Inside the Black Box
This story began in November 2000 when the unthinkable happened. An election for the president of the United States occurred and the results were inconclusive. American vernacular suddenly included butterfly ballots and hanging chads, and the entire electoral process came under fire.
The terrorist events in New York on 9.11 soon overshadowed the election events in Florida. But in October 2002, after much partisan dispute, Congress passed the Help America Vote Act (HAVA). The law authorized nearly $4 billion in spending to help states comply with new election standards for poll-worker training, statewide voter rolls and, most importantly, the replacement of fallible punch-cards and old voting machines.
President George W Bush then signed the law. He didn't mention the 2000 election that resulted in his presidency when he did it, but he did say: "Every registered voter deserves to have confidence that the system is fair and elections are honest, that every vote is recorded and that the rules are consistently applied."
But now, with the November 2004 elections just a little more than six months away, HAVA has created a host of new and growing anxieties. Critics contend the technology employed by some electronic voting machines is not secure and that there are not enough fail-safes to ensure votes are accurately tabulated. These concerns have prompted national media attention, federal legislation and some litigation.
Ostensibly, electronic voting is an election-reform issue in which activists' concerns reflect the general belief that voting is sacrosanct and should be protected at all cost. But supporters of electronic voting maintain just as vehemently that electronic voting will create uniformity and greater access to the process for the disabled. Both sides maintain their cause champions American democracy.
At first glance, New Mexico would seem to have little to worry about. Our elections have been electronic for nearly 20 years. And while over the years there have been numerous and notorious glitches at the county level (Bernalillo, 2000, for example), our state elections officials are nationally recognized for their knowledge and expertise in this field. But in fact, New Mexico is under intense scrutiny from the leading voices of this cause.
Bev Harris is a Washington state resident and author of Black Box Voting. Black Box Voting is the term used to describe any voting system in which the mechanism recording the vote is hidden and there is no concrete record of the vote cast. Her book details the security chasms she found in several systems, as well as the potential political profiteering of the major companies responsible for creating this new technology.
Profiled in this month's Vanity Fair magazine and numerous other publications and interviewed on national shows such as Good Morning America, Harris has been called the Erin Brockovich of elections. In a recent telephone interview with SFR, Harris discussed the mobilization under way to ensure the 2004 elections receive an unprecedented level of citizen oversight. There are a handful of states considered particularly important in the clean-voting issue. New Mexico, she says, "is considered a battleground."
If New Mexico is a battleground, the organization leading the charge is Verified Voting NM. VVNM member Charlie Strauss is a Los Alamos National Laboratory computer scientist. At the lab, he's working on protein structure predictions. In life, he's become what he calls an "accidental activist" on the subject of electronic voting.
Computer scientists have helped define and lend credibility to this issue. Stanford University Professor David Dill was one of the first national computer experts to take up this cause; he served on a California task force that helped convince that state's Secretary of State to rethink the way in which California will employ e-voting.
You don't need to be a computer scientist to understand the numerous ways in which people believe technology can fail voters. You do need a perfunctory understanding of the different types of voting machines.
The ones under fire are called Direct Recording Electronic (DRE) machines. If you've voted in New Mexico, you've seen them. There's a variety of different types of DRE machines, but the basic idea is that people vote by physically touching the screen. There are no paper ballots.
Critics' concerns over these machines are numerous. Let's take four to start.
First, potential error or manipulation of voting software and/or the people who use it. Second, the protection from public viewing, by the manufacturers, of the software itself. Third, the fallibility or manipulation of the voting machines and/or the people who program them. Finally, the lack of what is called a "voter verifiable audit trail" with all voting equipment – a permanent record of each vote.
From the point of view of a computer scientist, relying too heavily on software is nave. Even a novice programmer could write code that would display votes one way on a screen and then record them in another way. "Most bugs are put in software by a single programmer," says Strauss. "It doesn't take a massive conspiracy." In addition to just plain old errors, there's a phenomenon known as "easter eggs," the term used for hidden functions in software. One of the most famous involves a spreadsheet program in which a certain – and most likely inadvertent – keystroke combination creates a flight simulation. There are examples of hidden movies and illustrations and music in software, as well as bugs, viruses and errors. Relying on hardware isn't much better. Critics say voting shouldn't require that neither machine nor man will make a mistake.
That's why if he had to settle for one thing, Strauss says, it would be the voter-verified audit. New Mexico's machines print out a total audit of the votes cast, not individual ones. "If you don't have a way to check your tallies or recount and you're using secret software, then you're dealing with blind faith," he says. "And that's not the way we conduct government. We have sunshine laws and open meetings and adversarial dialogue."
Strauss' point has been taken up by Congress. The Voter Confidence Act, sponsored by US Rep. Rush Holt (D-NJ) would do just that. In a recent interview with BuzzFlash, Holt said the bill was needed because people aren't voting because they now believe their vote literally doesn't count. US Rep. Tom Udall (D-NM) is a co-sponsor. "I think it's a good piece of legislation," Udall told SFR. "We need to be an example of how you run an honest election."
