Election Integrity: How We Lost It and How States are Getting It Back

The 2000 presidential election propelled America's problems with our elections into the national spotlight in an unprecedented way.  Americans, night after night, watched news stories exposing the many problems that are routine in elections but that receive little attention: confusing ballots that lead people to mark their vote for the wrong candidate, voter suppression aimed at minorities through voter registration purges, and weary election officials trying to discern voters’ intent on ambiguously marked punch card ballots. 

In response the federal government passed the Help America Vote Act which funded wholesale changes in how Americans cast their ballots, most visibly by increasing the use of electronic voting machines.  Reacting to the problems caused by electronic or so-called “black box”? voting, a grassroots movement of citizens and legislative leaders across the country have been steadfast in their pursuit of secure and transparent voting systems.  In cooperation with election reform organizations and prominent computer scientists, they have mounted a series of local and national campaigns that are steadily changing the debate on election integrity and changing the way people vote.  This Stateside Dispatch will highlight how state leaders have sought to protect ballot integrity, create post-election audits that work to protect voters rights, and have fought the privatization of elections into the hands of potentially partisan and often incompetent corporations.

Protecting Ballot Integrity

The Move Toward Electronic Voting: Watching the difficulties Florida election workers encountered when attempting to tally ballots by hand after the 2000 election, many came to the conclusion that electronic voting machines would establish unambiguous voting records, preventing such problems in the future.  The federal government provided billions of dollars to make the switch resulting in a large scale shift in the voting systems that states use.

In 2000, only 13% of voters were in precincts that used electronic voting machines.  By 2006 that number had risen to 44%.  However, even before the first machines were bought, advocates for election integrity and computer scientists were ringing the alarm [1] that these machines were unreliable and unverifiable.  Adopting such machines would open up our elections to possible manipulation.  At the time their warnings were widely dismissed by election officials and were violently attacked by voting machine vendors who were in a mad scramble to sell as many machines as possible before federal money dried up.

States such as Florida moved quickly to replace their voting systems with electronic machines.  Yet advocates and experts were undeterred and began a long and ongoing campaign to track the problems that the machines have presented [2], from lost and switched votes, to outright breakdowns. They also began to do their own technical assessments of machines and their software that uncovered critical flaws in the security of many electronic voting systems.  Additionally, these advocates and experts continued to press their case with legislators, demanding that these problems be addressed.

Critics Proven Right as Voting Problems Accumulate: The problems encountered and uncovered regarding electronic voting are legion [3], the following are just a few recent examples:

• In Arkansas during an election this spring 45 votes cast in one race were added to the totals of an entirely different race [4] that wasn't even on the same ballot.
• Last year, Volusia County Florida was forced to replace over 300 memory cards [5] on their voting machines due to manufacturing defects.
• Last year, Lawrence County Ohio had one race where the voting machines flipped the results between two candidates [6] due to a programming error.

However, once again it was Florida that in 2006 experienced a complete crisis during a hotly contested election when 18,000 votes went missing [7] in a congressional race that ended up being decided by less than 400 votes.  Such a huge loss of votes in a close race for a congressional seat was a wake-up call to those who had been denying that electronic voting posed any significant risks.  The incident was also a turning point in the election integrity debate and forced Florida to abandon its newly purchased voting system.

The Pendulum Begins to Swing the Other Way as Voters Demand Paper Trail:  Due to the many documented problems with electronic voting machines and the organizing work of local advocates, many states began to reconsider the headlong rush to electronic voting.  The first step came with the introduction of "voter verified paper audit trails" (VVPATs).  VVPATs use a printer attached to an electronic machine to print a physical record of the voter's ballot and allows the voter to accept or reject this record.  These paper audit trails would then be the official record of the vote should any disputes arise.

Unfortunately, VVPATs fail [8] on at least two levels.  First and foremost, research indicates that in practice few people review the paper ballot, which is often small and hard to read.  Unless people are actually verifying their votes, the audit trail serves no purpose.  Additionally, any malicious attempt to alter the vote totals on a machine could be arranged to also print the votes the voter intended on the paper trail ballot.

