Equal Vote
N.Y. Times and Avi Rubin on Electronic Voting
Today's New York Times includes a story on electronic voting, focusing on the security concerns that some have expressed. The story quotes extensively from Avi Rubin, co-author of a widely publicized report regarding asserting vulnerabilities in Diebold's system. On the other side, the Times quotes election officials such as Bobby Kahn whose remarks I noted in a post earlier this week.

My take: It's distressing that the Times continues to disregard the civil rights implications of this debate. Instead, the debate is presented as being one between technologists on one side, and election officials and vendors on the other. No mention is made of the accessibility advantages that Direct Record Electronic ("DRE") systems have for people with disabilities, or of the vocal opposition that disability rights advocates have expressed to the proposed contemporaneous paper replica ("CPR") that Rubin and others urge. The Times doesn't discuss the disability access requirements of either HAVA or the ADA. See here. Finally, there's no discussion of the advantages that electronic voting machines have for citizens of color, in eliminating the racial gap in uncounted vote that tends to exist with other systems. See the report of Tomz & Van Houweling and this post.

Equally distressing is the continuing attention paid to the views of Rubin, who seems to have little if any understanding of election administration. The report of Rubin and his colleagues entitled "Analysis of an Electronic Voting System" looked solely at Diebold's source code. He and his colleagues admittedly lacked an understanding of how this electronic voting system is implemented, instead relying on certain "assumptions" that turned out to be incorrect. Among those incorrect assumptions is that DRE's would be hooked up to a network or the internet (they aren't) and that voters might receive the "smart cards" used to operate the machines in the mail (also false).

The counterfactual assumptions upon which Rubin relies severly diminish the value of his analysis. As stated in a report commissioned by the State of Maryland: "While many of the statements made by Mr. Rubin were technically correct, it is clear that Mr. Rubin did not have a complete understanding of the State of Maryland's implementation of the AccuVote-TS voting system, and the election process controls or environment." It goes on to explain that "most of Mr. Rubin's findings are not relevant to the State of Maryland's implementation" of the Diebold system.

Even Rebecca Mercuri, a prominent critic of DRE security, has critiqued Rubin's report. Mercuri's critique notes that Rubin's assumptions are "inconsistent with existing elections and programming practices" and rest largely on "conjecture." She also notes that some of Rubin's hypothetical fraud scenarios are equally possible with paper based systems: "Although the scenario described is possible, it involves considerably more effort than would be necessary to just collude with poll workers and create a few extra bogus voters at the end of the day using the legitimate equipment. This is no different from adding ballots to a ballot box or ringing up a few extra votes on a lever machine when nobody is looking."

It would seem obvious that the security of a voting machine can't be understood simply by examining its software, as Rubin's report presumes to do. One must also understand real-world environment in which the machines are used. Yet Rubin's ignorance of the basics of election administration hasn't stopped him from repeatedly asserting to the press that electronic voting is insecure -- fueling the climate of fear that has provoked such ill-conceived proposals as the Holt Bill, discussed here.

The Rubin report's weak grasp of election administration also leads it to underestimate the practical difficulties of implementing a CPR, and to overstate the security benefits. The report mistakenly refers to the CPR as the "only known solution" to the security problems it hypothesizes. In fact, it clearly wouldn't deal with some of the problems he hypothesizes, such as voter's counterfeiting smart cards to vote multiple times. Even if this could somehow be done without arousing poll workers' attention, what good would a paper trail do? If someone were to vote multiple times, then the attached printer would simply print multiple paper records.

None of this is to deny that there are genuine security issues with electronic systems, just as there are with paper systems. Indeed, as someone who has tried to pay careful attention to the real-life implementation of voting systems, I'd suggest that it is to be expected that there will be some problems when jurisdictions implement a new system for the first time. When this happens, we would all be well advised to take a careful look of how things can be done better next time, rather than engaging in the breathless histrionics that have sadly characterized so many discussions of DRE voting
Democracy Now Debate on Electronic Voting
The transcript from Democracy Now's debate on electronic voting is available. The debate features Bill Bozarth of Common Cause Georgia, which has written a thoughtful position paper on the advantages and security concerns regarding electronic voting, discussed here. Arguing against the implementation of electronic voting machines is Bev Harris, the "publicist-turned-investigative reporter" who's one of the plaintiffs in the recently filed California lawsuit regarding Diebold machines, discussed here. She has been one of the more alarmist critics of electronic voting machines.
The Impact of the Holt Bill on Disability Access
The Leadership Conference on Civil Rights has posted on its website an analysis of the Holt Bill's impact on people with disabilities. The author of this analysis is Lee Perselay, Legislative Director for Rep. Bobby Scott (D-Va.).

As discussed in prior posts, here and here, the Holt Bill would require all Direct Record Electronic ("DRE") voting machines to generate a contemporaneous paper record at the time of voting. The Perselay analysis concludes that the Holt Bill would remove HAVA's requirement that all machines purchased in 2007 or later be accessible to people with disabilities. It therefore "eviscerates the accessibility provisions of HAVA," according to this analysis.

Rob Randhava, policy analyst with the Leadership Conference, adds:

One thing Lee doesn't mention explicitly, but which further supports his interpretation, is H.R. 2239's effective date: the changes made by H.R. 2239 would take effect as if included in the enactment of HAVA - which is significant because it means that the original language in HAVA requiring accessible machines, which H.R. 2239 replaces but still refers to, would be deemed to have never been written that way in the first place.

I don't know if that was what Rep. Holt intended. At best, it appears to be a case of sloppy legislative drafting.

