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)
Are Paper Trails Really the Answer to Election Disputes?
That was the issue before the House Administration Committee in today's hearing, as described here. The witness list may be found here, along with a link to a webcast of the hearing. Before the committee is the current version of the Holt Bill (H.R. 550), which would require electronic voting machines to have generate a contemporaneous paper record or voter-verified paper audit trail (VVPAT).
Among those testifying were Jim Dickson of the American Association of People with Disabilities, Edward Felton who co-authored the recent Princeton paper on the Diebold AccuVote TS, and Michael Shamos of Carnegie-Mellon University. As usual, Professor Shamos' thoughts are particularly incisive and worth quoting at length:
The proposed bill is based on three major assumptions, all of which are false. First, it assumes that paper records are more secure than electronic ones, a proposition that has repeatedly been shown to be wrong throughout history. Second, it assumes that voting machines without voter-verified paper trails are unauditable because they are claimed to be "paperless," which is also false. They are neither paperless nor unauditable. Third, it assumes that paper trails actually solve the problems exhibited by DRE machines, which is likewise incorrect.
The reason that mechanical voting machines were introduced over a century ago was to stop rampant fraud involving paper ballots. H.R. 550 would restore us to the year 1890, when anyone who wanted to tamper with an election needed to do no more than manipulate pieces of paper. The very idea that a paper record is secure at all continues to be refuted in every election. A recent example is the May 2006 primary held in Cleveland, Ohio. That state has a VVPAT requirement. When the paper records from the election were examined by an independent study group commissioned by Cuyahoga County, ten percent of the paper records were found to be illegible, defaced or entirely missing.
H.R. 550 provides that in the event of any inconsistency between electronic and paper records, the paper records are irrebuttably presumed to be correct. Applying that provision to Cleveland would have resulted in the disenfranchisement of 10 percent of the electorate because their paper records could not be read.
The argument is made that security problems with DRE voting demand remediation of the type proposed in the bill. Indeed, Prof. Felten at Princeton, Harri Hursti and others have done a great service by exposing security vulnerabilities in voting systems. Some of these vulnerabilities are severe, and require immediate repair. But the point is that they are easily remedied. The question for the Committee is what the proper response to such discoveries ought to be. When tainted spinach was found in California, Congress did not ban the eating or distribution of leafy vegetables, even though least one human life had already been lost. The appropriate reaction to the discovery of a security flaw is to repair it, not to outlaw an entire category of voting machine with which we have a quarter-century of experience....
Numerous effective verification methods are known that are not based on vulnerable paper records. These have not yet been implemented in viable commercial systems. I understand that scientists at NIST will soon announce another one. If H.R. 550 is enacted, there would be no point in continuing research and development on such better methods, since the statute would prohibit the use of any system not based on paper....
My purpose here today is not simply to complain about the bill, but to offer a constructive alternative. As part of my written testimony I have included a complete markup of the proposed legislation that retains its essential positive features, such as voter verification, but eliminates its ill-advised provisions. I urge the Committee not to report the bill favorably in its present form.
The Impact of ID Requirements
One of the major questions in the ongoing debate regarding voter identification laws is the extent to which they will affect participation by groups of different voters. That's partly because laws requiring photo identification in order to vote are so new.
There's finally some research on this important topic. Tim Vercellotti and Dave Anderson of the Eagleton Institute at Rutgers University have released this report, recently presented at the American Political Science Association convention, entitled "Protecting the franchise or restricting it?: The effects of voter identification requirements on turnout." As the title suggests, the paper attempts to measure how voter identification requirements affect turnout. (Disclosure: the researchers compiled the data for the paper under a joint contract that the Eagleton Institute and Moritz College of Law had with the U.S. Election Assistance Commission).
An important caveat to the paper is that it was based on 2004 data. At that time, there were no states that required photo identification to cast a regular ballot -- the Georgia, Indiana, and Missouri laws were all enacted after that date. There were some states, however, that asked for photo ID but allowed voting if voters signed an affidavit regarding their eligibility, a so-called "affidavit exception."
The report thus doesn't measure the impact of the post-2004 photo ID laws of the Georgia variety, but it does have some interesting information about other, less stringent identification requirements. In particular, Vercellotti and Anderson find a "small, but still statistically significant" correlation between stricter ID and depressed turnout.
Hopefully, this will spur other researchers will take a careful look at the study's methodology and findings. More research of this type is very much needed.
