Equal Vote
Florida: What Was Lost Is Now Found
There's some good news from Florida for a change. A few days ago, it was reported that Miami-Dade had lost electronic records of its 2002 election in a computer crash. See here. Now, the AP and FCW are reporting that the missing records -- images of all the electronically voted ballots -- have been found. According to the FCW report:
The data was recovered this morning, said Seth Kaplan, executive assistant to the supervisor of elections for the county. It had been burned onto a CD and tucked away, he said.
My take: The recovery of this data is good news, since it allows concerned citizens to audit the accuracy of votng machines. Unfortunately, this incident has exacerbated the anxiety that already exists over electronic voting, particularly in Florida. As we lawyers say, you can't unring the bell.
Challenging Hackers
The Washington Post reports here on the dueling challenges of computer scientists Rebecca Mercuri and Michael Shamos:
Rebecca Mercuri, a Harvard University-affiliated research fellow, encouraged hackers to inspect software code made available on the Internet by VoteHere, an electronic voting software company based in Bellevue, Wash., and called upon other voting machine vendors to make their codes and products available....

Mercuri said her challenge was in response to a similar bet issued by Michael Shamos, a Carnegie Mellon University computer scientist and voting technology consultant. Shamos has promised $10,000 to anyone who can hack into a voting machine undetected.
VoteHere is a company marketing a system that relies on encryption, rather than a contemporeous paper replica, to promote security. As the company's founder explains, "This is not about preventing fraud. This is about detecting fraud.... What you want is to have enough transparency so you can detect when fraud happens."

My take: Greater transparency is a good thing, though we're not going to have open source systems in place for this year's election. Shamos makes an important point in noting that the likelihood of infiltrating an election without being detected is not as great as is commonly supposed. In the short term, with the election only three months away, it would be much more useful for us to focus on procedures that can be implemented to minimize the likelihood of votes being lost without detection.
"Whoops" Says Florida GOP
Just when you thought things couldn't get any more absurd ...

The Florida Republican Party has apologized for a glossy mailer that encouraged people to vote by absentee rather than use touchscreens, according to this story in the Sun-Sentinel.
The Republican apology stemmed from a glossy mailer paid for by the GOP and sent to Miami voters in a hotly contested state House district primary race between two Republicans. Miami-Dade, Broward and Palm Beach are among 15 counties who switched from punch-card ballots to touch-screens after the 2000 presidential recount.

The flier featured a smiling President George W. Bush and urged voters not to take a chance with the touch-screen machines.

"The liberal Democrats have already begun their attacks and the new electronic voting machines do not have a paper ballot to verify your vote in case of a recount," the front page of the mailer reads. "Make sure your vote counts, order your absentee ballot today."

But the governor and secretary of state have stood fast in their support of the machines.
Maybe Florida should consider the Fisher-Price voting machine -- see below.
New League of Women Voters Report
The LWV has issued this report called "Safeguarding the Vote." It addresses both procedures that can be implemented to enhance voting system security, and what needs to be done to ensure the accuracy of voter registration. As the report puts it:
[N]ew, sophisticated technology alone will not solve the ills that surfaced in the 2000 presidential election. Sound administrative practices are equally necessary to ensure that elections are run both fairly and accurately. And much less has been said on that subject.
Among its key recommendations are procedures that should be implemented with the various types of voting equipment to be used in November, including not only electronic systems but also lever machines, optical scans (precinct and central count), and of course punch cards. It also discusses what can be done to ensure that eligible voters aren't mistakenly left off the rolls. As with all their work, it's a must-read for anyone interested in minimizing the number of lost votes in November.
Florida Is Ready for 2004
Well, maybe not. But see here for some humor at the Sunshine State's expense.
Ohio Punch Card Lawsuit Postponed
I've now returned to Columbus from Akron, where U.S. District Judge David Dowd yesterday continued the trial on the State of Ohio's use of non-notice punch card and optical scan voting equipment. See here for the AP's coverage, and here for the Akron Beacon-Journal's story (subscription required). I'm one of the attorneys for Plaintiffs in this case, which was brought in 2002 by the ACLU of Ohio, on behalf of voters in counties that use non-notice punch card and optical scan voting systems.

Here's a short summary of the trial so far:

Plaintiffs' Experts. Plaintiffs' expert witnesses testified on Monday and Tuesday. They included Roy Saltman, who testified to the serious problems inherent in punch card voting, which he first documented in reports written in 1975 and 1988, when he was with the National Bureau of Standards (later NIST). He also testified regarding the experience of jurisdictions throughout the country, showing that punch cards are an unreliable method of voting. Prof. Martha Kropf testified on the empirical data regarding punch cards. That includes her own study showing that intentional undervoting in presidential races is relatively rare (between .23 and .75%) and therefore that most presidential residual votes cast by punch card are unintentional. Profs. Richard Engstrom and Mark Salling testified regarding the racial disparities arising from the use of punch cards in Hamilton County (Cincinnati area), Summit County (Akron), and Montgomery County (Dayton).

Ohio Secretary of State. Also testifying as a part of Plaintiffs' case was Ohio's Director of Election Reform Dana Walch -- who is employed by the lead Defendant in the case, Ohio Secretary of State Kenneth Blackwell. The Secretary of State's data shows that the residual vote rate for punch cards in the 2000 presidential election was 2.3%, compared to 0.7% for electronic voting systems and 1.0% for precinct-count optical scan. These statistics and other research have led the Secretary of State to conclude that:

- "In a study of 'over' and 'under' voting in Ohio, it was clearly demonstrated that punch-card voting was unreliable to the extent votes cast by thousands of Ohioans were not being counted in the final election tabulation," and that

- "With Ohio slated by both national parties as a battleground state, the possibility of a close election with punch cards as the state's primary voting device invites a Florida-like calamity."

Defendants Expert. The continuance of trial arose from the State's eve-of-trial disclosure of a "revised" expert report from John Lott of the American Enterprise Institute, whose initial report was completed on February 1, 2004. Although the revised report was dated April 20, 2004, it was not turned over to Plaintiffs' counsel until Friday, July 23, the court-day before trial. On the day trial began, we moved to strike this late-filed report, which contains at least 11 additional new pages of information, including several new charts and tables. Judge Dowd indicated his reluctance to strike the report, but didn't formally rule on the motion. (Tim Lambert of the University of New South Wales offers these thoughts on Lott's report.)

