Election Integrity News - May 19, 2008

In this issue ...

National Stories

Hans von Spakovsky Withraws from FEC Nomination

An Update on the State of the EAC’s Testing and Certification Program

Dutch Government Bans Electronic Voting

SCOTUS: Crawford — More Rhetorical Bark Than Legal Bite?

News From Around the States

Hawaii's Voting Systems Contract In Limbo

Kansas Governor Sibelius Vetoes Voter ID Bill

Secretary of State Calls for Urgent Attention to Kentucky Voting Laws

Landmark Election Recount Bill Becomes Law in Minnesota

Missouri: Proposed Photo ID Legislation Failed

Oregon: Women's Voices Women's Vote - An Orwellian Approach to Universal Suffrage

Tennessee Passes Paper Ballot Legislation


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May 20 Snapshot: Kentucky and Oregon
by Sean Flaherty, Verified Voting Foundation

Oregon and Kentucky are both moving in the direction of both paper ballots and post-election audits. The two states make an interesting contrast at this stage.  All of Oregon's votes will be cast on voter-marked paper ballots, but the state's new post-election audit law affects general elections only, so the May 20 primary election will not be audited. In Kentucky, most of the votes will be cast on paperless electronic machines, but the state requires a post-election audit of 3-5% of the ballots cast in elections. 


Kentucky Secretary of State Trey Greyson has urged counties to consider choosing paper ballot voting systems, and in 2007 state Attorney General Gregory Stumbo issued a report on the security of the Hart, Diebold/Premier, and ES&S equipment. A number of  counties have switched to paper ballot voting systems as the primary system, using the Hart eScan. The Hart eSlate DRE will be used in these counties' polling places for accessibility.  Jefferson County, the largest in the state, uses Premier/Diebold optical scanners with the TS touch screen DRE for accessibility.  In all, almost 700,000 voters, about 25% of the  over 2.8 million registered voters in Kentucky, live in counties where paper ballot scanners are the primary voting system. 

5 counties, with approximately 50,000 voters total, use the ES&S iVotronic as the sole system.  18 counties, with over 240,000 voters, use the Microvote 464 for the primary system, and the iVotronic for accessibility. Fayette and Monroe counties, with about 180,000 voters, use the Hart eSlate as the only polling-place system.  The remainder of the state's counties, with between 55% and 60% of the voters, use the paperless Danaher Shouptronic as the primary system, and the Hart eSlate for accessibility.  Kentucky does not offer no-excuse absentee voting.


Oregon is well known for its statewide Vote by Mail system.  According to the Secretary of State's office, an "extraordinarily high" number of voters have changed party affiliation for the primary, resulting in a number of voters receiving two ballots, one for the voter's previous party registration, and one reflecting the voter's new registration. The May 18 Oregonian reported that the double mailing affected approximately 33,500 voters.  Voters had until April 29 to switch party affiliation for the primary. The primary is closed to non-affiliated voters; major parties may choose to allow non-affiliated voters, though neither the Democrats nor the Republicans do so at this time.

Oregon has recently implemented a one-of-a-kind system for serving voters with disabilities, an Alternative Ballot Format that allows voters who cannot mark a printed ballot to use a computer station to "mark, print, verify, and cast a ballot using a personal computer, scanner, and printer."  Each county election office will have two computer stations to serve voters who do not have access to a personal computer, including one portable station that can be taken to the voter if the voter is unable to leave home. Permalink

Hans von Spakovsky Withraws from FEC Nomination
by Warren Stewart, Verified Voting Foundation - May 16, 2008

Likely Confirmation of Caroline Hunter Wil Create Opening at Election Assistance Commission

Bowing to opposition from Senate Democrats and citing the strain on his family caused by the protracted controversy over his nomination, Hans von Spakovsky has withdrawn his name for consideration for a seat on the Federal Election Commission. Von Spakovsky has been a lightning rod for criticism since his recess appointment to the FEC in December, 2006, primarily for his actions while in the Department of Justice.

Majority Leader Harry Reid (D-NV) issued a statement calling Mr. Von Spakovsky’s withdrawal “a victory for our electoral process” and suggesting that the process of confirming a slate of nominees for the FEC would proceed quickly. The commission has lacked the quorum necessary for official action since the confirmation stalled over Mr. Spakovsky’s nomination last Fall.

