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Big Margins Sidetrack Election Reform

• December 04, 2008 • 1:00 PM

Five ways to safeguard voting rights and how close Senate races could save the election reform movement.

Two weeks before Election Day, county clerk Ruth Johnson — who administers elections in Oakland County, Mich. — reported a problem with the optical scanners used to read the county’s more than 600,000 paper ballots. Johnson was familiar with performance issues in the Model 100 scanners made by Election Systems and Software. But this was different.

“While problems with performance and design … have been documented, this is the first time I have ever questioned the integrity of these machines,” Johnson wrote to the federal Election Assistance Commission on Oct. 24.

The problem: Four communities — roughly 8 percent of the county — reported inconsistent vote totals. After conferring with a representative for ES&S and other county clerks, in whose counties similar errors were found, Johnson determined the problem had to do with dust buildup on the image sensors inside the machines.

“The same ballots, run through the machines, yielded different results each time,” Johnson wrote. “This begs the question on Election Day, will the record number of ballots going through the remaining tabulators leave even more build-up on the sensors, affecting machines that tested just fine initially? Could this additional build-up on voting tabulators that have not had any preventative maintenance skew vote totals?”

In other words, had the election been closer, could dust buildup have determined who sat in the White House? Maybe so, given the scanners are deployed in an area serving 30 million registered voters, including most of Minnesota where a recount in the U.S. Senate race is ongoing. Equally disturbing is that just days before a presidential election, local officials were still adding to the long list of documented vulnerabilities of electronic voting equipment.

And this wasn’t the only late-breaking concern.

Premier Election Solutions admitted in August that its GEMS tabulating software, used in 34 states — including Minnesota’s two most populous counties — had been dropping votes for the past 10 years. Election officials, among 1,750 jurisdictions across the country, were to pay extra attention to their audit tapes.

After the fact, such concerns might seem unwarranted. There were no major disruptions on Election Day involving magnifying glasses or a constitutional crisis. That’s partly because so many races were decided by large enough margins for problems not to take on national import and because concerns were identified and challenged in court by an army of election defense attorneys ahead of time.

Despite the ease with which the presidential election was decided, there is still much to be desired about the U.S. election system. Not to be forgotten were the deluge of court cases in which Republican-affiliated attorneys lost in their arguments to remove voters from the rolls or shut down early voting sites.

There were fights in states to restore voters already removed, several of which were successful; a Republican-led campaign of confusing mailers; attacks against groups that register voters; and misinformation to college students. Election Day also saw unacceptably long lines and thousands of cases of people finding they were not registered to vote.

“I would dispute that things ran smoothly on Election Day,” said Elizabeth Westfall, an attorney with the civil rights-oriented Advancement Project. “My blood went up when I saw the potential for challenges under the HAVA (Help America Vote Act), if that had not been undone in Ohio,” said Westfall, referring to the U.S. Supreme Court decision shortly before Election Day that
threw out a Republican-led challenge of 200,000 voters based on mismatched Social Security records. “Had they been successful, it would have been an absolute disaster.”

Reform Without Retribution
What will become of election reform without a contested presidential contest? Justin Levitt, an elections expert who worked as national voter protection counsel for the Democratic National Committee, said election reform might come easier given
the overall lack of controversy.

“The fact that the election was decisive and not disputed at least for president and most other candidates makes it possible to have these discussions without a lot of other noise, without conspiracy theories and charges of political positioning,” said Levitt, who previously worked and plans to return as counsel to the Brennan Center for Justice. “A lot of reform efforts after 2004 had a crosscurrent of outrage. Those conversations are more possible now.”

How much priority the Democrat-led Congress plans to give election reform in Barack Obama’s first term is unclear. Advocates are hopeful that reforming voter registration rules and issues of resource allocation to historically disenfranchised communities will be top priorities.

“People can actually agree that we can better serve the public by changing the approach to voter registration,” said Levitt, adding that both political parties have their reasons to fix the way Americans register to vote.

During the lead up to Election Day, Democrats took fire for not challenging certain practices in court, such as the refusal to issue paper ballots in Pennsylvania. Democrats were also no-shows in cases against voter purging in Colorado and Michigan, where attorneys for nonprofit voting rights groups were successful.

Levitt challenged whether predicting future policy goals could be drawn from decisions on whether or not to go to court. “Factors that go into what to determine a lawsuit, particularly in the waning days of a campaign, are very different form determining the things you want to fix as a matter of policy,” Levitt said.

