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Impressive unanimity: The historical significance of Coleman v. Franken PDF Print Email
Minnesota
By Analysis by Edward B. Foley   
July 01, 2009
This analysis was published at MinnPost.com.

Now that Norm Coleman has conceded in the aftermath of today's unanimous Minnesota Supreme Court ruling, the eight-month-long battle to determine who won last November's election for the state's U.S. Senate seat is finally over.  Even as the concession eclipses the opinion in political importance—and appropriately so—the opinion will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history. 
 
Its historical significance lies in the fact that it is the first appellate court resolution of a major statewide election after Bush v. Gore.  The seven-month dispute over Washington's gubernatorial election of 2004 resulted in a trial court ruling, but it was never appealed.  Puerto Rico's disputed gubernatorial election of the same year did result in a 4-3 decision of the Puerto Rico Supreme Court (as well as a federal appeals court decision declining to intervene), but that precedent lacks the direct relevance to future U.S. elections that today's decision has.

Today's opinion discusses Bush v. Gore and its treatment of that U.S. Supreme Court decision in the 2000 presidential election is the most important judicial analysis of that precedent to date.  The reason for its importance is that it analyzes Bush v. Gore in a setting most comparable to Bush v. Gore itself: a post-election fight over which candidate won more votes.   Citations to Bush v. Gore in other contexts, like pre-election disputes over how to count provisional ballots, are merely invocations of that precedent for whatever analogical force it might have.  Coleman v. Franken is a consideration of Bush v. Gore in a situation where it most closely applies. 
 
The Minnesota Supreme Court opinion, like the unanimous trial court ruling it affirms, holds that the Equal Protection principle of Bush v. Gore is not violated when a state statute provides a clear and specific rule for local officials to follow in the counting of ballots, even if some local officials fail to follow that clear rule.  As long as the local officials' failure to follow the clear and specific state rule, even if deliberate, was not designed to favor one candidate over another (or otherwise discriminate improperly among classes of citizens), that failure—while regrettable—is not unconstitutional.

Read the Entire Analysis at MinnPost.com
South Dakota: Voting System Adds Nearly 5,000 Ballots to Tally PDF Print Email
South Dakota
By Kim Zetter   
June 05, 2009
This article was posted at Wired.com's Threat Level blog and is reposted here with permission of the author.

A software glitch in an optical-scan voting system added nearly 5,000 ballots to the tally of a South Dakota election this week. The error was discovered only after the election results were called, according to the Rapid City Journal.

The problem occurred when officials combined tallies from optical-scan machines in three precincts in Rapid City in Pennington County. The tabulation software used to combine the totals added 4,875 phantom ballots to the count. The system indicated 10,488 ballots were cast when, in reality, only 5,613 ballots existed, indicating that the glitch wasn’t simply a matter of doubling the votes.

Oddly, no one caught the problem during the initial count. City election officials hadn’t bothered to keep a manual tally of the number of ballots cast as voters handed them in and they were scanned into the machines — a procedure designed to catch exactly such a discrepancy. It was only after someone began to question the high voter turnout for the small election, that officials went back to count the ballots.
Read more...
Florida: Court Hears Arguments on Voting Law PDF Print Email
Florida
By Kathleen Haughney, New Service of Florida   
March 10, 2009
Originally posted here.

The Florida Supreme Court heard arguments Tuesday over whether individual counties should be able to require different election standards than the state imposes.

The case stems from an amendment passed in Sarasota County in 2006 that banned touch screen voting machines in the county and required that 5 percent of the voting returns be audited within 24 hours of the election. Florida Secretary of State Kurt Browning said that state law pre-empted the local law and that the auditing process would interfere with certification.

A smaller audit is typically done after election results are certified in each county.

Peter Antonacci, an attorney for Browning, argued that allowing individual counties to overrule the state could cause confusion and create a situation where auditors could interfere with an elections supervisor's ability to certify the election and announce the winners.
 
Read more...
“Top Two” in California PDF Print Email
California
By Bob Bauer   
February 23, 2009
This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.

Now a single legislator, key to the California budget deal, has moved California closer to a decision to hold a nonpartisan “top two” blanket primary.  All candidates would compete in the primary and all voters would choose among them:  the top two vote getters, regardless of party (or no party) affiliation, would compete in the general election.  The California governor and his legislative ally believe that this will give the California more nonpartisan and therefore “centrist” or “moderate” choices conducive to better government.

