We're about to finish the 2008 election cycle with the conclusion of two elections for the United States Senate, a recount in Minnesota and a runoff in Georgia. It's hard to imagine a better illustration of America's oddball and potentially disastrous election process.
The Senate election in Minnesota is being recounted in what most consider, ballot challenges aside, an admirably scrupulous process. [NOTE: A commenter rightly pointed out that the process allows for many absentee ballots to be rejected for apparently illegitimate reasons. Point well taken. The phrase "scrupulous process" applies to the hand counting process, which has been bipartisan and observable by the public, not necessarily to the ballot challenge process or the rejection of absentee ballots].
In Minnesota, every voter votes on a paper ballot read by optical scanners, and ballot-marking devices are available in every polling place to serve voters who cannot use a pen to mark a ballot due to vision, dexterity or other disabilities. Recounts are done by hand.
If there is doubt about the intent of the voter, the ballots can be examined, and standards for evaluating intent applied. Part of the reason there are so many unresolved ballot challenges in Minnesota is simply because there is independent evidence of voter intent to evaluate.
The other Senate election, tomorrow's [today's!] Georgia runoff, could not be recounted effectively if the margin turns out to be less than 50 votes, as happened in four Iowa state legislative races, or even one vote, as happened in an Alaska state House race. All the polling places in Georgia use only paperless touch screen machines, whose reputation for security and reliability has been justly traduced by a series of reports which I pray I will have occasion to forget one day. On these machines, voter intent cannot be recovered independently of the software in the machines. The ACCURATE Center, a think tank consisting of computer scientists and technologists with an interest in voting technology, summed up the problem (p. 23 of the pdf):
In today’s purely electronic systems, there is no "fixed record" for voters to review, or for officials to review as a check against the system or in the case of a recount. If votes were incorrectly recorded by the system there is no possibility of a meaningful recount.
The inability to perform an effective recount creates vulnerability to small and large-scale error and tampering. As I have written too many times before, the Brennan Center Task Force on Voting System Security concluded that a close statewide election on paperless electronic systems could be manipulated successfully by as few as one to three people. And the mere existence of paper ballots is not enough; systematic and robust hand count audits are necessary after each election.
And so ends the 2008 federal election cycle, with the polarities of America's voting system showing in bold relief for anyone who is paying attention. I hope this becomes a teachable moment. We have limited time to improve this situation by 2012, still less by 2010.
And improve the situation we must. By my count, 164 electoral votes in the 2008 Presidential election were determined by votes cast on purely electronic systems. Georgia (15 electoral votes), Maryland (10 EVs), Delaware (3), Louisiana (9), New Jersey (15), and South Carolina (8) use paperless e-voting at all polling places statewide. Based on voter-registration figures and county voting systems, it's safe to say that a majority of ballots in Indiana (11 EVs), Kansas (6), Kentucky (8), Pennsylvania (21), Tennessee (11), Texas (34), and Virginia (13) were paperless. Maryland and Tennessee should convert to paper ballot/optical scan systems by 2010, though counterattacks by election officials who don't want to lose their paperless machines are to be expected. New Jersey passed a law requiring voter-verified paper records in 2005, though some days I expect to be driving a hydrogen-powered hovercar by the time they get around to implementing it.
It may seem like a no-brainer for a Democratic President and a Democratic Congress to enact a bill to require paper ballots and audits. President-elect Obama was cosponsor of the most recent iteration of Senator Clinton's Count Every Vote Act, a bill which included some of the best language on voting machines in any Congress to date, requiring robust audits and improved security.
But passing anything nearly as good as the language in the Count Every Vote Act will be damned hard. I'll post more on that soon.