Technology for Better or Worse
As for touch-screen voting and other electronic voting equipment, there may not be an easy solution. Consider Obama’s Election Day speech in Hyde Park, where he mentioned 106-year-old voter Ann Nixon Cooper, an African-American woman “born
just a generation past slavery … when someone like her couldn’t vote for two reasons — because she was a woman and because of the color of her skin.” He said she “touched her finger to a screen” to cast her ballot.

Obama’s mention suggests that touch-screen voting is an acceptable way to cast a ballot, even as computer scientists repeatedly point out how the machines are more prone than most to failure and manipulation. Election Day saw multiple stories of vote flipping on ES&S touch-screen machines in West Virginia and Tennessee. Even Oprah Winfrey saw her vote flip in Illinois.

Levitt said dismissing touch-screen voting machines out of hand isn’t wise — the technology can serve worthy purposes with the proper safeguards. Paper ballots have their downside, too, as the contested ballots in the Minnesota Senate race see election judges having to divine many voters’ intent.

“There is no perfect technology, and that includes paper,” Levitt said. “There are ways to enable people to vote in a secure fashion that compensates for unintentional mistakes and makes the technology possible and effective.”

Mending the Divide
One problem is communication in an election system that relies on local control. It’s unclear how many officials throughout the country knew about the problem diagnosed in Michigan two weeks prior to Election Day. Upon receipt of Johnson’s letter, the EAC — created to disseminate information — issued an alert to more than 1,300 election officials in a routine e-mail shortly before Election Day. That led observers such as John Gideon at VotersUnite.org to question why the matter wasn’t given more urgency.

A call to the machine manufacturer, ES&S, to inquire about the problem was not returned, although a response to Wired magazine’s Threat Level blog blamed user error.<

Rosemary Rodriguez, chair of the EAC, told Miller-McCune.com that the number of problems for voters exercising their rights, though high, was expected. She said her agency doesn’t have the budget to observe elections the way the Federal Aviation Administration can respond to a crash.

“If we were to ask for more money, the Office of Management and Budget would probably not approve it,” Rodriguez said. “Right now we’re really on a short leash.”

She criticized the Department of Justice for turning down several cases the EAC referred it over the past several years regarding what the commission felt were unlawful state voter purges — the process states use to remove voters from the rolls — including a case in Arizona from 2006. Rodriguez recommended greater transparency in election administration and an extension of early voting opportunities.

“We’re ready to help Congress do any kind of research,” Rodriguez said. “A lot will depend on new leadership.”

Five Possible Solutions
Here are five things election reform advocates will be pushing for in the next Congress.

• Universal registration: Several proposals mainly coming from the Brennan Center for Justice call for a bill that would put the onus of registering to vote on the government rather than the individual. Instead of re-registering to vote each time someone moves, there would be mechanisms in place to automatically determine voting eligibility. This would also eliminate claims that voter registration groups may be contributing to voter fraud.

• Reforming the Help America Vote Act and the National Voter Registration Act: Both bills leave much to be desired, such as creating uniform standards for purging voters from registration rolls that would not rely strictly on computer matching. Had Republicans succeeded in eliminating hundreds of thousands of voters from the rolls in Ohio, the election map may have looked much different. Reform also involves strengthening provisions that require motor vehicle divisions and other public assistance agencies to register people to vote.

• Nationwide early voting: The practice proved successful in alleviating problems at the polls and helping spot problems early before the main onslaught of voters. Certain states that had problems on Election Day, such as Pennsylvania and Virginia, may have benefited from early voting.

• Greater poll resource allocation: Disparities in how many polling locations and voting machines are available in historically disenfranchised neighborhoods still persist as a major issue that contributed to long lines in Philadelphia and parts of Virginia and Michigan. A simple formula for how many voting machines should be available per eligible voter would easily fix the problem.

• Paper ballots and paper trails: Short of throwing away every touch-screen voting machine — which may eventually happen — even in states that rely on completely computerized voting, a paper receipt for each and every vote — which is then placed in a ballot box — should be mandated. Paper ballots should also be offered to anyone who doesn’t trust electronic voting and wants to vote the old-fashioned way.

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David Rosenfeld
David Rosenfeld is a freelance journalist based in Portland, Oregon with 10 years of experience writing for newspapers. He writes primarily about health care, conservation and the changing world around us.

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