Paper Ballots Address a Fundamental Threat to Democracy
Mary Howe Kiraly
Voters should demand paper ballots that election officials can count manually and in a transparent fashion. Nothing less than our democracy is at stake.
In 2001, after the Supreme Court settled the tumultuous presidential election and George W. Bush took office, a consortium of major media outlets sponsored a review of the nearly 172,000 disputed ballots in Florida. That review, undertaken by the National Opinion Research Center of the University of Chicago, produced contradictory findings. It first concluded that, had the hand count of the ballots proceeded as per the order of the Florida Supreme Court, George W. Bush would have been declared the winner by fewer than 500 votes. Its second conclusion was that, had the intent of the voters been accurately captured by the ballots, Al Gore would have won by more than 10,000 votes.1 The dilemma of the 2000 election haunts Americans to this day.
The good news in 2000 in Florida was that there were paper ballots available to be hand counted. The bad news was that a hand count could not produce a definitive answer as to who had rightfully "won" the election. The Florida recount controversy shocked the national consciousness and led to the quick passage of the Help America Vote Act of 2002 (HAVA).2 HAVA may have been well intended, but it has produced elections systems that are in a continuous state of confusion, reaction, and crisis.
American elections have always been vulnerable to manipulation. In the past, however, an effort to change an election outcome required either access to individual ballot boxes and the forging of thousands of ballots or making physical alterations to individual mechanical voting machines. Following passage of HAVA and the rapid shift to electronic voting systems, the potential for large-scale vote manipulation became a serious concern. Given the opacity of the computerized systems through which votes now pass, a false election outcome might be impossible to detect. This fall, with electronic voting technologies in place in the vast majority of states, concerns about resolving "voter error" have been replaced by concerns that a small group of maliciously motivated individuals, or even a single well-placed person, could completely change an election outcome.
HAVA provided billions of dollars in incentives for states to abandon punch card and lever voting systems and to adopt modern technologies accessible to voters with disabilities. With billions of dollars from the federal government at stake, and additional hundreds of millions from the states, a poorly regulated market for electronic voting technologies emerged, practically overnight.
In my view, at this point in time the election system can be protected most by a return to hand counted paper ballots. This is a fundamentally practical solution, advocated by computer scientists, auditors, statisticians, and election integrity activists.3 The dual goals of those who advocate paper balloting are accuracy in recording votes and transparency in the vote count. Voters must be permitted to mark their ballots in secret, but ballots must be cast and counted in a transparent process that is open to impartial observation. Computerized voting systems hide the tabulation process from voters and candidates. As Stanford University Professor David Dill has said, "The real purpose of an election is not to convince the winners that they won, but to convince the losers that they lost."4
Documented vulnerabilities in computerized election systems offer the most dramatic reason for seeking simpler, more transparent, more manageable systems that will provide durable paper ballots for audits and recounts. The e-voting system most criticized for its lack of transparency is the paperless touch screen voting machine.5 Computer and election systems expert Douglas Jones has described direct recorder electronic voting machines (DREs) as, "little more than repackaged personal computers with touch screen input and special software to make them function as voting systems."6 The vulnerabilities of personal computers are well known. These vulnerabilities are the reason we create paper copies of our important documents and still have filing cabinets in the computer age.
Paperless DREs were first deployed on a large scale in states in 2002. In January of that year, Diebold Corporation purchased Global Election Systems and entered the voting equipment market. Maryland implemented the Diebold AccuVote TS paperless touch screen system in four counties that year. In Allegany County, the long-serving Speaker of the Maryland House of Delegates was defeated by a little known challenger running for election for the first time.7 The margin of victory was several hundred votes. In Georgia, which used the same system, Senator Max Cleland lost his reelection bid despite pre-election polls showing him to be well ahead of his challenger.8 Because these systems produced no paper ballots that could be confirmed by the voter, no meaningful audit or recount was possible. Dramatic upsets do occur in politics. However, unverifiable outcomes in 2002 were the beginning of a series of controversies that have arisen over the security, accuracy, and verifiability of electronic voting systems.
Existing testing and certification standards are largely controlled by the manufacturers. None of the many flaws and vulnerabilities in e-voting systems has been disclosed as a result of testing or certification regimes. In fact, the voting systems laboratories that comprise the Independent Testing Authority (ITA) are paid by the manufacturers and have comprehensive non-disclosure agreements with them.
