Election Integrity News - June 2, 2008

In this issue ...

National Stories

Montana and South Dakota Snapshot

EAC Awards Five States $10 Million to Improve Election Data Collection

More on the Politics of ID, the Politics of Carter-Baker

Lawyer's Committee Wins Landmark Case Upholding Constitutionality of the Voting Rights Act

Senate Rules and Administration Committee Approves Nominees to Federal Election Commission

Testimony of Jonah H Goldman Before the Senate Committee on the Judiciary

News From Around the States

Arizona and Justice Department Reach Settlement on Federal Voter Registration Law Implementation

Arkansas Election Officials Baffled by Machines that Flipped Race

Florida Voters Urge Secretary Browning To Kill Internet Voting Scheme

Fair Elections Legal Network Asks County Clerks In New Mexico To Project 2008 Turnout

Virginia: Review of Chesterfield County's February Presidential Primary Election Process

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Electronic Verification for E-voting: A Dead End for Voter Confidence
by Sean Flaherty, Verified Voting Foundation

Paperless electronic voting is in retreat, its popularity done in by disturbing security reviews of current e-voting systems and significant voter concern about the integrity of elections. Optically scanned paper ballots, which also use software to count votes but allow software independent hand audits and recounts, are the most common voting system in the United States. And a number of states that have purchased paperless electronic voting machines are moving to adopt optical scan systems, with accessible ballot marking devices for voters with disabilities.  Approximately 60% of America's voters live in jurisdictions in which voter-marked paper ballots will be the primary voting system in the November elections.

But we live in a technological age, and to some it seems logical that in crafting laws governing voting systems we not “stifle innovation” by closing the door on paperless voting.  The present generation of systems was a bust ­ could a new generation of paperless voting systems contain enough redundancies that paper ballots or voter-verifiable paper records could become unnecessary?

For starters, “cryptographic” is not a word that associates readily with thoughts of transparent and publicly verifiable elections. What does it mean? Cryptography is the art of coding and decoding messages, and forms the basis for computer security. It allows us to conduct electronic commerce.  For more information, see RSA Laboratories' Frequently Asked Questions on cryptography. Is what is good for e-commerce good for voting, though?

First, it is necessary to compare electronic voting to electronic commerce. There is a fundamental problem in comparing e-voting to e-commerce: the secret ballot. Secure electronic commerce depends in part on connecting the individual investor with the online stock trade, the taxpayer with the 1040 form, the traveler with the flight itinerary.  The secret ballot, an essential element of our democractic tradition, requires that the voter not be connected with the votes she has cast.  If taxpayers had no way of confirming that their tax returns were received by the IRS as they submitted them, most would never consider filing their taxes electronically.

Some proposed cryptographic voting systems promise to address this concern, and provide a way for voters to check that their votes were recorded correctly without compromising the secrecy of their ballots. Most of these systems would be “paperless” only in the sense that there would be no official paper ballot of record; the voter would get a printed receipt with a verification code on it that does not allow them to prove to anyone how they voted. Several computer scientists, including electronic voting expert David Wagner of the University of California Berkeley, noted in a 2005 paper (p. 15) that these systems have promising properties, but that there are weaknesses in them that would be mitigated by, ironically, a conventional voter-verifiable paper audit trail, a paper record with vote choices printed in uncoded form that would be retained by election officials and used in audits and recounts. The paper audit trail could, Wagner and his colleagues wrote; provide “an independent way to audit that the cryptography is correctly functioning.”

And as of May 2008, a descendant of one these cryptographically based systems is being developed as an add-on to paper ballot optical scan technology. A system that started as an attempt at secure voting without paper ballots has, ironically, evolved into a system designed for compatibility with existing paper ballot voting systems.

Cryptographic solutions, which are more difficult for voting than for commerce, are by their very nature difficult to do correctly. Even the latest, supposedly “bullet-proof”  cryptographic systems, like the one showcased in Switzerland's elections last year, have been shown to be vulnerable.