The examination of Dr. Lott took place yesterday morning. During cross-examination, Lott stated that he had provided his revised report to the state in April 2004. When Lott was asked whether he was aware that the report hadn't been provided to Plaintiffs' counsel until Friday, July 23, Judge Dowd interrupted questioning to suggest a postponement of trial, an invitation that Plaintiffs accepted.

Trial is now scheduled to resume November 1, 2004, the day before Election Day.
John Fund on the (Paper) Trail
John Fund has this op-ed in the Wall Street Journal reports on the "conspiracy theories" surrounding electronic voting at the Democratic National Convention. Here's a sample:
Many delegates here buy into a more bizarre conspiracy theory: that unscrupulous "Manchurian Programmers" could manipulate the new electronic voting machines that 35 million Americans will use in November. They note that Walden O'Dell, the CEO of Diebold Election Systems, sent a personal fund-raising letter last year to Republicans stating his goal was "helping Ohio deliver its electoral votes to the president." This month, Moveon.org held rallies in 19 states to demand that new electronic machines print paper receipts to ensure an accurate count, something only Nevada will be able to implement by November. Democratic State Rep. Chris Smith of Florida says he is using concerns that votes will be lost or manipulated as a get-out-the-vote tool for John Kerry: "I tell them to bring an extra person to the polls."

It's true some states have moved too quickly using new federal money to buy Direct Recording Electronic voting machines (DREs), which work like an ATM. Several states have reported software failures, and California officials have accused Diebold of using uncertified software and misleading them. But exaggerating the problems with DREs will only fuel a litigation mindset that could make Florida 2000 look like a moot court.
I don't agree with Fund's suggestion that litigation is necessarily a bad thing -- to the contrary, it's sometimes necessary to protect fundamental rights like the right to vote. But he's right to point out that "whatever problems DREs have must be compared to other existing systems." For example, in the California recall election, he points out, punch-card systems didn't register a valid vote on 6.3% of all ballots cast," compared to 2.7% with optical scans and 1.5% with DREs.
Miami-Dade Loses Election Records
CNN reports here that Miami-Dade has lost election records from its 2002 gubenatorial election, requested by a citizen group. According to CNN the information was lost in computer crashes that took place in 2003. Officials have since then started backing up their records to avoid similar situations.

FCW has this story on the controversy. It quotes University of Miami Law Professor Martha Mahoney, a member of the group that had made the request, as saying that ballot image reports (electronic images of each electronic ballot cast) are what were lost. The loss of these reports prevents her from investigating whether there were fewer votes cast than voters.

My take: This is a good example of how sloppy election administration can give electronic voting a bad name. While I disagree with those who claim that paper is a necessary (or even effective) means of ensuring safe electronic voting, it should be a no-brainer that the ballot image reports must be backed up, so that they can't be destroyed in crashes. The failure to maintain such records prevents concerned citizens from auditing election results, and can't do anything but harm public confidence.
Coverage of the ACLU of Ohio's Case
The A.P., Cincinnati Enquirer, andAkron Beacon Journal are among the news outlets offering coverage of the Stewart v. Blackwell trial, challenging the use of punch cards. As noted here, I'm co-counsel for the Plaintiffs. Thus, back to work ...
Democrats on Electronic Voting
ComputerWorld reports here on the Democratic Party's consideration of electronic voting. Most interesting is this note:
Sen. John Kerry's staff said the Kerry campaign is considering a move to pull back from the position taken by the Democratic National Committee and Howard Dean's Democracy for America organization. Dean and the DNC have endorsed the voter-verifiable paper ballot requirement for e-voting systems -- something that only the state of Nevada has planned for November. According to the official, the Kerry campaign is considering support for verification of the final vote tally through some form of encryption.
My take: Sounds like Kerry may have figured out that the call for a CPR is most likely to hurt core Democratic constituencies like people of color and people with disabilities. See here for my thoughts on Dean's position.
West Texas Court Order
The A.P. reports here that the West Texas County of Ector has been ordered by a federal court to replace its punch card machines. The story's very short, and doesn't explain the basis for the court's order.
Punch Cards on Trial in Ohio
I'm in Akron, Ohio this week, for trial in the Stewart v. Blackwell case, which challenges the continuing use of punch card voting equipment in Ohio. See here for coverage in the Canton Repository.

The lawsuit alleges that the use of punch cards in 69 of Ohio's 88 counties results in the disproportionate loss of votes in those counties, in violation of the Equal Protection Clause of the U.S. Constitution. It further argues that the use of punch cards discriminates against African-American voters, in violation of the Voting Rights Act, by disproportionately denying their votes. I'm co-counsel for Plaintiffs in the case, which was brought by the ACLU of Ohio and the ACLU voting rights project. It should be an interesting week.
Election Law at Moritz
The Moritz College of Law at the Ohio State University has started a new election law website, Election Law @ Moritz. It features both legal analysis and nonpartisan commentary on election law issues. Featured topics include voting technology, campaign finance, registration rules, and felon disenfranchisement. The project director is my colleague Ned Foley, and I'm among the contributors. Given that Ohio expected to be a major battleground state in the coming election, we plan to devote special attention to election law issues that emerge in the Buckeye state, although the site will also include discussion of federal law and issues arising in other states.

I've added a link to the site to the template on the right. I'll be monitoring and updating the page on voting technology. I'd welcome any comments or suggestions you have to offer, on this section or on the EL@M site generally.
BNA's Electronic Voting Page
BNA's Money & Politics Reporter has assembled this page linking to a variety of reports and resources on electronic voting. It's described as a "a periodic review of online resources." Included are reports from the Congressional Research Service, the Federal Election Commission, and state officials in Maryland, California, and Ohio.
Today's NYT Editorial
Today's New York Times offers this editorial on electronic voting. In contrast to previous editorials, this one does not insist on the contemporaneous paper replica, aka "voter verified paper audit trail." It instead focuses on procedures that can be implemented to make electronic voting more secure -- such as "parallel monitoring," in which randomly selected machines are tested on election day to make sure they're functioning properly.