A confirmation hearing was already scheduled by the Senate Rules and Admistrtion Committee for May 21 to consider a list of nominees that did not include Mr. Spakovsky and it is widely assumed that the process will move quickly with a full Senate vote perhaps even before Memorial Day. A  spokesman for Senate Rules Chairwoman Dianne Feinstein told Bloomberg News "Mr. von Spakovsky's decision to withdraw will certainly help expedite approval of the other commissioners". 

Significantly the new slate of nominees includes Caroline Hunter, who joined the Election Assistance Commission last year and currently serves as vice chair. If she is confirmed as expected, it will leave an opening at the EAC heading into the November elections.

Download the resignation letter.

An Update on the State of the EAC’s Testing and Certification Program
Brian Hancock, Director, US Election Assistance Commission Testing and Certification Program - May 8, 2008

It has been 15 months since the EAC opened the doors to its voting system testing and certification program, and although much has been accomplished in that time, we have also heard several concerns regarding our program. I wanted to take this opportunity to address some of the concerns that have been expressed to me by state and local officials in recent months and to make you aware that an annual report outlining all our activities, in detail, will be forwarded to you within the next several weeks.

Current Program Challenges

Since the initiation of our Certification Program, there has been much anticipation surrounding the EAC certifying its first system. There have been many concerns expressed as to why the EAC has not yet certified a voting system and if any systems will be certified in time for the 2008 General Election. I want to take this opportunity to address those concerns and explain why we are being deliberate in our review of applicant voting systems.

The EAC Certification Program represents the first time the Federal Government is testing and certifying voting systems. Prior to the creation of the EAC’s program, voting systems were, as many of you know, qualified by the National Association of State Election Directors (NASED). NASED operated with little to no funding or staff dedicated to this effort. When the EAC’s program was established in January of 2007 the EAC made the difficult but correct decision not to “grandfather” NASED qualified systems. Instead the EAC chose to start anew and require that all systems applying for EAC testing and certification must be fully tested as a new system under our program in order to receive an EAC certification. This decision not to grandfather NASED qualified systems had the predictable effect of lengthening the initial testing and certification process. It is important to note that after a system receives an EAC certification any modifications to that system will be tested under a more streamlined process which will test the modification (delta testing) and those systems or subsystems altered or impacted by the modification (regression testing). The system will then be subjected to integration testing to ensure overall functionality. In addition, the EAC program has developed procedures to deal with De Minimus changes to a voting system and to deal with emergency Pre-Election modifications to EAC certified voting systems. These procedures are outlined in Sections 3.5 and 3.6 of the Certification Program Manual. Read More

Dutch Government Bans Electronic Voting
by Andreas Udo de Haes, IDG News Service - May 19, 2008

The government of the Netherlands has banned electronic voting machines from future elections because of a risk of eavesdropping. The nation will return to paper voting.

"Research indicates that a secure voting machine that is immune to the risks of eavesdropping can't be guaranteed. Developing new equipment furthermore requires a large investment, both financially and in terms of organization. The administration judges that this offers insufficient added value over voting by paper and pencil," the Ministry of Internal Affairs said Friday evening.

In its decision, the government also banned so-called voting printers. Because they leave a paper trail, the printers had been suggested as a potential alternative to traditional voting computers that store the vote counts in their memory.

A group of experts headed by Bart Jacobs, a professor at Radboud University in Nijmegen, dismissed the printer option. The group concluded that "even with regular testing of each printer, it can't be guaranteed that all devices stay within the required emission limits" that safeguard against eavesdropping.

Read the Entire Article at IDG.no

SCOTUS: Crawford — More Rhetorical Bark Than Legal Bite?
by Justin Levitt, The Brennan Center for Justice - May 12, 2008

This oped was posted at the Brennan Center Blog and is reposted here with permission.

On April 28, the Supreme Court handed down a decision in the Crawford cases, rejecting a challenge to Indiana's law requiring voters at the polls to provide certain types of government-issued photo identification. I had predicted that the opinion would likely have impact far beyond Indiana, refining the standard for justifying a burden on voters, and potentially changing the ground rules for 2008 and beyond. But by and large, it looks like I was wrong: though the rhetoric around the case grows ever louder, in terms of the legal holding, this was far more a whimper than a bang. 

The decision was split, 3-3-2-1. Justices Stevens and Kennedy, and Chief Justice Roberts, issued the "lead" plurality opinion, rejecting the challenge to the law as overbroad in light of the limited evidence in the record on the extent of the law's burdens. 