Election Integrity Audit Calculator
In the ongoing debate over electronic voting, most people appear to agree that sound procedures and effective audits are necessary to ensure secure and transparent elections. The real debate has been over how best to promote these values, while at the same time safeguarding others such as equal access for all citizens.
The most frequently discussed auditability mechanism is for electronic voting machines to generate a contemporaneous paper record, or "voter verifiable paper audit trail" (VVPAT). In the most common configuration, this entails a paper printout of the electronic ballot printed behind a transparent screen, so that the voter can see but not touch it -- and thus check his or her recorded choices -- before that vote is cast.
The problems with the VVPAT raised by its critics, including me, can be broken down into two basic categories. The first has to do with its workability. This includes getting a system in place that will actually function as it's supposed to. This has recently been shown to be a significant problem in Cuyahoga County, Ohio, where almost 10% of the VVPAT records were compromised in some way. The other problem has to do with the efficacy of the system -- that is, whether it will actually fulfill its intended function of making elections safer and more transparent. This partly hinges on whether voters actually the VVPAT records. It also depends upon conducting routine audits of those records, without which they are effectively useless.
An issue that's received insufficient attention, as I've noted here and here, is exactly how many paper records have to be recounted in order to ensure a sufficient level of confidence. This applies, by the way, not only to the VVPAT but also to other types of audit records -- such as the "voter verified audio audit trail" that Ted Selker has proposed. One of the few studies to examine this issue is this one written by Andy Neff of VoteHere. He found that, for a California congressional race, a 1% recount has only about 40% chance of catching a switch of 10% of the votes -- more than enough to alter the result in a reasonably close race. Unfortunately, there's been very little else written on what percentage of paper records should routinely be recounted in elections of different sizes.
US Count Votes has now taken a step in the right direction, however, with this analysis entitled "The Election Integrity Audit." A short description may be found in this press release. Although I've criticized USCV's work in the past, this seems to me a very useful contribution to the debate. Particularly helpful is this Election Integrity Audit Calculator, which purports to calculate the number of paper records that should be recounted to obtain a particular level of confidence, given the size of the election and the margin separating candidates.
I'm not mathematically sophisticated enough to assess whether the calculations generated by the USCV site are correct. At first glance, it appears to arrive at different results than what Neff had previously estimated would be necessary. Nevertheless, this is precisely the sort of analysis that needs to be conducted, in order to figure out exactly how to audit elections with the VVPAT or other verification systems. I hope that others will pay attention to this, and check on whether the calculations the USCV site generates are accurate.
Assuming so, the next question is this: What do we do if the audit results don't match the electronic vote totals? It could mean that the electronic records are compromised. Or it could be that the paper records are compromised, as in Cuyahoga. I don't have a good answer to this, but it's a problem that also needs to be considered.
Panic in Annapolis
Today's Washington Post has this story on Governor Robert Ehrlich's proposal to switch from electronic voting to paper ballots. It's not the best way to approach the problem, in my opinion.
The issues surrounding Maryland's election actually appear to involve at least four distinct issues: 1) the elementary mistake of failing to bring authorization cards to polling places in Montgomery County on election day, as discussed here; 2) the human resources problems experienced in Baltimore and Prince George's counties, including the failure of some poll workers to show up on time; 3) the security risks surrounding the Diebold AccuVote TS system, addressed in the Princeton paper discussed here; and 4) problems with the electronic poll books used for the first time in Maryland's election earlier this month.
It might relieve pressure on polling places if some voters cast absentee ballots, as Governor Ehrlich is now suggesting. But mail-in ballots have problems of their own, such as increasing the possibility of fraud and coercion, as well as mistakes on the part of voters. Far better to fix the procedural and personnel issues that were the main cause of Maryland's recent troubles.
NVRA Lawsuit Against Ohio Officials
Voting right advocates brought suit today in a Cleveland federal court, challenging Ohio state officials' alleged failure to comply with the requirements of the National Voter Registation Act ("NVRA"). The complaint in Harkless v. Blackwell may be found here, and a press release describing the case is here.
Though commonly referred to as "Motor Voter" because it requires registration to be made available to voters getting a driver's license, the NVRA also requires public assistance agencies to provide voter registration forms. That's not happening, according to the complaint in Harkless, which alleges that Ohio's Department of Job and Family Services (DJFS) and Secretary of State are failing to ensure that registration is made available.
