NM Judge Says Voters Must Show IDs
A New Mexico state court judge has ruled that newly registered New Mexico voters will be required to present identification, unless they registered in person at the county clerk's office, according to this report in the Albequerque Journal. The story also reports that the order has "not been finalized."
The plaintiffs, represented by prominent Republican attorneys, are seeking to overturn the Secretary of State's determination that the ID requirement only applies to those covered by HAVA -- namely, to first-time voters who registered by mail after January 1, 2003 without submitting a copy of ID or other proof of identity and address at the time. New Mexico law provides:
If the [registration] form is not submitted in person by the applicant and the applicant is registering for the first time in New Mexico, the applicant must submit with the form a copy of a current and valid photo identification, utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the applicant; and the applicant must submit the required identification when he votes in person or absentee in person.Thus, plaintiffs argue, even those voters who provided proof of ID at the time of registration will be required to provide such proof again at the time of voting. That's more than HAVA requires. As the state's lawyer explains, and as I pointed out in an earlier post, this lawsuit seeks to restrict -- not expand -- the right to vote.
Provisional Ballots in Ohio
Should provisional ballots count if they're cast in the wrong precinct? That issue is the subject of litigation now pending in Florida and Missouri, and is also now being asked in Ohio according to this report in the Cleveland Plain-Dealer. The story reports that Ohio doesn't plan to count provisional ballots, unless cast in the correct precinct. Sean Grayson of the Ohio Voter Protection Project disagrees with this interpretation of the law, arguing that the Help America Vote Act requires that votes for state and national races be counted, even if voters mistakenly appear at the wrong precinct.
Update: The Plain-Dealer reports here that Secretary of State Blackwell is changing his position. The state will, it's reported count provisional ballots cast by those who appear at the wrong polling place ... unless the voter is notified of his or her correct polling place and refuses to go. Written guidance is supposed to be coming soon, so stay tuned.
More on Shelley's Alleged Improprieties
The California Bureau of State Audits will be investigating California Secretary of State Kevin Shelley's alleged misuse of Help America Vote Act funds, according to this A.P. story. The San Francisco Chronicle offers this profile.
Florida Administrative Decision on Recounts
A Florida Administrative Law Judge has ruled against Secretary of State Glenda Hood, concluding that she lacked authority to exempt Direct Record Electronic voting machines from the state's manual recount requirement. See here for the Palm Beach Post's coverage.
The administrative judge relied on the "plain language" of the law requiring manual recounts. According to the story, the law requires manual recounts for elections decided by 0.25% or less. Hood had issued a rule that exempted the 15 DRE counties from this requirement. Her spokeswoman responded to the administrative ruling by asserting, "A manual recount is unnecessary and logistically impossible because supervisors would have to print out a supermarket-like receipt that could stretch from Miami to the Panhandle." She's considering whether to appeal.
My take: Is it a good idea to conduct manual recounts with DREs? Hood has a point in noting that the central reason for conducting manual recounts with paper-based equipment -- deciphering ambiguously marked ballots that mechanical counters can't read properly -- doesn't exist with DREs. On the other hand, if a recount will make the public feel better about the results in close races, what's the harm ... other than the expense to the state and counties.
In any event, the question before the court was not whether it's a "good idea" to have manual recounts for DREs but whether the statute requires them. On that point, it sounds like those challenging Hood's ruling may have had a good legal point. But it would be a mistake to assume that recounting paper is an effective way of promoting security. Indeed, there's reason to be skeptical of whether the manual recount will yield more accurate results than the electronic vote tally. People make mistakes too. And recounts are no substitute for rigorous testing of equipment and thorough training of poll workers and election officials. If voting rights advocates are really serious about election integrity, that's what they should be focusing on.
Testing Voting Machines at the Mall
It may sound like a crazy idea, but it's part of an important research study on how voters interact with different types of voting equipent. The Ann Arbor News reports here on shoppers casting votes with various types of equipment at the Briarwood Mall, as part of a study funded by the National Science Foundation:
The study is investigating how voters interact with different voting devices currently used across the country and what impact new voting technology can have on voting behavior, said Michael Traugott, research professor with U-M's Center for Political Studies. It is also examining confidence in the electoral system and election results....Five stations are set up, on which participants vote on different types of equipment. Researchers are also recording the voters' intended choices, which will allow them to ascertain whether voters made more mistakes with particular types of machines or ballot designs.
Though many states have commissioned studies and revamped their election processes since the controversial 2000 election, there is little research from which to draw information that could lead to massive, significant reforms, Traugott said. Additionally, the only ones studying the impact of new voting technology are subsidiary companies of the voting-machine manufacturers, and their results aren't made public.
If you happen to be in Ann Arbor, check it out.
Chads Are History, Recounts Are Reality
So reports this story from the St. Petersburg Times, on the controversy regarding recounts with electronic voting in Florida. It's also got a nifty graphic on how votes are cast and stored with one type of electronic voting machine.
My take: One of the principal reasons for conducting a manual recount -- deciphering ambiguously marked ballots that the machine can't decipher -- don't exist with electronic voting. That's not to say that auditability is unimportant. It is. But paper shouldn't be the gold standard. The ultimate goal is to have a voting system that produces accurate results, in which we can justifiably have confidence. Recounts are a means to that end, not an end in itself.
New Mexico: More (or Less) than Meets the Eye?
In this post yesterday, I discussed the Washington Post story reporting that 678 votes had been lost in New Mexico's 2000 election. Did the Post story omit some important facts? New Mexico state election director Denise Lamb, who's also president of the National Association of State Election Directors, says yes. She writes:
There's more than meets the eye with this story. It's not an issue of lost votes, but of being unable to determine the total votes cast. New Mexico requires reporting absentee and early votes by legislative district and they are typically separated by a single machine per district. The county decided to put three districts on one machine, which meant that we never got a correct voter participation report by legislative district. In looking back at historic turnout in elections, it is clear that the county in totaling their voter participation may have doubled the figure in one district, which makes it appear that votes weren't recorded . . . . We are going to pull the records out of archives so we can prove what we know happened, but like so many of these stories, no one wants to let the facts get in the way.She also states that the Post reporter had this information, but didn't include it in the story. If so, that's very disturbing -- though as Ms. Lamb suggests, sadly typical of the histrionic coverage that has attended this issue. Let's hope other media outlets wait until the records are recovered from archives and examined, before jumping to the conclusion that votes were lost.
