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ELECTION 2006

Do You Know How Your Vote Will Be Counted?

By Warren Stewart | March 1, 2006

Since the 2000 presidential election mess, we've checked in periodically on the vital issues of voter fraud, election reform and the rapid spread of electronic voting machines (see, most recently, our June 15, 2005, and April 15, 2005 issues). Critics have raised serious concerns about the safety of electronic voting; yet more and more states seem to be rushing to embrace this technology.

Battles over electronic voting have been raging recently at the state level, largely out of the view of major media. We asked the knowledgeable Warren Stewart to give our readers a primer on the troubles inherent in electronic voting and to catch us up on reform efforts still underway in several states. Stewart is the Director of Legislative Issues and Policy at VoteTrust USA, a non-partisan national organization that advocates for election integrity and e-voting reform.

he troubling truth about voting in America today is that a majority of the electorate casts their ballots on computers that run software that is hidden from public view and lacks any independent means of verification. The process by which our votes are cast and counted is controlled by private corporations to an extent that threatens the foundations of democracy.

Last September, the Government Accountability Office released a report on the security and reliability of electronic voting machines. The report, which detailed the findings of a nine-month study, said that "concerns about electronic voting machines have been realized and have caused problems with recent elections, resulting in the loss and miscount of votes." The GAO reported that it had confirmed instances of "weak security controls, system design flaws, inadequate system version control, inadequate security testing, incorrect system configuration, poor security management, and vague or incomplete voting system standards."

While acknowledging that efforts were under way to improve the situation, the report warned that "these actions are unlikely to have a significant effect in the 2006 federal election cycle." Not exactly reassuring.

And the situation has hardly improved in the months since. In many states, it is still unclear what kind of voting machines will be used in primaries only a few months away. Running elections has always been a daunting and largely unappreciated job performed by state and county officials. But the challenges they face in 2006 are unprecedented, and many have their fingers crossed hoping their experiments with voting technology will work out.

In the wake of the 2000 election debacle, Congress passed the Help America Vote Act (HAVA), which authorized $3.8 billion to help states upgrade voting equipment and establish statewide voter registration databases. HAVA established the Election Assistance Commission (EAC), which was given the task of developing guidelines to assist states in spending federal funds on voting systems and with establishing a new process for certifying voting equipment.

All this was supposed to have happened in time for the 2004 elections, but George W. Bush didn't nominate the EAC commissioners until the fall of 2003, and Congress appropriated just a fraction of the agency's intended budget in its first fiscal year. As a result, new guidelines were only released in December 2005 and plans for the new testing and certification process are just now taking shape.

With all the delays, almost every state applied for a waiver of the original 2004 deadline for HAVA compliance, until the first federal election in 2006. While some states long ago completed their voting system upgrades, many are still scrambling to meet the requirements.

A BOON FOR THE VOTING BIZ—HAVA marked the first time that the federal government had ever provided funding for the administration of elections, and it was recognized as an unprecedented sales opportunity for the voting industry. With such an opportunity unlikely to occur again, there was little incentive to develop "better" machines and every incentive to sell as many machines as possible, especially if those machines required expensive ongoing programming and maintenance. Voting machine manufacturers were eager to promote Direct Recording Electronic (DRE) voting machines, particularly the new "touch-screen" models, as the solution to all the problems ever faced by an election official. Few of those officials had the technological or financial resources to evaluate, independently, the merits of the industry's multimillion-dollar marketing campaign, and officials in many states erroneously believed that HAVA required them to replace all of their voting equipment with paperless DREs.

Experience has now demonstrated what the voting industry no doubt knew in 2002: elections using DREs are significantly more expensive—and therefore more lucrative for vendors—than those using paper ballots.

