Equal Vote
Did the Post Get the New Mexico Story Wrong?
The Albuquerque Journal has this story examining what really happened in a New Mexico County in which electronic voting systems were used. As discussed here and here, the Post had reported that 678 votes were "never recorded" by the electronic voting machines used for early voting in Rio Arriba County.

It now appears that the Post's report was incorrect. When the state retrieved the county's records from archives, those records showed that there was in fact no substantial undercount of votes. Instead, it appears that the number of voters who attempted to vote early had been overstated. Denise Lamb of New Mexico's election bureau states that she told the Post reporter that this was the likely cause of the discrepancy at the time ... but that the "Washington Post refused to listen to us."

My take: At the time that this story first emerged, I noted that it was a "cautionary tale." Turns out that I was right, but for a different reason than I thought. This should serve as a caution about leaping to conclusions about apparent problems with voting technology, before all the facts are in. Too much of the coverage of electronic voting has been sensationalistic, reporting substantial problems in the implementation of the technology that turn out to be either incorrect or exaggerated. Witness, for example, the overstatement of undervotes by Floridians using DREs earlier this year, and the retrival of ballot images from 2002 that had been reported as lost. That's not to say that problems can't occur with electronic voting -- they can and they have. But it's prudent to make sure that all the facts are in before leaping to conclusions.
Schwarzenegger Signs Paper Trail Bill
Gov. Arnold Schwarzenegger has signed SB 1438, which will require that electronic voting machines generate a contemporaneous paper record (aka "voter verified paper audit trail") by 2006. FCW.com offers this report. Secretary of State Kevin Shelley had previously issued a directive requiring this device by 2006.
New York Times on Ohio
Today's New York Times offers this editorial criticizing Ohio Secretary of State Ken Blackwell's recent decisions on provisional voting and registration forms. Under a directive that he's since backed off from, see here, Blackwell had required registration forms to be on 80-lb. heavy stock paper. He's also issued a directive refusing to allow provisional ballots to be cast out of precinct. As discussed here, this issue is now in litigation. Ohio State law student Chris Geidner offers this comment.
Unearthing the Undervote
Thomas Hargrove of the Scripps Howard News Service has this article in the American Journalism Review, on the media coverage of uncounted votes. Directed toward journalists, the article contains some tips on those seeking to investigate undervotes.
New Mexico's ID Requirement
The Albequerque Journal has this follow-up story to the New Mexico Supreme Court's decision upholding the state's decision to require ID only of first-time voters who registered by mail. The Republican and Green parties had sought to impose a stricter ID requirement, citing the need to protect against election fraud.
Ohio Reverses Paper Weight Requirement
Ohio Secretary of State Ken Blackwell has reversed himself, backing away from an order requiring that registration forms be on not less than 80-lb. paper weight. See here for the Columbus Dispatch's coverage. My colleagues Mary Beth Beazley and Ned Foley offer commentary here.
Judge Rejects Challenge to Riverside Election
A state court judge in California has rejected a challenge to an election conducted on Riverside County's electronic voting system. The North County Times has this report. Judge James Hawkins rejected the challenge brought by a losing candidate, finding that the county had met its responsibility to conduct a recount, by checking the results against information stored on cards or cartridges in the electronic machines.
Barriers to Overseas Voting
The New York Times has this report on obstacles that still remain for the 4.4 million American citizens living outside the United States, 3.9 million of whom are civilians. The NYT reports that many might not get absentee ballots in time to cast their votes. In 8 of 15 swing states, officials failed to send absentee ballots out by September 19, considered a critical deadline to ensure that they can be returned on time. A website created to make absentee ballots available is offered only to military personnel and their families, not civilians living overseas.
Michigan Provisional Voting Lawsuit
Democrats in Michigan filed suit on Tuesday, seeking to ensure that provisional ballots cast at the wrong polling place are counted. The AP has this story. A hearing is scheduled for October 13. By my count, this makes Michigan the fifth state in which such cases have been filed -- following Missouri, Florida, Colorado, and most recently Ohio. Jeff Rosen offers this view on post-Bush v. Gore litigation on provisional voting and other issues.
Ohio Registration Issues
Voting rights advocates in Ohio are concerned that a state directive on the paper weight of registration forms may result in thousands of lost votes. Secretary of State Ken Blackwell issued a directive on September 9, requiring that registration forms be on heavy-stock 80 lb. paper. Registrations on ordinary paper will be treated as applications for a registration form -- meaning that voters won't be registered unless they complete another form of the proper paper weight. With the October 4 deadline for registering quickly approaching, many advocates are concerned that a lot of voters who think they're registered won't be. See here for the AP's coverage and here for a related story in the Plain Dealer on county election boards being overwhelmed with new registrations. Daily Kos offers this perspective on the paper weight controversy.
New Mexico Supreme Court Rules on ID Issue
The New Mexico Supreme Court has upheld the Secretary of State's interpretation of the ID requirement, under which only those first-time voters who registered by mail will have to show ID when they go to vote. See here for the AP's coverage. Republicans had attempted to argue for a stricter ID requirement, under which all new voters except those who registered in person at a county clerks office would have to produce ID. According to the AP, the court found that a stricter requirement would "disrupt the election and disenfranchise voters."

