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, December 21
Conflict in Cuyahoga
The Cuyahoga County Board of Elections yesterday deadlocked 2-2, along party lines, on whether to purchase new voting technology for the 2008 elections. The Cleveland Plain Dealer has this report. This decision follows Monday's meeting which I blogged here, and last week's report from the office of Secretary of State Jennifer Brunner discussed here. The two Republicans on the board opposed switching equipment, while the two Democrats supported it.
This leaves it up to Secretary of State Brunner to break the tie, and there's not much doubt that she'll support the Democratic board members' vote to replace the county's existing touchscreen system with an optical-scan system. This is a mistake, in my view, especially so close to the election. It appear that Cuyahoga County will move to optical-scan equipment marketed by ES&S, despite the problems with those devices revealed in a study this week from the Colorado secretary of state's office.
What's not entirely clear from the reports so far is whether "notice" technology will be provided to all voters, allowing them to check for overvotes. This is critical, particularly since voters in Ohio's other counties all use systems giving them notice and the opportunity to correct errors. Without notice technology, Cuyahoga County will have a serious legal problem on its hands, given the propensity of non-notice systems to result in large numbers of uncounted votes -- especially in minority and low-income communities.
Also noteworthy is the partisan sniping between Secretary Brunner and Rob Frost, a Republican member of the Cuyahoga Board. Mr. Frost complained (legitimately so, in my view) about Secretary of State Brunner's failure to attend or send a representative to Thursday's meeting. Secretary Brunner fired back by accusing Mr. Frost of "confirm[ing] his critics' worst fears." Is this a harbinger of what's to come in the 2008 election season?
Tuesday, December 18
A Hobson's Choice in Cuyahoga County?
The Cuyahoga County Board of Elections held a hearing yesterday, to consider whether to dump its touchscreen voting system in 2008. The Cleveland Plain Dealer has this report and the Columbus Dispatch this one. This follows Friday's EVEREST report from Secretary of State Brunner's office, recommending that Ohio's existing voting technology be replaced with central-count optical scan equipment.
During yesterday's board of elections meeting, I presented this statement, arguing that against a precipitous shift to new voting technology -- especially to a central-count system that don't provide voters with notice and the opportunity to correct errors -- before the 2008 elections. As I explained in Saturday's post, I don't think Brunner's recommendation that Ohio replace all of its technology by 2008 is supported by the evidence set forth in the EVEREST report.
A more careful review of the EVEREST supporting materials raises further questions about its recommendation for a hasty transition to new technology. Among those materials is this study from SysTest Labs, which contracted with the Secretary of State's office. Among its findings are that "the greatest risks to the voting process and the integrity of elections are not created by voting technology but rather by management practices, operational constraints, inadequate funding and resources, regulatory frameworks as well as less than helpful/useful Vendor documentation" (p. 3, emphasis added). Further down on the same page, it says:
True security is a combination of technology related security techniques and security measures found in thoughtful, well documented policies, procedures, and processes for internal controls that are reflective of both a specific locality and a specific voting system.I couldn't agree more. EVEREST's recommendation for a statewide transition to new technology is especially puzzling, in light of these findings from the Secretary of State's own consultant. It confirms that there's a wide gulf between EVEREST's findings, which warrant careful attention, and its recommendations, which aren't supported by the evidence and have a seat-of-the-pants feel to them. (For more criticism of EVEREST's recommendations, see this statement from Larry Norden of the Brennan Center. )
That said, there can be no question that Cuyahoga County has especially serious problems with its touchscreen voting system, sold by Diebold (now Premier) Election Systems. As the Columbus Dispatch notes in this editorial, there were exceptionally serious problems in Cleveland's 2006 elections. Not the least of these problems is the toilet-paper-roll-style paper trail that's used to satisfy Ohio's "voter verified paper audit trail" (VVPAT) requirement. As noted here, 20% of these paper records were unreadable in the 2006 election. This is especially troubling given that Ohio law makes the VVPAT the official ballot of record, as I've explained in this comment.