Thanks to Rob for pointing me to this analysis and for his commentary.
California State Association of Counties on Paper Trail Directive
The California State Association of Counties ("CSAC") has written a letter to California Secretary of State Shelley, concerning his directive mandating a contemporaneous paper replica for all Direct Record Electronic voting systems, discussed here and here. While the CSAC notes that it's not opposed to the use of DRE systems with a CPR, it contends that such decisions should be made at the local level. The CSAC argues that requiring a CPR amounts to an unfunded mandate and notes that there's no system certified that can do what Shelley has mandated. Finally, the CSAC questions Shelley's more recent directive to counties, requiring security measures in time for the March primary, on the ground that it will cause more "confusion, problems, and funding pressure on counties," especially in light of the short notice they've been given.
News on the Paper Trail Front
Friday's San Jose Mercury News contains an op-ed by Mike Langberg supporting electronic touchscreen voting and opposing the contemporaneous paper trail requirement. He criticizes some DRE opponents for fostering an atmosphere of fear and panic, reminding us that paper-based systems like punch cards (which DRE's are to replace) are deeply flawed. While agreeing that steps should be taken to improve DRE security, Langberg argues that the CPR requirement is a cure that may be worse than the disease.

In a similar vein, the A.P. reports the interim chairman of Georgia's Democratic Party Bobby Kahn throwing cold water on the flames of fear being fanned by DRE opponents, regarding that state's use of electronic touchscreens. While some have attributed the defeat of Democratic candidates Max Cleland and Roy Barnes to a voting conspiracy, Kahn states, "That just didn't happen." Kahn, who is also a member of the state election board, attributes the widespread fear over electronic voting to "a combination of computer people that don't know anything about politics and political people who don't know anything about computers."

More on Federal Disability Access Requirements
Doug Chapin of electionline.org calls to my attention the Department of Justice's Memorandum Opinion of October 10, 2003. The opinion responds to a request from the Secretary of State, addressing the question whether a Direct Record Electronic ("DRE") system that produces a contemporaneous paper replica would violate either the Help America Vote Act or the Americans with Disabilities Act. It concludes that providing a CPR would not violate either federal law, provided that visually impaired voters are provided a comparable opportunity to verify their choices before it is cast. This appears to contradict the California Attorney General's opinion which I mentioned yesterday -- although that opinion partly relied on its view that a CPR would violate state law requiring "equivalent" access for visually impaired voters, California Elections Code section 19227(a), as well as federal law.

Doug notes that the DOJ opinion has "gotten very little play, but if you read it as a 'statement of enforcement intentions' by DOJ regarding HAVA it's potentially significant." I agree with Doug's assessment that this statement could be significant for purposes of HAVA. It may be less significant for purposes of Title II of the ADA, given that disabled voters have a private right of action under this provision.

What remains uncertain (at least to me) is how the Holt Bill's requirements could be accommodated. As noted here, the Holt Bill would require something "analogous" to paper for blind voters. More specifically, it would require a system that "separates the function of vote generation from the function of vote casting." Current DRE systems, which simply provide audio confirmation of the electronically cast vote for visually impaired voters, probably don't meet this requirement. So what might such a system look like? I'm still not sure.

Thanks to Doug for pointing out the DOJ opinion.
League of Women Voters on Electronic Voting & Paper Trails
Meg Smothers of the League of Women Voters of Georgia has an op-ed in today's Atlanta Journal-Constitution. The op-ed opposes legislation to require that Direct Record Electronic ("DRE") voting machines generate a contemporaneous paper replica ("CPR") of the electronic ballot. Smothers explains that a paper record is no guarantee that elections will be secure, since paper ballots are "notoriously susceptible to being lost, mangled or manipulated." She emphasizes operating procedures as a more effective way of safeguarding electronic voting. Finally, the op-ed notes that electronic touchscreen voting systems promote the goal of full and equal voting, particularly for citizens with disabilities who may vote independently with such systems.

The LWV-GA's position is consistent with that taken by Common Cause of Georgia, which has a thorough position paper discussing the advantages of electronic voting -- including access for people with disabilities and easier multilingual voting -- as well as the security concerns that have caused some to support a contemporaneous paper replica. Like the LWV-GA, the Common Cause-GA statement opposes a CPR requirement on the grounds that it is a "feel good" measure that would complicate the voting process without necessarily enhancing security.

The national League of Women Voters' website also contains very useful materials on the electronic voting debate. Continuing in the League's tradition of thoughtful and levelheaded advocacy, the page on HAVA implementation includes FAQ's on DRE voting systems and recommendations on improving DRE security. Also included on this site are links to statements by the Leadership Conference on Civil Rights and the ACLU. This is a valuable resource for anyone interested in learning more about the electronic voting controversy
From the Mailbag: Federal Disability Access Requirements
Michael Waterstone, Assistant Professor at University of Mississippi School of Law, writes regarding the interplay between the disability access requirements of federal law and the paper trail issue. Michael is the author of an excellent article that recently appeared in the Stanford Law and Policy Review entitled "Constitutional and Statutory Voting Rights for People with Disabilities," 14 Stan. L. & Pol'y Rev. 353 (2003). That article argues in support of the right to a "secret and independent ballot" for persons with disabilities.

Michael raises the question how the proposed requirement that electronic voting machines generate a contemporaneous paper replica ("CPR") would square with existing protections for disabled voters. He notes that the Help America Vote Act of 2002 ("HAVA"), section 301(a)(3)(B) requires that each polling place provide "at least 1 direct recording electronic [DRE] voting system or other voting system equipped for individuals with disabilities" by January 1, 2007. In addition, FEC voting system standards require that DRE's "provide access to voters with a broad range of disabilities," including an audio capacity for those with visual or cognitive impairments. Right now, there's no "other voting system" aside from DRE's that meets this requirement -- and none that I know of that are even on the drawing board. Therefore, unless there's some unforeseeable change in technology, every polling place will have to have at least one accessible DRE in place by that date.