Thanks to Steve Reyes of MALDEF (which filed an amicus brief in the case) for the tip.
Carter on Florida
Jimmy Carter has this commentary in today's Washington Post on the likelihood of more problems in Florida's 2004 election. He writes that "Florida voting officials have proved to be highly partisan, brazenly violating a basic need for an unbiased and universally trusted authority to manage all elements of the electoral process." Carter also calls for paper printouts of electronic ballots, incorrectly asserting that this is a "proven" technology.
Ohio Democrats' Provisional Voting Lawsuit
The Ohio Democratic Party and Sandusky County Democratic Party have filed suit against the Ohio Secretary of State, challenging his directive providing that provisional ballots cast in the "wrong" precinct won't be counted. Plaintiffs are seeking a preliminary injunction against enforcement of this directive. Here's a sample of their argument, taken from the preliminary injunction brief:
The State of Ohio has flouted HAVA’s provisional-voting mandate. Rather than amend its existing statutes to comply with HAVA, Ohio has, through Defendant Blackwell, issued a recent directive to its county boards of elections that makes a mockery of HAVA’s provisional-voting requirements. Ohio Secretary of State Directive 2004-33 (“Directive 2004-33” or the “Directive,” attached hereto) eviscerates the federal provisional-voting rights guaranteed by HAVA, denying those rights to all but a small class of individuals. Directive 2004-33 permits the casting and counting of provisional ballots only for individuals who: have previously moved from one Ohio precinct to another Ohio precinct; and seek to cast provisional ballots in the precinct in which they now reside; and have not attempted to vote at their former polling place; and can convince the poll workers that they are eligible to vote in the new precinct.

Contrary to HAVA’s requirements, Directive 2004-33 denies a provisional ballot to any eligible voter who has not moved within Ohio and who learns on Election Day that, through no fault of his own, his name has been erroneously deleted from his precinct’s voter-registration list. It also unlawfully deprives a voter who mistakenly arrives at the “wrong” precinct within the county of his residence the right to cast a provisional ballot and to have that ballot counted. In addition, Directive 2004-33 lacks the requisite instruction to poll workers to notify eligible voters of their immediate right under HAVA to cast a provisional ballot. The Directive further violates HAVA by prohibiting the counting of provisional ballots cast by an individual who arrives at the “proper” polling place after first having attempted to vote at another precinct. Finally, Directive 2004-33 contravenes one of HAVA’s central purposes by requiring poll workers immediately to confirm an individual’s eligibility to vote, rather than allowing the casting of a provisional ballot simply upon proper affirmation by the individual.
The case was filed in federal district court in Toledo and assigned to Judge James Carr. Coverage can be found here. For the Columbus Dispatch's pre-lawsuit coverage of this issue, see here.
Catching Up: Election Reform News
Thursday's Electronic Voting Conference at the Moritz College of Law was a tremendous success, featuring some thoughtful interchange among people with a variety of perspectives on voting technology. Since then, I've been on the road, first at the Conference of Asian Pacific American Law Faculty at Michigan State and now at Notre Dame where I'll be speaking on constitutional issues arising from the implementation of the Help America Vote Act tomorrow.

Here's a rundown of some of election reform stories in the past few days.

Proposal to Tighten ID Requirement: Sen. Pete Domenici (R-NM) is proposing legislation to make HAVA's ID requirement even more strict. The Albequerque Journal offers this report. The bill would compel all first-time voters, except those who registered in person, to show ID when they vote for the first time. The story also reports that the case regarding New Mexico's ID requirement will go before the state supreme court on September 27.

Attack on Diebold's software: Anti-DRE activists claim that Diebold's GEMS vote tabulation system is so easy to tamper with that even a chimp could do it, distributing a video that supposedly supports their claims. Diebold offers this response entitled "Reality vs. Fantasy." You be the judge. In related news, the Washington Post offers this commentary on some of the more extreme claims being made about electronic voting.

More on Shelley's Troubles: The plot thickens into California Secretary of State Kevin Shelley's alleged misuse of funds, including monies provided to the state under the Help America Vote Act. The L.A. Times reports here that the federal Election Assistance Commission may audit his use of HAVA funds. The Sacramento Bee has this story.

Ohio Backing Out on Its Felon Re-Enfranchisement Agreement?: Ohio voting rights advocates are claiming that the state is refusing to abide by an agreement to inform ex-felons on parole of their right to seek reinstatement of their voting rights. The Cleveland Plain Dealer has this story. The state is apparently claiming that there was no deal in the first place, because the Department of Corrections wasn't named in the suit. Sounds pretty shady/slimy to me.

Response to Alvarez & Hall's Survey Results: A group of computer scientists and others have issued this response to Michael Alvarez and Thad Hall's report on their survey on electronic voting trust, discussed here.