Glitches in Minnesota's Voter Registration System?
The Star Tribune reports here on apparent problems in the State of Minnesota's statewide voter registration database. HAVA required the implementation of such a database by 2004, but allowed states to get a waiver until 2006. Almost all of the states sought such a waiver -- but not Minnesota. According to the Star Tribune, the following problems have emerged:
• Failure of the system to produce mailing labels for absentee ballots. O'Connor said she had to hand-type about 50 of them to get ballots in the mail on time.This is cause for concern. The Caltech/MIT Voting Technology Project estimated that registration problems were at least as great a source of lost votes in 2000 than voting equipment. And Minnesota is expected to be a swing state in the forthcoming election. (Seehere for a nifty website, the Electoral Vote Predictor, which has a nationwide map showing the latest poll results and each state's total electoral votes.)
• Computer timeouts that resulted in printing incomplete voter registration lists for use at polling places.
• Minor discrepancies between names listed on voter registration forms and on the same persons' drivers' licenses that have cast doubt on the eligibility of nearly 10 percent of voters. Local election officials are still trying to verify the status of about 5,000 registrants.
• Dark shading on signature lines of voter registration lists and state voter registration cards that made them hard to read. Quintela said the shading is being lightened.
California Open Source Resolution Passes
I'm informed that the California Resolution (ACR 242) asking the Secretary of State to consider open source software has passed in both houses of the state legislature. See here for my prior discussion and here for information on the resolution on the legislature's website.
Recertification of DREs in California
MSNBC reports here on the recertification of electronic voting systems by Secretary of State Kevin Shelley. In April, Shelley decertified all the Direct Record Electronic systems used in the state -- with all but one (the Diebold AccuVote TSx) subject to recertification if 23 conditions were satisfied. In all 11 of the eligible counties, those conditions have now been met.
Shamos Criticizes Certification System
The A.P. reports here on the system that exists for certifying voting technology. Three private companies, the story reports, are responsible for testing voting equipment. The A.P. quotes Prof. Michael Shamos of Carnegie-Mellon, one of the most thoughtful participants in the debate over electronic voting, as criticizing the secrecy in the process:
"I find it grotesque that an organization charged with such a heavy responsibility feels no obligation to explain to anyone what it is doing," Michael I. Shamos, a Carnegie Mellon computer scientist and electronic-voting expert, told lawmakers in Washington.For more on Prof. Shamos and other electronic voting experts at Carnegie-Mellon, including Prof. Lorrie Cranor, see here.
The system for "testing and certifying voting equipment in this country is not only broken, but is virtually nonexistent," Shamos added.
My take: I don't know if Prof. Shamos' observations are accurate. But if we're really interested in improving the security and accuracy of voting technology, this is an important area upon which to focus attention.
Post Story on New Mexico
The Washington Post has this story, which alleges that 678 votes were never recorded in New Mexico's 2000 presidential election. The story labels it a "cautionary tale," and indeed it is. According to the Post, the push-button electronic voting machines used there were incorrectly programmed. The State of New Mexico disputes that votes were lost. Still, this story emphasizes the importance of carefully testing equipment before it's used and properly training election personnel.
At the same time, it's important to keep this in perspective. The number of votes lost with DREs in New Mexico's election, assuming the Post story to be true, is a small fraction of those lost in states that continue to use Votomatic-style punch cards -- which could number in the tens of thousands in a state the size of New Mexico.
Martha Kropf's Voting Technology Page
Professor Martha Kropf of U. Missouri-Kansas City has recently updated her voting technology page. She's doing important research on unrecorded votes with different technologies and ballot designs. One paper available here (co-authored with David Kimball), discusses how various ballot features affect uncounted vote rates. Another page, available here includes images of ballots from across the country, showing both good and bad features. Definitely worth checking out.
Voters Registered in Both New York and Florida?
Reuters offers this story on the New York Daily News' contention that 46,000 voters are illegally registered in both New York and Florida. The Daily News bases this number on an examination of computer records from New York and Florida. According to the Daily News, between 400 and 1000 people actually voted twice in at least one election.
My take: Are these reported findings really "shocking" as the Daily News asserts? There are a couple of questions that are worth asking here.
First, how exactly did the Daily News arrive at the conclusion that 46,000 people are dually registered? Did it simply check names? Or did it somehow verify some other identifying information for these people, such as the social security number or address?
Second, even assuming that 46,000 is an accurate figure, can we really conclude that these folks have all engaged in fraud or otherwise broken the law? The answer to this question is almost certainly "no," as a careful reading of the Daily News' story reveals.
Buried about midway through, the Daily News notes that: "New registrants are required to supply a prior address, which kicks in a notification process to election officials in the other jurisdiction." Many of the people who moved to Florida after relocating from New York likely assumed -- quite reasonably -- that when they registered in Florida, that state would notify election officials in New York of the change and cancel their registration there. In fact, the National Voter Registration Act (aka, "Motor Voter") expressly provides that when voters change their address with motor vehicle offices, that "shall serve as notification of change of address for voter registration" unless the voter requests otherwise.
So what's really going on here? Probably, most voters assumed that when they re-registered in Florida, officials in that state would do notify New York of the change. It's a reasonable assumption . . . hardly the "scandal" that the Daily News headline advertises.
More troubling is the contention that 400 to 1000 people actually voted twice in the same election. Double voting is a serious offense. But the large range, and the round numbers, provide reason to be skeptical of how carefully the Daily News has checked to make sure that it's really the same person voting twice in all of these cases. The Daily News story doesn't shed much light on what they've done to verify that their numbers are correct.
Update: See here for coverage of this story by Florida Today, in which I'm quoted.
More Provisional Voting Questions
The A.P. has this story on problems in the implementation of the Help America Vote Act's provisional voting requirement. Doug Chapin of the Election Reform Information Project says it could be the chad of 2004. According to the A.P.: "States don't agree on how to count the provisional ballots and some localities are worried they won't have time to tally them before vote certification deadlines. Voting rights advocates fear many won't be counted at all."