How can this be reconciled with the proposed requirement that DRE's generate a contemporaneous paper replica of the electronic ballot? At the present time, there aren't any accessible systems capable of producing the CPR. Therefore, there's a strong argument that the recently adopted CPR requirements in California, Nevada and Washington run afoul of HAVA. In fact, the California Attorney General on July 28, 2003 offered his opinion that requiring a CPR would likely violate HAVA's disability access requirements. That didn't stop Secretary of State Kevin Shelley from imposing a CPR requirement anyways.

The Holt Bill H.R. 2239, which I've previously discussed here, would likewise require that all DRE's generate a CPR. It should be emphasized that HAVA already requires that voting systems produce "a permanent paper replica with a manual audit capacity." The difference between HAVA and the Holt Bill is that the latter would require this paper replica to be printed at the time of voting so that the voter could verify it. This makes disability access tricky at best. The Holt Bill would therefore expressly amend the disability access provisions of HAVA to require a system of voter verification "analogous" to paper (whatever that means) for voters with disabilities. The problem is that there's no such machine presently in existence and it's hard to imagine what such a system would look like -- if someone can clarify this, please let me know.

The disability access requirements of HAVA are in addition to those which already exist under Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act. At least one federal court has held that these laws may create a right to vote unassisted, at least in some cases. AAPD v. Hood, 278 F. Supp. 2d 1345 (M.D. Fla. 2003).

Michael informs me that the Department of Justice has recently issued guidelines for accessibility at polling places. He notes:

"These guidelines will be useful to help election officials comply with their Title II and Title III ADA obligations insofar as polling place access. In my view, they are a 'polling place-specific' counterpart to some of the more general ADAAG regulations. It appears that they carefully address a lot of the accessibility problems that the GAO found in its 2001 report. So I am optimistic that they will provide some concrete guidance to election officials on how to make polling places accessible."

Thanks to Michael for writing and for alerting me to the DOJ guidelines.
Election Data Services Study on 2004 Voting Systems
Election Data Services has issued a study on the types of voting systems that will be used in 2004 elections. It finds that 32 million voters will cast votes on punchcard systems, while 50 million voters will vote on electronic systems and 55 million on optical scan systems. According to EDS, many jurisdictions are moving to optical scan systems rather than Direct Record Electronic ("DRE") systems, due to the controversy over electronic voting security.

From an equality perspective, DRE systems offer many advantages, including accessibility for people with disabilities and elimination of the racial gap in uncounted votes, see here and here. Many civil rights advocates, myself included, have been very concerned that the alarmist rhetoric being propogated by some DRE critics will push counties toward paper-based systems that are less advantageous from the perspective of voting equality. Regrettably, that appears to be exactly what's happening.
Internet Voting and the Digital Divide
Michigan became the first state in the country to offer internet voting during its February 7 caucus. According to the Detroit Free Press, more than 46,000 took advantage of this opportunity. While election officials expected internet voting to be a way of reaching out to young voters, older voters turned out to be the heaviest users. The average age of online voters, according to the DFP, was 50-60.

While including more voters in the process is a worthy goal, there are serious equality questions raised by the introduction of internet voting. As a result of the digital divide -- by both race and income -- internet voting is likely to exacerbate inequalities in our voting system. In Michigan, the equality issues are particularly pronounced, given that many voters in urban areas like Detroit reported problems at polling sites, such as inadequate staffing, poor marking, and early closing. In light of these problems, some are advocating that Michigan return to a primary system.

It bears emphasis that internet voting is quite distinct from voting on Direct Record Electronic (or "DRE") machines. Internet voting requires a computer and internet connection, while DRE voting takes place at the polling place, using stand-alone units that are not hooked up to the internet. Because these units offer "second chance voting," they virtually eliminate the racial gap that exists with paper-based systems such as punchcards. DRE voting offers real opportunities to enhance equality, see here.

Internet voting, on the other hand, threatens to make our voting system less equal.
Leadership Conference on Civil Rights Statement
The Leadership Conference on Civil Rights, has issued a Statement of Principles on Electronic Voting. The Leadership Conference, the nation's oldest and largest civil rights coalition, consists of more than 180 organizations dedicated to preserving and promoting equality. It includes such groups as the AARP, ACLU, Common Cause, MALDEF, and the NAACP.

The statement declares the Leadership Conference's commitment to making sure that the disenfranchisement that occurred in 2000 isn't repeated in this election cycle. It notes that the Help America Vote Act ("HAVA") will go a long way toward enhancing the equality of our voting systems ... if it is properly implemented. Central to the effective implementation of HAVA is the replacement of outdated voting machines, such as the "hanging chad" punchcard, with more accurate and reliable systems.

The Leadership Conference proceeds to explain that Direct Record Electronic (or "DRE") voting systems offer great promise. During the recent California recall election, for example, DREs had a much lower no-vote rate than other systems (1.5% as opposed to 2.7% for optical scan systems and a whopping 6.3% for punchcards). In addition, DRE systems provide unparalleled accessibility for voters with disabilities, and allow non-English proficient citizens to vote independently. The statement emphasizes that "second chance voting" -- the opportunity to correct errors, which is provided by DRE systems -- is absolutely essential to ensure the equality and integrity of voting.

The statement notes that, as with paper-based systems, legitimate security concerns exist with respect to DRE systems. The statement cautions, however, that many unanswered questions surround the contemporaneous paper trail ("CPR"), aka "voter verifiable paper trail," upon which some insist, including:

- How many ballots must a printer produce without a paper jam or other malfunction?
- What kind of paper is to be used in the printers?
- What is the temperature range within which the machine must perform flawlessly?
- How many times can the printer be dropped, and from what height, and still operate?
- How will the VVPT printer be connected to the DRE?
- What is the size and type of font to be used to maximize readability?
- How will the paper records be counted?
- How does the printer present the information to the voter, in a manner which preserves accessibility and secrecy?
- How will a voter verify or refuse to verify the paper record, and how will the electronic record be managed?
- What safeguards exist to protect against lost, mangled and manipulated paper records?