Florida Judge Rejects Provisional Voting Challenge: A state judge in Leon County, Florida has rejected a challenge to Florida's provisional voting system, brought by the AFL-CIO and others. The Palm Beach Post has this story. The unions seek to ensure that provisional ballots cast out of precinct are counted, and hope to have their case heard before the Florida Supreme Court.

More to come tomorrow.
Electronic Voting Conference
Today from 1:00 - 5:00 pm, we'll be hosting a conference on Electronic Voting: The 2004 Election and Beyond at the Ohio State University's Moritz College of Law. The conference will feature David Dill of Stanford, Michael Shamos of Carnegie-Mellon, Deborah Goldberg of the Brennan Center, Tova Wang of the Century Foundation, Henry Brady of Berkeley, Matt Zimmerman of EFF, Martha Mahoney of U. Miami, and me. It will be webcast live here. Hope you can join us!
Colorado Voting Rights Complaint
On Monday, Colorado Common Cause and individual voters filed a state court action against the Colorado Secretary of State (Colorado Common Cause v. Davidson, ). The Denver Post offers this report.

The lawsuit challenges state laws pertaining to identification and provisional voting, under the First and Fourteenth Amendments to the U.S. Constitution, the Help America Vote Act, and the Colorado Constitution. In particular, Plaintiffs challenge a Colorado state law that requires all voters to show ID -- not just first-time voters who registered by mail after January 1, 2003, as provided in the Help America Vote Act. In addition, Plantiffs challenge Colorado's provisional voting rule, which provides that provisional ballots cast in the "wrong" precinct will not be counted, except in the presidential/vice-presidential race. Plaintiffs also allege that Colorado's provisional voting rule is being applied inconsistently from county to county. A preliminary injunction hearing is set for Tuesday, September 28.

Colorado becomes the third state (after Florida and Missouri) in which provisional voting rules have been challenged in court.
Pentagon Blocking Access to Registration Website
The A.P. reports here that the Pentagon is blocking access from some ISP's to a website, though which citizens living overseas may register to vote. The website in question is operated by the Federal Voting Assistance Program, a Defense Department division, and its address is www.fvap.gov. Access is being denied to some ISP's that hackers used to infiltrate U.S. government sites, according to a site web manager. Others fear that blocking access will prevent eligible overseas citizens from voting.

Missouri Absentee Voting Fight
Missouri Democrats are accusing Missouri Republicans of misusing the absentee voting process, according to this report in the K.C. Star. In Missouri, absentee voting is supposed to be limited to those who are out of town, incapacitated, incarcerated, or unable to vote because they're working at the polls or have religious restrictions. Democrats say an email encouraging people to vote absentee is inviting people to do so under "false pretenses."
International Election Monitors Come to America
The Columbus Dispatch offers this report on a group of international observers, organized by Fair Election International that's in the process of visiting several states. The observers hail from Argentina, Australia, Brazil, South Africa and Thailand. They're now in Ohio and will also be Arizona, Florida, Georgia and Missouri, looking at such issues as voting equipment, felon disenfranchisement, and poll worker training.
HAVA Funding for FY 2005
Stephen Bennett, President and CEO of United Cerebal Palsy, offers this commentary supporting full funding for the Help America Vote Act in today's The Hill. He notes that President Bush's proposed budget for fiscal year 2005 includes only $65 million in HAVA funding, only 10% of what was authorized. Bennett argues:
State and local governments simply will not implement HAVA’s broad accessibility mandates unless the federal government provides the resources it promised.

By not funding their own law, the President and Congress are accomplices to the continued disenfranchisement of voters with disabilities. It is time for them to fully fund the Help America Vote Act to ensure equal access to the polls for all Americans.
My take: Right on. Congress and the White House's foot-dragging has already caused the substantial delay in much-needed reforms, from voting machines to registration systems. The failure to fully fund HAVA would be a national disgrace. And it's not only citizens with disabilities who will suffer, but all voters.
Provisional Voting as the Wild Card in This Election
The Chicago Tribune has this story on the challenges that states face in implementing HAVA's provisional voting mandate. It describes Chicago's experience, in which only 416 of 5,914 provisional ballots cast in March's election were actually counted, as the "worst case" scenario. It's a scenario that may be repeated in key swing states, such as Ohio, Missouri, Nevada and Pennsylvania.

In related news this A.P. story lists problems to look out for in various swing states.
Ohio to Notify Felons of Voting Rights
The state will notify some 34,000 ex-felons of their rights to vote in November, in settlement of a lawsuit brought by the Prison Resource Advocacy Center. See here for the A.P.'s coverage.
The Underfunded Election Assistance Commission
After enacting legislation vesting essential responsibilities in the Election Assistance Commission, Congress is refusing to provide adequate funding to the organization. In this story from electionline.org's weekly newsletter, it's reported that the Senate and the White House haven't included the $10 million that the EAC requested in order to conduct research on election issues that's mandated by the Help America Vote Act. The House version appears to include only half the requested amount.
BNA offers this story (subscription required), reporting that the EAC may only receive $500,000 of the $3.5 million needed between now and November to monitor election reform implementation.