There appears to be considerable confusion throughout the country on the standards for determining whether or not provisional ballots are counted -- particularly when cast by those new voters who registered by mail after January 1, 2003 and are subject to HAVA's ID requirement. The greatest concern is that the margin of victory in some contests will be smaller than the number of provisional ballots cast. In that event, expect legal fights over the standard for determining whether these votes should count. It may happen in the presidential race. But it's almost certain to happen in down-ballot races throughout the country.
New Mexico Lawsuit Seeks to Tighten ID Requirement
The past few days have seen lawsuits in Missouri, Florida, and Ohio seeking to expand access to the vote. Now, a Republican legislator and five others in New Mexico are taking the Secretary of State to court, seeking to impose obstacles beyond what's required by the Help America Vote Act.
This story from the Albequerque Journal reports that the lawsuit seeks a temporary restraining order against Secretary of State Rebecca Vigil-Giron and Bernalillo County Clerk Mary Herrera, for failing to require identification of first-time voters. Under HAVA, certain first-time voters who registered by mail after January 1, 2003 are required to present ID or proof of address. But Rep. Larry Larranaga and others who've sued the Secretary of State claims that state law imposes a more stringent ID requirement, not limited to those who registered by mail.
Shelley's Use of HAVA Funds Questioned
California Secretary of State Kevin Shelley is facing increasing scrutiny for his handling of public funds under his control, including monies provided to the state under the Help America Vote Act. Among the most serious allegations are that he improperly used HAVA funds, to award no-bid contracts to political cronies. See here for the S.F. Chronicle's coverage, and here for the Mercury News' (registration required).
The Mercury News reports that: "Secretary of State Kevin Shelley has directed nearly $500,000 in federal funds designed to bolster voter turnout to hire Democratic allies, including his old campaign manager, new campaign treasurer's law firm, former San Francisco Mayor Willie Brown's longtime press secretary, and the son of a prominent Los Angeles County supervisor." Undersecretary Mark Kyle defends Shelley's actions as an appropriate use of HAVA funds, which are supposed to be used for such things as the improvement of the election equipment, training poll workers, creating a statewide registration database, and helping citizens with disabilities vote independently.
The payments being questioned include ones made to consultants who have helped Shelley write speeches critical of electronic voting, according to the Mercury News. The MN also reports the consultants paid with HAVA funds have, in some cases received as much as or more than counties trying to improve their voting systems. One consultant received a no-bid contract worth $119,000, according to the Chronicle.
My take: It's always dangerous to prejudge allegations like these, before all the facts are out. And there's a fine line between activities that truly improve the election system, as HAVA contemplates, and those that are designed to advance an election official's personal political ambitions. But if the reported allegations are true, it's hard to see how such payments could be justified as proper uses of HAVA money. At the very least, a thorough and independent investigation would seem to be in order.
Iowa's Voting Equipment Upgrade
One swing state that won't be decided by hanging and dimpled chads in this election is Iowa. The Waterloo-Cedar Falls Courier reports here on the state's transition to a combination of DRE and optical scan voting equipment. According to Election Data Services, most Iowa counties will be using optical scan equipment. The Courier reports that one county (Sioux) will be using lever machines.
Registering Homeless Voters
The Baltimore Sun offers this article on efforts to register homeless citizens in various states. The article notes that one obstacle they face is the Help America Vote Act's ID requirement. Under HAVA, certain first-time voters who registered by mail are required to present ID or proof of address at the time of voting. In Maryland, the Sun reports, election officials are accepting "alternate identification cards, including bus system ID cards." But like other states, Maryland hasn't enacted any laws governing the registration of homeless people, a situation that can lead to inconsistent determinations by election officials and poll workers as to who may vote.
My take: This is another area -- in addition to provisional voting which I've mentioned before -- where it's imperative for states to provide clear guidance to local election officials. Without clear guidance as to how people without homes may register, and how they can satisfy HAVA's ID requirement, inconsistencies across election jurisdictions are inevitable.
Op-Ed in Columbus Dispatch
The Columbus Dispatch has published an op-ed that I wrote, regarding the State of Ohio's continuing use of punch cards. It has been reprinted, with the Dispatch's permission, on the Election Law @ Moritz website and can be found here.
Ohio Ex-Felon Lawsuit
The Prison Reform Advocacy Coalition filed a federal class action lawsuit, on behalf of ex-felons statewide, asking that they be given notice of their right to register. The complaint can be found here and a description of the lawsuit here.
Under Ohio law, felons are allowed to register after released from incarceration, even if on probation or parole. The lawsuit claims that ex-felons are being given incorrect information about their right to register, in the Cincinnati area and elsewhere. The lawsuit has been filed on behalf of C.U.R.E.–Ohio and the Racial Fairness Project, grassroots organizations that register former felons. Claims are made under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, as well as state law.
NYT Editorial on Provisional Voting
Today's New York Times features a great editorial on provisional voting, which it labels the "new hanging chads." It notes that there's an urgent need for states to fix problems with provisional voting, required by the Help America Vote Act, between now and November. For voters whose names are erroneously omitted from registration lists, as will undoubtedly happen, provisional voting provides a critical safety valve. Particularly important is that the states ensure that provisional voting is implemented in a uniform fashion from county to county.
Punch Cards in the Smithsonian ... and Elsewhere
The L.A. Times offers this story on the Smithsonian's exhibit on voting equipment. One of the historical artifacts featured is a Votomatic-style "hanging chad" punch card from 2000. Of course, it's not just a museum piece. As Kimball Brace of Election Data Services says in the article, the standard prayer of elections officials is "Dear Lord, let it be good weather tomorrow, so a lot of people go vote, and please, Lord, let everyone win big." Election officials in punch card states such as Ohio and Missouri may want to pray extra hard this year.
Detroit Free Press on the Status of Election Reform
The Detroit Free Press reports here on what's happened and what still remains to be done, in the implementation of the Help America Vote Act. It highlights questions over provisional voting, the need for poll workers, and the legal maneuvering that's already begun. It also summarizes the state of voting technology, noting that 75% of voters will use the same type of equipment they used four years ago.
Wonder What They're Voting on in Wyoming?
Punch card ballots will be used in five Wyoming counties in this election cycle, according to this story in the Billings Gazette. Wyoming's remaining punch card counties are Campbell, Converse, Goshen, Niobrara and Sublette. Three other counties will be using lever machines. The state plans to replace both types of equipment by 2006. Fortunately, the presidential race won't be close in Wyoming, a safe red state.