My take: I've been very critical of the paper-is-the-only answer line of argument that the NYT has previously taken. But this editorial is a step in the right direction. Reading between the lines, the NYT appears to be acknowledging that the CPR isn't practicable, at least in this year's election. The NYT is now talking about procedures that genuinely will make electronic voting more secure, rather than a false fix that's likely to do more harm than good.

What's unfortunate is that the alarmist tone adopted by so many electronic voting critics has led many jurisdictions to stick with paper-based voting equipment that we know to be unreliable -- and that it especially bad for racial minorities, language minorities, and people with disabilities. If instead we'd been focusing from the beginning on procedures like the ones suggested in today's NYT editorial, that might have been avoided. As it stands, the persistence of the "hanging chad" punch card in several key states threatens another election-day meltdown ... one in which traditionally disenfranchised voters are, yet again, disproportionately denied their voting rights.
Boston Phoenix on Election Reform
The Boston Phoenix offers this report on the recently released recommendations of the CalTech/MIT Voting Technology Project, noted here. The Phoenix story includes the always-interesting perspective of MIT's Ted Selker, who opines that it's not likely that most of the VTP's recommendations will actually become a reality.
Alternative Verification Technology Pilot
Government Computer News reports here that an alternative verification system marketed by VoteHere will be tested in the fall. The "VHTi" encryption system is an alternative to the contemporaneous paper replica (or "voter verified audit paper trail"), which has been widely discussed as a means of enhancing election security -- but introduces a host of administrative problems that make election officials reluctant to use it. According to the GCN story, the VHTi system works as follows:
VHTi produces a paper receipt with a ballot sequence number unique to each vote cast, generated by a cryptographic engine. “You know that number stands for Bush,” for example, “but nobody else does,” Adler said.

The list of encrypted ballot sequence numbers can be published online, so voters can check that their ballots were included in the count.
The pilot will be conducted at real polling places, but not on "live" machines, with the goal of implementing in 2005 or 2006. CNET.com's coverage can be found here.

My take: This story highlights why it would be a big mistake to legislatively require any particular method of verification -- including the CPR -- at this stage. It remains to be seen whether the CPR will either work or be effective, although Nevada is experimenting with this device in November. Perhaps the VHTi, or some other system, will prove to be a better. In the meantime, for the 2004, the focus should be on implementing procedures that will minimize the number of lost votes.
Electronic Voting Lawsuit in India
A retired computer science professor in India has filed a lawsuit to demand that the source code of the country's electronic voting system be made public, according to this story in Linux Journal. (Thanks to my colleague Peter Shane for the pointer.) Opening source code to inspection strikes me as a much more promising way of promoting the security of electronic voting than requiring contemporaneous paper replicas of the electronic ballot.
GAO Report on DRE and Optical Scan Voting
The General Accounting Office today released this report on electronic voting. They use this term to include both Direct Record Electronic (DRE) and optical-scan voting systems. The report refers to optical-scans as a type of "electronic" voting, since it uses electronic technology to tabulate paper ballots. (An interesting question is why, by this definition, they don't also consider punch cards a form of "electronic" voting, since it too uses electronic technology to tabulate paper ballots.) In any event, the study properly emphasizes that voting technology is only one part of the larger election system. It also sets forth several criteria by which voting technology should be evaluated, including security, accuracy, ease of use, efficiency and cost.
CalTech/MIT Recommendations to EAC
The CalTech/MIT Voting Technology Project has issued these recommendations to the Election Assistance Commission, on "Immediate Steps to Avoid Lost Votes in the 2004 Presidential Election." They include:

- requiring the reporting of data on votes cast,
- providing guidelines on provisional voting,
- testing voting equipment, and
- developing complaint procedures

My take: The CalTech/MIT VTP seems to be on the right track here. Though I've focused mainly on voting technology issues in this blog, the VTP's widely publicized 2001 report Voting - What Is, What Could Be found that voting equipment -- while an important issue -- probably wasn't the biggest source of lost votes in 2000. While an estimated 1.5 to 2 million votes were lost due to equipment-related issues, the VTP estimated that 1.5 to 3 million were lost due to registration foul-ups.

Given that November 2 is quickly approaching, there is relatively little that can be done about the hardware that's used in elections. Except for counties that are already in the process of getting new equipment in place, most counties will be using the equipment they already have. It will become all the more important to focus on issues like registration -- and in making sure that voters whose names are mistakenly left off registration rolls, for whatever reason, aren't disenfranchised.
Electronic Voting Debate in Georgia
The Macon Telegraph features this story on the situation in Georgia, which has implemented electronic voting statewide. It reports that the state's non-vote rate went from 3.5% to 1.0% after conversion to electronic voting, and that a survey showed that "84 percent of Georgians believe the touch screen system is an improvement over paper ballots."
"Paper Receipts Won't Cure Ills of Electronic Voting"
That's the title of this editorial from the Tomah Journal on electronic voting. The editorial recognizes that there are security risks with electronic voting ... but that mandating a contemporaneous paper replica is the wrong way to go about resolving these issues:
[P]aper receipts could create a false sense of security that computer voting is honest and accurate. The problem isn't the lack of a paper trail; it's lack of transparency....There's only one genuine solution to computer voting: allow experts representing both political parties to examine the software and verify its accuracy. Yes, that means that manufacturers would lose their software secrets, but that's a price manufacturers must be willing to pay.
My take: While the editorial may overstate the dangers presented by electronic voting, it's on to a very interesting proposal. The solution they propose is much more likely to improve security than the CPR.