Justices Scalia, Thomas, and Alito would have gone much further, granting blanket approval to any election law without intentional discrimination or severe widespread impact. The latter, they hinted, would require a showing of serious problems for the average elector. Absent that, states could presumably feel free to forbid rich and poor alike from sleeping under bridges

Justices Souter and Ginsburg dissented, finding that the state had not adequately justified the burdens of the law, even on the case's limited record. Justice Breyer also dissented, writing separately to emphasize that Indiana offered no defense of its law—the most restrictive in the country—to justify restrictions above and beyond those in place in other states. Read More

From Around the States

Hawaii's Voting Systems Contract In Limbo
by Warren Stewart, Verified Voting Foundation - May 19, 2008

The status of Hawaii’s voting equipment remains in limbo after the state procuement office last week denied a request by Hawaii’s election director Kevin Cronin for an exemption that would have allowed him to proceed with a temporary voting system contract.

The dispute began when the state awarded a $43.4 million contract to Hart Intercivic to provide voting machines through the 2016 elections, with an option for the 2018 elections. Election Systems & Software (ES&S) had submitted an $18.1 million bid for the contract and had challenged the state’s decision.

The vendor’s initial appeal and request that the contract with Hart be rescinded to the state election board was rejected in March. At issue was the weight given to various factors in evaluating the two bids, which assigned the system's price as worth only 15 percent of the total proposed evaluation score.

In their complaint, ES&S contended that "Because the assigned price was so low, Hart was not disadvantaged in the scoring by its extraordinarily high price." At the time Cronin observed that protests about the weighting formula should have been made before bidding.

"ES&S did not in any manner at any time question, challenge, contest, or in any way express any concern about the ... cost price analysis or the relative weighting of pricing," Cronin wrote in his March decision.

Read More

Kansas Governor Sibelius Vetoes Voter ID Bill
by Kansas Governor Kathleen Sibelius - May 19, 2008

Governor’s Veto Message for HB 2019

Kansas Governor Kathleen Sibelius issued the following statement on her veto of Kansas HB 2019

We have a rich history and tradition in Kansas of working to increase citizen participation in our democracy. Voting has become easier and more convenient in our state over the past decade due to measures like advance voting.

Here in Kansas and across the country, we have seen a record number of new voters active in the election process. Secretaries of State across the country are anticipating record-breaking turnout in November. We must take advantage of this opportunity to engage the next generation of leaders and decision makers in the political process, and ensure their participation continues throughout their lifetimes.

Additionally, no elected official should support enacting new laws discouraging or disenfranchising any American who has been legally voting for years. I cannot support creating any roadblock to prevent our citizens from adding their voices to the democratic discourse that makes our nation great.

The Secretary of State’s office is charged with the oversight of elections in Kansas and our hard working county clerks and election officials deserve thanks for ensuring the integrity of the democratic process. I have the utmost confidence in their diligence to guarantee secure and fair elections across our state. HB 2019 seeks to solve a problem of voter fraud which does not exist in our state due to the tireless efforts of our local election officials. Read More

Secretary of State Calls for Urgent Attention to Kentucky Voting Laws
Secretary of State Trey Grayson Media Release - May 19, 2008

Secretary of State Trey Grayson announced today that his office and the Kentucky State Board of Elections has reason to believe that some campaigns and outside groups plan to use "poll watchers" on election day.

"Poll watchers" are representatives of a campaign or outside group who enter polling locations to determine who has already voted by looking at the precinct roster or talking to poll workers.  The campaign or group then uses that information to call supporters who have not yet shown up to vote.  This practice is used in many states around the country, but in Kentucky it is illegal.

"We have rarely seen an attempt in Kentucky to track voters at the polls using poll watchers, but this issue has risen several times this year," stated Secretary Grayson, Kentucky's Chief Election Official.  "I am hopeful that members of the media will help us spread this message so that campaigns and other active voting groups will know that election tactics such as these are prohibited in the Commonwealth."

Landmark Election Recount Bill Becomes Law in Minnesota
by Citizens for Election Integrity Minnesota - May 19, 2008

Minnesota continues to improve its election transparency and accountability standards with passage of an innovative law allowing losing candidates to call for manual recounts in select precincts. Called the “partial discretionary recount,” the law believed to be the first of its kind in the nation, is a cost-effective way for candidates to have the election results in specific precincts verified.  
The law expands on provisions of Minnesota’s recount law which provides for recounts in races within a margin of victory of 0.5%. Under the new added provision, candidates in any contest with a 5% margin of victory may call for a hand recount, at their expense, of up to three precincts. If the requested recount shows a difference greater than 0.5% compared to the Election Day results, there will be hand recounting of additional precincts. That could lead to a contest-wide recount if more disparities between the reported results and the hand counts are discovered. 
The requesting candidate is responsible for the initial recount expenses ­ unless the outcome of the race is changed by the recount. In that case, the election body that has jurisdiction over the miscounted ballots will be liable for associated costs (which is generally staff time). The financial burden often deters candidates from seeking a recount. This bill makes recounts more accessible.
The bill was passed unanimously by both the Minnesota House and Senate and was signed into law Saturday, May 17, by Gov. Tim Pawlenty. Read More