Florida Provisional Voting Lawsuit
The AFL-CIO and other labor organizations have filed suit in Florida, challenging a state law providing that provisional ballots cast in the wrong precinct won't be counted. The Miami Herald offers this story and the Tallahassee Democrat this one.
The case has been brought as an original petition in the Florida Supreme Court, with expedited consideration requested. The challenge is brought under the state constitution, under which eligibility to vote depends on the county in which one is registered. Yet the state's provisional voting statute provides that citizens' votes will only be counted if they appear in the correct precinct. The petition estimates that there have been many precinct changes in the past few years, with 125,000 registered voters affected by precinct changes in Brouward County alone. The result, according to petitioners, is that many voters will, through no fault of their own, cast provisional ballots at the wrong precinct and not have those votes counted.
My take: Problems in provisional voting are quickly shaping up as one of the biggest -- and possibly the biggest -- source of lost votes in the November 2004 election. See here and here for more. If the State of Florida is refusing to count the provisional ballots of those who inadvertently appear at the wrong precinct, without providing them with instructions as to where they should be voting, then it would appear that the state constitutional claim is a strong one.
In any event, it's absolutely critical that these issues be resolved in advance of the election, than to have a messy dispute over the results after different candidates know where there interests lie. For this reason, the Florida Supreme Court should hear this case. Far better to clarify the rules in advance, then to try to sort things out on a rushed timetable after the election.
Shamos Warns of Paper Trail Problems
Professor Michael Shamos of Carnegie-Mellon warned Virginia officials that a contemporaneous paper replica for electronic machines could cause more problems than it solves. Prof. Shamos' remarks are reported in this story from the Richmond Times-Dispatch. Rather than requiring a CPR, Shamos urges waiting for the results of experimentation with this device planned in Nevada and other jurisdictions.
"Let's see what stew this pot" produces, he said.
Shamos said he expects the results will not answer the questions raised by proponents of paper-trail balloting.....
Despite helping voters feel secure, a paper trail would create problems, he said.
There is no guarantee the vote would be counted or that a record of the vote would be in existence if there is a recount, he said. Moreover, there would be paper handling and security problems and a slow vote count that would anger the news media, he continued. He noted that the nation began moving to mechanical voting machines because there was so much fraud with paper balloting. With a paper trail, losing candidates will seek more recounts, Shamos said.
For a more thorough explication of Prof. Shamos' views on electronic voting, see his testimony before a House committee last month and this post on his paper "Paper v. Electronic Voting Records – An Assessment."
Poll Worker Training
I'm in Northern California now, having participated in the 1st Annual Poll Worker Academy hosted by the San Mateo County Chief Elections Officer Warren Slocum this morning. See here for Warren Slocum's blog and here for his post on the Poll Worker Academy.
It was a great opportunity to speak with people on the front lines of our democracy, and to learn about the difficult work that election officials and poll workers do every election. My panel focused on voting rights under the Help America Vote Act and the Voting Rights Act, including discussion of language access and disability access issues. I was privileged to appear with two fine voting rights advocates, Steve Reyes of the Mexican American Legal Defense Fund and Phil Ting of the Asian Law Caucus.
In my view, it's vital that state and counties throughout this country take the time that's needed to educate their poll workers about the changes to election laws that will be going into effect in this election, and in elections to come. San Mateo County deserves credit for what they're doing in this regard. It's a whole lot easier to provide education ahead of time, than to clean up the litigation mess after an election in which things aren't done right.
Public and Technologists Split on Electronic Voting
Government Computers News has this story on opinion polls of technologists and ordinary citizens regarding the reliability of electronic voting, conducted by the Ponemon Institute. With the intense and critical media scrutiny that's been directed at electronic voting, one would expect -- at least I would expect -- a high degree of distrust. It turns out, however, that three-quarters express confidence in its accuracy. Computer professionals have a much more suspicious view, although it's not clear how many of those surveyed have any knowledge of election administration. The survey also finds that: "More than twice as many Democrats as Republicans, 42 percent against 19 percent, said they had little or no confidence in e-voting technology."
Punch Cards Raise New Worries
That's the headline from this story in the Cincinnati Enquirer, reporting on the potentially close race in Ohio with punch cards to be used by 70% of voters. ACLU General Counsel Scott Greenwood calls the situation a potential "train wreck," with 69 of Ohio's 88 counties using punch cards. As I state in the article, in a close election, the margin of victory could well be smaller than the punch card's margin of error. Let's hope it's not close . . . or at least not determinative of the presidency.
Expanding Equal Vote
As some readers may have noticed, this blog has recently begun to devote greater attention to voting issues other than technology. In addition, the template at the top right has been changed, to indicate that it's subject is not just voting technology, but also other equality issues relating to election reform and the Help America Vote Act of 2002 ("HAVA").
Part of the reason for this shift is that there's very little that can be done between now and the general election to change the equipment used to count and cast votes. To be sure, the subject of voting technology will remain an important one, both before and after November 2, 2004. But between now and then, the focus should be less one the hardware used -- something about which little can be done at this late date -- but instead on the procedures that can be implemented to minimize the number of lost votes. That includes the testing of equipment and the training of poll workers, and applies equally to paper-based and electronic voting equipment.
A more important reason for the expansion of this blog's subject matter is that it's become increasingly apparent that voting technology is only one of several problems that may result some citizens being denied the franchise. In fact, voting technology probably won't be the biggest source of lost votes in 2004. The Caltech/MIT Voting Technology Project estimated that about 1.5 to 2 million votes million votes were lost due to faulty equipment and confusing ballot layouts in 2000, while 1.5 to 3 million votes were lost due to registration problems and up to 1 million were lost due to polling place operation problems.
In the coming election, three areas (other than technology) are looming as particularly significant from a voting equality standpoint:
1) registration issues, including the purging of voter lists and the handling of mail-in registrations,News coverage of these three topics reveals considerable reason to be concerned, particularly for those who are concerned about the voting rights of people of color, non-English proficient voters, and people with disabilities. Thus, this blog will devote attention to these issues in the coming months.