Oh yeah, in case you were wondering, Tomah is in Wisconsin. (I didn't know that either.) Strange that we're seeing more thoughtful commentary on this issue from Tomah than the (N.Y.) Times. I guess big thoughts sometimes come from small places.
Mercurio on Internet Voting
Bryan Mercurio of the University of New South Wales' Faculty of Law has this article on the possibility of internet voting in Australia. He assesses both the risks and potential benefits of internet voting, proposing a gradual introduction. It's not new, but definitely worth a look.
California Paper Trail Bill
SB 1428 would amend California law to require that electronic voting systems produce a contemporaneous paper replica (aka, "voter verified paper audit trail") by January 1, 2006. It can be found here. Secretary of State Kevin Shelley has already indicated his intent to require this device effective 2006. I'm informed that the bill is to be heard by the Assembly Appropriations Committee at 9 am on August 4.
Paper Trail Repeal Effort in Ohio
The Toledo Blade reports here on an effort to repeal House Bill 262, which requires that electronic voting systems produce a contemporaneous paper replica (aka, "voter verified paper audit trail") by 2006. As described here, this legislation has led to the vast majority of Ohio counties retaining their punch cards -- the most recent reports indicating that 69 of 88 counties and 70% of Ohio voters will use this system. The effort to repeal H.B. 262 is being led by Chris Myers, a computer expert and webmaster for the University of Michigan's website, who is running for a seat in the Ohio House. His thoughts on H.B. 262 can be found here. (No endorsement of his candidacy is intended or should be implied.)
Voter Purges in Florida
Shades of 2000 .... The New York Times offers this story on the U.S. Commission on Civil Rights' hearing regarding the purging of voters -- particularly African American voters -- in Florida. Chair Mary Francis Berry indicated her intent to ask the Department of Justice for an investigation.
Nevada's Experiment with the CPR
The A.P. reports here on the State of Nevada's use of an electronic voting machine that prints out a contemporaneous paper replica in this November's election.
Nevada Secretary of State Dean Heller demonstrated two of the ATM-like machines Friday at a National Press Club briefing with officials from Sequoia Voting Systems of Oakland, Calif., their manufacturer.

“What we have here is basically a laboratory,” Heller said. “There are no other states doing what we’re doing.”
Although the article refers to the paper replicas as "receipts," the text makes clear that voters will not actually receive a copy of the printed ballot. Instead, the paper replicas will be printed in such a way that voters can see but not touch them:
The receipts are printed on a roll of paper attached to the left of the touch-screen terminal. A voter views the receipt through a glass cover before touching the terminal to “cast” the ballot. Voters do not receive the receipt — it scrolls back into a closed container.
When such a system was tried in Sacramento, it confused some voters, who thought they could take the paper copies with them. For this reason, the registrar recommended that the term "receipt" NOT be used -- advice that apparently isn't being followed in Nevada. In addition, printer jams had to be repaired with such creative devices as windshield wipers and back scratchers. Let's hope Nevada has better luck.

The story also reports that the paper replicas will NOT print in Spanish, because there "wasn't time." An interesting question is whether the state will be in compliance with Section 203 of the Voting Rights Act, which requires that counties provide materials in a language other than English, where a linguistic minority constitutes 5% of the population or numbers over 10,000. The list of covered jurisdictions, available here, indicates that Latino voters are covered in one Nevada county (Clark) and Native Americans covered in five others. This may be why, according to the A.P. story, Clark County will NOT be using a machine that generates a CPR.

Update: See here for Reuters' story on the Nevada experiment.
More Ohio Counties to Stick with Punch Card
Due to Ohio Secretary of State Kenneth Blackwell's decision not to allow the use of Diebold's voting machine in November's election, three counties that had planned to to this touchscreen system will instead use punch cards. See here for the A.P. story and here for the Cleveland Plain Dealer story. The affected counties are Mercer, Lorain and Trumbull, which join 27 other counties that had planned to switch to touchscreens ... but abandoned their plans after the Ohio legislature passed a law to require the contemporaneous paper replica effective 2006.

The A.P. reports that 69 of Ohio's 88 counties will use punch cards in November. According to the Columbus Dispatch, these counties account for over 70% of the states registered voters. See here for my prior thoughts on the troubling state of voting technology in this key swing state.
Florida Letter to the Editor
Below is a letter to the editor that I wrote in response to the widely-publicized Sun-Sentinel story on undervotes in Florida's March primary, discussed here. It addresses the import of the Sun-Sentinel's finding that touchscreens recorded a 1.09% undervote rate, while optical scans recorded a .12% undervote rate:
July 15, 2004

Dear Editor:

With all the conspiracy theories and knee-jerk reactions swirling around electronic voting, it’s important to take a deep breath and examine the facts carefully. The Sun-Sentinel’s widely discussed report on Florida’s March 9 primary is a case in point. It’s true that this report showed a difference in “undervotes” (ballots for which no candidate choice was recorded) between electronic touchscreen and paper-based optical scan systems in precincts surveyed. Electronic voting systems had an undervote rate around 1%, compared to .12% with optical scans.

It would be incorrect, however, to conclude from this fact alone that Florida’s electronic voting machines performed poorly. In fact, a 1% undervote rate is in precisely the range that one would expect in the absence of error. That’s because a small but significant minority of voters in every election intentionally choose not to vote for any candidate. In presidential elections from 1980-2000, between .3 and 1.3 percent of voters report such “intentional undervoting.” Even where there is only one item on the ballot, some voters may show up at the polls out of an admirable sense of civic obligation but choose not to cast a vote – perhaps because they are dissatisfied with the available candidates.

In reality, electronic voting is a huge improvement over the “hanging chad” punch card, which had a 4% non-vote rate in Florida’s 2000 election, four times that of electronic voting. And unlike paper-based systems, electronic voting automatically prevents mistaken “overvotes” (marking too many choices for a particular race).

The real anomaly in this year’s primary is not that electronic voting had a high undervote rate – it did not – but that optical scans had an extremely low undervote rate. Could it be that some voters using optical scans deliberately chose to leave their ballots blank, but felt pressured to select a candidate when their ballots were spit back by mechanical card readers, with a poll worker instructing them that they had made an “error”? Is it possible that the study’s sample was skewed by looking only at precincts on which just one item appeared on the ballot? Further research and analysis is needed to answer these questions.

Prof. Daniel Tokaji
The Ohio State University
Moritz College of Law
No word yet on whether it will be published.
Recent Stories on Electronic Voting Verification
Two recent articles on electronic voting acknowledge its security risks, while also recognizing the pitfalls with the CPR (contemporaneous paper replica or "voter verified audit trail") that some see as a panacea. See here for Computerworld's article and here for one from the U.K. Register. Thanks to Jim Adler, who provided the pointer and has some interesting thoughts on these stories in his blog, here and here.
Dimpled Chads Don't Count
At least not in Ohio. See this post on Rick Hasen's blog, for my answer to the eternal question "Do Dimpled Chads Count in Ohio?"