Missouri: Proposed Photo ID Legislation Failed
by Missourians for Fair Elections - May 16, 2008

Constitutional Change to Restrict Voting Rights Faced Groundswell of Opposition from Across the State

In a victory for all voters, Missouri lawmakers ended this year’s legislative session without a final vote on legislation that could have prevented up to 240,000 Missourians from voting. The proposed change would have altered Missouri’s constitution, allowing for strict citizenship and government-issued photo ID requirements that would make Missouri one of the toughest states in the country for eligible, law-abiding citizens to register to vote or cast a ballot.

“I am relieved that I will be able to vote this fall,” said Lillie Lewis, a St. Louis city resident, “I’ve been voting in every election since I can remember, but if I needed my birth certificate, that would be the end of that. I hope this is the last we hear of this nonsense.” Lillie Lewis was born in Mississippi, but the state sent her a letter stating they have no record of her birth.

Birdell Owen, a Missouri resident who was displaced by hurricane Katrina, also voiced her relief. “I should be able to participate in my democracy,” she said, “even if Louisiana can’t get me a copy of my birth certificate. I’m glad Missouri politicians had the sense to protect my right to vote.” Read More

Oregon: Women's Voices Women's Vote - An Orwellian Approach to Universal Suffrage
by Willamette Week Editorial Staff - May 19, 2008

Women’s Voices, Women’s Vote  is a Washington, D.C.-based nonprofit that aims to register single women to vote across the country.

So Portlander Jennifer Elder and her husband of 11 years, Paul Collins, were surprised when she got two WVWV letters April 29, the last day to register for the May 20 primary, saying: “If you have moved, you must update your voter registration in order to vote.”

“My first impression was, ‘Oh, are we not registered?’” says Collins, who opened the mail. “I could swear we were registered for this address. And of course we were.”

Thousands more registered Oregon voters have been just as confused by WVWV letters since last year, according to Secretary of State Bill Bradbury. His office has been calling and sending “please-stop-doing-this-you’re-insane” letters since then to WVWV, according to Bradbury spokesman Scott Moore.

The message is, “Assuming your intentions are good, you’re causing more harm than good,” Moore says.

“They’ve been completely unresponsive,” Moore says. “It’s an absolute nightmare.”

Read the Entire Article at the Willamette Week

Tennessee Passes Paper Ballot Legislation
by Warren Stewart, Verified Voting Foundation - May 18, 2008

Tennessee Voter Confidence Act Will Also Establish Random Post-Election Audits and Prohibit the Use of Wireless Devices in Voting Systems

On May 15, the Tennessee State Senate unanimously passed SB 1363 The Tennessee Voter Confidence Act, a sweeping reform of the state’s voting technology. Minor differences between the Senate bill and the House companion HB 1256, passed earlier in the week, are expected to be easily resolved and the bill sent to Gov. Phil Bredesen for his signature next week. The overwhelming support for the bill resulted from the steadfast efforts of state and national voting advocates and a report from the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) that recommended many of the measures in the legislation.

The bill would require that any voting system purchased and deployed in the state after January 1, 2009 use precinct-based optical scanners. The bill as amended in the Senate would use Federal funding provided to the state as a result of the Help America Vote Act (HAVA) to fund the replacement of currently deployed direct recording electronic (DRE) voting systems. The bill explicitly calls for counties to purchase ballot-marking devices to meet the Federal requirement to provide voters with disabilities a means of voting privately and independently.

In addition to moving the state toward voter marked paper ballot systems, the bill will also require each county election commission, for each election, to conduct mandatory hand count audits of at least 3% of the voter marked paper ballots of at least the top race in the federal, state, county, or municipal election, if on the ballot. This bill details the procedures for the audits, including the random selection of precincts, the timing of the audits, and the public announcement of the results of the audit, and provides for additional hand count audits when the results of the first audit show a variance of more than 1 percent between the hand count and the unofficial machine vote count to resolve any concerns and ensure the accuracy of the results. Read More

Election Integrity News Editor: Warren Stewart
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