Moreover, the Leadership Conference notes, no CPR system is certified as of this date -- and it is unrealistic to expect that any could be implemented in time for the 2004 elections. Instead, it recommends that steps be taken to improve DRE security. These include better guidelines on hardware and software, and better election administration procedures, such as parallel testing and a prohibition on election results being sent over phone lines or the internet.

Finally, the statement emphasizes that voting technology is only one aspect of the general problem of voting equality. It opines that the focus on voting machines, while important, has taken the nation's eye off other problems -- such as deficiencies in voter registration systems which may have caused far more lost votes in 2000.

My take: This is an outstanding statement overall, one that focuses attention on the need to enhance the equality of our voting system while at the same time ensuring its integrity. It's unfortunate that, for the most part, the civil rights perspective on election reform has been lost -- and in some cases ignored entirely -- in the public debate on the issue.

Let's hope that, now that the civil rights community is speaking with a unified voice, greater attention will be paid to the importance of ensuring voting equality in 2004. NYT editorial page, I'm talking to you!
More on Ohio's Voting Machines
Ohio Secretary of State Blackwell is seeking $128 million for the state's controlling board to replace the state's antiquated punchcard voting machines, according to a Dayton Daily News story today. As noted in previous posts, here and here, Ohio is one of the last bastions of punchcard voting, which was used in 70 counties in 2000. These machines have a significantly higher uncounted vote rate than others used in the state, and an especially pernicious impact on African-American voters.

My take: Secretary Blackwell is right to acknowledge that getting rid of Ohio's "hanging chad" punchcard machines should be a priority. What's not mentioned in the the Dayton Daily News story is that Blackwell could resolve the problem himself, if he chose to do so, by decertifying the punchcard voting machine. Instead, Blackwell has been fighting efforts by the ACLU of Ohio, which asks him to decertify punchcard voting once and for all. (Disclosure: As mentioned previously, I'm co-counsel with the ACLU on this case.)

While there's a growing consensus that punchcard machines must be eliminated, there's controversy over what should replace them. The Mansfield News Journal notes that Blackwell would like to see these systems replaced with electronic voting systems. Direct Record Electronic (DRE) systems virtually eliminate the racial gap that exists with punchcards and other voting systems. They also offer accessibility features -- particularly for visually and manual dexterity impaired voters -- that other systems don't offer. On the other hand, some have raised concerns about the security of DRE systems, though the review commissioned by Secretary Blackwell concluded that they could be implemented safely if certain precautions are taken. In addition, the Help America Vote Act requires that at least one disability accessible machine be available at each polling place. At present, the only system that meets this requirement is the DRE.

The bottom line: Secretary Blackwell should exercise his power to decertify the "hanging chad" punchcard, and the state should make available funds for the best available system.
California Judge Denies Relief to Critics of Diebold DRE
A Sacramento Superior Court judge has denied relief to citizens challenging the use of Direct Record Electronic ("DRE") voting machines manufactured by Diebold, the A.P. reports. As noted in this post, Bev Harris and other DRE critics argued that the use of Diebold DREs in the March 2 primary election posed a "grave threat" to election integrity. Judge Raymond Cadei rejected their request for a Temporary Restraining Order. According to the A.P. story, Judge Cadei was not persuaded that there was a "serious actual threat." In explaining his reluctance to intervene, Judge Cadei reportedly referred to the en banc Ninth Circuit's opinion in Southwest Voter v. Shelley refusing to postpone the California recall election last fall. (Disclosure: I was co-counsel for plaintiffs in Southwest Voter.)
News from Ohio
Ohio Secretary of State Kenneth Blackwell has rejected calls for a legislative review of electronic voting security, according to stories in the Dayton Daily News and Cleveland Plain Dealer. Blackwell has already commissioned reports that recommended security improvements, but NOT the contemporaneous paper replica (CPR) upon which some insist. According to Blackwell, requiring a contemporaneous paper replica would increase costs by 25% without being necessary to ensure security.

Blackwell also notes that the delay occasioned by another review could further slow the replacement of Ohio's punchcard systems, which are the subject of an ACLU lawsuit. (Disclosure: I'm co-counsel for the plaintiffs in this lawsuit, which seeks to decertify Ohio's punchcard machines.) In the 2000 elections, 70 of Ohio's 88 election jurisdictions used punchcard voting systems. Punchcards result in a higher number of lost votes than other systems -- and have an especially harmful effect on African American voters. In some Ohio punchcard precincts, the no-vote rate (combined undervotes and overvotes) was over 15% in 2000. As things presently stand, a high percentage of Ohio's voters will continue to use these systems in 2004.

What Blackwell doesn't mention is that he's been vigorously fighting the ACLU lawsuit to decertify punchcards in Ohio.

My take: In light of the discriminatory effects of punchcard voting systems, it's imperative that Ohio get rid of these machines as expeditiously as practicable. While there are optical scan systems that would eliminate the worst problems with punchcards, only touchscreens offer the disability access features that allow people with visual and dexterity impairments to vote independently. At the present time, there's no electronic system certified that can produce a CPR, much less one that's accessible to people with disabilities.

Unfortunately, it's not entirely clear that the CPR's supporters -- such as Ben Cohen of Ben & Jerry's fame -- have thought through the consequences of their proposal, or even considered its workability. See my post on Ice Cream & Paper Trails. Nevertheless, according to today's Plain Dealer article, Ben plans to take his "Fudged Election Confection" campaign to Ohio.

I'm a big fan of Ben & Jerry's. Unfortunately, Ben's latest campaign threatens to have the same unhealthy impact on our voting system that his Chubby Hubby ice cream has on my physique. I wish that he'd pay the same attention to those who are harmed by the punchcard machines currently in use, most notably voters of color and people with disabilities. These are the people who stand to be hurt most severely by his latest initiative.