All of this leaves Cuyahoga County in an unenviable position. While I still question whether an expedited transition to new technology is the right thing to do, if the Board of Elections does decide to switch equipment, it would have to start this process quickly. See this timeline that one of the vendors has proposed. And if it does switch equipment, it has to go to a system that provides all voters with notice and the opportunity to correct errors. Given that Cuyahoga County is the biggest county is what's likely to be a -- if not the -- pivotal state in the 2008 election, its actions will and should be watched closely.
Saturday, December 15
EVEREST: Ohio's Voting System Report
Ohio Secretary of State Jennifer Brunner yesterday released this report of Project EVEREST (Evaluation & Validation of Election-Related Equipment, Standards, & Testing). Today's Columbus Dispatch has this report. The report is billed as a "comprehensive" review of the voting systems used in Ohio, which are also used throughout the United States. Its release provides an opportunity for me to get back into the blogging saddle and consider some of the issues that are likely to arise in Ohio, which is likely to be a pivotal state in this year's presidential election as it was in the last one.
There can be no doubt of the need for thorough analysis of both voting systems and procedures, which EVEREST attempts. Secretary of State Brunner thus deserves credit for taking on this task. There are, however, some problems with the report, particularly with the recommendations it draws. Foremost among them are the elimination of the voting systems used throughout most of Ohio and the replacement of precinct-based voting with vote centers. Some of EVEREST's recommendations are worth experimenting with. But in my view, the most dramatic ones aren't justified by the evidence considered
This is a big report, so I'll focus here on three of the most significant recommendations:
1. Eliminating Precinct-Count Optical Scan and Direct Record Electronic Voting Systems. This is the most headline-grabbing recommendation in the report. Ohio currently uses two types of equipment -- precinct-count optical scan (PCOS) and direct record electronic (DRE) systems. In contrast to the systems that were mainly used in Ohio before 2006, both these systems provide voters with notice and the opportunity to correct errors. But the new technology has, of course, been the subject of security worries. Most of these have surrounded voting technology to date have involved touchscreens and other DRE systems. The EVEREST report also takes on Ohio's existing PCOS systems and finds these lacking as well in terms of security.
All of this is perfectly reasonable. The real question is what to do about it. The report's solution is to eliminate both PCOS systems and replace them with Central-Count Optical Scan (CCOS) systems. These were used in some Ohio counties before 2006. The main problem with them is that they typically don't allow voters notice and the opportunity to correct errors. The result is more uncounted votes than either DRE or PCOS systems, as documented here. It's worth remembering -- though often overlooked -- that the transition to newer technology, along with better procedures, is estimated to have saved one million votes in the 2004 election.
Moving back to an ordinary CCOS system would sacrifice these benefits, and could be expected to result in more lost votes. This could revive the equal protection claims that were made in the Stewart v. Blackwell case, which was dismissed as moot earlier this year. (Disclosure: I served as co-counsel for plaintiffs in this case.)
EVEREST's apparent answer to this (see the parenthetical in Recommendation #2 on p. 77) is to recommend that precinct-based optical scanners be made available to allow voters to check for errors before casting their ballots. Although the report's explanation isn't crystal clear, my understanding is that instead of tabulating votes, these scanners would only allow voters to check for overvotes and undervotes, if they chose to use them. One of the questions, not answered by this report, is whether voters actually would do this or even understand the reason for the scanners. To my knowledge, no such voting method has actually been used elsewhere in the country -- at any rate, I can find no examples provided anywhere in the report showing that this will be effective. Will this modified CCOS system really prevent inadvertent overvotes and undervotes? Wouldn't it be better to test such a system in a real-world election environment, before recommending that the existing system be scrapped in its entirety and replaced with an as-yet untested system?
More fundamentally, it's doubtful that moving to a central-count system would solve the security issues identified. I'll take the report at its word when it says that the lock on a precinct-based optical scanner could be picked (p. 21), allowing someone with the requisite technical know-how to tamper with software and alter results. But someone without any technical know-how could pick a lock on a ballot box to tamper with the results. With a precinct-count system, there's at least a redundant record of the votes cast -- both the ballot and the record of votes stored in the memory card. No such redundancy is present with votes placed in a ballot box, to later be counted at a central location.