2) implementation of HAVA's ID requirement, which requires certain voters who registered by mail after January 1, 2003 present identification at the polling place, and
3) implemention of HAVA's provisional voting requirement, which mandates that voters whose names don't appear on registration lists or who don't present the requisite ID be permitted to cast a conditional ballot, to be counted if they're later determined eligible.
Of course, I will continue to discuss voting technology issues that arise, with particular attention to procedures that are being implemented -- or in some cases aren't being implemented -- to improve the accuracy and security of different types of voting equipment. But equipment is, of course, only one part of an election system. At this point in the ongoing process of election reform, it's very clear that an exclusive focus on voting technology will overlook some of the most pressing problems that our elections systems face.
As they said four years ago, every vote should count. Let's hope that it's a reality, and not just a slogan, in 2004.
New York's HAVA Implementation: Confusion But Not Chaos?
The State of New York has finally enacted legislation defining what forms of identification will be accepted for purposes of compliance with HAVA's ID requirement, according to this story in Newsday. Republicans and Democrats had been deadlocked over what forms of ID would be accepted, and their agreement will prevent "absolute bedlam at the polls," according to one Democratic state legislator. But some good government advocates are disturbed by the legislation's lack of specificity: "'It allows for less chaos,' said Barbara Bartoletti, a lobbyist for the state League of Women Voters, 'but just as much confusion.'"
Shelley Cancels Plan to Encourage Absentee Voting
In welcome news for election officials throughout California, Secretary of State Kevin Shelley has cancelled his plan to mail 3.75 million letters to voters, encouraging them to become permanent absentee voters, according to this story in the L.A. Times. In other news, state Sen. Ross Johnson (R-Irvine) continues to advise people to vote absentee rather than use electronic voting machines -- bad advice, in my opinion, as explained here and here.
Ohio County Misleading Ex-Felons?
Prisoner advocates claim that some Ohio election officials are providing "misleading and erroneous" information to felons who have completed their sentences, according to this story in the Cincinnati Enquirer. Ohio law disenfranchises felons, but allows them to re-register after finishing their sentences. The Prison Reform Advocacy Center alleges that ex-felons in Cincinnati are being required to provide information documenting that they're no longer in prison, something that's not required by state law. Ohio Secretary of State Ken Blackwell, however, claims that this requirement is acceptable.
The story also reports that one in five ex-felons isn't aware of their eligibility to vote. About 22,000 people are freed from Ohio prisons each year.
Three More California Counties Allowed to Use Electronic Voting
California Secretary of State Kevin Shelley has approved the use of Diebold's electronic voting in Alameda, Plumas, and Los Angeles counties in November, according to this A.P. story. (Los Angeles is for early voting only.) This follows Shelley's conditional decertification of DREs statewide in April, unless 23 security conditions are satsified. These three counties have apparently indicated that these conditions will be satisfied, bringing the total number of California counties whose DREs have been "recertified" up to 11, according to this story from KESQ.com.
Restraining Order in Missouri Provisional Voting Lawsuit
U.S. District Judge Scott White issued a restraining order, blocking certification of the results of the Missouri August 3 primary, according to this story in the Kansas City Star for details. As I noted yesterday, the Democratic Party alleges that some voters were denied the right to cast provisional ballots, as required by the Help America Vote Act. Judge White has set a hearing for next Wednesday, and has ordered both sides to file papers by September 3. This could be the first of many lawsuits we see on the subject of provisional voting in the next few months.
Thanks to Tova Wang for the pointer.
California Resolution on Open Source
The California legislature is considering a resolution, ACR 242, that would ask Secretary of State Kevin Shelley to consider open source software for use in elections. See here for a progress report by Alan Dechert of the Open Voting Consortium, a "non-profit organization dedicated to the development, maintenance, and delivery of open voting systems for use in public elections."
My take: I think that open source is something worth exploring, as we collectively search for ways to make electronic voting more secure. Is the OVC's open voting system the answer (or the "holy grail" as the S.J. Mercury News has put it)? I don't know, but such innovation should be encouraged, and it's certainly worth a careful look.
NBC News on Ohio's Punch Cards
Yesterday evening, NBC Nightly News did a feature on the continuing use of punch cards in Ohio. The video can be found here. Approximately 70% of Ohio voters will use the same "hanging chad" type of punch card that was used in Florida's 2000 elections. I'm among those providing commentary on the potential problems that this may create.
Missouri Provisional Voting Lawsuit
The Missouri Democratic Party has filed suit against the state's Republican secretary of state, for failing to follow federal provisional voting requirements, according to this story from the Springfield News Leader. The suit alleges that three voters weren't offered provisional ballots, in violation of the Help America Vote Act. The story reports that the three voters weren't at their correct polling place. The lawsuit also alleges that the state's actions deny equal protection.
My take: HAVA requires that voters be given the opportunity to cast provisional ballots, if they affirm that they're registered and eligible to vote in the jurisdiction. It doesn't, as I read it, require that those votes be counted if the votes are cast in the wrong precinct. Also, HAVA doesn't include a provision allowing aggrieved parties to sue in court. Still, the Missouri lawsuit raises a serious issue, especially if HAVA's provisional requirements are being applied in different ways by different jurisdictions within a state, as I mentioned yesterday.
This is likely to be the first of several lawsuits we see on provisional voting . . . stay tuned.
New Difficulties for Poll Workers
USA Today has this story, which reports that the "potential for confusion and mistakes" by the country's 1.5 million poll workers may be a bigger problem than the antiquated voting equipment used. They may be right. The Caltech/MIT Voting Technology Project estimated that, in 2000, up to 1 million votes were lost due to polling place operation problems while up to 1.5 million were lost due to voting equipment.
The Help America Vote Act, whatever its benefits, will undoubtedly make poll workers' jobs more difficult, due to the imposition of new requirements such as provisional voting and the presentation of ID by certain new voters who registered by mail. The USA Today focuses on poll worker age, noting that the average age of poll workers is 72. We should avoid ageism here, but the simple fact of the matter is that these requirements will make life more difficult for ALL poll workers, whatever their age.
Election Assistance Commission Chair DeForest Soaries rightly points out that this increasing complexity could be a real problem. The EAC has issued a "toolkit" for recruiting and training poll workers, which is available here. Definitely worth a look.