One of the plaintiffs is ACORN, which registers low-income voters, along with two individuals who say they weren't given the chance to register. They claim that there's "widespread noncompliance" at state DJFS offices. Lisa Danetz of NVRI, one of plaintiffs' attorneys, has this blog post on the case which states that:
Under the NVRA, each state is required to designate a chief election official who's responsible for coordination of the state's responsibilities under the law. That person in Ohio is Ken Blackwell, the Secretary of State. According to this AP report, the Secretary of State's spokesman is calling the lawsuit "frivolous."
Ohio's own statistics indicate that over a two-year period all of Ohio's DJFS offices collectively registered less than one-half of one percent of the number of persons applying for or seeking recertification of Food Stamps benefits. In fact, DJFS offices in ten counties did not register a single person from 2002-2004, and another 17 counties registered fewer than ten people.
A Sad Day for Voting Rights
The House of Representatives today passed the Hyde Vote Suppression Bill (H.R. 4844), which would require government-issued photo ID to vote, on an almost entirely party-line vote (228-196). Reports on the passage of the voter ID requirement may be found in the Washington Post and Atlanta Journal Constitution, among other places.
The House's action is particularly shameful, since it comes only a day after a state court in Georgia struck down a very similar requirement requirement, on the ground that it would would make voting so inconvenient for some people as to amount to the denial of the vote. Those particularly hard hit are likely to be elderly voters, people with disabilities, and racial minorities.
The House vote isn't a big surprise, as I anticipatorily noted here. Following their vote last week to build a 700-mile fence along the Mexican border, those who support the bill tout it as a measure to crack down on illegal immigrants. They're not fooling anyone ... except perhaps those so swept up in anti-immigrant fervor that they're beyond reasoned argument. There's no substantial evidence of undocumented immigrants attempting to vote and precious little of anyone else going to the polls pretending to be someone they're not. Discouraging eligible voters is the most likely effect of this bill. Regrettably, it also appears to be the motive behind it.
Civil rights advocates have aptly dubbed Hyde's bill the new poll tax. The Chicago Tribune has this particularly interesting piece, entitled "Want to vote? Passport please," which includes the views of both sides. It notes that there doesn't appear to be much support for the bill in the more moderate Senate. Let's hope that's correct.
State Court Strikes Down Georgia ID Law
Judge T. Jackson Bedford, Jr. of the Fulton County Superior Court today issued this order permanently enjoined Georgia's 2006 voter identification law on the ground that it violates the state constitution. The AP has this report and the Washington Post this one.
Georgia's law requires government-issued photo ID in order to have one's vote counted. Judge Bedford finds that the ID requirement disenfranchises otherwise qualified voters who lack ID, in violation of the right to vote protected by the Georgia Constitution. He relies on prior case law prohibiting rules that make voting "so difficult or inconvenient as to amount to a denial of the right to vote." The Georgia ID statute was previously enjoined by a federal court in Common Cause/GA v. Billups, though that order doesn't extend through the November general election.
The state says it will appeal. We've undoubtedly not heard the last of this case, or of voter ID issues generally. As I discuss at greater length in today's weekly comment, this is turning out to be one of the big legal issues of the 2006 election season.
House to Consider Hyde Vote Suppression Bill
The U.S. House of Representatives is set to debate a bill that would have a devastating impact upon the right to vote. The Hill has this report on H.R. 4844, sponsored by Rep. Henry Hyde (R-IL) and euphemistically labelled the "Federal Election Integrity Act of 2006." The bill was approved by the House Administration Committee on a party line vote. The text of the bill may be found here and my prior thoughts on the bill are here.
While I try to use such forceful terms as "vote suppression" with great care, there is no other way to describe a bill that would prevent people from voting unless they present documents that many do not have. Voters would also be required to produce "government-issued, current, and valid photo identification," something that many people also lack. In Wisconsin, for example, only 22% of black males between 18- 24 had a driver's license.
Perhaps most disturbing is the utter lack of evidence that proponents have produced to show that the bill is needed. At the hearing on the bill that I attended back in June, the most that proponents could assert is that 35 foreign nationals attempted to register -- some of them people who had applied for, but not yet obtained, American citizenship -- in Harris County, Texas, a jurisdiction with some 1.9 million voters. This amounts to one ineligible voter registered for every 54,285 eligible voters. By contrast, the available evidence suggests that about 6-10% of voters lack photo ID, and that a disproportionate number of them are elderly, disabled, minority, and poor people.