The EAC's research is a key component of HAVA. Congress punted on some of the most important issues surrounding election reform, declining to impose specific mandates but instead delegating to the EAC responsibility for researching the problems.

My take: Congress and the White House are pulling the rug out from under the EAC, refusing to provide them with the resources they need to do the important work that they've been charged with performing. Particularly galling is the remark reportedly contained in the House report that "the Commission was directed ... to create the Help America Vote Foundation and provide grants to various organizations working to increase voter participation. At this time, the Committee is unaware that any nominations to the Foundation have gone forward, nor have any grants ... been obligated.”

To the extent the EAC has failed to perform the tasks set out for it under HAVA, Congress has only itself (and President Bush) to blame. Not only was the White House delinquent in failing to appoint EAC commissioners on the timetable mandated by HAVA, but Congress underfunded the agency in fiscal year 2004. As a result, the commission lacked the resources for office space or even adequate staff. The continuing failure to provide adequate funding to the EAC will further impede the EAC's operations, leaving it unable to perform the vital functions entrusted to it under HAVA.
Ohio Issues Restrictive Provisional Voting Rule
On Friday, Ohio Secretary of State Ken Blackwell issued a restrictive provisional voting rule, as reported in this story from the Plain-Dealer. Under Blackwell's directive, provisional ballots cast in the wrong precinct won't generally be counted. Many precincts have shifted in the past few years. As a result many voters will, through no fault of their own, appear at the "wrong" precinct. If those voters aren't given proper instructions at the polling place -- and it's reasonable to expect that a significant number won't -- their votes will not be counted. This issue has also resulted in litigation in Missouri and Florida.

The story also reports that 23,000 provisional ballots were cast in Cuyahoga County (Cleveland area) in 2000. The number can be expected to be much higher in 2004, given that Ohio had in place only a very modest provisional voting program before, applicable only to voters who move across precinct or county lines. HAVA requires that provisional ballots be provided to any voter who certifies that they're eligible to vote in the jurisdiction (i.e. the county) and to those subject to the ID requirement who don't come with ID or proof of address.

The bottom line: As I'm quoted as saying in the article, if Blackwell's ruling stands, a lot of votes won't be counted. This ruling is particularly disappointing, given Blackwell's prior representations in the State's HAVA plan, that he intended on vigorous implementation of the provisional voting requirement. Apparently, the Secretary has changed his mind. One can only speculate as to why.... Shades of Katharine Harris?
Early Returns on Nevada's CPR Experiment
Last week, some Nevada voters for the first time used an electronic voting system with attached printers capable of generating a contemporaneous paper record (CPR) of the electronic ballot. The A.P. reports that the election was well-organized of free of major problems. Turnout was low, however -- about a quarter of registered voters showed up to vote -- leaving plenty of poll workers to deal with election-day challenges.

Election officials are watching Nevada's experience carefully, particularly in California and Ohio where a CPR (aka, "voter verified paper audit trail" or VVPAT) will be required effective 2006. The A.P. story notes the concerns that election officials have about implementing such a CPR system, including printer jams, increased costs, and the possibility of poll workers violating voter privacy.

One of the out-of-state election officials observing Nevada's election was Conny McCormack, Los Angeles County's registrar-recorder, who was in Clarke County (Las Vegas area) on election day. Here are some of Ms. McCormack's thoughts and observations, reprinted here with her permission:
Background: Of the 17 counties in Nevada, 16 (including Washoe/Reno) were rolling out Sequoia DREs for the first time. These counties were all replacing their previously used systems (mostly punch card or other paper systems). By contrast, Clarke Co., with 70% of Nevada's registered voters (they have 553,000) has used Sequoia DREs for 8 years. They've been using the earlier "full face" Sequoia Advantage age model at most precincts on election day and, for the last few years, the smaller Edge model for early voting. They've also used all Edge models at a few selected polls on election day in heavily Hispanic areas because the Edge can be programmed with Spanish/other languages whereas the Advantage cannot. (Advantage also doesn't have audio capability so by 2006 Clarke plans to convert to all Edges). The Edge is the model that quite a few Calif Counties now have including Riverside, San Bernardino, Napa, Santa Clara and Shasta ...

Since installing their DRE system in 1996, approximately 50% of Clarke County voters vote early at up to 60 early voting sites prior to election day. For this election, each Edge model was retrofitted for the first time with a VVPAT printer. Large full-face Advantage models were not....

As other observers of both early voting and Nevada's election day have indicated, only a few voters (10-20%) looked at the printer (it made a pretty loud noise when printing and these voters glanced over at it then). Because the turnout was so light and because the ballot was so short (6-7 contests and no propositions) all of the voters' selections on VVPAT printer fit under the glass space provided so they didn't need to wait for the paper to repeatedly scroll under the glass prior to hitting Cast Ballot. For Nevada's longer November ballot with propositions (and for California's longer ballots) it will require voters to wait while the printer scrolls the paper under the glass several times. For a heavy turnout election with a long ballot this factor of waiting for the printer could become meaningful....