Not everyone is so sure (see here and here), and California political observers caution that only time and experience will tell.  But wherever else disagreement is found, one conclusion seems fair:  there is more unknown here than admitted, and good reason to carefully scrutinize the assumptions behind support for this type of electoral arrangement.

One belief popular with supporters of this type of structural change is that a change in elections will produce a change in arguably problematic politics.  Change the rules of the game and the scores will change with them:  a whole new breed of champion will have been engineered, called the “moderate”, nonpartisan politician.
Read more...
Maryland Attorney General Gansler Announces $8.5 Million Claim Against Voting System Manufacturer PDF Print Email
Maryland
By Maryland Attorney General   
December 24, 2008
State Seeks to Recover Costs Incurred to Provide Voters an Accurate, Reliable, and Secure System

Attorney General Douglas F. Gansler today announced that the State of Maryland has presented Premier Election Solutions (formerly known as Global Election Systems, Inc. and Diebold Elections Systems, Inc.) with a claim to recover costs the State incurred to correct flaws in the touch screen voting system supplied by the company.
 
In December 2001, the State contracted with Diebold Election Systems, Inc. (Diebold) to provide a touch screen voting system including hardware, software, documentation and support services. The State’s payments to Diebold under the voting system contract have totaled approximately $90 million. After the State’s initial acceptance of the new system, expert, independent investigations revealed concealed security vulnerabilities in the voting system. In response to those investigations, beginning in Fiscal Year 2004, the State and Diebold implemented measures to cure the deficiencies that were identified.
 
“The citizens of Maryland must have a voting system they can trust, and Diebold promised to provide such a system,” said Attorney General Gansler. “Yet the equipment supplied by Diebold had vulnerabilities that needed to be fixed before it could be used in State elections. Under the terms of the contract, the company must reimburse the State for its costs of fixing Diebold’s voting system to make it more accurate, reliable, and secure.”
Read more...
Minnesota: A Recount to Count On PDF Print Email
Minnesota
By Mark Halvoson, Citizens for Election Integrity Minnesota   
December 22, 2008
This editorial appeared in the Pioneer Press and is reposted with permission.

As nonpartisan election integrity advocates with front-row seats at the U.S. Senate recount, we believe Minnesotans can be confident the process has been methodical and fair. The intense scrutiny given to each step of the process and to each vote in the Senate recount has provided an incredible civics lesson for Minnesotans and the nation.

Hundreds of Minnesotans have volunteered as nonpartisan observers in at least one of four statewide manual counts — the 2006 and 2008 post-election audits, the 2008 judicial primary recount and, now, the U.S. Senate recount. These efforts were organized by Citizens for Election Integrity Minnesota in partnership with the League of Women Voters Minnesota and Common Cause Minnesota.

Our volunteers who were trained to be impartial observers signed a code of conduct and completed observation surveys. According to one observer, "After my first day I felt proud that our process was so transparent in Minnesota and confident that our election could not be stolen by one party or another because we had such a good recount process."

Here's what we've learned:

Our current election laws effectively prevented the chaos that could have clouded the process.
Read more...
Pennsylvania State Supreme Court Allows Voting Rights Case to Proceed PDF Print Email
Pennsylvania
By Voter Action   
December 19, 2008
State’s Highest Court Denies Pennsylvania Secretary of State Permission to Appeal Lower Court Ruling in Voters’ Favor Case Challenging the Use of Electronic Voting Machines Now Moves Toward Trial

Pennsylvania voters challenging the continued use of unverifiable electronic voting machines in their state won another major round on Tuesday when the Pennsylvania Supreme Court issued a ruling allowing their case to proceed toward trial. The state’s highest court, in a one-sentence order, denied the Pennsylvania Secretary of State’s petition seeking permission to appeal a lower court ruling decided in the voters’ favor. In April 2007, the Commonwealth Court of Pennsylvania had ruled that voters have a right under the Pennsylvania Constitution to reliable and secure voting systems and can challenge the use of electronic voting machines “that provide no way for Electors to know whether their votes will be recognized” through voter verification or independent audit. Following that ruling, Pennsylvania Secretary of State Pedro Cortés filed his petition before the Pennsylvania Supreme Court and further proceedings in the case, Banfield v. Cortés, had been suspended pending the outcome of the petition. The order issued on Tuesday gives a green light for the voters to pursue their claims.

“We now look forward to moving this case toward trial,” says Mary Kohart, a partner at Drinker Biddle & Reath LLP, one of the lawyers representing the voters. “There is overwhelming evidence showing that electronic voting machines are unreliable and insecure for the counting and recording of votes. We are pleased that our clients will now have the opportunity to present this evidence to the court and to demonstrate why these machines should be decertified in Pennsylvania.”