Is the certification process for voting equipment up to the challenge of ensuring that electronic verification can secure an election? Not if the current track record of high-tech systems is anything to go by.  Edward Felten, head of the Center for Information Technology Policy at Princeton University, testified last year about America's notoriously weak voting equipment certification process, and cautioned lawmakers:

"For example, most vendors of today’s paperless DRE voting machines claim to keep redundant electronic records of each ballot. In fact, what most of them do is keep two copies, in identical or similar memory chips, located in the same computer and controlled by a single software program. This is clearly inadequate, because the two copies lack diversity and will tend to fail at the same time."
(continued below)


Even assuming that other electronic-plus-electronic redundant systems can be suitably reliable and secure, we would need to trust that the certification process could tell the difference between adequate redundancy and the kind of pseudo-redundancy discussed in the previous paragraph. The certification process has historically had trouble making such judgments."

Dr. Felten notes that the new EAC testing and certification process is more effective than the previous program overseen by the National Association of State Election Directors, but much improvement is still needed. Felten also notes that election tampering with paper and election tampering with computer manipulation are likely to occur at different stages of the election process. Paper ballots are more likely to be tampered with after the election, and electronic records prior to the election, so a paper-ballot/electronic system like optical scan offers defense against different types of vulnerabilities.

The Association for Computing Machinery (ACM), the largest and oldest organization of computer professionals, has called since 2004 for a physical record of every cast vote.  ACM does not specifically call for paper, but for a record that cannot be corrupted by a failure of software. Paper is the only “physical record” that serves that purpose at present.  The ACM statement reads:

“Making those [voter-verifiable] records permanent (i.e., not based solely in computer memory) provides a means by which an accurate recount may be conducted.”
And what about transparency to the voters?  Cryptographic verification requires that voters use a code to avoid compromising the secrecy of the ballot, and understanding the mathematics of the coding system would require substantial training on the part of voters.  A 2003 Congressional Research Report noted (p.31):
“Also, it is not clear that it [cryptography] would have the same potential positive impact on voter confidence as paper-based voter verification might. That is because a voter who does not understand the technology behind the system — and few voters are likely to — may have no greater basis for confidence in the correspondence between the encrypted receipt and the choices the voter made than is currently the case with DREs. Some proponents, however, believe that those concepts are simple enough that they can be taught in secondary school.”
Advanced algebra is simple enough to teach in secondary school too, but even highly educated voters have forgotten much of the algebra they learned back in the day. Stating that the principles of a cryptographic system are “simple enough to teach in secondary school” is equivalent to acknowledging that those principles will leave many, if not most, voters scratching their heads. If e-commerce transactions offered only a coded receipt that forced participants to trust the integrity of a cryptographic setup, few would feel as comfortable as they do now with e-commerce. By contrast, the chain of custody of paper ballots and the use of hand counts verify computer tallies are procedures comprehensible to all voters.

Considering whether or not to leave the door open for crypto-dependent voting systems without paper ballots of record, we would do well to recall a statement by Bruce Schneier, one of the world's foremost authorities on computer security:
"Building a secure cryptographic system is easy to do badly, and very difficult to do well. Unfortunately, most people can't tell the difference."
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Montana and South Dakota Snapshot
by Sean Flaherty, Verified Voting Foundation - June 2, 2008

Montana

Montana holds a Democratic Party Presidential primary on June 3. A Republican caucus was held February 5. The primary is open to all voters.

Montana has a statewide paper ballot system, with the AutoMARK used statewide for voters with disabilities, and ES&S scanning equipment used in most counties.

12 counties, with approximately 2% of the state's nearly 628,000 registered voters, hand-count their paper ballots. 29 counties, with approximately 60% of the state's registered voters, use the ES&S M100 precinct scanner. 7 of these counties, with nearly 40% of the state's voters, use central-count scanners as well. Montana allows no-excuse absentee voting, so it is likely that many ballots in these 7 counties will be counted centrally.

The remainder of the state's 56 counties uses ES&S central count scanners, including the M650 in 8 counties, the M150 in 5 counties, and the Optech 200 in 2 counties.

South Dakota

South Dakota will hold closed primaries for both the Democratic and Republican parties on June 3. The state has over 550,000 registered voters.