The bottom line: Blackwell should stop fighting civil rights advocates and decertify punchcard voting machines. And while Ben's concern with voting integrity is laudable, his proposed solution -- like his lamentably discontinued Dilbert's flavor -- is "Totally Nuts."
Show US the Money
The Election Administration Commission met for the first time on Monday, according to the Washington Post, and was besieged with requests by election officials seeking money and guidance. According to the report, the newly constituted EAC claims to have a plan for distributing the desperately needed $2.3 billion for voting system upgrades. The Commission intends to start reading the states' Help America Vote Act (HAVA) plans this month, and have checks cut by May.

State and county election officials are also seeking guidance on electronic voting security issues. That includes the contemporaneous paper replica (CPR) requirement proposed by Rep. Rush Holt (D-NJ) and others.

I've previously stated my view that the Holt Bill in its present form is a very bad idea, as was the paper trail requirement that Rep. Jay Wexler sought in his recently dismissed Florida lawsuit. To require all electronic voting systems to have a CPR would have a particularly negative effect on voters with disabilities and others who stand to benefit from implementation of touchscreen voting. Rather than advocating simpleminded solutions that may or may not solve the problem, we should take a hard look at ways to ensure security without compromising civil rights. The Election Assistance Commission appears to be a much more promising venue within which to engage in these debates than the overheated, election-year climate of the present Congress.
California Lawsuit Challenging Diebold Voting System
Critics of Direct Record Electronic ("DRE") voting security have filed suit against Diebold, California Secretary of State Kevin Shelley, and officials in California counties planning to use Diebold's DRE system. The complaint filed in Sacramento Superior Court alleges that the Diebold electronic voting systems pose a "grave threat" to the integrity of the California elections to be held in March and November 2004. According to the complaint, Diebold systems are to be used in 18 counties in this election cycle. Among the plaintiffs is Bev Harris, author of Black Box Voting: Ballot Tampering in the 21st Century and a prominent critic of DRE security. Plaintiffs are represented by Lowell Finley of Berkeley. The relief sought includes an order forbidding Diebold from installing uncertified software, and implementation of recommendations made in the recent RABA report produced for the State of Maryland.

As I noted in a post last week, California registrars are already concerned that Secretary of State Shelley has given them inadequate time to implement his February 5 directive requiring certain security enhancements in time for the March primary. I'd anticipate that county registrars will respond in similar fashion to this lawsuit. And it does seem quite late in the day to be require changes in time for an election that is less than two weeks off. What's more uncertain is whether the changes that plaintiffs seek can and should be made in time for the November election.
Florida Opinion on Electronic Voting and Manual Recounts
The Director of Florida's Division of Elections, Edward Kast, has issued an opinion letter in response to a request from Pasco County for guidance on conducting manual recounts with electronic systems. This issue was raised in Rep. Jay Wexler's recently dismissed lawsuit seeking to require that electronic voting machines generate a contemporaneous paper replica (CRT), a.k.a. "voter verified paper trail."

Mr. Kast's letter opines that section 102.166 of Florida statutes does NOT require a manual recount with electronic voting systems, such as touchscreens. He reasons that because overvotes and stray marks are impossible on electronic voting systems, the manual recount procedures of 102.166 don't apply -- and electronic voting machines are therefore not required to print out paper replicas of the electronic ballot.
This letter only purports to say what is required by Florida law. It doesn't tell us what can and should be done to ensure the security of touchscreen voting systems.

The opinion is nevertheless useful, insofar as it casts into doubt the assumption that a manual recount is a necessary or even effective means by which to ensure the security of electronic systems. Paper-based systems like punchcards and optical scans present different sorts of problems -- for example, overvotes and stray marks -- for which a manual recount may be useful. Electronic voting doesn't raise the same type of problems, and recounting paper replicas may or may not be an effective way of ensuring the reliability of those systems.
Two New Websites on Electronic Voting
The first is from Emanuele Lombardi of Italy, opposing electronic voting. It asserts that paperless electronic systems threaten to "eliminate democracy as we know it today." The second site is by a nonprofit political watchdog group in Philadelphia called the Committee of Seventy. It opposes measures like the Holt Bill (H.R. 2239) that would require all electronic voting machines to generate a contemporaneous paper replica, or "voter verified paper trail."
Ice Cream and Paper Trails
Ben Cohen of Ben & Jerry's fame has jumped on the paper trail bandwagon, according to a story in Wired News today. He's started a cleverly titled campaign entitled "The Computer Ate My Vote" to publicize concerns with the security of electronic voting machines. Apparently, Ben is advocating a contemporaneous paper replica (CPR) of the electronic ballot -- the so-called "voter verifiable paper trail" -- as the solution to this problem.

I'm a great admirer of Ben & Jerry's dedication to social activism. And as I've stated before, it's appropriate for us to be concerned about the reliability of our voting systems, whether electronic or paper-based. What's more difficult to understand is the insistence upon the CPR as the one and only solution. It's also hard to understand why people aren't paying the same attention to problems posed by the paper-based alternatives to electronic voting systems. That's especially true, given that we know that punchcards and other paper-based systems have a particularly harmful effect on voters of color.

Will the contemporaneous paper trail actually solve the security concerns with which Ben is concerned? As Andrew Neff has explained, recounting paper isn't likely to be an effective means of detecting fraud and error, unless a full manual recount of a large number of precincts is conducted. Moreover, the advocates of a required CPR fail to take into consideration that the likely effect of their efforts will be to induce states and counties to shy away from touchscreen machines altogether.

That's not to say there's nothing that can be done to improve touchscreen security. Among the recommendations that should be implemented are
- parallel testing of touchscreens, accomplished by pulling out a certain number of randomly selected machines during the election to make sure they operate as they're supposed to,
- improving testing and certification procedures, and
- requiring the machines to retain ballot images and not just vote totals
One might also consider such proposed solutions as open source and a voter verified audit trail, one that could be but wouldn't necessarily have to be paper-based.