It is also the case that without a procedure for auditing the results, there is no way to reconcile the vote total recorded by the machine with those reflected in the paper audit trail.  Yet, most states with VVPATs do not have adequate audit procedures likely to detect manipulation.

States Move to Paper Ballots, the Only Truly Secure Option:  The shortcomings of the VVPATs have left lawmakers and election officials with one secure option: paper ballots.  There is no way to guarantee security and transparency when votes are stored electronically -- a physical record of each vote is required.  Also, since that record must be the same one that the voter used to cast their ballot, audit trails are not an adequate substitute. 

Fortunately the efforts of the election integrity movement are beginning to bear significant fruit, seen in one instance by the adoption of paper ballots by some states.  States that took longer to replace their voting systems after 2000, such as New York, had the benefit of seeing the problems that electronic voting machines cause and switched directly to paper ballots.  Several other states such as Florida, Iowa, and Tennessee have decided that their initial investments in electronic machines was a mistake and have switched to paper ballots. [9]  Such a move has recently been made easier as the federal government has cleared the way for states to apply unused Help America Vote Act funds to replace machines previously purchased with those funds.

This November, for the first time, a majority of voters in the country will cast a paper ballot [10] on election day and just 36% will use electronic machines, marking movement in the direction of more secure paper-based elections.  At least one state [11] is also trying to recover funds spent on problem plagued machines, contending that machine companies have not fulfilled their contractual obligations to supply reliable voting equipment.  Diebold, the most prominent manufacturer of voting systems has changed the name of its voting technology subsidiary so that voting machine problems don't effect the reputation of the entire company.

Clearly the move away from electronic voting machines is a tremendous victory for voters and a boon for fair elections.  However, other clear threats to the integrity of our elections remain.  The controversy over electronic voting machines motivated many to look more closely at the safeguards that protect our election systems from fraud and manipulation, and what has been found is troubling.  Paper ballots are clearly not enough to make our elections secure; we also need a reliable way to verify election results.  Recognition of this fact has moved the election integrity debate forward into two additional areas: post-election audits and publicly controlled elections.

Post-Election Audits that Work

Even when using paper, in order to have timely reporting of election results, ballots are counted by optical scanning machines that read each ballot and tabulate results.  Whenever you use a system other than publicly observed hand counting of ballots there will be errors in tabulating and reporting the results, due either to a compromised machine or to simple transcription errors when recording the final tallies.  The benefit of paper ballots is that there is a physical record that we can go back to that will allow us to verify results.  But even if paper-ballot results are never verified, we still have an insecure system.

In order to protect against error or the manipulation of the election results, post-election audits must be done to verify to some degree of certainty that the reported results are accurate.  Barring a public hand count, without such an audit process, the accuracy of election results are unknown. 20 states have now implemented a post-election audit procedure with New Jersey's being the most advanced.  However, many of these procedures fall far short of best practices.

It is important that all audits and recounts follow these principles:

• Transparency
• Independent oversight
• Flexible sample size based upon the margin of victory
• Recounts expanded to more precincts when discrepancies are found

New Jersey enacted the first law [13] (AB 2730 of 2007) in the country that adapts recount procedures in relation to the outcome of the election - in closer races, where a smaller discrepancy could change the outcome, the recount will be broader.  The scope of the audit is also expanded when discrepancies are found.  Additionally, the law sets up an independent commission to design and oversee the audits.  The commission includes statisticians and has strong transparency guidelines.

Minnesota recently passed an innovative amendment [14] (Chapter Law 336 of 2008) to its audit procedures that allows a candidate to obtain a discretionary recount of up to three precincts at their expense.  This is an economical and convenient way to boost the integrity of elections by allowing those most likely to detect questionable vote totals the ability to direct limited recounts.