Absentee Isn't a Guarantee
More on the ill-advised call for people worried about electronic voting to cast their votes via absentee ballot in this story from the St. Pete's Times. For more news on this, see here and here.
One statistic that helps brings the problem to light is from my home county of Franklin, OH, where Columbus is located. Franklin County uses a Direct Record Electronic system for in-precinct voting and Votomatic-style punch cards for absenteees. In the 2000 presidential election, the DREs used in precinct had a 0.6% uncounted vote rate. By contrast, the punch card system used by absentees had a 3.6% residual vote rate.
The bottom line: If you want to increase the chance of your vote not being counted, then vote absentee.
Provisional Ballots Raise New Questions
That's the headline from this A.P. story, reporting on what's increasingly becoming a major cause for concern as November 2 approaches. The Help America Vote Act mandates that all states allow voters to cast a provisional ballot, if their names don't appear on the registration list but they sign an affirmation indicating that they're registered and eligible to vote there. Voters subject to the ID requirement, who don't come to the poll with the requisite ID, must also be allowed to cast provisional ballots. Those ballots should then be counted, if the individual is determined to be "eligible under State law to vote."
The problem, according to the A.P. story, is that election officials don't agree on when and how to count provisional ballots. That has some voting rights advocates worried that they won't be counted at all. And verifying whether provisional voters are eligible could take a long time.
The A.P. reports that different states have different standards for whether provisional votes will be counted -- for example, whether the vote will be counted if cast in the wrong precinct.
Some, like California, New Mexico and Pennsylvania, count at least the statewide and national races on provisional ballots cast in the wrong locality. Others, including Florida, Illinois and Indiana, don't count a provisional ballot at all unless the voter is in the right precinct.My take: It seems clear from this story that different states are handling HAVA's provisional voting requirement in very different ways. What's less clear -- but in my opinion far more significant from a constitutional standpoint -- is whether the same standard will be applied within each state.
"That is the problem with provisional balloting under the Help America Vote Act," said Maria Valdez, midwest regional counsel for the Mexican American Legal Defense and Educational Fund, which is considering a lawsuit on the grounds that voters aren't treated equally.
"It really could look like it's trying to open access, but because it is based on a state-by-state determination, it really could restrict access," Valdez said.
If Illinois is applying a more restrictive standard for which provisional votes count than Pennsylvania, that may not pose an equal protection problem. That's because we don't have a national election for President (i.e., we don't aggregate votes among citizens in different states), but state-by-state elections, in which the candidate receiving the most votes within each state receives that state's electoral votes.
But if there are disparities in how provisional votes are being handled within a state that could pose a real equal protection problem. On it's face, this seems not too different from that considered in Bush v. Gore, where different standards for which votes should count were being applied from county to county, and in some cases within a county. And if there are racial disparities arising from the way in which counties are applying the provisional voting requirement, this could lead to claims under Section 2 of the Voting Rights Act.
Between now and November, it's incumbent on state election officials to provide clear guidance to counties on how to implement provisional voting and other aspects of HAVA. If they fail to do so, they should expect to see litigation filed against them under the Equal Protection Clause and/or Voting Rights Act.
David Kimball's Voting Technology Webpage
Prof. David C. Kimball of the University of Missouri, St. Louis Political Science Department has this webpage on election reform and voting technology issues. He's doing some very important empirical research on voting technology, including papers co-authored with Prof. Martha Kropf of U.M. Kansas City.
Particularly worth looking at is this paper entitled "Assessing Voting Methods in 2002." It examines residual vote rates with different types of voting equipment in the 2002 gubenatorial elections. What's especially interesting about this report is that it's the first I've seen to disaggregate first-generation Direct Record Electronic machines, sometimes referred to as "full face" machines, from second-generation DREs such as touchscreens. What he finds is that the second-generation DREs do better -- in fact much better -- than older models. In fact, he finds that both touchscreen DREs and precinct-count optical scans have low residual votes (combined overvotes and undervotes), while "full face" DREs and central-count optical scans don't do much better than lever machines and paper ballots.
This helps explain why some studies, including the Caltech/MIT Voting Technology Project's July 2001 report have found less than stellar results for DREs. The VTP found that, in presidential elections from 1980 to 2000, DREs fared only slightly better than punch cards. But that's probably because the vast majority of votes cast by DRE in those years were cast with full-face machines. (The VTP didn't disaggregate DREs of the full face and touchscreen variety.) Even in 2000, about 2/3 of counties using DREs had the first-generation system. Prof. Kimball's research suggests that the more recent models result in lower numbers of residual votes.
Question on Auditing Elections
Tom Ryan of Arizona Citizens for Fair Elections wrote to me last week with a question on the auditing of elections conducted with the present generation of Direct Record Electronic voting machines. I've reproduced excerpts from our exchange below. I'd be interested in hearing from readers who may have more knowledge of this than me -- and in particular from any election officials out there who've participated in audits.
Ryan: In Arizona, we use [optical scan] systems but there is no routine election auditing - no requirement to validate or check any election tallies. As I've learned, this is true in most states. California, on the other hand, at least has a 1% manual tally requirement.This is about the most thoughtful defense of the CPR/VVPAT that I've yet heard. My inclination is to say that there's no such thing as "incontrovertible proof" that ballot images are an exact replica of voter intent, with or without a CPR. That's because we can't know for sure that the voters actually checked the paper replica of the electronic ballot. Even with a CPR, there are too many things that can happen between the point at which the paper replica is printed out and the point at which counting occurs -- from printers jamming to paper replicas being lost or mishandled at the central counting location. And are jurisdictions really going to count a sufficient sample of these curled-up strips of thermal paper to give us confidence that the election was free from fraud and error? Though I'm not opposed to jurisdictions experimenting with the CPR, as Nevada is doing, I'm skeptical as to whether it will really work and I do have greater concerns about irregularities in the handling of paper ballots than Tom does.
It would seem that a minimal requirement for any voting system should be the ability to do an independent audit, either by manually counting a small fraction of randomly selected ballots, or by submitting them to a completely independent electronic system. I think this capability is necessary unless there is some other incontrovertible proof that the system records and counts correctly, and so far this proof is beyond the technology. If it were possible, vendors would provide it.
So this brings me to DREs. How could they be audited? ...