South Dakota has a statewide optical scan system, with the AutoMARK for voters with disabilities in all polling places. All ballots are scanned centrally, though 31 counties use the ES&S M100 for central counting. The remaining 35 counties use the M650.

EAC Awards Five States $10 Million to Improve Election Data Collection
US Election Assistance Commission Media Release - May 30, 2008

Good Data Benefits the Election Process, Chief Election Official Says

The U.S. Election Assistance Commission (EAC) will award five states $2 million each to improve the collection of precinct-level data in the November 2008 election. This marks the first time the federal government will issue grants to states to improve federal elections data.
 
The winning states—Illinois, Minnesota, Ohio, Pennsylvania and Wisconsin—will use the funds to develop methods and procedures for collecting data that other states and jurisdictions can replicate. The EAC will include this data in its biennial Election Day Survey, a comprehensive report on how Americans vote in federal elections. The EAC's 2004 and 2006 Election Day Surveys include statistics on key election issues such as voter turnout and registration, overvotes and undervotes, poll workers, and voting equipment and machines, among other topics.
 
"Solid data on how federal elections are carried out in all U.S. states and territories can help local officials make effective, fiscally-sound enhancements to the voting process," EAC chairwoman Rosemary Rodriguez said.
 
Ten states applied for the Election Data Collection grants, and winners were selected through an independent review process. The Omnibus Appropriations Act for fiscal year 2008 and Public Law 110-161 authorize the EAC to distribute the grants. The Act also requires states to submit data they collect to the EAC by March 2009. In turn, the EAC is required to evaluate the grant program's overall success, and provide Congress recommendations for changes to federal laws and regulations to improve the collection of data. Additional information about the program is available in the grant announcement.

More on the Politics of ID, the Politics of Carter-Baker
by Bob Bauer - June 2, 2008

This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.

Heather Gerken and I have commented on Bob Pastor’s recent defense of the Carter-Baker Commission’s work, particularly its endorsement of  voter ID as a measure linked to enhanced state voter registration programs.  We suggest that political compromise may have its virtues in a host of contexts, but in this instance, on the ID issue, political bargaining did not serve the public well.

This is not an unqualified indictment of Carter-Baker, which made worthy contributions to the election law reform debate, but the Commission’s urge to achieve a political settlement of the ID issue was unfortunate.  Its position has become a citation, taken by the Supreme Court in Crawford v. Marion County Board of Elections, lending the false impression of substance to a case weakly argued on the merits—meaning, also, on the data, of which there was virtually none. The best the Commission could do was bow to public fears of fraud, and these, too, were overstated and cannot support, without more, the imposition of an ID requirement.

I would add a little more from my perspective to the problems with Carter-Baker, problems of both design and execution that created or compounded the flaw of a politicized outcome. Read More

Lawyer's Committee Wins Landmark Case Upholding Constitutionality of the Voting Rights Act
by Lawyer's Committee for Civil Rights Under Law - May 30, 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

Senate Rules and Administration Committee Approves Nominees to Federal Election Commission
by Senate Rules and Administration Committee - May 22, 2008

Committee Urges Full Senate to Swiftly Confirm Nominees

The Senate Committee on Rules and Administration, chaired by U.S. Senator Dianne Feinstein (D-Calif.), today approved the nomination of three new members to the Federal Election Commission.

"This vote means the FEC is one step closer to restoring a working quorum. This vote comes not a moment too soon. It is unconscionable that in the middle of a presidential election year, with campaign committees spending millions of dollars, that we don't have our federal election watchdog in place," Senator Feinstein said. "Clearly, we need a fully functioning Commission to ensure the integrity of our system of raising and spending campaign funds. I'm hopeful the full Senate will confirm these nominees, along with a fourth nominee whose nomination is still before the full Senate. I believe it would be a terrible mistake to delay the process further." Read More

UPDATE: A New (Possibly Major) Hiccup in Breaking the FEC Impasse

Senate Rules and Administration Committee Approves Nominees to Federal Election Commission
by Jonah H Goldman, Director, National Campaign for Fair Elections, Lawyers’ Committee for Civil Rights - May 20, 2008

The following testimony was presented to the US Senate Judiciary Committee on at a hearing on May 20, 2008.