And while they're more expensive, they are not necessarily better. Even before HAVA set off a spending frenzy for new equipment, computer scientists and public interest groups were voicing serious criticism of electronic voting machines. In 2003, Johns Hopkins and Rice University researchers concluded that the software used in electronic voting systems lacked "even the most minimal security standards," and warned that "as a society, we must carefully consider the risks inherent in electronic voting, as it places our very democracy at risk." That same year, ninety scientists from universities and laboratories across the nation signed a "Resolution on Electronic Voting," stating that "computerized voting equipment is inherently subject to programming error, equipment malfunction, and malicious tampering."

YOUR INVISIBLE VOTE—Fundamental to the argument against electronic voting is that there is no opportunity to observe the counting of votes. When using DREs, the recording and counting of votes is performed by software—software that is considered "proprietary" by the voting machine vendors, and that is therefore kept secret even from election officials. Not only is the software secret, but the process by which it is tested and the results of that testing are also secret. The laboratories that test the software and hardware are paid by the vendors, but of course all these financial transactions are—you guessed it—secret.

So perhaps its not surprising that there are hundreds of reported incidences of malfunctioning electronic voting machines in every election cycle—and those are just the errors that have been identified. After all, we are talking about computers. And they are computers that sit in warehouses for 364 days a year and then face maximum use for thirteen hours in an election. If my laptop freezes, I risk losing unsaved changes to whatever I'm writing. When an electronic voting machine malfunctions, it is the integrity of democracy that is lost. The absence of a complete meltdown of the system is little comfort. Electronic voting is inherently non-transparent. You simply have to trust the machines.

In November 2004, over 50 million Americans—almost 40 percent of all voters—cast their ballots on machines that offered no independent means of verification. There's no way to know if their votes were recorded as the voter intended.

THE FIGHT FOR REFORM—Before the ink on HAVA was dry, legislation was being written at the federal level to amend it so that safeguards could be put in place against the demonstrated security risks posed by electronic voting. In particular Representative Rush Holt (D-NJ) introduced the Voter Confidence and Increased Accessibility Act, a bill that would mandate that all voting systems produce or require the use of a permanent paper record of every vote. It would also require a random hand-counted audit of 2 percent of the ballots cast in federal elections as back-up verification for the accuracy of electronic tabulation. Holt's bill would also prohibit the use of undisclosed software and wireless-communication devices in voting machines.

But even though the bill has over 160 bipartisan co-sponsors, Representative Bob Ney (R-OH), until recently the powerful chairman of the House Administration Committee, had kept it buried without a hearing for three years, along with every other election reform proposal. Ney, one of the principal authors of HAVA, was recently forced to resign his chairmanship as a result of his link to the Abramoff investigation. Election reform activists are hopeful that that the new chairman Vernon Ehlers (R-MI) will be more open to reform. Ehlers was responsible for the language in HAVA requiring improved voting system testing standards and certification—improvements that have not yet been implemented due to all the delays.

While efforts to provide election safeguards have been stalled at the federal level, significant legislation has been successful in many states. Over half the states now require a voter-verified paper record of every vote, and a dozen states have provisions for a mandatory additional hand count of a percentage of the votes. Similar legislation is pending in several states during the current legislative session. Several have also addressed the problem of proprietary voting software by requiring at least a limited disclosure of source codes. Most of these new laws take effect in 2006.

DRAMAS ARE UNFOLDING—A bafflingly complex situation is developing in the country right now as this year's elections grow near. It has arisen as a result of intersecting federal mandates and new state laws; untested voting equipment; inevitable partisan politics; and, not least, a testing and certification process that is heavily influenced by the vendors that fund it. There is a drama unfolding in every state, with many states trying out their new voting systems by "beta-testing" it, while in other states it is still unclear what equipment voters will see when they go to the polls.

Connecticut and New York are both in much the same situation relative to the deadlines for HAVA compliance, though they followed different paths to get there. Both states have used old-style mechanical-lever machines for decades. Last year, they both passed requirements for using voter-verified paper records and mandatory audits. After a controversial procurement process Connecticut was on the verge of signing a contract with the Danaher Corporation last December, until the state became aware that Danaher's equipment had not yet been submitted for federal certification, as the company had represented, and therefore could not be used, according to state law.