Ney Responds to Dean's Paper Trail Call
Rep. Robert Ney, Chairman of the House Administration Committee and one of HAVA's principal co-sponsors, has written a stinging letter in reply to former Gov. Howard Dean's call to require that electronic voting machines generate contemporaneous paper replica (aka, "voter verified paper audit trail") in time for the November elections. Gov. Dean's letter can be found here, and Ney's reponsive letter here.

As I mentioned in this post several weeks ago, Dean has joined those calling for a 2004 CPR requirement. His June 22 letter to Ney and other members of Congress urges that "any electronic voting machine used in this election to produce a paper trail -- one that allows voters to verify their choices and officials to conduct recounts." In response, Ney writes:
You should realize that if your demands to retrofit all electronic voting machines with printers before November 2004 were met, it would ensure an electoral meltdown that would make our last presidential election look orderly by comparison. In calling for nationwide deployment of a voting system that has never been used successfully in a single election in this country, you are doing a great disservice to the voting public you purport to defend.

The arguments of “paper trail” proponents like yourself can be boiled down to one central assertion, i.e., that paper ballots are the only way to ensure an accurate election. You should recall that the ballots cast in Florida in November 2000 were cast on paper. Furthermore, every documented episode of election fraud in our nation’s history has been perpetrated through the manipulation of paper ballots.

Reports that have circulated on electronic voting machine malfunctions would lead one to presume that other systems are somehow free of error—a demonstrably false presumption. For example, testimony by a Georgia election official at a recent House Administration Committee hearing on this subject indicated that, prior to the deployment of their modernized electronic voting system, Georgia’s error rate for a top of the ballot race was 4.8 percent. After the implementation of their new voting system, that error rate fell to a miniscule 0.87 percent. These figures translate into 71,000 voters whose votes were lost in the older paper-based system but whose votes were counted by the electronic system. Those lost votes were not imagined. They were real and should be acknowledged by the conspiracy theorists and others who are warning of unseen and unproven “dangers” posed by newer systems.

The issues surrounding the security of electronic voting are currently being reviewed by the Election Assistance Commission, in conjunction with the National Institute of Standards and Technology. I am confident the experts at these organizations are fully capable of determining the extent to which problems may exist with these systems, and if they do exist, making recommendations about how to address them. That is the appropriate way to handle this issue, not by making uninformed and premature legislative decisions based on misinformation and hysteria.
My take: Ney knows what he's talking about, having co-sponsored HAVA and chaired last week's hearing before the House Administration Committee (described here), and his response to Dean is devastating. Ney might be faulted for underplaying the risks associated with electronic voting. While it's true that the prospect of fraud that has electronic voting critics so worried is to this point speculative, that doesn't mean that it can't happen. (I suspect that, if pressed on this point, Ney would probably agree.) But Ney is right on target in stating that a 2004 CPR requirement would be a disaster -- and in emphasizing the tens of thousands of votes that, in Georgia and other states, have been saved by moving from punch cards to touchscreens. Far more productive would be a serious conversation about the procedures that should be instituted between now and November to make voting safer.

What's particularly ironic about this exchange is that the burden on voting rights imposed by punch cards falls disproportionately on people of color and people with disabilities -- groups that one would expect Dean to be advocating on behalf of. So why isn't Dean up in arms about the fact that punch cards will continue to be used in many states, including such swing states as Ohio, Illinois, and Missouri, in the forthcoming election? And in staging cleverly titled rallies like "The Computer Ate My Vote!" (as reported in this story from Wired.com), why are Dean and his allies targeting electronic voting rather than punch cards, which have been documented to "eat" many more votes? Aren't they concerned that the call to require a CPR has led some jurisdictions to stick with punch cards (see here)?

They should be. We all should be.
California Agreement on Electronic Voting
The L.A. Times reports here that Riverside and San Bernardino Counties have reached an agreement with California Secretary of State Kevin Shelley, that will allow those counties to use electronic voting machines in November's election:
Under the agreement, the voting machines in Riverside and San Bernardino will be used as long as election officials provide extra paper ballots at the polls for those voters who choose not to use the electronic machines. Shelley's office has agreed to pay for the extra ballots.
This follows a federal court's denial of Riverside and San Bernardino's request for an emergency court order, blocking the use of electronic voting machines unless specified conditions are satisfied. See here. The L.A. Times also reports that there are four counties (Plumas, Alameda, Kern and San Joaquin) with respect to which no agreement has been reached as yet. It's not clear whether this agreement will end the lawsut, given that disabled citizens and two of these other counties (Plumas and Kern) are also plaintiffs in the lawsuit.
More from Ohio
Today's Daily Reporter features this story on anticipated problems in November's election. It quotes my colleague Ned Foley on contingency plans in the event of a terrorist attack, and me on the voting technology wars. (For more on the prospect of a terrorist strike directed at the presidential election, see this post from Rick Hasen's Election Law Blog.)
To the Point
Yesterday, Warren Olney's NPR show "To the Point" focused on the electronic voting controversy. I was among the guests. A description and link to a recording of the show may be found here.
EAC's Advisory Letter on Electronic Voting
Though largely lost amid worries over possible terrorist disruption of the November election, the Election Assistance Commission has adopted an advisory letter on electronic voting security. BNA's Money & Politics Reporter (subscription required) reports:
The EAC adopted an advisory letter to election officials saying, "Every election jurisdiction that uses electronic voting devices should identify and implement enhanced security measures in November." The letter cited a "tool kit" of election practices to be released by the EAC which promised guidance on specific security methods. However, this specific guidance has not yet been released.

The advisory letter suggested that solutions to possible security and accuracy problems encountered in electronic voting will rely on checking the software used in computerized voting machines and reporting any information about suspected tampering to law enforcement authorities. Republican EAC Commissioner Paul DeGregorio said after the meeting that the EAC recommendations will not mention the possible use of voter-verified paper trail for electronically cast ballots.