In their complaint, the voters allege that the electronic voting systems, otherwise known as Direct Recording Electronic voting systems or DREs, have failed during elections in Pennsylvania and in other states by losing votes; registering votes for one candidate when the voter was attempting to vote for another candidate; causing high “undervote” rates; failing to register votes when the ballot contained only one question; counting votes twice; failing to print “zero tapes” to demonstrate that no unlawful votes were stored on the machine prior to the election; printing “zero tapes” after votes had been cast; and reporting phantom votes and other irregularities. Fifty of Pennsylvania’s 67 counties use electronic voting systems without a voter-marked paper ballot.
Read more...
New Jersey: A Vote for Optical Scan PDF Print Email
New Jersey
By The Times of Trenton   
December 15, 2008
This editorial appeared in The Times of Trenton.

Today, the state Legislature is expected to consider a bill to remove the requirement that voting machines produce voter-verified paper records by Jan. 1, 2009, and to replace that re quirement with a pilot program for adding printers to a few of New Jersey's voting machines.

If the results of that pilot program prove acceptable, the rest of the state's electronic voting machines will be retrofitted with the printers that would allow voters to see their recorded votes, but would not give them actual paper receipts. All that is expected to take years and cost millions.

The intention, to provide paper evidence that a vote is recorded as the voter intends, is admirable. The technology is not.
Read more...
Statement of U.S. Representative Rush Holt To the New Jersey Senate State Government Committee PDF Print Email
New Jersey
By US Representative Rush Holt   
December 13, 2008
Chairman Scutari, Vice Chair Weinberg, and honorable Members of the New Jersey Senate State Government Committee, thank you for giving me the opportunity to address you today on the matter of S. 2380, a bill to remove the requirement that voting machines produce voter-verified paper records by January 1, 2009, and to replace that requirement with a pilot program for paper records or ballots. I want to commend Assemblyman Reed Gusciora for his leadership and commitment in securing passage of New Jersey’s paper record requirement in 2005, and to express my very deep disappointment and concern not only that New Jersey has failed to implement it, but is now considering possibility of abolishing the requirement and its timetable for implementation altogether. 

Voting must not be an act of faith, it must be an act of record, and that is why we must implement requirements that make computer-assisted elections independently auditable, and we must do it without further delay. I will explain my concerns in detail below, but let me dispel some possible misconceptions at the outset. First, as you know, I am a physicist, and so I am not arguing in favor of paper-ballot-based voting out of some fear or lack of understanding of the technology we vote on. Second, the original group of experts who helped me draft my legislation when I first introduced it in Congress in 2003 were computer security experts – among the best and most highly-credentialed computer security experts in the country. Therefore, I would also like to think it is obvious that the driving force behind my legislation is not a lack of understanding of computer security risks, but rather a long experience and familiarity with computers, computer security and computer experts. And finally, as you may recall, I have personally experienced human error in vote counting: in my very first run for the seat I now hold, one of the county clerks in my district ascribed my vote totals to my opponent, and newspapers reported that I had lost the race. In fact, you might even say it runs in my family, because my own father was the apparent victim of the theft of paper ballots when he ran for office. So I am not operating under the assumption that human beings are automatically more reliable than computers, nor that paper ballots are fraud-proof and computer tallies are not. The point is – voting must not be an act of faith, it must be an act of record, and independent audit records (voter verified paper ballots) must be required. 

New Jersey enacted such a requirement in 2005. But inexplicably, although more than half of the country has succeeded in implementing such requirements since I first commenced this effort in 2003, New Jersey – once a national leader – is slow to act. Do people in those other states know something we don’t? Say what one will about Frank Hague and wandering paper ballots, if it had been pocket-sized memory cards or cartridges we were using back then, that’s what would have wandered off. Or software would have been modified, if that is what we were using. Whatever the ballots are recorded on, theft is possible and rigorous chain of custody must be required; this is just as true for memory cards and cartridges as it is for paper ballots. 
Read more...
Statement of U.S. Representative Rush Holt To the New Jersey Senate State Government Committee PDF Print Email
New Jersey
By US Representative Rush Holt   
December 13, 2008
Chairman Scutari, Vice Chair Weinberg, and honorable Members of the New Jersey Senate State Government Committee, thank you for giving me the opportunity to address you today on the matter of S. 2380, a bill to remove the requirement that voting machines produce voter-verified paper records by January 1, 2009, and to replace that requirement with a pilot program for paper records or ballots. I want to commend Assemblyman Reed Gusciora for his leadership and commitment in securing passage of New Jersey’s paper record requirement in 2005, and to express my very deep disappointment and concern not only that New Jersey has failed to implement it, but is now considering possibility of abolishing the requirement and its timetable for implementation altogether. 