As other observers have indicated, voters were generally fine with VVPAT. Some did say they thought they could/should be able to take the printed copy with them. At one location a pollworker, after burning the access card on the Activator device, explained to each voter there was a printer now and what it was for and why voters couldn't take the printed ballot copy with them (polite touch but time-consuming and provides an opportunity for multiple "explanations" of of varying accuracy if pollworkers at all precincts did this).

[Editorial note: In some cases, I've spelled out words that were abbreviated in Ms. McCormack's report.]
The costs of adding printers are estimated at about $500-$800 for each DRE unit, not including the additional expense of storing the printers and paper records. According to Ms. McCormack Clarke County had to build a $200,000 vault for storage.

Ms. McCormack also reports that a few voters who'd used DREs before expressed concern that the paper printout would make their votes less secret and secure than before. She asks, "Wouldn't it be the ultimate irony if installing VVPAT, ostensibly to quell what is largely an imaginery loss of voter confidence in current model DREs, actually resulted in the opposite?"

Electronic Voting Conference - September 23
The Ohio State University's Moritz College of Law will host a conference on Electronic Voting: The 2004 Election and Beyond. It will take place from 1-5 pm on Thursday, September 23. The panelists include David Dill of Stanford University, Henry Brady of U.C. Berkeley, Michael Shamos of Carnegie-Mellon, Deborah Goldberg of the Brennan Center, Tova Wang of the Century Foundation, and Martha Mahoney of University. It's an amazing lineup, presenting a wide range of perspectives on this critical issue. For those not interested in making the trek out here to Columbus (and I'm sure there are a few of you out there), the event will be webcast live here. Hope you can join us electronically, if not in person.
Ohio Election Officials Seek Direction
The Columbus Dispatch reports here that county election officials are dissatisfied with the lack of direction that has been provided by Ohio Secretary of State Kenneth Blackwell, on how to implement key provisions of federal law. A meeting is reportedly to take place on Friday, to be attended by election officials from more than 30 Ohio counties. The Secretary of State's spokesperson acknowledges that there is "a lot of anxiety" among counties, promising that more specific instructions will be on their way.

My take: Let's hope so. The failure to provide clear guidance is a major issue. HAVA requires changes in the handling of mail-in registration, mandates provisional voting, and imposes an ID requirement on certain first-time voters. On each of these questions, it's imperative that the state provide clear guidance. The failure to do so can be expected to lead to equal protection violations. These problems may be coming to a head in Ohio, but they're likely to emerge in several states -- to the extent they haven't already.

Election officials aren't the only ones worried. Ohio voting rights advocates have also written Blackwell to express their concerns ... but have so far been given the cold shoulder by his office.
Hasen on Bush v. Gore's Non-Suction
Rick Hasen has posted this paper on SSRN, entitled "The California Recall Punch Card Litigation: Why Bush v. Gore Does Not Suck." It discusses litigation challenging punch card voting equipment, including last year's lawsuit that sought to postpone the California recall until this equipment was replaced. (Disclosure: I was co-counsel for Plaintiffs in that case.) In particular, Prof. Hasen responds to Vik Amar's criticism of the original Ninth Circuit panel opinion, which had held that the use of punch card ballots constituted a probable violation of equal protection, under Bush v. Gore and other cases. Hasen concludes: "Far from sucking, the Bush v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy."
Another View of the Maryland Controversies
Barry Rascovar offers this perspective on the controversies in Maryland surrounding electronic voting and the effort to remove chief election official Linda Lamone. He offers support for a Maryland judge's decision to allow the use of electronic voting, affirmed yesterday (see here), noting the evidence showing that these machines "are much more secure and less vulnerable" than paper-based equipment sought by plaintiffs. Rascovar nevertheless supports the replacement of Ms. Lamone. He takes the position that she's not really been nonpartisan, but a "steady supporter of liberal Democrats in Anne Arundel County." While agreeing that it was a mistake to try to remove her before the election, he argues that replacing her is necessary to "return the office to its nonpartisan tradition."

Century Foundation on Race and Voting Technology
The Century Foundation has just released a report by Tova Wang, discussing the empirical research on race and voting equipment. It's available here. The report finds that "African Americans are at particular risk of not having their votes counted," due to the continuing deployment of punch cards and central-count optical scan voting equipment. It also notes that the controversy over electronic voting, which reduces the racial gap considerably, has slowed replacement of older equipment. The report concludes: "As it stands now, if history repeats itself, [punch card and central count optical scan] machines will disenfranchise thousands of voters, and a disproportionate number of them will be African Americans."

Tova will be among the featured panelists at a conference we're hosting at the Ohio State University's Moritz College of Law on Electronic Voting: The 2004 Election and Beyond. The conference will take place on September 23, 2004, from 1:00-5:00 pm and will be webcast live. More details to come shortly.
National Voter "Rejection" Week?
The League of Women Voters comments here on National Voter Registration Week, calling attention to registration problems throughout the country. Among the issues it highlights are (1) a backlog of registration forms in some jurisdictions, (2) rejection of registration forms where voters inadvertently fail to check the age and citizenship boxes required by HAVA, (3) motor vehicle agencies' failure to transfer registrations, (4) social service agencies failing to provide for registration, and (5) registration agencies improperly rejecting applications due to confusion over the use of social security and/or drivers' license numbers.
NYT on Financial Ties to Voting Machine Vendors
The New York Times opines here on voting machine vendors' alleged financial ties to election officials. It insinuates that election officials opposition to requiring a contemporaneous paper record (the CPR, aka, voter verified paper audit trail) arises from the fact that some former election officials have gone on to work for voting machine manufacturers after leaving public employment.