Printing of such paper ballots as a backup security measure has been widely advocated by critics of electronic voting and was once mentioned by Soaries, himself, as a possible answer to the security question. However, Soaries now says that adding a capacity to print ballots to existing computer voting machines would call for the use of "untested and uncertified" technology.

The Persistence of Chad
Today's USA Today features this report on the continuing use of the "hanging chad" punch card in the forthcoming elections. It reports that three-quarters of voters will use the same equipment that they used four years ago. It also reports that 41 states have sought waivers of the Help America Vote Act's requirement that they institute statewide registration databases by this year.
Polling Place Access in Michigan
The Detroit News offers this report on Michigan's efforts to ensure accessible voting in November. It reports that results have been "mixed" with some local officials taking steps to accommodate disabled voters, and others lagging behind.
Pogue on Electronic Voting
David Pogue offers this opinion piece on the electronic voting controversy. He summarizes the positions taken by DRE advocates and critics, finding that the truth "lies somewhere in between."

My take: For the most part, Pogue's analysis is fairly reasonable, but he's wrong to assert that the administrative concerns over the contemporaneous paper replica are "pure myth." In fact, as Sacramento's registrar testified at the House Administration Committee last week, there are considerable practical problems in getting such a device implemented. When it was tried during early voting in Sacramento -- on a very limited basis and with extensive administrative support -- the CPR experiment didn't go smoothly, and such creative devices as windshield wipers and back scratchers had to be used to dislodge paper jams. The system also confused some voters, who thought they could take the paper with them. In Wilton, Connecticut's 2003 experiment with this device, the deputy registrar found the ease-of-use with this device "appalling." In some jurisdictions, moreover, the contemporaneous paper record could be very lengthy -- as long as 57 inches by one estimate -- making it difficult for the voter to actually "verify" her or his choices. Moreover, Pogue doesn't even begin to address how election officials are supposed to go about counting all these curled up strips of thermal paper.

Pogue makes some good points, but like so many other observers, he's failed to grapple with all the complexities of election administration. Still, it's worth reading.
Another Florida DRE Lawsuit
Reuters reports here that electronic voting skeptics have filed a new lawsuit in Florida. The complaint reportedly challenges "a rule that prohibits manual recounting of ballots cast with touch-screen machines." This follows two unsuccessful lawsuits by Rep. Robert Wexler of Florida, discussed here, to require that DREs generate a contemporaneous paper replica (the so-called voter-verifiable paper trail). Reuters reports that the new lawsuit does not specifically request a ballot printout, "but said there must be some means of ensuring the integrity of the electronic machines, in order to secure voter confidence."

Federal Judge Rules Against Disability Rights Groups
As noted here, U.S. District Judge Florence-Marie Cooper denied the temporary restraining order sought by disability rights advocates and counties, who had challenged California Secretary of State Shelley's order provisionally decertifying electronic voting systems. See here for the L.A. Times' coverage (subscription required). I'll have more on the judge's order denying the TRO soon.
House Administration Committee Hearing
The House Administration Committee heard testimony last week from computer security experts and election officials, on the controversy surrounding electronic voting. Government Computer News offers this report on the hearing, which was televised on C-SPAN.

While a variety of perspectives were expressed, if there was any consensus, it was summarized in the testimony of Carnegie-Mellon computer scientist Michael Shamos:
Witnesses agreed that despite concerns, with only 120 days before the election, many people would be voting on machines that could be unsecure. How to ensure the most accurate vote possible in November?

“Test, test, test and train, train, train,” Shamos said.
My take:As usual, Professor Shamos has it right. It's much too late in the day to require that electronic voting machines produce a contemporaneous paper replica in the forthcoming elections, even if such a device were workable and effective (which has yet to be demonstrated). Far better to focus on instituting and following procedures -- particularly testing of voting equipment -- that will minimize risks and ensure that votes are counted accurately.
Napa's Touchscreen System Re-Certified
Still catching up on news from last week ... California Secretary of State Kevin Shelley has now recertified the system used in Napa County, according to this story in the Napa Valley Register. The County and the vendor whose machine it uses (Sequoia) met the conditions set by Secretary Shelley. By my count, that means that he's now recertified the systems used in six of the 14 counties, whose systems were decertified in April. See here.
Ohio: An Election-Day Disaster in the Making?
USA Today picked up this A.P. story on the equipment to be used in Ohio's forthcoming election. The story reports that most of Ohio's punch card counties will continue to use that system in 2004. That's the direct result of a requirement that, by 2006, electronic voting machines have the capacity to produce a contemporaneous paper replica (CPR), the so-called "voter verified paper trail".

Given that such a paper trail has yet to be proven workable or effective, and that there may be considerable costs in retrofitting existing systems, most Ohio counties have decided to stand pat. According to the A.P. story, 31 counties had planned to switch to electronic voting systems. But after legislation mandating a CPR passed, only four are going ahead with their plans to upgrade.

The article also reports on the ACLU lawsuit challenging the continued use of punch card voting systems, on the ground that they result in more lost votes than other systems and have a disparate impact on African-American voters. (Disclosure: I'm co-counsel with the ACLU on this case.)

My take:On several occasions, I've argued that progressives are hurting themselves by supporting requiring that DRE's produce a contemporaneous paper replica of the voted ballot. As Ohio's experience shows, the effect of such a requirement is to cause election officials to stick with defective paper-based systems -- most notoriously, the hanging chad punch card, which we know to lose large numbers of votes and to have an especially harmful impact on people of color. Nationwide, one-quarter of voters will continue to use unreliable equipment in 2004, according to this story from the Naples Daily News.

Of all the states where we see this happening, Ohio is perhaps the most ominous. Both parties expect Ohio to be a key swing state in the forthcoming election. The margin of victory, as in Florida's 2000 election, could well be very small. Don't be surprised if the use of punch cards swings the election ... again.