I understand that there's a great deal of suspicion out there, especially among those on the left -- and I include myself in that category -- when it comes to voting systems. In light of the Florida 2000 catastrophe, such suspicion is understandable. But before jumping to conclusions as to the one and only fix, much less urging that such a fix be required as a matter of law, shouldn't we make sure that it works? And shouldn't we consider the harmful effects upon vulnerable voters, including people of color and people with disabilities, that are likely to flow from such a requirement?

2004 Voting Systems
USA Today reports that 50 million voters -- 28.9% of all voters -- will cast their votes on Direct Record Electronic (DRE) voting machines in the 2004 elections. That means 28.9% of all voters will cast votes on electronic voting machines, up from approximately 12% in 2000.

The percentage of voters casting votes on punchcard machines will have declined from 28% to 18.6% from 2004 to 2000. This is good news for the roughly 10% of voters nationwide who live in those jurisdictions, since punchcards result in more lost votes than other systems -- and have a particularly dramatic negative impact on the votes of racial minorities.

The bad news is that many voters will continue to vote on the same decrepit punchcard systems that should have been retired decades ago. Unfortunately, of the $3.9 billion authorized by HAVA in 2002, only about $650 million has been distributed thus far. That means that many voters will end up casting votes on the same systems they used in 2000.

That includes the vast majority of citizens in my new home state of Ohio, one of the last bastions of the "hanging chad" punchcard. Unfortunately, the Secretary of State of Ohio, Kenneth Blackwell, is vigorously fighting an ACLU lawsuit to end the use of punchcards in Ohio. Let's hope that Ohio -- which could well be a swing state -- isn't the Florida of 2004!
California Registrars Respond to Shelley's Electronic Voting Directive
Ten registrars and county clerks from California counties have responded to Secretary of State Shelley's February 5 directive. See this post. That directive required counties to implement certain security enhancements to electronic voting systems in time for the March 2004 primary.

In an unusually pointed response, the registrars' memo asserts that Shelley's directive came as a "complete surprise" to them. They also assert that Shelley's directive acts on matters outside his jurisdiction and is "misleading" to the public. According to the memo, there have been no documented instances of security breaches in counties that use Direct Record Electronic (or "DRE") voting equipment such as touchscreens. The registrars urge Shelley to "restore, not undermine" public confidence in voting systems. They emphasize, among other things, that the DRE systems used in California are not hooked up to the internet. Perhaps most importantly, the registrars claim that because Secretary Shelley lacked authority to promulgate these rules, they are unenforceable.

The registrars' criticisms of Shelley are quite extraordinary. It's apparent from reading their memo that the county registrars feel they were sandbagged by Secretary Shelley's directive last week. Although I think that some of the recommendations Shelley suggests make sense, the registrars make a compelling case that the late notice of Shelley's directive -- coming only a month before the primary election -- will make it difficult if not impossible to implement them effectively. It is also quite possible that Shelley's directive, while purportedly designed to enhance public confidence, will actually undermine confidence. That's particularly true if it results in a standoff between registrars and the Secretary of State on whether the directive is enforceable.
Rep. Wexler's Florida Lawsuit Dismissed
The A.P. reports that a state court has thrown out Rep. Jay Wexler's lawsuit seeking to require that all electronic voting machines generate a contemporaneous paper replica or CPR (the so-called "voter verifiable paper trail"). See my post on Tuesday regarding this lawsuit. According to the A.P. story, Judge Karen Miller found that Wexler lacked standing. She also relied on a California decision rejecting an equal protection and due process challenge to a paperless touchscreen system.

Although the California decision isn't identified in the A.P. story, Judge Miller presumably relied on the Ninth Circuit's Weber v. Shelley decision. In that opinion, the Ninth Circuit found no evidence that a touchscreen voting system without a contemporaneous paper replica was "inherently less accurate or ... less verifiable, than other systems."

While Rep. Wexler claims to be fighting for "voting rights," I think that the opposite is true. Whether they realize it or not, the relief sought in both Wexler's and Weber's lawsuits would have an adverse impact on the voting rights of vulnerable groups. Requiring all touchscreen machines to generate a CPR, as Wexler sought, would prevent many people with disabilities from voting independently, since there's no accessible CPR system available. Such a requirement would also hurt people of color, who stand to benefit most from the replacement of paper-based voting machines with touchscreen voting. That's because touchscreens virtually eliminate the black/white gap in uncounted vote, as Tomz & Van Houweling have explained.

Judge Miller's ruling reportedly added that it would be "futile" for Rep. Wexler to attempt to assert that his constitutional rights are being violated. Let's hope he agrees, stops playing politics with voting rights, and starts working for genuine improvements in election security.

Breaking News: CalTech/MIT Statement on Auditability
The CalTech/MIT Voting Technology Project today issued a statement regarding voter verified audit systems. The statement affirms the principle that voting systems should have an audit capacity, while stressing that "an auditable voting system need not be based on paper." The statement also supports increased openness in the deployment of voting systems, suggesting that open source (which I discussed in a post two days ago) is one means by which to enhance confidence in the security of electronic voting.
News from Florida
The St. Petersburg Times editorialized yesterday in opposition to requiring all touchscreen voting machines to print out a paper replica at the time of voting -- the device that its supporters call the "voter verified paper trail" (VVPT), though I prefer "contemporaneous paper replica" (CPR).

The St. Pete Times editorial is particularly critical of a lawsuit filed by Rep. Jay Wexler (D-FL) to require Palm Beach County officials to add printers that would produce a CPR in time for the 2004 election. Rep. Wexler's lawsuit has received considerable media attention in Florida. See stories from the Sun-Sentinel, Jupiter Courier, Miami Herald and Palm Beach Post. I've yet to see the complaint, but according to a press release from Wexler's office, the theory is that the failure to have a contemporaneously generated paper replica violates Florida law, because a manual recount can't be conducted without it.