Stopping the Privatization of Elections

The public administration of elections is the fundamental basis for the freedom and fairness of our elections.  Without government control of elections and public scrutiny of the process, establishing the legitimacy of election results is not possible.  Publicly administered elections were until recently an unchallenged aspect of our democracy.  However, the move to computer systems to administer elections and the swift, federally-funded adoption of these systems has led to a privatization of many election functions.

Electronic voting machines are the most visible aspect of our voting systems that has been privatized.  Machine vendors insist on maintaining the privacy of both the hardware and software that they are selling or renting to states.  This is extremely dangerous to the security of our elections.  Without having access to the "guts" of the machines, there is no way to analyze machine errors or to determine how secure the machines are.  These private voting systems have caused serious problems.

Florida's 18,000 Missing Votes: In the case we mentioned earlier from Sarasota, Florida, both the loser of the race and a group of voters brought separate lawsuits seeking access to the voting machines and the software responsible for the 18,000 lost votes.  Both were denied access [16] based on a claim by the Election Systems and Software Company that the machines and their software are trade secrets.  The court upheld the privacy rights of the corporation over the right of the people to a fair election.

New Jersey Voters Battle Sequoia: During this year's presidential primary, machines in 37 New Jersey counties recorded vote totals that did not match with summary tapes of the votes cast.  When county clerks tried to have a Princeton University computer scientist examine the machines, both the clerks and the professor were threatened with a lawsuit by the machine manufacturer.  In the face of a lawsuit the clerks dropped their efforts to have the machines examined.  A group of government reform advocates then filed a lawsuit to have the machines declared unreliable, and as a result of that lawsuit a judge has ordered that the machines be examined by independent computer professionals.

While the report based on that examination is forthcoming, another computer scientist purchased some of the machines through a government auction and has determined that they can easily be hacked [17].

Other parts of the election system have also been privatized in some states, including statewide voter registration databases and the poll books that contain the list of eligible voters.  In two instances from this past presidential primary, Georgia had numerous reports by voters that electronic poll books, made by Premier Election Solutions, were crashing and inoperable, leading to long lines and citizens leaving polling sites without casting ballots; in the New Mexico Democratic presidential caucus, a flawed voter registration database prepared for the state by the Elections Systems & Software Company led to thousands of voters' names not appearing on the voting rolls.

Principles of Public Elections:  Voter Action [18] is the lead organization responding to the increasing privatization of our election systems.  In addition to paper ballots and post-election audits, they have identified the following as essential aspects of keeping public control over elections:

• Open-source voting systems.  Even with voter-marked paper ballots, citizens must know that their right to vote overrides any alleged trade secret of a private corporation. When votes are counted in secret by private companies, the integrity of the process suffers.  All voting systems in the United States should be required to adhere to open-source standards.
• Public oversight.  Public control of our elections is dependent upon an active, engaged citizenry monitoring the electoral process.  Grassroots networks across the country have already helped to expose key voting-rights barriers that threaten the integrity of our elections.  With even greater sunlight, we can help ensure that our elections are open, transparent, free, and fair.

Given the broader scandals in privatization [19] of public services, it makes no sense to entrust our most fundamental right to vote to private companies that hide behind "trade secrets" and other corporate laws to escape accountability.

Conclusion

A series of election "reforms" advanced after the fiasco of Florida's 2000 election have had the consequence of acutely undermining the integrity and security of our voting processes.  Seeking usable voting systems, states embraced electronic voting machines while dismissing critics who questioned the wisdom of using computers for such a sensitive application.  However, after a multitude of failures in practice and a series of negative assessments from computer scientists, many states are scrapping the electronic machines in favor of paper ballots.

Even as states belatedly embrace paper balloting, most still do not have the post-election audits necessary to ensure election results are accurate.  In addition, the privatization of our voting systems continues and is the primary emerging threat to the freedom and fairness of our elections.  Lawmakers and the public must demand that the public maintain control over the voting process, because without transparent elections, democracy is truly imperiled.