My take: Part of what the NYT says makes sense, but part of it makes no sense at all. We should be concerned if there is in fact a revolving door between government service and private industry, particularly when it comes to any aspect of our election process.

What defies logic is for the NYT to try to tie these alleged financial connections to election officials' almost uniform opposition to mandating a CPR. Think about it for a second. If you were an avaricious voting system vendor, of the type hypothesized by the NYT, wouldn't you be more than happy to slap on a few hundred dollars for each voting machine to add an attached printer? It's a business opportunity. Indeed, some vendors -- including Sequoia, one of the companies mentioned in the NYT's editorial -- are currently marketing CPR systems.

It's not vendors that are leading the charge against the CPR, but election officials and civil rights advocates. The real reasons for election officials' opposition to requiring a CPR are: (1) they don't think it's workable or cost-efficient but instead believe that it will cause a whole lot of election-day headaches, and (2) no one has yet explained how the CPR will effectively address the legitimate security concerns that have been raised about electronic voting, unless we're planning on a full manual recount of the paper copies in every election (something that no one has seriously suggested). While the NYT claims that computer scientists "understand the technology better than anyone else," few of them have more than a rudimentary knowledge of election administration.

The ones who understand election administration "better than anyone else" are, of course, election officials. Yet for some reason, the NYT believes it's completely justified in dismissing election officials' concerns about the CPR, not to mention civil rights advocates concerns about the adverse consequences of requiring it for people of color and people with disabilities.

All of this, of course, is water under the bridge -- at least for this election -- since no one seriously believes that the CPR can be implemented nationwide by November. What shouldn't be lost in all of this, notwithstanding the NYT's misguided paper-is-the-only-answer position, is the real concern over financial connections between vendors and public officials.
Maryland Appellate Court Allows Use of DREs
A ruling allowing Maryland to use Diebold's electronic voting system in the November election has been affirmed, according to this story from the A.P. Plaintiffs contended that the system was too insecure to be used without additional precautions, an argument that was rejected by Judge Joseph Manck as discussed here. The appellate court agreed, issuing a two paragraph decision just hours after argument.
Ohio's Error-Prone Voting Equipment
Could the story of 2000 be the story of 2004? The Cleveland Plain Dealer has this report on the persistence of "hanging chad" punch cards in the Buckeye State. Despite promises to replace this equipment, and the Secretary of State's warning that Ohio could face a "Florida-like calamity" due to its continuing use, approximately 70% of the state's voters will be punching chad in November. The voters stuck using this equipment include some 580,000 people in the Cleveland area (Cuyahoga County). Even though the Secretary of State acknowledges that this equipment is error prone, he professes confidence that the election will go off smoothly in November.

Some of us aren't so sure ... but I hope he's right and I'm wrong.
Chad Legacy Hangs Over 2004 Vote
The Contra Costa Times has this story summarizing problems to look out for in November, despite -- or in some cases because of -- the enactment of the Help America Vote Act. These include the continuing use of punch cards and lingering questions about which provisional ballots should be counted. The story also notes the pressing need for poll workers in some jurisdictions.
The Justice Department's Election Integrity Efforts
The September 20 New Yorker features this article discussing the U.S. Department of Justice's plans for the upcoming election. Some voting rights advocates are concerned that the Ashcroft Justice Department is unduly focused on combatting fraud at the expense of promoting access, and that so-called "integrity" efforts will be targeted mainly at communities of color. The article also discusses concerns about how the Help America Vote Act is being implemented, particularly it's provisional voting section. Some advocates are worried that only a small number of the provisional ballots cast will actually be counted.
Absentee Voting Worries
The possibility of fraud and coercion with absentee ballots has some election officials concerned, according to this story in today's New York Times. Although some are promoting absentee voting as a way of boosting turnout, or alleviating concerns about the security of electronic voting, others worry that loosening restrictions on absentee voting provides an avenue for fraud. Because people other than the voter may be permitted to see the voter's choices, absentee voting allows the possibility of vote buying and selling -- something that's impossible with in-precinct voting, since choices can't be verified by outsiders. Voters report being paid $100 in exchange for allowing someone else to fill out their absentee ballot in East Chicago.
Thad Hall on Electronic Voting
An excellent op-ed on electronic voting appears in today's Salt Lake Tribune. In contrast to the breathless if not histrionic commentary that has largely attended the debate over this subject, Prof. Thad Hall of the University of Utah takes a calm and clear-eyed view of the subject. He addresses the empirical evidence, showing that conversion to electronic voting can substantially reduce the number of lost votes -- and thereby enhance the equality of election systems.