This year, the Lawyers’ Committee will recruit, train and deploy over 10,000 legal volunteers to develop a nationwide comprehensive, year round program to work on all facets necessary to ensure the right to vote. We will support over 150 coalition partners, establish a productive dialogue with election officials, conduct strategic legal voter protection field programs and answer the 1-866-OUR-VOTE hotline. This hotline is the nation’s largest voter services hotline which, since its inception, has answered nearly 300,000 calls from voters across the country, including over 6,000 in this year’s primaries.

Mr. Chairman, the Congress has both a Constitutional and moral duty to protect the rights of all eligible Americans to cast a meaningful ballot. My fellow panelists, with whom I am proud to share this honor with, have laid out the historical and constitutional imperative to fiercely protect the right to vote. The 1st, 14th and 15th amendments give Congress the power to protect this fundamental right. Through the Voting Rights Act, the National Voter Registration Act, and the Help America Vote Act Congress has shown, with varying levels of success, a commitment to protect this right. In addition to the constitutional responsibility, there is another critical reason why this hearing ­ and hopefully subsequent remedial action ­ is so important. This country is the light of liberty and democracy. Our noble experiment in providing each citizen a voice in the destiny of her country ­ constantly evolving and made better through expanding the voices of those able to participate ­ is now the template for freedom around the world. The hope of our democratic institutions inspires nations to entrust power to the citizenry.

Of course, with this role comes great responsibility. We have a moral obligation to America’s voters to provide the most responsive infrastructure available. We have a duty to make our elections equally open to all eligible citizens, conduct them fairly, and transparent so all Americans have confidence in the process. Unfortunately, we are not there yet. Read More

From Around the States

Arizona and Justice Department Reach Settlement on Federal Voter Registration Law Implementation
Demos Press Release - May 30, 2008

Lawsuit Over Section 7 of National Voter Registration Act Avoided

The U.S. Department of Justice (DOJ) and Arizona's Department of Economic Security (DES), the state's public assistance agency, have entered into an agreement to ensure the state's compliance with Section 7 of the National Voter Registration Act (NVRA) of 1993.  Section 7 of the NVRA requires state public assistance agencies to offer the opportunity to register to vote, and related voter registration services, when clients apply for benefits, recertify eligibility, or change their addresses.  After investigating DES, the Department of Justice found "substantial non-compliance with Section 7 of the NVRA" and threatened to sue.  (Agreement PDF at http://www.demos.org/pub1570.cfm) Rather than litigate, DES and DOJ agreed to settle the matter outside of court.
 
Miles Rapoport, president of Demos, a non-partisan public policy center engaged in a national campaign to work with states to fully implement Section 7 of the NVRA, released the following statement:
 
"We applaud the Department of Justice for taking serious steps to enforce this important provision of the National Voter Registration Act, as the statute requires it to do, in the state of Arizona.  Several years have passed since the Justice Department has settled or filed any lawsuit against a state for failure to provide voter registration services at public assistance agencies despite widespread evidence of such violations across the nation.  In fact, DOJ last acted on NVRA Section 7 compliance problems through a lawsuit filed in Tennessee in 2002. Read More

Arkansas Election Officials Baffled by Machines that Flipped Race
by Kim Zetter - May 29, 2008

This article was posted at Wired.com's Threat Level Blog and is reposted here with permission of the author.

Bruce Haggard, an election commissioner in Faulkner County, Arkansas, is baffled by a problem that occurred with two voting machines in this month's general state elections. The machines allocated votes cast in one race to an entirely different race that wasn't even on the electronic ballot. The problem resulted in the wrong candidate being declared victor in a state House race.

"I don't understand how it could possibly happen," Haggard told Threat Level.

The problem occurred with two touch-screen voting machines made by Election Systems & Software, which were the only machines used in Faulkner County's East Cadron B voting precinct.

Haggard says the night before the election, officials noticed that the electronic ballot on two machines slated to be used at East Cadron B was missing the State House District 45 race. So officials printed up paper ballots to be used just for that race in that precinct.