Because I haven't seen Rep. Wexler's complaint, I can't comment on its merits. But if the press reports are correct, then the remedy he's seeking -- requiring that all touchscreen voting machines have an attached printer by November 2004 -- is likely to cause more problems than it solves. As the St. Pete Times editorial notes, there's no touchscreen-with-voter-verified-paper-trail yet certified, and it's not clear how (or whether) such a device would work. Even more doubtful is whether an as-yet uncertified machine, even if it works, could be implemented in time for the November elections. Trying to force such a hasty implementation of an unproven device is a recipe for disaster.

That is NOT to say that there's nothing that can and should be done to improve touchscreen voting security. See my February 7 post and the California Task Force Report on touchscreen voting. But the cure that Rep. Wexler reportedly seeks is almost surely worse than the disease.

Another problem with Wexler's proposed remedy is that it would likely foreclose a system accessible to people with disabilities. There's a case pending in Florida, American Association of People with Disabilities v. Hood, asserting that Florida voters with visual and manual dexterity impairments have the right to vote independently under the Americans With Disabilities Act and other federal laws. In denying cross motions for summary judgment, the court stated that "while the ADA and the Rehabilitation Act do not necessarily create a comprehensive federal right to vote without assistance, the application of the ADA and the Rehabilitation Act in a particular case may have the effect of requiring equipment that allows voters to vote without assistance." 278 F. Supp. 2d 1345, 1356 (M.D. Fla. 2003). If that's true, then Wexler's remedy could well conflict with federal civil rights protections.

Kudos to the St. Pete Times for its more thoughtful approach to this problem than that its more hallowed namesake in the north. And if anyone has a copy of Wexler's complaint, I'd love to see it.
Philadelphia Inquirer Editorial on Paper Trails
An editorial opposing the voter verified paper trail appeared in yesterday's Philadelphia Inquirer. As this editorial notes, the supporters of legislation to require such a paper trail have failed to consider the election administration headaches that such a requirement would impose. Most notable among those who've ignored such practicalities is Rep. Rush Holt (D-NJ), the sponsor of legislation
H.R. 2239 that would require all electronic voting systems to have such a paper trail by November 2004. Given that there's no system currently certified that can do this, Holt's bill is a very bad idea -- and fortunately, it appears that the bill is going nowhere this legislative session.

Whether or not one agrees with the Inquirer's conclusion, it's heartening to see at least one editorial page pay attention to the practical realities of election administration. Unfortunately, we've not seen similar attention from most other newspapers, including the New York Times . (The NYT editorial is archived, so a fee is required.)

As far as I know, there's only one jurisdiction that has even attempted to use a touchscreen system with a printer attachment: Sacramento County, California. (More on Sacramento's experience later.) Shouldn't we make sure that this solution is workable and effective before requiring that it be implemented as a matter of federal law? Inquiring minds want to know!

From the Mailbag: Is Open Source a Solution?
Cory, a computer science student at Case Western, writes to suggest that the paper trail issue may be a "straw man so people will ignore the larger issues" raised by touchscreen machines. I tend to agree that the fixation with paper trails tends to deflect attention from the real issues, including both the advantages of touchscreen systems from a voting equality perspective and ways of promoting security that may be more effective. Cory raises the possibility of open source code as a way of dealing with security concerns surrounding electronic voting:

The open source solution I think is preferable for a number of

First its secure.... It works like this, open source as a movement has a lot of
talented followers. Many are very concerned about these voting machines
so if it was established that the voting machine code was going to be
opened to comment hundreds if not thousands of experienced programmers
and engineers would likely look all or most of the code over. In the
process they would likely deluge the development team with a vast array
of suggestions and potential pit falls. If two heads are better than
one, hundreds are likely even better. This is whats going on in
Australia I believe and the public has a lot more confidence in the
system than many in America do. Most computer professionals will tell
you that open source software is more secure than close source software
for this reason. As a small example, Windows is constantly being
assaulted by new viruses. This isn't a testament to it's security,
virus writers aren't looking for a challenge they'll take what ever
comes along. Windows hasn't been vetted by every programmer who wants
to do so. Linux on the other hand has been examined by hundreds of
programmers and viruses for it are a far less common occurrence. When a
virus is released a patch for it will usually be available far sooner
than windows patches are. The main power is that it's a very rare
situation that an individual will find a weakness in the system that no
one else will find.

Second, shouldn't a system this important be available for the
public to examine? Just to wholly ensure that there's nothing improper
going on. This of course cannot be guaranteed unless every machine's
software is checked but at least it's a start.

This is an article about the Australia system from Wired.


So long story short I like open source because I trust the public
control and maintain a public good over a private company.

Though I profess agnosticism on whether open source code is a good idea, Cory raises some interesting points. I'm particularly intrigued by the suggestion that our voting systems are a public good, the inner workings of which should be open to any interested member of the public to examine. Opening them to public scrutiny might therefore serve the same sort of public interests advanced by the Freedom of Information Act and state public records laws. On the other hand, I've heard others argue that open source is a bad idea when it comes to voting machines, because it will make it easier for those of malicious intent to find and exploit vulnerabilities.

I'd be interested in hearing from those with knowledge of the technical and election administration aspects of this and other issues. My hope is that this blog can provide the opportunity for computer scientists, election administrators, civil rights advocates, and legal scholars to exchange ideas, as we collectively work to enhance the accessibility and security of our voting systems.

Thanks for writing!
News from California
On Thursday, California Secretary of State Kevin Shelley issued a directive requiring California counties using touchscreens and other electronic voting systems to implement additional security precautions for the March 2, 2004 primary election. Among the precautions required for are:

- randomly testing voting machines on election today, a process known as "parallel monitoring"
- requiring counties to maintain images of each ballot and not just vote totals
- requiring that electronic voting systems NOT be hooked up to the internet, but instead operate as stand-alone units

On the whole, Secretary Shelley's most recent recommendations seem like sensible means by which to improve touchscreen security without compromising voting rights. They appear to be consistent with the precautions recommended by the Touchscreen Voting Task Force in its July 2003 report.