Prof. Hall discusses the problems that have occurred in the implementation of electronic voting in some jurisdictions, but urges that we not let these glitches blind us to the considerable advantages that DREs have -- particularly over punch cards which will be used by a majority of voters in several states, including Utah. He also raises serious questions about the contemporaneous paper replica (or VVPT), which have yet to be answered by its proponents. These relate both to its workability (will it complicate the voting process?) and its efficacy (will it really enhance security?).

That's not to deny that the implementation of electronic voting must be carried out with greater care. In particular, Prof. Hall recommends (1) more thorough testing of electronic voting machines before they are purchased, (2) greater attention to the election management procedures, which must change considerably if electronic voting is to be successfully implemented, and (3) developing an ongoing process for testing machines. Perhaps not as viscerablly appealing as simpleminded calls for a "paper trail," such as we've seen from some DRE critics. But researchers like Prof. Hall, who have actually have taken the time to understand the nuts and bolts of election administration, understand that such measures are much more likely to be effective in enhancing the security of electronic voting.
Maryland Elections Chief Gets TRO
Maryland's top elections official Linda Lamone has been granted a temporary restraining order restoring her to office, according to this story in the Baltimore Sun. The order comes after the state elections board filed charges to remove her from office. Democratic leaders assert that the bid to oust her is a "partisan witch hunt." A preliminary injunction hearing is scheduled for Friday morning.

My take: Keeping election administrators above the rough and tumble of partisan politics is critical, if the public is to have confidence in the integrity of our elections. The effort to remove Ms. Lamone smacks of partisanship. Let's hope the court stands by its original decision and grants her a preliminary injunction.
Electronic Voting Trust
Michael Alvarez of CalTech and Thad Hall of the University of Utah have posted this report on public trust in electronic voting. It discusses the results of a nationwide survey, which found that American voters are generally comfortable with the two most widely used voting technologies: electronic and optical scan voting. A plurality of 38% say they're most comfortable with electronic and 30% say they're most comfortable with optical scan. Interestingly, 39% think that electronic voting is more accurate, while 38% think it increases the potential for fraud.
Ohio Directive on Registration
One of the major ambiguities under the Help America Vote Act involves the handling of mail-in registrations. Under HAVA, registration forms are to contain boxes for voters to affirm that they are citizens and are over 18 years old, and voters are to sign "under penalty of election falsification." But what happens if the voter doesn't check those boxes? At least in Ohio, those voters will be registered. Ohio Secretary of State Blackwell issued a directive today instructing counties to accept the applications, even if the boxes aren't checked. This follows an opinion from the Election Assistance Commission, allowing states to accept such registrations.
California AG to Intervene in Diebold Case
California Attorney General Bill Lockyer has decided to intervene in a false claims case brought against Diebold. See stories by Reuters and FCW.com for details. The suit was brought by DRE critic Bev Harris and others in Alameda Superior Court. A criminal investigation of Diebold has reportedly been dropped.
Voter Protection Efforts
The A.P. reports here on efforts to protect voting rights, being mounted around the country. It includes discussion of the Ohio Voter Protection Program, which is conducting a voting rights campaign and plans to have volunteers at precincts on election day.
Nevada's Experiment with the CPR
The A.P. offers this story on Nevada's experiment with a Sequoia DRE that includes an attached printer, capable of printing a contemporaneous paper replica of the electronic ballot. The A.P. reports that it was used in today's election. It will also be used in November.
Missouri to Allow Military E-Mail Ballots
The State of Missouri will allow members of the armed forces to cast ballots by email despite security concerns, according to this story. The state's chief election officials says that military personnel will be allowed to complete their paper ballots, scan them, and email them to the Department of Defense, who will then fax them to appropriate election officials. Some of those serving overseas reported that they didn't receive their ballots for the August 3 Missouri primary on time. People in the military have the option of faxing their ballots directly, but many have easier access to email than faxes. Missouri appears to be the first state to allow votes to be cast by email, though about 10 others are considering this option.

My take: Are there security risks associated with allowing members of the military to cast ballots by email? Sure there are. Are those risks worth bearing in order to ensure that the voting rights of men and women serving overseas are protected? I think so.
Calm After (and Before?) the Storm in Florida
As hurricanes battered Florida's coast, the state's August 31 primary proceeded in relative tranquility, according to this story in the Miami Herald. There were relatively few complaints, most of them having to do with poll worker error. The Herald reports that, "Even the systems' most strident critics gave the primary election a tentative nod of approval." The biggest problem was providing instructions to voters who appeared at the wrong precinct.

My take: DRE critics have been treating the 2002 problems with Florida's touchscreen voting machines as harbingers of doom. The reality, however, is that problems are inevitable whenever a new type of voting technology is implemented. That's not to deny that the glitches that have occurred with DREs should be taken seriously. It does mean that those of us who care about elections should try to avoid sky-is-falling rhetoric that can only instill mass panic among voters.

The Herald story, moreover, suggests that Florida's provisional voting system is in greater need of attention than its voting machines. See here for discussion of the AFL-CIO's lawsuit on that subject. It's not too late to do something about that problem.

