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)
Friday, August 18
ESI's Report on the VVPAT
Earlier this week, the Election Science Institute (ESI) released this report regarding the use of an electronic voting system with a contemporaneous paper record. The focus of the report is the implementation of a Diebold system in Cuyahoga County, Ohio, but the report is essential reading for anyone who's interested in the ongoing debates regarding electronic voting. It's received a fair amount of coverage, including stories in the Columbus Dispatch and Cleveland Plain Dealer, as well as this cogent analysis from Dan Seligson of electionline.org.
First some background: For several years now, a debate has raged over whether electronic voting systems should be required to generate a contemporaneous paper record, commonly known as a "voter verified paper audit trail" or VVPAT. This is typically a strip of paper printed behind a transparent screen, which voters may see but not touch at the time of voting. In theory, it provides a reliable record against which electronic vote tallies can be checked. I've discussed the VVPAT on many occasions, summarizing it most recently here. For the record, I've been strongly opposed to laws that require a VVPAT, due to my doubts about whether it is a workable and effective solution to the security issues that have been raised about electronic voting.
ESI's report provides the first in-depth analysis of the functioning of an electronic voting system with a VVPAT in a real-world environment. (This is the sort of analysis, by the way, that would have been nice to do before anyone urged passage of a state or federal law requiring VVPATs. ) The report raises some very troubling questions, especially for states like Ohio that have passed laws making the VVPAT the "official ballot" of record in the event of a recount. ORC 3506.18.
Most troubling is the finding that, in Cuyahoga County, almost 10% of VVPAT records were "destroyed, blank, illegible, missing, taped together or otherwise compromised." The fact that the VVPAT is the "official ballot," as a matter of law, creates a very real possibility of an election being wrongly decided based on paper records that we know to be incomplete or inaccurate.
Imagine for example an election in which polling books show 100,000 people record, and for which 100,000 electronic vote records exist. But suppose that there are only 90,000 uncompromised VVPAT records available, the rest having been lost or damaged due to printer jams, missing text, or other anomalies. In the event of a recount, the paper tape would be the official record of the vote even if there are good reasons to believe that the electronic record is more accuate. It's not hard to see how the wrong person might be elected to office, even in a situation where we know the opposing candidate really won. And it's no stretch to foresee that elections will be wrongly decided, if these problems are not fixed.
It should be noted that the ESI team includes highly respected election adminstration experts, such as Michael Alvarez of the Caltech/MIT Voting Technology Project and Thad Hall of University of Utah. These are not people whom one would characterize as alarmists by any stretch. Yet their findings are alarming, when taking in the context of existing law.
What's hard to say for sure is what exactly caused the serious problems with the VVPAT in Cuyahoga -- in particular, whether the problem lies with the equipment, the manner in which it's being used, or both. In a letter to Cuyahoga County commissioners, Diebold asserts that the ESI report is "inaccurate and the result of an erroneous and misleading investigation that is clearly false." Diebold claims that the VVPAT can be reconciled against the electronic records stored in memory cards, if "Election Day administrative actions are incorporated into the analysis."
Diebold claims that deficiencies in poll worker training, rather than with the machines, caused the reported problems. According to its letter, poll workers swapped memory cards, taking them from one machine to another, without also swapping the VVPAT records. This would indeed create a discrepancy between the electronic and paper records -- and, if true, is another very disturbing allegation. It does not, however, explain the high failure rate with the VVPAT prinouts that ESI found, a problem that Diebold also attributes to inadequate poll worker training.
So what was the cause of the major problems with the VVPAT records? Was it mechanical problems or inadequate poll worker training? It's hard to answer this question definitively, but I suspect that it's some combination of these and perhaps other factors.
In any event, the ESI findings suggest that there are serious practical problems with the implementation of present-generation VVPAT systems. We simply don't know whether VVPAT systems in other places have the same problems found in Cuyahoga, because no one's done a comparable analysis.
ESI's report certainly provides additional reasons for doubting the assumption that has been a prime motivation for making the VVPAT the official ballot of record -- namely, that paper records are necessarily more accurate than electronic records. The report suggests the potential for very serious problems in states that have passed such laws. Unless the mechanical and/or training issues found in the ESI report are resolved, it is quite likely that reliance on the VVPAT in recounts will lead to the wrong result in some future election.