Voting must not be an act of faith, it must be an act of record, and that is why we must implement requirements that make computer-assisted elections independently auditable, and we must do it without further delay. I will explain my concerns in detail below, but let me dispel some possible misconceptions at the outset. First, as you know, I am a physicist, and so I am not arguing in favor of paper-ballot-based voting out of some fear or lack of understanding of the technology we vote on. Second, the original group of experts who helped me draft my legislation when I first introduced it in Congress in 2003 were computer security experts – among the best and most highly-credentialed computer security experts in the country. Therefore, I would also like to think it is obvious that the driving force behind my legislation is not a lack of understanding of computer security risks, but rather a long experience and familiarity with computers, computer security and computer experts. And finally, as you may recall, I have personally experienced human error in vote counting: in my very first run for the seat I now hold, one of the county clerks in my district ascribed my vote totals to my opponent, and newspapers reported that I had lost the race. In fact, you might even say it runs in my family, because my own father was the apparent victim of the theft of paper ballots when he ran for office. So I am not operating under the assumption that human beings are automatically more reliable than computers, nor that paper ballots are fraud-proof and computer tallies are not. The point is – voting must not be an act of faith, it must be an act of record, and independent audit records (voter verified paper ballots) must be required. 

New Jersey enacted such a requirement in 2005. But inexplicably, although more than half of the country has succeeded in implementing such requirements since I first commenced this effort in 2003, New Jersey – once a national leader – is slow to act. Do people in those other states know something we don’t? Say what one will about Frank Hague and wandering paper ballots, if it had been pocket-sized memory cards or cartridges we were using back then, that’s what would have wandered off. Or software would have been modified, if that is what we were using. Whatever the ballots are recorded on, theft is possible and rigorous chain of custody must be required; this is just as true for memory cards and cartridges as it is for paper ballots. 

Read more...
Why Minnesota's Recount Process is a Model for the Country PDF Print Email
Minnesota
By Mark Halvorson, David Klein, and Pamela Smith   
November 22, 2008
With a celebrity candidate and record-setting expenditures the race to represent Minnesota in the US Senate captured the nation’s attention even before the historically close margin was announced. An automatic, manual recount of the Minnesota U.S. Senate race that began could last until mid-December. As non-partisan, election integrity advocates in Minnesota, we welcome this attention and hope that one of the outcomes will be lessons learned that strengthen our democracy.

One reason for our optimism is that Minnesota’s election system minimizes problems and circumstances that have historically reduced voter confidence. The occurrence of such problems and circumstances in other states plagued the 2000 and 2004 presidential elections. The people, procedures, and technology comprising Minnesota’s election system are among the most respected in the nation. Minnesota’s election system has great potential to certify results that accurately reflect the will of the voters and in which voters can have confidence.
Read more...
Discerning Voter Intent in the Minnesota Recount PDF Print Email
Minnesota
By Ed Felten, Princeton University   
November 22, 2008
This article was posted at Ed Felten's Freedom-to-Tinker Blog and is reposted here with permission.

Minnesota election officials are hand-counting millions of ballots, as they perform a full recount in the ultra-close Senate race between Norm Coleman and Al Franken. Minnesota Public Radio offers a fascinating gallery of ballots that generated disputes about voter intent.

A good example is this one:



A scanning machine would see the Coleman and Franken bubbles both filled, and call this ballot an overvote. But this might be a Franken vote, if the voter filled in both slots by mistake, then wrote "No" next to Coleman's name.

Other cases are more difficult, like this one:



Do we call this an overvote, because two bubbles are filled? Or do we give the vote to Coleman, because his bubble was filled in more completely?

Read more...
New Jersey Poised to Reverse Verifiable Elections Law PDF Print Email
New Jersey
By VerifiedVoting.org   
November 20, 2008
Voters to be Let Down Again

Legislation introduced today in the New Jersey Assembly threatens to undo a commitment to verified elections the state made nearly four years ago, VerifiedVoting.org warned today.