To protect voting equipment requires many steps: oversight of a lengthy chain of custody; processes involving special numbered sealing tapes and locks; separate packaging for memory cards and voter access cards; and lengthy start up and end of day procedures. Voting machines are often transported to polling stations days in advance. In some states, poll workers have taken them home or stored them in garages. Only a few minutes are needed for a knowledgeable and motivated person to access the system and change an election outcome. Moreover, the volunteer election officials and poll workers who have traditionally managed the election process are generally unqualified to address problems that arise on Election Day. States are often dependent on the technicians provided by manufacturers to service machines.9 Increasingly, every aspect of our election process is controlled by private for-profit corporations, accountable to stock holders rather than to voters. Some even claim ownership of the electronic voter database that is created in an election.10
Moreover, even if election workers abided by all of these protective measures, voters would still have cause to doubt the security of the voting system for a critical reason: manufacturers deem the source codes that run their voting systems proprietary trade secrets and do not permit independent authorities to inspect the codes for errors, viruses, or malicious programming.
For all of these reasons, the implementation of a paper ballot-based system that can be hand counted or audited has become the gold standard for computer professionals and voting integrity activists. More than 95% of the 80,000 members of the Association of Computing Machines (ACM) support paper ballots with an automatic audit provision for tabulation verification.11
The constitutional authority to administer elections rests with the states. States have long had processes for printing, marking, counting, and storing paper ballots. State governments should implement better ballot design, greater simplicity and uniformity in ballot marking procedures, and efficiency and standardization in the processes for hand counting. State legislatures should pass legislation making the paper ballot the official ballot of record and authorizing the hand counting of ballots for election audits and recounts. Unfortunately, in the aftermath of the hanging chad debacle of 2000, some states have enacted legislation which actually prohibits the hand counting of the paper ballots that are produced in optical scan voting systems. This must change.
The ultimate goal should be to have paper ballots counted by hand. In the interim, an optical scan system that enables an audit in which one in ten ballots is hand counted at the voting precinct on election night would be an acceptable way to verify the election outcome.
We have been dealing with the repercussions of the 2000 election for six years. Our goal should be to return the management of Election Day processes to the civil servants in our local boards of elections, and to the volunteer poll workers who operate the precincts. We should demand to be allowed to observe a transparent vote count. We should guard against implementing any system that further removes the voter from the outcome of the election. Our democracy is at stake.
* Mary Howe Kiraly has worked with nonpartisan national organizations advocating a paper ballot.
1 Kirk Wolter, Diana Jergovic, Whitney Moore, Joe Murphy & Colm Muircheartaigh, Reliability of the Uncertified Ballots in the 2000 Presidential Election in Florida, 57 Am. Statistician 1 (2003), available at http://www.amstat.org/misc/PresidentialElectionBallots.pdf. See also, Dan Keating, Democracy Counts: the Media Consortium Ballot Counting Project (American Political Science Association Annual Meeting, Working Paper, August 2002), available at
http://www.aei.org/docLib/20040526_KeatingPaper.pdf.
2 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C.).
3 See, e.g., BRUCE O'DELL, ELECTION DEFENSE ALLIANCE, AUDITABILITY: WHAT DOES AUDITABILITY REALLY MEAN FOR ELECTIONS?,
http://www.electiondefensealliance.org/auditability.
4 Voter Verification in the Federal Elections Process: Hearing Before the S. Rules Comm., 109th Cong. (2005) (statement of David L. Dill), available at
http://rules.senate.gov/hearings/2005/Dill062105.pdf.
5 Even optical scan systems that use paper ballots pose a risk. The famous demonstration "hack" performed by Harri Hursti on a system in Leon County, Florida, was accomplished on such a system.
6 Douglas W. Jones, Associate Professor, University of Iowa, Address to the League of Women Voters of Johnson County: Counting Votes with Computers (May 16, 2001), available at
http://www.cs.uiowa.edu/~jones/voting/lwv.html.
7 Ivan Penn and Stephanie Desmon, Contenders Vie to Take Job as House Speaker, BALTIMORE SUN, Nov. 7, 2002.
8 See Thom Hartmann, Exit Polls Right, Tallies Wrong?, ALTERNET (Nov. 5, 2004), available at http://www.alternet.org/election04/20416/.
9 See, e.g., Deborah Hastings, Problems Plague Election Administrators, ABCNEWS.COM (Oct. 20, 2006), available at http://abcnews.go.com/Politics/wireStory?id=2591877.
10 See, e.g., Lisa Demer, State Rebuffs Raw Vote Demand, ANCHORAGE DAILY NEWS (Jan. 24, 2006), available at http://www.adn.com/news/alaska/story/7386582p-7298824c.html (recounting the refusal of the Alaska Division of Elections to give the state Democratic party the electronic voting file).
11 David L. Dill, Testimony Before the Commission on Federal Election Reform (American University Carter-Baker Commission) (April 18, 2005), available at
http://www.verifiedvotingfoundation.org/article.php?id=5987.
Preferred Citation: Mary Howe Kiraly, Paper Ballots Address a Fundamental Threat to Democracy , 1 HARV. L. & POL'Y REV. (Online) (Nov. 1, 2006),
http://www.hlpronline.com/2006/06/kiraly_01.html.
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