The same cannot be said of Secretary Shelley's ill-advised decision in November 2003 to require that all electronic voting systems have a voter verifiable paper trail (VVPT) by 2005 (and 2006 where retrofitting is required). Why, you might ask, is it such a bad idea to require a voter verifiable paper trail? There are at least four reasons:

First, there's no certified system that can do what Secretary of State Shelley's November order would require. Nor has the VVPT been successfully tested or implemented in any jurisdiction as of this date. By taking the position that all electronic voting systems must have a VVPT by 2005/2006, Secretary Shelley has effectively decertified -- without going through the decertification procedure -- all existing electronic voting systems. Worse still, he's requiring an add-on that has yet to prove workable.

Second, requiring that electronic voting systems have a VVPT may well violate the Americans with Disabilities Act. Indeed, as Secretary Shelley acknowledged, the California Attorney General's office has opined that requiring the VVPT "would likely violate" provisions of state and federal law requiring equal treatment of visually impaired voters. That's because there's "no voting system currently available or in development [that] has or would have the capacity to convert the paper record into an audible format or other format accessible to sight-impaired voters." (I have a copy of the Attorney General's opinion, which is a public record, and hope to publish it somewhere on the web in a few days.) My views on the potential ADA claim were posted several weeks ago on Rich Hasen's blog.

Third, it's dubious at best that the VVPT is an effective solution to the legitimate concerns which have been raised about the security of electronic voting. Secretary Shelley more or less acknowledged this at the time that he required the VVPT, stating his view that electronic voting systems are not "inherently insecure," but nevertheless requiring a VVPT in order to enhance "voter confidence." The trouble with this argument is that the VVPT won't really enhance confidence, unless it will actually allow us to detect fraud or error. (I'll address this point at greater length in a future post.)

Fourth, the predictable effect of requiring a VVPT is to induce counties to avoid electronic voting systems altogether. I've not yet seen any reliable estimates of what it would cost to implement the VVPT. Nor are counties likely to opt for such a system without knowing whether it will work properly. The net effect, then, may be to leave California voters stuck with inferior paper-based systems.

The bottom line: Secretary Shelley should be commended for his concern with voting security, and his directive on Thursday seems like a step in the right direction. On the other hand, his November order to require the unproven VVPT is a step in the wrong direction ... and may ultimately wind up in litigation.

Welcome to Equal Vote!
The Problem

The 2004 election season is already upon us. But even as we approach the four-year anniversary of the 2000 election debacle, the machinery of our democracy remains in a state of disarray.

Despite the enactment of the Help America Vote Act of 2002, many jurisdictions will use the same "hanging chad" punch card machines that caused so many problems in Florida's election. The people most dramatically affected by this equipment are the same citizens whose rights have most often been compromised throughout our history, including people of color, non-English speaking voters, and people with disabilities.

From Punchcards to Touchscreens

Electronic voting systems such as touchscreens offer great promise to improve the equality of our voting systems. Touchscreen systems eliminate the black/white disparity in uncounted votes that tend to result from punchcards and other paper-based systems Tomz & Van Houweling. They also allow voters whose first language is not English to vote without assistance. Finally, touchscreen machines offer people with disabilities -- including visual impairments and manual dexterity limitations -- to vote independently, many for the first time in their lives.

Despite the considerable advantages that electronic voting systems hold, there has been considerable controversy over their implementation. Some computer scientists have raised concerns that the present crop of touchscreen voting systems are insecure. Others have played on lingering public fears from 2000, circulating far-flung conspiracy theories that raise the spectre of stolen votes.

As a result, there is enormous disagreement over whether touchscreen voting systems should be put in place at all -- and if so, what security precautions must be taken. Some have urged that touchscreen systems be required to have an attached printer, to print out hard copies of electronic ballot that the voter could see before voting. While the so-called "voter verified paper trail" (VVPT) proposal has received considerable media attention, it has yet to be certified or successfully implemented anywhere.

The Reason for This Blog

No one questions that we should be very concerned about the security of our voting systems, whether paper-based or electronic. Unfortunately, the public debate over touchscreen voting has proceeded without much attention to the practical realities of election administration.

Worse still, the civil rights implications of the voting technology debate have been overlooked. The debate over the VVPT, for example, is often portrayed as being between computer scientists on one side and election officials on the other -- with precious little attention given to people with disabilities than others, concerned that a VVPT requirement would discourage counties from moving to touchscreen machines.

Understanding this debate requires more than simply technical knowledge. It also requires a solid grasp of both election administration and voting rights.

The principal objective of this blog is to take a hard look at the controversy over voting technology, with special attention to its civil rights implications. It is for this reason that this blog is titled "Equal Vote," for the goal is to put voting equality at the center of the analysis. I will focus on the controversy surrounding voting machines, while also addressing related issues of political equality.

About Me

My name is Dan Tokaji, and I'm a law professor at the Ohio State University's Moritz College of Law. I started teaching here in the fall of 2003. Before that, I was a staff attorney with the ACLU of Southern California, where I was one of the lawyers in litigation challenging California's hanging chad punchcard machines. I'm presently co-counsel with the ACLU of Ohio in Stewart v. Blackwell, which seeks to challenge voting systems that disproportionately affect African Americans.

In addition to voting rights, my areas of expertise include both racial equality and free speech. As a First Amendment lawyer, I believe that the best decisions are reached when there is a robust public debate on matters of importance. Through this blog, I hope to participate in that debate -- and invite those who are likewise concerned with the future of your democracy to e-mail me with your thoughts.

Welcome to my blog!

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