Tokaji:You're right that the subject of auditability warrants further attention. In order to pursue this further, I've actually had a research assistant looking into all 50 states laws, to see how many have a manual audit requirement like California's. It turns out that very few do, as far as we can tell -- only about 3 or 4 that we've found....
I understand that recounts of DREs have been done in the past, by printing out ballot images and manually recounting them. In a close race, this may be useful. But the bottom line appears to be that, unless we're prepared to recount a large number of ballots, counting paper (whether printed during or after the voting process) isn't a very effective way of auditing. This suggests that alternative methods, like parallel monitoring or the VHTi (marketed by VoteHere), are more likely to be effective ways of enhancing confidence in election results, when combined with rigorous testing of software and hardware before elections.
Ryan: California's law has other shortcomings: the law doesn't intentionally sample different ballot designs, doesn't define "discrepancy," and doesn't say what should happen when a discrepancy occurs. On the other hand, their 1% check did discover a serious error in the vote count in a county using OS systems [Note: I believe he's referring to absentee ballots cast in Napa County's March election, in which the counters initially missed ballots cast with a certain type of ink.] That's more than most state's could do....
I think the parallel system in CA randomly removes DREs from service on election day, then test votes are cast on the machine during the day. They are tabulated, then removed from the vote totals. This is a very helpful check and should discourage fraud, but I wouldn't call it an audit, because it would not be possible to reconstruct the election results from source materials.
As far as DREs are concerned, counting ballot images is a problem unless there is incontrovertible proof that the ballot images are an exact replica of voter intent. I don't think the vendors can make this claim, unless the ballot images are voter verified....
An alternative, that I might be willing to accept, would be to have an independent electronic system designed just to count a relatively small sample of ballots. Election directors are less resistant to this idea than to manual counting. It should be possible to build such systems for a lot lower cost than the full election systems....
I believe there is no valid way to audit an election other than to count paper, either manually or by an independent e-counter, and in either case, I don't think it would be much of a burden to election workers. I know there are people saying that it can all be done electronically, but there isn't any proof yet that it can be done. And I think the vendors and election directors owe the voters proof. At least with paper ballots, it is possible to get a valid audit. Here in Pima County, the ballot handling procedures are laid out in a very carefully worded procedures manual which they follow to a T. If all jurisdictions followed these procedures, I wouldn't worry much about irregularities in handling paper ballots.
Still, his emails raise some serious questions. I'd be interested in getting the views of others out there as to how audits work with the present generation of DREs, and in hearing other ideas on how auditing might be improved.
Thanks for writing Tom.
Rep. Wexler's Appeal Rejected
A Florida state appellate court has rejected Rep. Robert Wexler's challenge to paperless electronic voting machines, according to this story in the Sun-Sentinel. He's still got a federal case pending, to be heard on August 20 in Atlanta. There's also an administrative case brought by the ACLU, challenging Secretary of State Hood's adoption of a regulation providing that manual recounts are unnecessary in counties where electronic voting systems are used. See here.
Problems with Provisional Voting
Ford Fessenden has this excellent article on provisional voting in today's New York Times. One of the most important new requirements of the Help America Vote Act is that voters whose names don't appear on the rolls be allowed to cast provisional ballots, which should be counted if their eligibility can later be verified.
Fessenden reports that: "Of the 5,914 provisional ballots cast in the Chicago primary, 5,498 were disqualified, mostly on technical grounds." One of the key issues is whether provisional ballots should count, if cast in the wrong precinct.
According to the story, there appears to be little uniformity in how the provisional voting requirement is carried out from state to state. Even more troubling is the possibility that the provisional voting requirement could be inconsistently applied within a state, or even within a county. Such inconsistencies may lead to racial disparities:
In the primary, provisional ballot problems were more likely to disenfranchise minority voters in Chicago than white voters, exactly the problem in Florida four years ago that provisional voting was intended to address. In wards that are 80 percent or more minority members, the rate of disqualified ballots was double that of wards that are 80 percent white.In three local races, the number of disqualified ballots was greater than the margin of victory. This is definitely something to look out for, as November 2 approaches. In a close election, it's foreseeable that intra-state disparities in the implementation of HAVA's provisional voting mandate could give rise to equal protection claims.
Wang on the ID Requirement
Tova Wang of the Century Foundation has this article in the Nation on potential problems in the implementation of the Help America Vote Act's ID requirement. Under HAVA, certain voters who registered by mail after January 1, 2003 will be required to present identification at the polling place. Acceptable forms of ID include either: (a) a copy of a current and valid photo identification; or (b) a copy of a current utility bill, bank statement, government check, pay check, or government document that shows the name and address of the voter at the time of registration. Voters who don't have identification should be permitted to cast a provisional ballot.
Wang identifies some disturbing evidence that the ID requirement isn't being implemented in an evenhanded fashion, and may result in the disproportionate disenfranchisement of racial minorities. She mentions complaints from Native Americans in South Dakota, and African Americans in the Cleveland area. While some states have issued directives indicating acceptable forms of ID, others have failed to do so -- see this story from the Rochester Democrat and Chronicle. The result may well be inconsistent application of HAVA across counties. And if that happens, we can expect to see litigation alleging that such inter-county disparities violate equal protection. Anyone want to guess what case they'll be relying on?
The Election Law @ Moritz site has more information on this subject. For more on the ID requirement, see this page by my colleague Terri Enns. For more on provisional voting, see this summary that I prepared. I also mention the possible equal protection claims arising from the implementation of HAVA here.
More on Paper vs. Electronic Voting
In this post yesterday, I discussed the Palm Beach Post's story on problems with absentee ballots. In response, Jeff Matthews pointed me to this page from the Georgia Secretary of State's website, which discusses the change in residual votes upon moving from paper-based to electronic systems. Prior to 2002, the state used four different types of systems (punch cards, optical scans, levers and paper ballots) which yielded "wildly different" undervote performances, with a pronounced racial gap. Starting with the 2002 election, the state went to an all DRE system -- and, if I'm not mistaken, will be one of only three states in the country in which all in-precinct voters will use electronic voting systems. (The other two are Maryland and Nevada).
