Are Voting Machine Purists Standing in the Way of Reform?
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Are Internet election integrity activists going to derail an attempt in Congress to regulate some of the biggest problems with touch-screen electronic voting machines? Will they scare off federal legislators who are going out on a limb to make it very hard for local, county and state election officials to keep using these problem-plagued machines?
There's the old political expression: Don't let the perfect be the enemy of the good. But some election integrity activists are letting their vision of a perfectly justifiable solution -- purging all touch-screen voting machines -- get in the way of backing a very good election reform bill now moving through Congress that will bring significant oversight, transparency and accountability to electronic voting systems.
The bill, HR 811, "The Increased Accessibility and Voter Confidence Act," introduced by Rep. Rush Holt, D-N.J., regulates electronic voting machines for the first time. After many well-publicized problems in recent congressional and presidential elections, from 18,000 missing congressional votes in Sarasota, Fla., to thousands of disenfranchised voters in Cleveland, the bill fills a gaping hole in federal election law: the current lack of any regulation on the newest generation of voting technologies.
The bill would require that all software used in the counting and recording of votes to be readily available to the public, which is not now the case. It would require all voting machines to produce or use a durable voter-verified paper record of all votes cast, which is not now the case. It would require mandatory audits of voter-verified paper ballots to check the accuracy of electronic tallies and deter fraud, which also is not law now. It would require that the audit process be open to the public, which has not happened in recent presidential and congressional elections.
The bill also seeks to prevent electronic hacking by prohibiting wireless communication devices on any voting system, which is now not the case. It would bar poll workers from taking the machines home with them, and create strict security requirements for software handling and documenting of the chain of custody for ballots and other election materials. This too is not law now. It would prevent voting machine makers from privately testing their machines -- and claiming they are accurate -- and require all industry tests, results and communications between vendors and testing labs be available for public review. And it would require emergency paper ballots to be provided to voters in the case of machine malfunctions.
But HR 811 doesn't ban the use of direct recording electronic (DRE) voting machines -- and that is the problem for many election integrity activists.
Readers of liberal blogs and websites probably have seen postings, led by Brad Friedman of Brad Blog, that note that HR 811 will not eliminate the use of DRE machines. These are election systems where votes currently are recorded directly to computer memory with proprietary software and no independent means of auditing the election results. These systems also include precinct and countywide tabulators, which tally the vote totals and also contain proprietary software and preclude an independent audit. Apart from the better-known problems of these machines, such as votes not being recorded (Sarasota) and votes shifting to another candidate after a choice has been made (many jurisdictions), election integrity activists have been very frustrated by an inability to audit machines in counties where preelection polling and post-election hand-counts of paper ballots have found results that have varied by 10 percent or more from the "official" result tallied by these voting systems. That variance, seen in the 2004 presidential race in Ohio and in some recent congressional races, has fueled suspicions of electronic vote count fraud.
Friedman, a muckraking journalist, says liberal public policy groups -- Common Cause, People for the American Way, Move On, Lawyers Committee on Civil Rights, VoteTrustUSA, the Miami-Dade Election Reform Coalition -- are selling out by supporting a bill that will aggressively regulate these machines, but not get rid of them.
"The inability, or unwillingness, of such groups to stand up and call for what most know to be the right thing is occurring despite the fact that most of those groups actually agree -- and will admit privately, if not always publicly -- that DRE technology has no place in our electoral system and is a grave menace," Friedman wrote in a recent AlterNet piece that was reposted by Truthout and other sites.
Is the perfect solution -- getting rid of touch-screen machines and their accompanying technologies - a realistic public policy goal? The answer, at first glance, is yes. Most people believe free and fair elections are not only a justifiable goal, but a democratic right and a government responsibility -- even if the individual right to vote is not guaranteed in the Constitution.
But saying free and fair elections are a right and responsibility doesn't make it happen -- and the reasons are not a conspiracy but pragmatic. America has 183,000 precincts and around half now use DREs, often only for disabled accessibility. These voting machines were part of the biggest transition in voting technology in U.S. history, which came after Florida's presidential election debacle in 2000. Congress, led by Democrats, passed the "Help America Vote Act," which eliminated punch-card and lever machines and added voting machines that provide accessibility features for disabled voters. This process took three years and was difficult to implement. HR 811, which is trying to fix the biggest of HAVA's unintended consequences, is also expected to be disruptive if its goals are to be reached before the next presidential election.