What seems to be fueling this bill is not voter fraud at all, but a mixture of political gamesmanship and immigrant-bashing. It is no surprise, then, that citizen groups are steadfastly opposed to the bill, including the League of Women Voters and Leadership Conference on Civil Rights. The Leadership Conference's letter to Congress highlights how ironic it would be for the House, less than two months after reauthorization of the Voting Rights Act, to enact a bill suppressing voting rights. As they put it:
The requirement that all voters present a photo ID before being able to cast a regular ballot will disproportionately disenfranchise people of color, the elderly, individuals with disabilities, rural and Native voters, the homeless, low-income people, and married women, who are less likely to carry a photo ID. Photo ID requirements also build an enormous amount of discretion into the balloting process, thus creating opportunities for discrimination at the polls against racial, ethnic, and language minority voters.I nevertheless expect the House to pass this bill, though I hope I am wrong. The best hope for defeating this shameful piece of legislation seems to lie in the Senate.
UPDATE: The bill was amended in committee to delete the registration requirements. The new language, which was not available at the time of my prior post, has now been posted here. I've amended my description of the bill above to reflect those changes.
Fallout from the Princeton Report
There's been a fair amount of attention to the Princeton report on Diebold's AccuVote TS, which I blogged on Wednesday, including reports from ABC News, Government Technology News, and the Trenton Times. Based in part on these reports, an attorney in Colorado has brought suit to stop that state's use of electronic voting, according to this report from the Rocky Mountain News. While I've not yet seen the complaint, I don't give this lawsuit much more chance of success, than other lawsuits seeking to stop electronic voting systems have had in California, Maryland, and Florida. The Democratic Party is reportedly urging people to vote absentee, probably not a good idea for reasons I've set forth here.
Meanwhile, Ben Adida of MIT and the Berkman Center has this interesting post on the Princeton report. While making a kind reference to my Wednesday post, he thinks I mayhave been "too harsh" in my criticism of the Princeton report's VVPAT recommendation. Perhaps so, given that the report does acknowledge the problems that have emerged with VVPAT implementation.
My objection was really to the assertion that the VVPAT is the "most important" thing that can be done to promote security, when its not been proven workable or effective -- and indeed, when there's been very little comparative research on the VVPAT and other means of auditing electronic voting systems. One of the few reports out there is this one conducted by researchers at University of Maryland, Baltimore County at the request of the Maryland Board of Elections. That report found problems with all the verification technologies they tested (including the VVPAT), as discussed in this post from Michael Alvarez on the Election Updates blog.
Aside from the obvious security concerns, my worry upon reading the Princeton report was that it would either (1) send people into a panic as appears to be happening in Colorado, or (2) lead to another mad rush to require the VVPAT, despite the lack of evidence that this is a workable and effective solution and the fact that existing VVPAT systems all have some serious issues. A far more productive approach, particularly between now and November, would be to focus on improving procedures to protect machines and memory cards from tampering.
Voter ID, in Congress and the States
Salon.com has this story on a bill before the House Administration Committee that would require voters to present government-issued photo identification in order to vote. The story includes a description of a heated exchange, in which Rep. John Doolittle (R-CA) denied that the "Republican Party is embarking on a move to suppress the vote of ethnic minorities throughout the country."
Civil rights groups like the NAACP, as well as the AARP, have a different view of the legislation, which is sponsored by Rep. Henry Hyde (R-IL). They argue that it will disproportionately affect certain groups -- such as minority and elderly voters -- who are less likely to have the required ID. I tend to agree, as set forth in this post on "The Hyde Vote Suppression Bill."
In addition, today's St. Louis Post-Dispatch has this report on the photo ID battles going on across the country, following this LA Times story on the subject. We've seen two decisions this week enjoining state photo ID laws, one in Georgia and the other in Missouri. On the other hand, a federal court in Arizona declined to enjoin a non-photo ID requirement. This will no doubt continue to be one of the big issues of the 2006 election season, the outcome of which could affect some close races.
UPDATE: Judge Harold Murphy's second preliminary injunction order in the federal case challenging Georgia's photo ID law may be found here. It applies through the run-offs from the July 2006 primaries, but says that the issue will be revisited with respect to the November 2006 general election.