Here's the Secretary of State's report on their results:
In 1998, under Georgia’s antiquated voting platform, the U. S. Senate undervote was 4.8 % of ballots cast – some 88,674 ballots with no Senate choice out of 1,842,585 ballots cast. By contrast the 2002 Senate undervote was 0.88 % -- a reduction of nearly four percentage points. There were less than 17,000 ballots that showed no choice in the U.S. Senate race – a reduction in undervoting of more than 71,000 statewide. That margin is particularly significant since in the last two decades five major statewide races for Governor or U.S. Senate have been decided by margins of less than 32,000 votes ....Thanks for the pointer Jeff!
In 2001 the Secretary of State’s office released a precinct-level study of selected Georgia counties that showed extremely high undervote percentages in many minority communities. It is clear that top-of-the-ballot undervoting in these minority precincts has dropped precipitously as well. In Fulton’s minority precincts the top-of-the-ballot average undervote percentage dropped from 10.8% in 2000 to 1.18% in 2002. In DeKalb, average minority undervoting fell from 7.6% in 1998 to .63% last year. In Bibb County that percentage improved from 8.1 % to 2.7%, and in Dougherty from 9.9% in the 2000 presidential election years ago to 1.6% in 2002.
These are large and very significant reductions in residual or “lost votes” that can clearly be attributed to a new electronic system that is easy to see and read, that provides the voter with feedback about their choices and includes a “summary screen” which displays their selections and gives the voter an opportunity to make corrections before casting their final ballot.
How to Vote Demo
Arlington, Virginia's website has this page which includes a PowerPoint showing how to vote with the county's touchscreen system. For those who've not used a touchscreen voting before, this may be a helpful demonstration. Thanks to my colleague Mary Beth Beazley for passing this along.
Absentee Ballot Problems
Worried about electronic voting, and think that casting a paper absentee ballot will ensure that your vote gets counted? Think again. The Palm Beach Post has this story on problems with absentee ballots. The unfortunate fact of the matter is that voters using paper ballots make mistakes, especially when voting absentee.
The article also includes commentary by MIT's Ted Selker on the paper-trail debate:
"The entire paper-trail issue is a red herring," said Ted Selker, a computer science professor at the Massachusetts Institute of Technology and co-director of the Caltech/MIT Voting Technology Project.My take: I know that there are some well-meaning progressives out there, in jurisdictions that use electronic systems for in-precinct voting and punch cards for absentees, who are advising voters to vote absentee. Bad advice ... unless you want to increase the likelihood of having your vote discounted.
He pointed out that Georgia, which had much worse but far less publicized voting problems than Florida in the 2000 election, cut its error rate from 3.2 percent to 0.7 percent — one-fifth as many errors — by switching to touch-screen machines.
Contrapositive on the Florida Purge
Dan Aibel has this post regarding the controversial Florida purge on his Contrapositive blog. It's recently come to light that the state's purge disqualified a large number of African-American voters (who tend to vote Democratic) and a small number of Latino voters (who in Florida tend Republican). Aibel notes that a disproportionately small number of Latinos were also purged in 2000. Worthy of further inquiry ...
Kevin Shelley Speaks
The L.A. Times has this interview with the California Secretary of State, focusing on his decision to conditionally decertify electronic voting.
My take:Shelley makes some good points regarding the implementation of electronic voting. But he confuses two different sorts of problems: 1) glitches in election administration and management, of the sort that have caused problems in San Diego, Alameda, and Orange counties, and 2) "hacking" into electronic voting systems, by inserting malicious code (the so-called trojan horse).
This is a distinction that's actually been pointed out to me privately by some DRE critics. Although we do have examples of problems with the implementation of electronic voting in numerous jurisdiction, the contemporaneous paper replica (aka, voter verified paper audit trail) that Shelley touts won't do anything about that. The second problem is not one that, as far as I know, has been documented anywhere. (I hope someone will correct me if I'm wrong.) That doesn't mean it can't occur. But it's not clear that the CPR is the best way, or even a workable way, of dealing with the problem.
Progressives Split on Electronic Voting
The News Standard has this story on the split among "progressives" over electronic voting. (Disclosure: I'm a progressive or, as we used call ourselves, a liberal.)
The article portray the split as between paper-trail advocates on the one hand, and disability activists on the other. While this is partly true, it doesn't mention the fact that some of us are concerned that the security concerns over DRE's have prompted many jurisdictions to stick with unreliable systems like the punch card. One might still believe that the security risks of DRE's are so large that the price (i.e., that it will cost tens of thousands of people, a disproportionate number of them people of color, their votes in November) is worth paying. But that price does seem worth mentioning.
Still, it's encouraging to see some serious attention paid to the concerns of people with disabilities, some of whom are enjoying the opportunity to vote independently for the first time in their lives and are understandably concerned that this right may be taken from them.
Dugger's Nation Article on DRE's
Ronnie Dugger has this article on the electronic voting controversy in this week's Nation. It starts like this:
Some 98 million citizens, five out of every six of the roughly 115 million who will go to the polls, will consign their votes into computers that unidentified computer programmers, working in the main for four private corporations and the officials of 10,500 election jurisdictions, could program to invisibly falsify the outcomes.He gets the high number by including any ballot counted by computer. The proportion of voters who will actually be using direct record electronic voting systems in November is really about three in ten, according to this report from Election Data Services.
The result could be the failure of an American presidential election and its collapse into suspicions, accusations and a civic fury that will make Florida 2000 seem like a family spat in the kitchen.
It goes on like this for nine web pages, but you get the idea. The article includes lots of lavish praise for the contemporaneous paper replica, without any attention to its real-world practical difficulties -- or the fact that it's not likely to be an effective check on fraud and error. Moreover, even the most fervent DRE skeptics agree that it's not feasible to implement the CPR between now and November. I'm with Dugger when he decries vendors' mistakes and says that electronic voting can be made safer, but it's wrong to assume that paper would fix the problem.
There's also no analysis of how the call to require a CPR has led some jurisdictions to stick with the punch card, a system that we know loses lots of votes, especially in minority communities and could be determinative in several swing states. That's something you'd expect the Nation to care about, isn't it?
In short, there's a lot of hyperventilaing here but, despite its length, very little that we've not heard before. And in any event, whether you like DREs -- or for that matter punch cards -- or not, we're going to be using them in this election. Far more productive is to shift the conversation toward procedures that can be implemented between now and them to minimize the number of lost votes.