“New Jersey threatens to set a new standard for irresponsible delay with this bill,” said VerifiedVoting.org president Pamela Smith. “New Jersey's e-voting machines have reported inconsistent results in both the primary and the Presidential election, and have been found by top computer scientists to be insecure and inaccurate. Adopting a reliable, auditable, verifiable system is the only correct response.”

Following the publication last month of a severely critical study by Princeton University computer scientists, Union County Clerk Joanne Rajoppi acknowledged the machines' problems and encouraged voters to vote absentee rather than use the machines. In the February 2008 Presidential primary, machines in 8 New Jersey counties reported inconsistent totals in the internal memory and removable memory cartridges.

The bill introduced today by Assemblywoman Joan Quigley (A3458) would undo the state's present law requiring voter-verifiable paper records by January 2009. In its place, a pilot program for small jurisdictions in the June 2009 primary would study the “feasibility” of paper records, with the results evaluated over the summer. The timeline would all but guarantee that the 2009 gubernatorial election would be conducted on the state's current electronic machines.
Read more...
The Scoop on the Minnesota Senate Race Recount PDF Print Email
Minnesota
By Chisun Lee, ProPublica   
November 14, 2008
This article appeared at ProPublica.

Unlike many states, Minnesota has a solid idea of how well its machines scan ballots because it randomly audits samples of votes. One test found only one error out of 12,000 ballots. Another turned up as many as 53 "discrepancies" -- between a machine's and a human's read -- out of 94,000.

That's impressively accurate for voting machines. But it's not precise enough to predict who'll triumph in the U.S. Senate race between Republican Sen. Norm Coleman and Democrat Al Franken. They're currently separated by 206 votes out of 2.9 million cast.

Coleman's unofficial lead amounts to .007 percent of the vote, easily triggering Minnesota's required recount of any race closer than .5 percent.

In a few days, election workers will begin scrutinizing every single ballot cast in the race. Minnesota uses optical scan ballots -- fill in the bubble -- so hanging chads are not an issue.

The outcome has national stakes, as a Franken victory would move Democrats closer to a 60-vote super-majority in the Senate.

For those interested in election reform, the recount promises added drama. The pros know that no voting system designed, used and overseen by humans can be perfect. Voters may not follow directions. Machines can misread stray marks or just break. Workers typing up machine results can leave off the "1" in "124" (that mistake got caught last week in Minnesota).

Minnesota, however, has gotten unusually high marks from experts for its record of election oversight. That record, nonpartisan watchdogs say, stems largely from practices that other states could import. The recount will test how well Minnesota's procedures hold up under the closest scrutiny.

Read more...
Lawyers Head to Court On Behalf of Pennsylvania Voters PDF Print Email
Pennsylvania
By NAACP-Philadelphia Branch   
November 04, 2008
Philadelphia County Election Officials Fail To Meet Secretary of State’s Orders to Count Emergency Paper Ballots on Election Night - County Claims It Will Count Such Ballots on Friday
 
Lawyers for the NAACP-Philadelphia Branch and its member-voters are filing an emergency lawsuit against Philadelphia County this afternoon, seeking a court ruling requiring county election officials to count emergency paper ballots cast today at the close of polls. Despite orders from the Secretary of State, election officials have stated they do not plan to count these emergency ballots until Friday.
 
“This is a direct violation of what the Pennsylvania Secretary of the Commonwealth has ordered and does not follow the recent ruling issued by the federal court on this matter,” said John Bonifaz, legal director for Voter Action and co-counsel for the plaintiffs. “Emergency paper ballots must be treated as regular ballots and must be counted on election night.  Philadelphia County’s plans to count these ballots on Friday will undermine the fundamental right of voters to have their votes counted equally with all other votes.”
 
A coalition of Pennsylvania voters and civil rights groups won a lawsuit last week when Federal Judge Harvey S. Bartle III ruled today that emergency paper ballots must be made available when fifty percent or more voting machines fail at polling locations across Pennsylvania.  Judge Bartle, who is the chief judge of the U.S. District Court for the Eastern District of Pennsylvania, issued the ruling in favor of plaintiffs who had argued that voters could be disenfranchised by having to wait hours in line due to voting machine breakdowns.
 
“Voters who cast emergency paper ballots should not be treated differently than any other voters,” said Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia and co-counsel for the plaintiffs.  “The United States Constitution requires no less.”
 
Lawyers for the plaintiffs include the Public Interest Law Center of Philadelphia, Voter Action, and Emery Celli Brinckerhoff & Abady.  The firm served as plaintiffs’ counsel in the recent federal court case.
 
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