A Worrisome Nominee to the EAC
The White House has announced its intended nominee for the Republican slot on the Election Assistance Commission (EAC) being vacated by departing Chairman Paul DeGregorio. The prospective commissioner is Caroline C. Hunter, who is currently Deputy Director of the Office of Public Liaison at the White House. The press release announcing this intended nomination describes Ms. Hunter as follows:
Ms. Hunter currently serves as Deputy Director of the Office of Public Liaison at the White House. Prior to this, she served as Executive Officer of the Office of Citizenship and Immigration Services Ombudsman at the Department of Homeland Security. Earlier in her career, she served as Deputy Counsel of the Republican National Committee. Ms. Hunter received her bachelor's degree from Pennsylvania State University and her JD from the University of Memphis.Under the Help America Vote Act of 2002 (HAVA), the EAC consists of four commissioners, two of whom are Democrats and two of whom are Republicans. Ms. Hunter would be appointed for a four-year term as one of the two Republican appointees.
What's troubling about this announcement, at first blush, is that it's not clear that Ms. Hunter possesses the qualifications for the job. All of the prior EAC commissioners, Democrats and Republicans alike, have been people with substantial relevant experience. Republican Commissioners Donetta Davidson and Paul DeGregorio, for example, were previously election officials at the state and local level for years. The EAC's current executive director, Tom Wilkey, is also someone with many years experience in election administration. Former EAC Vice-Chair Ray Martinez practiced administrative law -- clearly relevant experience for someone helping to get a new administrative agency started -- and had worked with state elected officials as Deputy Assistant to the President for Intergovernmental Affairs. Current Democratic Commissioner Gracia Hillman has a long history of promoting voting rights, including work with the League of Women Voters and the National Coalition on Black Voter Participation.
I don't know Ms. Hunter personally and have never heard of her before. My attempts to find out information about her through the internet have yielded nothing of much relevance (though I did find this letter which she wrote on behalf of the RNC in 2003, telling TV stations to stop running an DNC advertisement critical of the President). It is certainly possible that there is something of which I'm not aware -- something not listed in the bio released by the White House -- that qualifies her for the job. But if not, there's reason to be concerned that this is someone who's being appointed not for her qualifications, but rather to look out for the political interests of the party to which she belongs.
It would be most unfortunate if this turned out to be the case. That is especially true, since this is a delicate period in the development of the EAC given the recent spat over Arizona's voter registration requirements, which I've discussed here and here. This dispute broke the EAC's tradition, up to that point, of operating by bipartisan consensus. The worry is that the EAC will become an agency in which the commissioners view their roles as protecting the interests of their parties, rather than promoting a better functioning election system as HAVA originally promised. That would likely lead to stalemates along party lines, which would effectively paralyze the EAC and destroy its ability to serve as an effective instrument for election reform.
Court Stops Missouri Voter ID Law
A state court judge today issued an order barring Missouri officials from implementing the state's recently enacted law requiring voters to present government issued photo ID. The order from Cole County Circuit Court Judge Richard Callahan in Weinschenk v. Missouri may be found here. My previous summary of the Missouri voter ID litigation is here.
Judge Callahan finds that the new photo ID requirement violates the Missouri state constitution. Prior state law allowed either a photo ID card or other documentation showing the voter's name and current address, such as a utility bill or government document. Under the new ID law passed in 2006 (SB 1014), the only acceptable proof of identification is an unexpired photo ID issued by the Missouri or United States government.
The most commonly held form is a state driver's license. The court notes that, under a 2005 state law, three documents are in turn required to obtain a driver license or a "nondriver license" (that's really what they call it -- a license not to drive?). The three requirements are proof of lawful presence, proof of identity, and proof of residence. Documents required to prove lawful residence, such as a passport, may cost up to $236. In this respect, the the court observes, Missouri's voter ID law is even more stringent than Georgia's, where state and federal courts both issued orders stopping the law as described here.
Judge Callahan concludes that the voter ID requirement isn't saved by the fact that Missouri doesn't charge for a nondriver license. As he puts it, "voter will have to 'buy' numerous government documents to get the 'free' photo ID to qualify for the privilege of voting." The order goes on to observe that the burden of the Missouri law would fall disproportionately on certain groups of citizens:
The photo ID burden placed on the voter may seem minor or inconsequential to the mainstream of our society for whom automobiles, drivers licenses, and even passports are natural parts of everyday life. However, for the elderly, the poor, the undereducated, or otherwise disadvantaged, the burden can be great if not insurmountable, and it is those very people outside the mainstream of society who are the least equipped to bear the costs or navigate the many bureaucracies necessary to obtain the required documentation.The court therefore concludes that the Missouri voter ID law violates the voting rights protected by the state constitution. Those include the "free exercise of the right of suffrage," the requirement of "free and open" elections, and the due process and equal protection clauses of the Missouri Constitution.