Voters cast electronic ballots on the voting machines for other races, then cast paper ballots for the District 45 race. At the end of the day, Dr. Terry Fiddler (D) had beat Linda Tyler (D) for the House seat with 794 votes to Tyler's 770. But a post-election examination revealed that despite the fact that the electronic ballots on the two machines at the East Cadron B precinct didn't display the District 45 race, the machines recorded votes for that race anyway.
Read More

Florida Voters Urge Secretary Browning To Kill Internet Voting Scheme
by Florida Voters Coalition - May 20, 2008

They Say “Operation Bravo” is Dangerous and Illegal

In a letter to Secretary of State Kurt Browning, Florida Voters Coalition today called on Florida to kill a plan to allow Internet votes into Florida’s general election in November. The pilot program called “Operation Bravo” is proposed by Okaloosa County Supervisor of Elections, Pat Hollarn, who is also President of the Operation Bravo Foundation that supports it.

“We applaud efforts to improve voting opportunities for military and other overseas voters,” said Dan McCrea, President of FVC, “but this program opens Florida’s ballot box to insecure cyber-votes, cast on secret proprietary systems, and threatens Florida elections. The Legislature understood such threats when it passed the paper ballot requirement last year. Operation Bravo doesn’t use paper ballots making it illegal as well as dangerous.” McCrea said.

“Multiple studies of Internet voting schemes have concluded that several technology breakthroughs will have to occur before Internet voting can be considered safe,” said Stanford computer scientist, David Dill.

Operation Bravo plans to set up voting kiosks at three overseas military bases, in the UK, Germany and Japan, then send encrypted ballots over the Internet back to elections departments. That’s where the problems occur. The plan does not return a paper, or “marksense” ballot, as required by Florida law. And while it includes some security features, Florida Voters say it’s still not safe. Read More

Fair Elections Legal Network Asks County Clerks In New Mexico To Project 2008 Turnout
by Fair Elections Legal Network - May 30, 2008

Given the recent surge in voter turnout and voter registration throughout the 2008 party primaries and caucuses, Fair Elections Legal Network FELN has written letters on behalf of the Pueblo of Laguna, New Mexico Common Cause, and My Rural Assistance to the county clerks of several counties in New Mexico asking that the clerks immediately make projections of what they expect voter turnout will be in their respective counties for the 2008 General Election.

Using these projections, counties would be able to allocate an appropriate number of voting machines and ballots, and train an appropriate number of poll workers for each district. Ultimately the purpose of these projections will be to ensure that sufficient numbers of machines, ballots, and poll workers are allocated equally among polling places and thus facilitate a smooth, well-run election without unreasonable delays for the voters. FELN has also offered to assist the county clerks implement appropriate plans in light of turnout projections.

Letter to New Mexico Secretary of State

Letter to Cibola County Clerk

Letter to Doña Ana County Clerk

Letter to Santa Fe County Clerk

Virginia: Review of Chesterfield County's February Presidential Primary Election Process
by Virginia Board of Elections - May 28, 2008

Report Calls for Changes in Chesterfield County’s Processes and Procedures

Download the Full Report

In a report presented to the Virginia State Board of Elections on Friday, May 23, 2008 recommendations were made to improve the process for future elections in Chesterfield County.

As the result of complaints from voters and by the Democratic Party of Virginia regarding the dual presidential primaries held on February 12 in Chesterfield County, a special review team was assigned by the Virginia State Board of Elections to examine the processes and procedures utilized on Election Day. Comprised of three staff members of the State Board of Elections, the review team developed a 39 page report that includes recommendations and a detailed assessment of the events that led to a shortage of ballots in nine precincts, the casting of 299 handwritten ballots on scrap pieces of paper, and long lines that adversely effected voters.

“For Chesterfield County and the State Board of Elections, the findings in this report provide a basis on which we can all build. It’s really about ensuring the integrity of the election process,” said Jean Cunningham, Chairman of the Virginia State Board of Elections. “There were significant problems that occurred on Election Day raising the concern of voter disenfranchisement. Increasing oversight and working more closely with localities to more accurately determine voter turnout, the State Board of Elections is making every effort to prevent this from ever occurring again.” Read More

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Election Integrity News Editor: Warren Stewart
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