The irony is that the call to require a contemporaneous paper replica has largely been fueled by well-intentioned progressives, suspicious of companies like Diebold -- whose CEO made an oft-quoted remark in support of President Bush's reelection. Suspicion is a good thing ... but only if it's informed suspicion, rather than the paper-is-the-only-answer variety that has led to laws mandating the CPR and the consequent decision to stick with punch cards. If we have another election-day disaster due to the continuing use of punch cards this year, paper-trail proponents will have only themselves to blame.
Miami-Dade's Continuing Woes
The Miami Herald reports here on the continuing problems with the electronic and optical scan systems used in Miami-Dade County. The county uses an ES&S electronic (DRE) system for in-precinct voting and an optical scan system for absentee voting. In a letter from the county supervisor of elections to ES&S, obtained by the Herald, the following problems were identified:
• The central database machines used to tabulate votes are incapable of holding all the audit data at once, requiring a ''labor intensive and costly'' solution that could complicate a recount in a close race. Audit data is used to back up the system.

• The optical scanners used to read absentee ballots have problems when information is merged from the three machines the county uses.

• And the county could potentially mix up votes if it were to try to use phone lines to transmit data from the polling places to the election center, which it doesn't plan to do.
ES&S reportedly responded that the problems could be resolved if "if the county alters its procedures, reconfigures its software or, if it wants to transmit data from the polling places, redo the programming code in the machines or retrain its staff."

My take: Miami-Dade deserves credit for trying to get these problems resolved well in advance of the election. It's also worth noting that, for all the paper-is-the-answer argument we've seen, the problems that the county is having affect both the paperless system used for in-precinct voting and the paper-based system used for absentee voting.
Stories of Usability Problems Collected
As I've mentioned previously, see here and here, one of the areas that's in need of further study is how voters interact with the equipment they use to cast their votes. The Usability Professionals Association has taken a first step in collecting this type of information on this page. The page is heavy on problems with electronic (DRE) voting systems, given that those have received the most attention. Also, it seems to include some problems that I wouldn't classify as a "usability" issue, such as the San Diego incident where the encoders didn't function properly and poll workers weren't trained to fix the problem. See here and here. This is to be expected, of course, since there's reason for good-faith disagreements in how we classify emerging difficulties. Finally, the page has all the disadvantages of relying on media reports -- namely, that reporters may be giving their own spin to the facts and may not even understand the problem that they're reporting on very well. It should therefore be read with a grain of salt. Still, this is a useful starting point for dealing with a very important set of problems. Thanks to my colleague Mary Beth Beazley for passing this site along to me.
Black Box Critics Sue Diebold
The Oakland Tribune reports here that a lawsuit filed by electronic voting critics, including Bev Harris, against Diebold has now been unsealed. Their False Claims Act case alleges that "Diebold officials falsely claimed their touchscreens were secure against tampering and knowingly supplied Alameda County with uncertified voting software, contrary to the purchase contract and state law." The Tribune further reports:
The case seeks millions of dollars under California's False Claims Act and is thought to be the first application to the elections arena of a class of high-stakes, whistleblower actions more common in health care billing, construction and defense-contract frauds.

It could be the leading edge of a nationwide legal assault that, if successful, could drive the income of e-voting sales back into the coffers of government -- and create a cash windfall for activists seeking voting reform.
See here for the A.P's coverage and here for CNN's.

Plaintiffs are asking the County of Alameda and the State of California to join their false claims lawsuit. If they do, then the county and state will receive a higher percentage of any judgment. The A.P. quotes Alan Dechert of the Open Voting Consortium as criticizing such lawsuits:
"I would like to see people support a real solution rather than just try to cash in," said Alan Dechert, founder of Open Voting Consortium Inc., whose voting system relies on nonproprietary software. "There are a lot of people who could be a tremendous asset, but they're grandstanding and reveling in the expose."
My take: This is an interesting strategic move on the part of electronic voting critics, since it aligns their financial interests with those of the government entities that have, to this point, been their adversaries. If the False Claims Act lawsuit succeeds, then both stand to profit considerably from Diebold's alleged wrongdoing.
Touchscreens in Florida
Today's Florida Sun-Sentinel has this article on the number of undervotes (ballots for which no vote was cast on the top-of-the-ticket race) in Florida's Democratic primary. According to the analysis, one in 100 ballots did not show a vote for this race. The story reports that this is eight times that obtained with precinct-count optical scan systems used in other Florida counties, even though the upfront purchase costs of electronic (DRE) systems is higher.

My take: Contrary to the impression the story raises, a 1% residual vote rate in a presidential primary doesn't really raise alarm bells. Not all undervotes necessarily reflect defects in the voting system, as the story misleadingly suggests. An undervote may, in some cases, reflect the deliberate decision not to cast a vote in a particular race. A 1% residual vote rate (combined undervotes and overvotes) is dramatically lower than what occurred in Florida's 2000 election.

What IS strange about Florida's reported results is the fact that the precinct-count optical scan systems had such a microscopic undervote rate -- 0.12%, if the story is accurate. I've never seen a statewide undervote rate this low, particularly since at least some voters in every election (in presidential elections it's historically been around .3% to .7%) generally choose not to cast a vote in a particular race. Put simply, the story here is not that Florida's DRE's had a higher-than-expected undervote rate -- they didn't -- but that the state's optical scans reportedly had an exceptionally low undervote rate. Why?

It's also unfair to compare only the up front costs of DRE and precinct-count optical scan systems. While DRE's do have higher up front costs, their ongoing costs tend to be lower, since you don't have to print new ballots for each election.
Disability Activist on Electronic Voting
Ardis Bazyn of the California Council for the Blind, and a member of California's HAVA Planning Committee, has the following letter published in the July issue of California Journal. Because it doesn't appear to be available on the web, I've posted the letter in its entirety:
I read the article ["The Perils of Computerized Voting," May 2004] giving an analysis of the problems with touch-screen voting. Other voting systems have had even more problems throughout history.

There were limited problems in isolated counties with the touch screen voting machines in March but most were due to poor poll worker training. In most of the counties using touch screen voting, few complaints surfaced after the election. Some counties have been using touch screen voting since 1999 and have had much success. In fact, voter satisfaction surveys have had high scores.

I have used touch screens in several elections and find them easy to use. I can listen to the choices using a headset. I can then listen to the finished ballot before I submit it to be counted or change selections if I choose. People with limited English skills and with disabilities find these systems to be the best way to vote. We can vote independently and privately.