On the other hand, the court rejects the challenge to the law made under the state's "Hancock Amendment," which essentially prohibits the state from imposing unfunded mandates on local governments. The court finds that the law will impose new costs on the three counties that brought suit, due to additional provisional ballots for those lacking ID. However, it finds that the relief sought by plaintiffs -- stopping the ID law from going into effect -- isn't available.
My take: Although it is based solely on state constitutional law, this is a significant ruling. Thus far, photo ID requirements have been stopped by two of the three courts that have considered them (Georgia and Missouri, but not Indiana). In both cases, the courts have been very troubled by the scant evidence that the state offered to support these laws. The courts don't expressly rely on a legislative purpose to suppress votes, as Chris Elmendorf recently suggested. Still, there's good reason to suspect such a purpose, given that the states in both cases failed to provide a tenable justification for the considerable burdens they imposed on voters. As Judge Callahan eloquently puts it, this burden is particularly troubling because it does not affect all voters equally, but instead place special hardships on traditionally underrepresented groups of voters.
Princeton Paper on Diebold's AccuVote TS
Researchers at Princeton University today released a "Security Analysis of the Diebold AccuVote-TS Voting Machines." The Diebold TS is the type of direct record electronic voting machine used in Georgia and Maryland, among other places. The Princeton report is receiving a fair amount of attention, including this AP story. Here's the report's abstract:
This paper presents a fully independent security study of a Diebold AccuVote-TS voting machine, including its hardware and software. We obtained the machine from a private party. Analysis of the machine, in light of real election procedures, shows that it is vulnerable to extremely serious attacks. For example, an attacker who gets physical access to a machine or its removable memory card for as little as one minute could install malicious code; malicious code on a machine could steal votes undetectably, modifying all records, logs, and counters to be consistent with the fraudulent vote count it creates. An attacker could also create malicious code that spreads automatically and silently from machine to machine during normal election activities -- a voting-machine virus. We have constructed working demonstrations of these attacks in our lab. Mitigating these threats will require changes to the voting machine's hardware and software and the adoption of more rigorous election procedures.The report warrants attention. With the caveat that I've only had a chance to do a relatively quick read of the report, some initial reactions follow. My focus is on the impact that the Princeton researchers' findings should have on the ongoing law and policy debates regarding electronic voting.
The Princeton report's most important contribution to this debate is that the researchers actually had access to a DRE machine, in contrast to some prior research that relied solely on the software and assumptions about how it would be implemented. The researchers also made an effort to consider how these machines are implemented in real elections, though it's hard to tell, at least in some places, on what they're basing their statements about the procedures followed in implementing this equipment. In one place, their description of data being downloaded onto memory cards (section 2.2) comes from Diebold itself. That seems quite fair. But in other places -- such as the process for setting up machines on election day (section 3.3.1) and post-election procedures (section 3.3.3) -- it's not clear to me what they're relying on for their description of the process followed. I'm not saying that their descriptions are inaccurate, just that it's hard to verify the accuracy of their procedural descriptions from the report itself.
This is a critical point, because if there's one thing that emerges quite clearly from their report, it's that procedures matter when it comes to the implementation of electronic voting systems. In fact, this is true of any type of voting equipment. The main vulnerability that the Princeton researchers identify with Diebold's DRE is that someone with "physical access to a voting machine, or to a memory card that will later be inserted into a machine, can install ... malicious software using a simple method that takes as little as one minute." I have no reason to believe this finding to be false. The key point is that, to perpetrate such an attack, one would need access to either a voting machine or an access card that would be inserted into a machine.
From the standpoint of election procedures, this finding puts a premium on limiting access and maintaining a chain of custody, both for memory cards and for voting machines (section 5.2). Once software is loaded onto the machines, they have to be treated with the level of care that one would treat a ballot box. Just as it is possible to stuff ballots into an unguarded ballot box with a paper-based system, it is possible to manipulate vote totals on an electronic system if it is left unguarded. The report also highlights the dangers inherent in transferring memory cards from one machine to another -- as reportedly happened in Cuyahoga County's recent primary election -- since this could spread a vote-stealing "virus" from one infected machine to another.