As a result, Connecticut has started over. Given that the process is unlikely to be completed in time for upcoming elections, the state has announced its intention of employing its trusty lever machines yet again in those elections. Whether or not this will require the state to return $33 million in federal funds earmarked for replacing those machines and face additional penalties remains to be seen.

There are suggestions that New Yorkers will once again be using the familiar lever machines as well. New York has yet to certify any voting systems for counties to purchase, and it looks unlikely that they will be able to do so in time for the primaries. The state has also failed even to begin work on a voter-registration database, and it is in danger of losing more than $230 million in federal funds. Stay tuned.

In Pennsylvania a pitched battle is being waged, with vendors intent on selling paperless DREs to one of the few large states that do not yet require a voter-verified paper trail. Activists and county governments are fighting back against bringing in dubious machines. The situation became even more fraught recently when a judge ruled that HAVA did not take precedence over the state constitution's requirement that counties hold a public referendum to approve changes in voting systems—even though the state's Department of Elections had been saying that it did. No such referendums have been held, so far, so counties across the state are now in limbo, pending the state's appeal and the likelihood of similar legal actions. Stay tuned here too.

Maryland, along with Georgia, was one of the first states to adopt paperless touch-screen voting systems statewide. Like Georgia, Maryland has had its share of problems, with concerned citizens pointing to the use of uncertified software in elections in 2002 and 2003, and thousands of lost votes on machines in Baltimore County in 2004. After failing in the state legislature last session, bills that would require voting machines to provide voter-verified paper records have considerably more momentum in this session. The governor recently issued a blistering attack on the state's election administration and stated his strong support of a paper trail requirement. His move has set off a lively exchange of political accusations that threaten to deflect from the real issues of the integrity and accuracy of the elections. It remains to be seen by what method voters in Maryland will cast their votes this year.

Earlier in the year, New Mexico's governor convinced the legislature to adopt a voting system that uses paper ballots and verifies them through the use of a machine that does an "optical scan." In such a system the paper ballots are marked by the voter, either manually or through a ballot-marking device for voters with disabilities, resulting in a ballot that is inherently voter verified and allows for the possibility of counting votes without the use of any software. (While optical scanners would initially count the ballots, they can be counted by hand in the state's mandatory audit or in a recount.) Details of deadlines and funding for the new plan have not been worked out, so stay tuned here as well.

Then there's California, where on the Friday before the Presidents' Day weekend, the secretary of state ended months of speculation by "conditionally" re-certifying both the Diebold AccuVote-OS optical-scan and Accu-Vote TSx touchscreen voting systems for use in the state. It is doubtful that this is the last word in the saga concerning the use of Diebold's machines in California, one that dates back to not long after Diebold got into the election business in 2002. The conditional re-certification relied heavily on the report of state advisory panel of computer scientists. It concluded unequivocally that the presence of interpreted code in Diebold's software was in violation of federal standards. While the report's authors reasoned that increased security procedures could lower the risks of using interpreted code, California's election code does require that voting systems meet those standards as a prerequisite to state certification.

In a letter to Diebold published along with the certification documents, the secretary of state said that the company must substantially modify its software in order to be certified, and asked it to report back in a week about the feasibility of such modifications. Even though a complete overhaul of Diebold's voting software, if it is even possible, would take years of work, Diebold machines are likely to be used to record and count votes in the state of California this year. Legal challenges to this situation seem inevitable, and the dust is far from settled. So, again, please stay tuned.

To be fair, there are states whose new equipment has been delivered on time to their county clerks, who are busy training and preparing for this year's elections. But most of those states will be employing at least some of their equipment for the first time. Thomas Jefferson said that "eternal vigilance is the price of freedom," and this is certainly a year when vigilance is required. More than ever before, we need to pay attention to how are votes are cast—and counted.