The problems that have been cited by some are insignificant. The complaints, primarily, have been related to inadequate poll worker training. I do not understand the fact that touch-screen voting is the target for negative articles when history shows that paper ballots have caused problems ever since voting began. Why not focus on what can be done to make these systems better? Why not use the information gathered to ask the counties to improve all voting systems for all voters? I want to continue to use touch-screen voting and not have it taken away from me.

Ardis Bazyn

The article to which she is responding is one written by Kim Alexander, a prominent critic of electronic voting.
On the Road Again
I'm out of town this week, so blogging will be sporadic or nonexistent. Regular blogging will resume next week.
Virginia Surveys Polling Place Access
The State of Virginia will send surveyors out to assess access at 2,300 poling places, reports this A.P. story. The A.P. reports that as many as 30% of citizens in some counties -- particularly mining communities -- have some type of disability. In Buchanan County, for example, 36% of citizens have a disability.
[S]ome advocates for the disabled say the lack of complaints might mean that few disabled people complain because the lack of access might deter them from coming out to vote in the first place.

"How many people in Buchanan voted in the last election in wheelchairs? Zero," said Betty Bevins, executive director of Clinch Independent Living Services in Grundy. "You need to think about why they didn't show up. They couldn't get in the building."

Bevins' group is among 16 independent-living centers statewide that the Board of Elections has asked to conduct the accessibility survey.

Surveyors want to make sure doors open easily, thresholds are low enough for wheelchairs and parking spots for those with disabilities are clearly marked.

Improved access to the polls is only a small apart of the Help America Vote Act, which gives Virginia $30 million to replace punch-card and lever-voting machines and place one electronic voting machine in each precinct.
My take:While much attention has focused (appropriately in my view) on getting accessible technology into the polling place, this story should serve as a reminder that it's equally important to make sure that polling places are accessible. Virginia sounds like it's on the right track, in assessing possible problems well in advance of election day. Will other states be doing the same thing?
Tentative Ruling Denies Disabled Citizens' Motion
The L.A. Times reports here that Judge Florence-Marie Cooper has issued a tentative ruling denying a temporary restraining order against California Secretary of State Kevin Shelley. The order was sought by disabled citizens and four counties (Riverside, San Bernardino, Plumas and Kern) to enjoin Shelley's decision to conditionally decertify the electronic voting machines used in fourteen California counties. No word yet on whether the tentative ruling has been adopted. The A.P. has a story on the tentative ruling which can be found here, reporting that five of those fourteen counties have now reached agreement with Shelley, allowing the use of electronic voting in November.

Update: I'm informed that the judge's tentative ruling denying the TRO became final today (July 6).
USA Today on Brennan Center/Leadership Conference Report
USA today offers this story on the reaction to the report published by the Brennan Center and Leadership Conference on Civil Rights earlier this week and discussed here and here. It quotes DeForest Soaries, head of the Election Assistance Commission, as supporting the report's recommendations:
"These recommendations represent important options that address the nation's need for strategies to enhance security and public confidence in electronic voting systems," said DeForest Soaries Jr., chairman of the U.S. Election Assistance Commission, in a statement.

The commission is charged under the Help America Vote Act of 2002 with helping state and local governments move to e-voting systems, including the Direct Recording Electronic (DRE), or touch-screen, systems that are the focus of this report by the Brennan Center for Justice at New York University School of Law and the Leadership Conference on Civil Rights.

There are many other e-voting technologies in use and security is far from the only concern with any of them. But Soaries said he also will recommend that the commission's Technical Guidelines Development Committee review the report and determine "how we may consider incorporating the report's conclusions in our efforts to assist local election officials prepare for the November election."
In related news, electionline.org has this story on the EAC advisory board deliberations in Houston this week.
Debate on Electronic Voting
CNET.com has posted excerpts from an e-mail debate on electronic voting, which can be found here. It features Prof. David Dill of Stanford, Prof. Michael Shamos of Carnegie-Mellon, Cindy Cohn of the Electronic Frontier Foundation, and me. Here's the introduction:
Some voting rights advocates call touch screen electronic voting machines inherently unreliable and insecure, while others say they provide the fairest results for the disabled, for racial minorities and for people facing a ballot in a second or third language. Some computer scientists say the machines provide the most accurate and theft-proof method of voting yet devised, while others warn that they pave the way for vote thieves to steal whole elections undetected.

To help navigate the digital electoral divide, CNET News.com invited four experts on e-voting to make their best cases for and against the technology.

Defending e-voting from a security perspective is Michael Shamos, a computer science professor at Carnegie Mellon University who has inspected and certified voting systems for Pennsylvania and Texas. Also defending e-voting, but from a civil rights perspective, is Daniel Tokaji, assistant professor at Ohio State University's Moritz College of Law.

Arguing against e-voting machines in their present form are David Dill, a computer science professor at Stanford University and founder of VerifiedVoting.org, a group that advocates mandatory paper-based audit systems for electronic ballots. Also arguing against e-voting is Cindy Cohn, legal director for the Electronic Frontier Foundation.
The published debate is heavily edited, so doesn't capture all the nuances of our e-mail exchanges. Still, it does give a sense of the participants' thoughts and concerns.

Ethan Leib's "Ugly White Districts" Paper
Ethan Leib has posted this paper on SSRN, entitled "Ugly White Districts: What Should Sandy Do?" Here's the abstract:
A case just decided by a three-judge panel in the Southern District of New York, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting challenge. See Rodriguez v. Pataki, 2004 WL 503748 (S.D.N.Y.). Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using race as an obvious motivation - apparently in violation of Shaw v. Reno, 509 U.S. 630 (1993), which held ugly black districts to be violative of the Fourteenth Amendment's Equal Protection Clause - but are adjacent to majority-minority districts that must be preserved in accordance with both Sections 2 and 5 of the Voting Rights Act, the laws forbidding dilution and retrogression of majority-minority districts. Here, I ask what Justice Sandra Day O'Connor should do about unsightly majority white districts that are drawn principally to maintain white majorities, even if such districts also help fashion adjacent majority-minority districts required by the Voting Rights Act.

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