Update: In this follow-up story, the Herald reports that there were "hitches but no glitches" in Florida's use of electronic voting machines. There were some poll worker training issues, but most problems were dealt with expeditiously by telephone troubleshooters, according to the story.
Still More on Shelley's Troubles
The A.P. has this report on the latest regarding California Secretary of Shelley, who's accused of using HAVA funds (and other monies) for improper purposes. It includes a summary of the allegations against him:
[Shelley] faces scrutiny on three fronts. State and federal agencies are investigating contributions to his 2002 campaign to determine whether taxpayer money was illegally funneled to his election bid.

Meanwhile, the state is auditing how his office spent federal election money amid allegations that he improperly steered thousands of dollars to Democratic allies.

At the same time, Shelley's quick-tempered nature has forced him to respond to claims that he berates and humiliates staff members.
In a piece of good news for California voters, the Schwarzenegger administration has unfrozen $15.2 million in federal funds, which it had frozen due to the ongoing inquiry into Shelley's alleged improprieties. See this report from the Contra Costa Times and this one from the L.A. Times for details, and see here for more on the earlier decision to block Shelley's office from spending these funds.
Washington Post on Election Problems
Jo Becker and Dan Keating of the Washington Post offer this report surveying various election related issues, from unreliable equipment, to registration glitches, to provisional ballots and the ID requirement. The story notes that "an estimated 32 million voters in 19 states will still use the punch-card ballots that left Florida officials struggling to divine voter intent from hanging chads and pregnant dimples." It notes that 72% of Ohioans and about two-thirds of Missourians will vote by punch card. The story also considers the potential for litigation arising from the problems it identifies.
New Mexico ID Requirement Put on Hold
A New Mexico state judge has suspended an order requiring certain new voters to show ID, according to this story in the Santa Fe New Mexican. The affected voters are ones who registered in third-party drives, rather than at county clerk offices. A preliminary injunction hearing was reportedly scheduled for today.
California Freeze on HAVA Funds
The Schwarzenegger Administration has frozen $17.5 million in federal funds due to the result of the pending audit of Secretary of State Shelley's questionable spending practices, noted here. According to this story in the S.F. Chronicle, most of that money was for counties to improve access to voters with disabilities, train poll workers, and otherwise improve the administration of elections. One county's assistant registrar is quoted as saying, "Kevin Shelley may be under scrutiny for what he's done, but all this is doing is punishing counties and ultimately the state."

More properly, it's punishing the voters.

Court Rejects Challenge to Maryland DREs
After three days of testimony, a Maryland state judge has denied a preliminary injunction sought in a case challenging the State of Maryland's use of Diebold's TS electronic voting system. Judge Joseph Manck concludes that "the State of Maryland acted reasonably in setting up the system and protecting it against reasonable risks." The Washington Post has this story.

The court's opinion states that it was most impressed with the testimony of three witnesses: Avi Rubin of Johns Hopkins, Michael Werthheimer (who authored the RABA report on Maryland's system), and Michael Shamos of Carnegie-Mellon. And it finds Dr. Shamos to be "the true voice of reason and the most credible expert in this matter." He testified that Maryland's decision to use this system, with precautions, was reasonable and appropriate under the circumstances.

The judge notes that, "All experts agreed that the use of paper ballots is the least accurate of all systems and lends itself to the most chicanery." He also finds that DREs, "if untampered ... are the most accurate in recording and counting votes." The court properly notes that DREs allow blind and visually impaired citizens to vote independently for the first time. It finds that fraud can be protected against with proper precautions, noting that Maryland is implementing parallel monitoring, encrypting information sent between machines, and taken steps to secure the machines from tampering.

Applying the preliminary injunction standard, the court finds that plaintiffs aren't likely to prevail on the merits. It further finds that the "hypothetical harm" to plaintiffs arising from the use of punch cards doesn't outweigh the "real harm" to the state that would arise from having to implement a parallel paper system at this late date.

My take: This is a great opinion, thoughtful and carefully written. It acknowledges the risks inherent in electronic voting, while noting that Maryland has taken reasonable measures to protect against those risks. It affirms the importance of equal access to the secret ballot for people with disabilities. And it properly recognizes that the standard that plaintiffs demand can't be satisfied by any voting technology. As the court notes, in a perfect world, we would want a system that was 100% secure and absolutely impregnable. But we don't live in that world, and no system yet devised meets that standard -- certainly not the paper ballots which plaintiffs hold out as an alternative.

That doesn't mean we shouldn't try to make electronic voting more secure. We should. But we should also be realistic. To paraphrase Churchill on democracy, electronic voting is a terrible system ... except in comparison with all the others.
Resources for Election Administrators & Policymakers
MGT of America, a managing consulting firm, has put together this page of resources. It includes the text of HAVA, the ADA, and other civil rights laws related to voting, as well as a variety of background materials. Especially helpful are its links to all the states' HAVA plans. This is a great resource not only for administrators and policymakers, but for anyone interested in information on election reform across the country.

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