This is the political landscape where Holt's bill to regulate electronic voting emerges. Local election officials, city managers, city councils and secretaries of state are split on whether to fix or scrap the systems they now have in place. Many rural county election officials would be happy to dump their touch-screens -- most have them only because of HAVA's mandate that every polling place must provide a means for disabled voters to vote privately and independently. In contrast, many urban election officials want to use DREs because doing so makes it easier to comply with requirements of the Voting Rights Act for language minorities and because their Democratic legislatures have mandated early voting, which is facilitated through the use of DREs. Simply put, these local and state election officials are a much more powerful lobby in Congress than election integrity activists who oppose DREs.
Moreover, advocacy groups representing the disabled also have clout in Congress, and they like the touch-screen machines for their constituents. This is the case, even though some voting machine manufacturers have contributed sizeable sums to these advocates. Holt's bill recognizes the concerns of the disabled by requiring that the verification of the paper ballot be accessible to these voters. Coupled with the explicit requirement that the printers produce a "durable" paper ballot (i.e., no thermal paper and reel-to-reel printers), HR 811 would actually require that all DREs must be retrofitted or replaced. Printers that meet the requirements of HR 811 do not now exist, though the technology does. Thus the only currently available systems that would meet HR 811's requirements are paper ballot optical scan systems with ballot marking devices or systems, which are currently used in jurisdictions in 30 states nationwide.
The legislation's author and advisors made some tough calls. They looked at the political and regulatory landscape and found there are no federal laws regulating electronic voting. So they decided to make owning and operating these machines far more burdensome for local officials. HR 811 does not try to ban touch-screen machines outright, but it may just regulate them out of existence. In terms of the art of the possible and the speed of change in Washington, this is a giant step. It is clear that if passed, and funded, Holt's bill would create a scenario where far fewer voters would use these machines.The bill is not perfect, but it does contain the kind of accountability and oversight that many people hoped the Democrats would bring to Congress. There is little doubt that the bill would create a climate of greater transparency and accountability in elections, which is needed.
Election integrity activists, like Brad Friedman and Bev Harris of BlackBoxVoting.org, are to be commended for bringing to the public attention the problems of a bad voting technology and even darker privatization strategy. But it's also important to remember that problems with electronic voting are not the only big challenges facing American elections. Republican-led voter suppression efforts -- from purging voter rolls of likely Democratic voters, to new race-based voting I.D. card requirements, to challenging those same voters at the polls and later disqualifying their ballots -- are as big a problem, and had an equally large impact in key states and races in 2004 and 2006. In Ohio in 2006, Republican congresswoman Deborah Pryce was "reelected" only after thousands of Ohio State college students -- who vote predominantly Democratic -- were forced to vote on provisional ballots and those ballots were disqualified. That happened on top of preelection polls that found Pryce well below 50 percent, which also raises questions about the accuracy of the voting technology in Franklin County, Ohio. As is often the case, voter suppression tactics can be compounded by problematic counting technology.
The larger point is the nation's newest voting rights activists -- those focused on electronic voting -- need to partner with the more mainstream groups they are now criticizing. And those more mainstream groups need to embrace these grassroots activists. There are two parts of any election, what happens up to and on Election Day, and the ensuing counting process. The ghosts of Jim Crow (voter suppression) and Boss Tweed (vote-count fraud) are still alive and well in American elections, and a new voting rights movement needs all these activists. If groups like PFAW or MoveOn knew 200,000 likely Democratic voters were purged in two Ohio cities between 2000 and 2004 -- and some people criticizing the Holt bill knew that -- let's just say there might have been a different focus to registration efforts in the summer of 2004 and a different outcome that fall.
The Holt bill now before Congress all but bans electronic touch-screen voting machines. It creates tough rules for the machines that are not currently regulated -- which is a gaping loophole that only allows these problems to continue. That may not be a perfect solution, but it is a public good. It is a major step -- accelerated by election integrity activists -- that a growing voting right's movement can and should embrace.
HR 811 will not be the final word on regulating electronic voting, but it first has to pass. The bill's critics should consider the consequences of an "all or nothing" approach. If a newly responsive Congress fails to act because of Internet-based critics, those who say they are defending elections may end up prolonging the very problems that they have worked to expose. HR 811 is not a perfect solution, but it is more than a good start.
Editor's Note: Brad Friedman's response to this article can be viewed here.
Steven Rosenfeld is co-author, with Robert Fitrakis and Harvey Wasserman, of "What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election," published by the New Press in 2006.