The point is that any type of voting system is vulnerable to manipulation, if proper checks aren't in place. In the end, the EVEREST report doesn't make a convincing case for Ohio's scrapping its existing technology -- particularly for 2008, a timetable that would wreak havoc on local election officials and, ultimately, inure to the detriment of voters.
2. Replacing Precincts with "Vote Centers." The other major change recommended by the EVEREST report is to eliminate precinct voting as we know it, and move to "vote centers." What's good about the recommendation is that it would mean expanded early voting (which Ohio somewhat oxymoronically calls "in-person absentee voting"). What's worrisome is that it would mean the closure of existing precincts on Election Day.
EVEREST recommends a pilot program in two or three counties in March 2008. This is a worthwhile idea. The problem is that it recommends the implementation of vote centers, apparently statewide, in November 2008 provided that funding is available. Wouldn't it be better to do a serious analysis of how well vote centers work, before mandating them statewide? There are some advantages to the vote center idea, especially in places where poll worker resources are usually scarce. The downside is that voters will have to travel further from home in order to vote. What if the polling place that used to be off the nearest bus line for an elderly voter is moved to the other side of town? How will this affect voter participation? What sort of public education effort will be needed to inform voters throughout the state of the changes in where they may vote? Will we need additional public transportation to get voters to the polls?
Here again, it would be useful to look to the experience of other states before proposing such a sweeping change. I'm not arguing against experimentation with vote centers, but think it's premature to recommend the elimination of precinct-based voting throughout Ohio, especially on such a rushed schedule.
3. Expanded Mail Voting. Making the process of voting more convenient for voters is a worthy objective. In-person early voting is a good way of doing this. More problematic is expanding mail voting and especially going to all-mail elections of the type that Oregon has. The most often cited problem is that mail voting is more susceptible to manipulation than in-person voting, since one can never be sure who actually voted the ballot -- or whether he or she was paid in order to vote a particular way. Even more serious is the risk of errors with mail voting, such as mismarked ballots, the failure to return them on time, or the failure to sign in the right place. Simply put, there are lots of things that can go wrong when people vote by mail, without the benefit of a poll worker to assist them.
There are also reasons to be concerned about how all-mail elections will affect turnout. In places where it's been tried, there's evidence that it results in modest increases in turnout, particularly in local races where turnout is especially low. But those gains disproportionately occur among those groups already the most inclined to vote. The worry is that moving to all-mail elections in a state more diverse than Oregon might further skew the electorate, making it older, richer and whiter.
EVEREST doesn't recommend moving to all-mail voting for all elections, but it does recommend conducting special elections to be conducted by mail and giving counties room to expans all-mail voting. A better option for increasing voter convenience, as we recommended in our Registration to Recounts report released last week, would be to expand in-person early voting.
A final note: I mentioned at the outset that the report bills itself as being "comprehensive." But in reality, the report is heavy on the technical details on voting technology but light on the real-world consequences of the major changes it proposes. This is consistent with the initial reactions of some of the election officials, who criticized parts of an earlier draft for relying on "pure supposition and bias" and for being "over-hyped" (pp. 44-45). Missing is an examination of the experience with different election administration practices, including thorough analysis of the social science evidence that's been gathered in recent years on the accuracy of voting technology and the practical impact of different administrative practices. In sum, the report is partial rather than comprehensive and, accordingly, its recommendations should be taken with a large grain of salt.
One particularly embarrassing example is the report's discussion of the Automark, a ballot-printing device which it ultimately recommends for the use of people with disabilities. After noting the Automark "could be easily compromised" to mark ballots incorrectly, the report states that "[t]he effects of this attack ... may be minimal, as a voter is able to visually detect any errors on the ballot" before casting it (p. 26). But of course, the very reason for using the Automark is to accommodate people with disabilities, including blindness or other visual impairments. How are those voters supposed to "visually detect" errors? This exemplifies the report's failure to apply a reality check to the issues it discusses.
In the end, the success of Ohio's 2008 election is likely to hinge more on procedures and people than on technology. In the few months that remain between now and the election, Ohio and other states would do better to focus on those issues than to attempt a hasty overhaul of its voting technology.