The report's emphasis on chains of custody and other procedures deserves careful attention. The report's recommendations with respect to the "voter-verifiable paper audit trail" (VVPAT), on the other hand, warrants skepticism. The report concludes that implementing the VVPAT "makes our vote-stealing attack detectable." This may be true in theory -- if voters actually check the paper, and if a sufficient number of paper records can be routinely audited. It is doubtful whether this is true in practice, at least with the most commonly used VVPAT systems. The Princeton researchers did not examine a DRE system that has the VVPAT, much less attempt to evaluate the workability and efficacy of such a device in a real-world election environment.
Among the practical problems with the VVPAT is that, in their most common configuration, the paper tape is difficult to check and even more difficult to recount. The report asserts that it is sufficient to choose a "small fraction" of polling places to confirm with a "high probability" that the result is accurate, but doesn't show the math to support this assertion. Of particular importance is whether recounting a "small fraction" will really be sufficient for small, local elections in which changing a relatively small number of votes within a single county really could swing the result -- and where the risk of election fraud, of the type the researchers raise, is accordingly the highest.
To their credit, the report does mention the practical difficulties that have emerged in implementing the VVPAT, some which I've discussed here and here. But to suggest that the VVPAT is the "most important" way of mitigating vote-stealing is to go beyond what their evidence supports. One would really want to examine the functioning of the VVPAT in a real-world election environment, before making such an assertion -- something that, unfortunately, was not done before state legislatures starting passing laws to require the VVPAT and even to make it the official ballot record, a "reform" that could turn out to have disastrous consequences.
None of this should detract from what I think to be the most important policy recommendation to emerge from the Princeton report: that it is essential to have procedures in place to prevent tampering with either memory cards and voting machines. Whether existing procedures are already in place, or whether they need to be improved in some places, is more difficult to ascertain from the report. I suspect that there is a genuine need for such procedural improvements, to prevent the type of attacks that the Princeton researchers envision.
The Mess in Maryland
The story of the day are the problems in today's primary election in Maryland, where the voting cards needed to operate voting machines weren't provided on time resulting in polling places opening late in Montgomery County. This is such a basic mistake, that it's almost mind boggling that it could happen -- effectively the equivalent of forgetting to provide ballots to polling places on election day. There have also been reports of polls opening late due to election workers not showing up on time in Baltimore County and Prince George's County. The Washington Post has this report and the Baltimore Sun this one.
Some polling places reportedly opened up three hours late, and workers ran out of the back-up paper ballots that are ordinarly used for provisional voting. These problems led to lawsuits being filed and court orders issued, requiring polls to stay open until 9:00 pm in Baltimore County and Montgomery County. As a matter of federal law, those voting during the extended hours are required to cast a provisional ballot. Section 302(c) of the Help America Vote Act of 2002 ("HAVA") provides:
Any individual who votes in an election for Federal office as a result of a Federal or State court order or any other order extending the time established for closing the polls by a State law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot .... Any such ballot cast under the preceding sentence shall be separated and held apart from other provisional ballots cast by those not affected by the order.Presumably, those ballots will be counted after the election. Unfortunately, it appears that at least some precincts actually ran out of provisional ballots -- not surprising, given that a number of them were probably used by morning voters who weren't able to use the machines.
Getting somewhat less attention, though also very serious, are problems with the new statewide voter registration database used in Maryland. As I mentioned yesterday, statewide registration lists -- newly required by HAVA -- are a big issue to watch in this year's elections. The Sun mentions that electronic polling books "froze up" in Howard County, occasionally causing delays. And David Lublin reports here on his experience in Montgomery County, where it sounds like the electronic polling book crashed and then showed him as having already voted when it was rebooted. It's possible that poll workers unfamiliarity with this new system contributed to the delays.
All in all, a pretty bad day for Maryland election officials, poll workers, and voters.
UPDATE: Avi Rubin has this post, reporting on some of the problems with the electronic pollbook at his precinct where he worked as a poll worker.
Voter Registration Database Problems
One of the major Help America Vote Act deadlines to take effect this year is the requirement that every state have in place a statewide registration database. The idea is to allow coordination of lists across counties within the states, but there are a lot of challenges inherent in getting this to work properly.
Although there's been much less coverage of this issue than of voting machines, the functioning of these databases will be critical to the conduct of elections, as I've discussed here. The Fort Worth Star-Telegram has this excellent report on some of the problems that have emerged in the development of Texas' statewide registration database. It reports that the Texas Election Administration Management (or "TEAM") database won't be operational before January 2007, a year after the federal deadline, and even then it won't include all counties.
