testifying at today's hearing included Catherine Turcer of Ohio Citizen Action, Jon Greenbaum of the Lawyers Committee for Civil Rights, and Peg Rosenfeld of the League of Women Voters.
Those testifying were generally critical of the bill's language that defines "jurisdiction" to mean precincts for purposes of provisional voting. Under this language, provisional ballots won't be counted for any office if cast in the wrong precinct. On the other hand, there was strong support for the decision not to include a photo ID requirement in this bill, at least so far, as other states (including Georgia, Indiana, and Texas) have recently done. But stay tuned. There's talk of a photo ID requirement being included in a forthcoming bill, if it's not added to this one, and there's already a bill in the state senate (SB 36) that would impose a strict photo ID requirement.
One of the areas on which there was some disagreement at today's hearing was over the provision of Sub HB 3 that would allow "no fault" absentee voting by mail. That means that voters could receive and send in an absentee ballot, without any excuse. I'm opposed to such a requirement, because I think that mail-in absentee voting is the one area within our system that is genuinely subject to fraud and coercion. In addition, voters tend to make more mistakes when they vote by mail-in absentee ballot, since they don't have the benefit of error correction technology that's available with in precinct voting.
Others support no fault absentee voting on the ground that it will expand access and include more people in the voting process. While this is an important objective, in-person early voting is a better way of accomplishing it. In contrast to absentee voting, in-person early voting takes place in the privacy of the voting booth, set up at central location such as a county registrar's office or public library. It thereby preserves the secret and anonymous ballot that is a critical ingredient of system integrity. Of course, mail-in absentee voting will remain essential for elderly and disabled people who aren't able to go to a polling place. But for others, early voting is a better way to go.
The downside is that it would cost counties more to implement in-person early voting than mail-in absentee voting. But isn't that a price worth paying for an election system that expands access for everyone without sacrificing system integrity?
Tuesday, May 3
Voting Machine Vendor Sues Ohio Secretary of State
The controversy surrounding Ohio's voting equipment continues. Yesterday, voting system vendor Election System & Software (ES&S) brought suit against Ohio Secretary of State Ken Blackwell, asserting that his actions have effectively given a lock on the market to a particular vendor (Diebold). The Cleveland Plain-Dealer has this story and the AP this one.
In January, Blackwell directed counties to select an optical-scan voting system. Blackwell subsequently changed course, issuing this directive on April 14, 2005 that would allow counties to select a Direct Record Electronic system, so long as it was certified and complied with the state law passed last year which requires a "voter verified paper audit trail." Right now, only one company has a federally certified voting system that meets this requirement: Diebold. (See this memo accompanying Blackwell's April 14 directive.)
Counties have until May 24 to choose a voting system and, as of this moment, may select either a precinct-count optical scan system or an electronic voting system. But if they wish to go electronic, their only option would appear to be Diebold, since that will likely be the only company that has the necessary certification for its DRE with VVPAT system.
While I've not yet seen a copy of the complaint, ES&S argues that Blackwell has set arbitrary deadlines that unfairly change the rules of the game. According to a press release issued by the company, Blackwell's actions "have effectively stolen the counties' exclusive authority to choose their own voting systems." The company also notes that, last year, 42 of Ohio's 88 counties had planned to go with ES&S. It now apparently fears that many of those counties will go with Diebold, which appears to have a lock on Ohio's DRE market.
My take: I can't comment on the merits of ES&S complaint without having seen it, but it's quite clear that the predicament Ohio finds itself in is the direct result of its decision last year to pass legislation mandating that voting machines generate a contemporaneous paper record (aka, VVPAT). As I've noted on several occasions, VVPAT devices have yet to be workable or effective. The only one that's been used on any significant scale in any real election is manufactured by a company (Sequoia) that's not competing for Ohio's business.
Given that Ohio's acceptance of HAVA money requires it to get rid of its punch cards by 2006, it's hard to see how the state could push back the deadline for counties to choose a new system any further, without imperiling the funds already received from the federal government. That's because it takes time to make the transition to new voting technology, and the few months left between now and the 2006 elections is already cutting it close. At this point, the only means by which to give Ohio counties a choice of electronic voting systems (without losing federal money) would appear to be repeal of the VVPAT requirement.
The irony here is that the VVPAT requirement, advocated by the very people who were so concerned that Diebold might manipulate an election, has effectively resulted in Ohio's voting machine business being channelled toward that very company. What's doubly ironic is that Diebold's economic interests, at least in Ohio, are now aligned with the interests of VVPAT supporters.
Monday, May 2
Another Indiana Voter ID Lawsuit
As noted Friday, the Indiana Civil Liberties Union filed suit in state court last week to challenge the state's new law requiring voters to show photo identification at the polls. Now, the Indiana Democratic Party has filed its own lawsuit against the same law. The Washington Post has this report.
The IDP has filed in U.S. District Court in Indianapolis, claiming violation of their rights under the Fourteenth Amendment, the First Amendment, and the Voting Rights Act. The complaint says that plaintiffs will seek a preliminary injunction preventing the Secretary of State from enforcing the new photo ID requirement.
In related news, Wisconsin Gov. Jim Doyle on Friday vetoed a proposed ID law, saying that it won't do anything to improve the management of elections but will only disenfranchise seniors and others who lack photo ID.