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
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Tuesday, April 11
A Remarkable Turn in the Paper Trail Debate
Black Box Voting has long been one of the most vocal critics of electronic voting technology. Led by Bev Harris, the organization has been sharply critical of the lack of security and transparency that it believes to exist with the present generation of electronic voting equipment. It has also sought to expose and publicize problems with paper-based technology, most recently through the Harri Hursti study of Diebold's optical-scan system.
Now, in this opinion piece, Black Box Voting has announced its opposition to the latest version of the Holt Bill (HB 550), which would mandate a "voter verified paper audit trail" or VVPAT. This would essentially require that electronic voting machines produce a contemporaneous paper record ("CPR") that voters could view before casting their votes. The idea behind it is that, in theory, the paper record could be used in the event of an audit or manual recount. Here are some excerpts from Harris' piece:
Election reform groups are split on whether they support H.B. 550. Black Box Voting normally does not weigh in on legislation, this time we will. Citizens need to be informed of the dangers as well as the benefits when being urged to support legislation.Now, I've occasionally been critical of Black Box Voting's tactics, most recently here. But I think that Harris is right on target in referring to the VVPAT as a "placebo." In fact, I've been critical of laws to require a VVPAT, including past versions of the Holt Bill, for quite a long time. I've even used the word "placebo" to describe its defects. The VVPAT may make some voters feel more comfortable about using electronic equipment, at least in the short term. But will it really make our election system more secure and transparent? It's doubtful at best.
Like an antibiotic that's too weak, we believe that H.B. 550 will create a more resistant strain of election infection.
Like a placebo, people may think the election system is getting well when in fact, the medicine is only a sugar pill that makes everyone think it's better. For a minute.
.... Black Box Voting believes that H.B. 550 is unwise. It will not be effective to improve citizen oversight or election integrity. It is dangerous, because the weakness of the antibiotic will create a more resistant strain of election manipulation....
Because I've discussed the practical problems with VVPAT several times, most comprehensively in this law review article, I'll just briefly summarize here. Even putting aside the mechanical problems such as paper jams that have emerged in testing of current VVPAT systems, the scant available evidence that exists suggests that few voters actually check the paper record. To make matters worse, the Holt Bill doesn't provide for counting enough ballot copies to provide a statistically adequate level of confidence in election results, at least in smaller elections, a problem that I noted in testimony available here. This difficulty is compounded by the length of time that it would actually take to count the curled-up strips of paper tape that VVPAT models would generate. According to electionline.org's annual report, it took about four hours to count a single strip of paper trail records, containing just 64 votes.
What this means is that Harris is dead-on right to label the current VVPAT bill a "placebo." Yet amazingly, Representative Holt and his allies continue to advance the idea that the VVPAT is a cure-all, despite the complete absence of any research to support their position. There is of course research to suggest that electronic voting is vulnerable to fraud and error, at least without the proper procedural safeguards. But there's none -- and I don't think this is an overstatement -- to support the conclusion that the VVPAT provides a workable and effective solution ot these vulnerabilities. Is there any research, for example, to show that voters actually check these strips of paper? That the present VVPAT systems are user-friendly? How long will it take to count the strips of paper generated by current VVPAT models? And most important of all, where are the statistical analyses showing the percentage of ballots ought to be recounted to provide an acceptable level of confidence? As far as I can tell, they don't exist.
Harris is also right, I think, to suggest that greater transparency is a more promising way forward:
It's Not About a Paper Trail; it's About Banning SECRECYHere again, I think she's pointing in the right direction. The voting system vendors have maintained that their software is a trade secret. Others have criticized this "security through obscurity" approach, and I think that open source solutions ought to be considered.
If we want a trustworthy system, we need to be unafraid to entertain the idea that if you make any facet of elections secret (other than who a person votes for), it will attract criminals. Such a temptation may take place inside a voter registration database or voting machine vendor's operation. In the case of a rogue programmer, management need not even know (if the programmer is positioned correctly). It may exist inside an elections office, or with a poll worker, or through a political operative....
Save your lobbying for something that eliminates secrecy. And if only a computer scientist can understand it or only an elections official can monitor it, it's still secret. H.B. 550 doesn't do much of anything to get at the core problem, which is secrecy.
One of the things that's most remarkable to me about Black Box Voting piece is that it suggests some convergence of views among electronic voting skeptics and those of us who've been skeptical of the VVPAT. I've noticed that e-voting skeptics have become increasingly aware of the problems that exist with at least some of the VVPAT devices now being marketed -- and in fact being used in some jurisdictions in this year's election. On the other hand, at least some longtime VVPAT skeptics, myself included, have increasingly come to appreciate the security and transparency concerns that really do exist with the present generation of voting technology.
Although some continue desperately cling to the idea that the VVPAT is the answer, the debate appears to be moving beyond the simplistic "PAPER=SECURITY" slogans that have mostly dominated the public discourse. Maybe I'm being overly optimistic, but I take this to be an encouraging sign.
Update: Bev Harris responds to my post here. We're not completely in agreement, and I've apparently misunderstood what she meant by banning secrecy, but I like her think it's best to work to find common ground and to avoid the ad hominem attacks that have sometimes hindered productive discourse (and I include myself in this). One point on which I think there ought to be agreement is this: Whether or not one believes that the VVPAT is necessary to ensure transparency and security, it's clearly not sufficient.