Texas isn't alone in having difficulties with its registration database. For a complete list of the status of statewide registration lists, see this page on the votingindustry.com website and this one from electionline.org. New York, Alabama, Maine, California, and Wisconsin are among the other states that have had problems getting their databases up and running in time.
Georgia ID Case Back in Court
The AP has this report on a hearing in a Fulton County court today, regarding Georgia's photo identification requirement. Judge T. Jackson Bedford Jr. issued no ruling after a four-hour hearing.
The state reportedly attempted to justify the requirement on the ground that eligible voters can vote absentee without presenting photo ID. But this explanation, in reality, casts into doubt the state' s ostensible justification for the law -- namely fraud prevention. One of the major questions surrounding the photo ID law is what justification exists for requiring photo ID of those who vote in person, but not those who cast mail-in absentee ballots.
Two injunctions were previously issued against Georgia's current photo ID law, one from a federal court and another from a state court, for elections held in July and August. Court filings from the federal case (Common Cause/Georgia v. Billups) are available here. As noted in this order, a hearing is set for Thursday in the federal case before Judge Harold Murphy, on a second motion for a preliminary injunction. Plaintiffs seek an order that would extend the ban on enforcement through special elections set for this month.
More Missouri Voter ID Litigation
A state judge in Missouri heard argument today on a motion to stop the state's newly enacted photo identification law from going into effect. The AP has this report and the St. Louis Post-Dispatch this one. Papers from the two cases pending in state court are available here.
According to the Post-Dispatch report, Cole County Circuit Judge Richard Callahanwas skeptical of plaintiffs' claim that the law purposefully discriminated or was an impermissible unfunded mandate, but sounded a bit more receptive to the argument comparing the photo ID law to a poll tax:
He asked whether the extra cost could be considered payment of a fee to vote under the U.S. Supreme Court's 1966 decision outlawing Virginia's poll tax.A ruling is expected by the end of next week.
Assistant Attorney General Ryan Harding said it was not a fee to vote because "there are all sorts of situations where you need a photo ID." He listed boarding an airplane and cashing a check as examples."
Are those constitutional rights?" Callahan asked rhetorically.
Meanwhile, another case challenging Missouri's voter ID was filed today in a federal district court in Jefferson City, on behalf of the NAACP and groups representing disabled voters. While I've not yet seen the complaint, this case presumably raises federal constitutional claims similar to those raised (successfully) in the Georgia ID litigation and (unsucessfully) in the Indiana ID litigation.
UPDATE: The federal complaint in NAACP v. Carnahan may be found here.
Court Order Against Ohio Registration Rules
There was another significant development on the voter registration front yesterday. A federal district judge in Cleveland issued an order stopping new restrictions on nonpartisan voter registration activities. The case is Project Vote v. Blackwell, papers for which may be found here. Plaintiffs include Project Vote, ACORN, People For the American Way Foundation, Communities of Faith Assemblies Church, and Common Cause of Ohio. They are represented by the Brennan Center for Justice, Perkins, Coie LLP, the McTigue Law Group, People For the American Way Foundation, and Brian W. Mellor.
Judge Kathleen O'Malley announced the issuance of a preliminary injunction yesterday, against rules requiring each individual conducting registration to personally submit the forms to the Secretary of State or the county board of elections office. In the past, nonpartisan groups have collected the forms and checked them for accuracy before turning them in. There's no written order yet, but the Brennan Center's press release is available here. This follows a federal district court order Monday in another Brennan Center case, enjoining Florida's voter registration rules.
In other Ohio election litigation news, a coalition of community groups filed this complaint on Thursday against Secretary of State Ken Blackwell, challenging various aspects of the state's election system. The case is King Lincoln Bronzville Neighborhood Association v. Blackwell. The claims in this case are a bit hard to make sense of, but the main thrust seems to be discrimination based on race and other characteristics (such as youth and student status), with respect to voting resources, voter registration, and provisional ballots. Plaintiffs base their claims on alleged violations of the Fourteenth Amendment's equal protection and due process clauses, the Fifteenth Amendment prohibition on racial discrimination in voting, and, oddly, the Thirteenth Amendment. Are plaintiffs asserting that Ohio's election practices are badges and incidents of slavery?