No one thinks Holt's bill will pass in time to make any difference in November 2004. In fact, it's unlikely there are any legislative remedies available at this point. That's why, Harris says, the possibility of legal action, such as seeking an emergency injunction to stop elections officials from purchasing any more voting machines that do not have the capability for the requested paper trail, is a real possibility. In New Mexico, she says, this option is being seriously considered.
Verified Voting NM members acknowledge litigation has been discussed, but thus far they have mostly focused their efforts on outreach: a February press conference, letters to the media and public officials and meetings with election officials throughout the state. Members of the group also met with Santa Fe County Clerk Becky Bustamante to air their concerns. In response, at the end of March, Bustamante set up a mock-election tour for the group to show them how local elections are run. A week later, she did the same for this reporter.
Live in Santa Fe for any length of time and you will inevitably have to stop by Santa Fe County's central offices on Grant Avenue. It's here you get and file your marriage license, pay your property tax and, perhaps, register to vote. It's an environment that barely feels like the 20th century and, indeed, 10 years ago the office didn't even have a fax machine.
As a result of county term limits, Bustamante will end her second and final four-year term this year. She says she supports term limits, but wishes she had one more term to finish things up in the clerk's office.
As it stands, the remainder of 2004 is going to be busy. Before becoming clerk in 1997, Bustamante held a variety of public-service positions, but the clerk's job has probably been the most high-profile. Following election problems in 1998, Bustamante says she's learned a great deal – particularly when it comes to ensuring there are checks and balances in the election process. As it stands now, she plans to run for Secretary of State in 2006.
A copy of the Vanity Fair article featuring Harris ("Hack the Vote") lies on Bustamante's desk. She says she hasn't read it yet, but plans to over the weekend. The phone rings in the office constantly. Administrative Assistant Eric Barraza sits down at a computer and quickly demonstrates how the programming process begins for an election. Programming isn't really the right word. Barraza works on a DOS system and, once into it, he's basically doing data entry. Anything you would see on a ballot: the date, the position, the names of the candidates, has a field on Barraza's screen. He enters in the information, usually with someone double-checking his work as he goes. It's time consuming, particularly for a primary election in New Mexico, where there are three major parties with a variety of contested races in different precincts. For this year's primary, there will be more than 230 ballot combinations.
Once a ballot is programmed, it's downloaded onto a cartridge. Those cartridges are assigned to specific voting machines that will be used in specific precincts. For example, if a fluke caused someone to try to download a cartridge for voters in District 3 of Santa Fe County at a precinct with District 1 voters, it wouldn't work.
The warehouse where the County's 230-plus voting machines are stored is located off south Galisteo Road. In the front, County sheriffs' cars are being serviced. In the back of the building, Voting Machine Technicians Richard Padilla and Patrick Ortiz are programming machines. Well, two of them. They are actually preparing these machines for a real election April 8 for the Pojoaque High School student council. Padilla demonstrates, from start to finish, how the machines are programmed, then does a sample vote in this race, in which only one position is contested. We print out the results. They match how Padilla voted.
When the concerns about the vulnerability of electronic voting machines to tampering are posed, Padilla looks thoughtfully at the back of the machine before locking it. "I really don't think anybody is going to try to do that to a voting machine," he says. "It's a fourth-degree felony, you know."
Bustamante believes Verified Voting NM members were reassured by seeing the process first-hand. Strauss wasn't there, but says he was told the group that went "were very impressed with her integrity, openness and the elaborate care the staff takes. But this did not relieve the concerns about machine safety and errors which are basically out of her hands despite good intentions. We should have a system that requires less blind trust and fails safely when it fails. I realize there is no perfect system – I wish the state elections office realized this too."
The check-in area for the Secretary of State's Office includes a stack of glossy photographs of Secretary of State Rebecca Vigil-Giron, the state's chief elections officer. When she appears in person carrying a plate of peanut brittle, Vigil-Giron is as glossy as her photograph and gives the impression that nothing could be more exciting than answering questions about the scrutiny her office is under from electronic-voting activists.
Of course, Vigil-Giron is no stranger to either controversy or criticism. She's wrangled in and out of court at one point or another with politicians from every major party in the state, including her own Democratic Party. When she talks about February's Democratic caucus she seems pretty close to rolling her eyes over the long lines and paper ballots that marked that party-run election.
But in a state where some elected officials are prone to not returning journalists' phone calls or refusing comment or even mumbling incoherently, Vigil-Giron, like Gov. Bill Richardson, is clearly destined for bigger things.
In her third term in office, she, like Richardson, was one of Hispanic Business Magazine's picks for the 100 most influential Hispanics in the US. She is the president-elect for the National Association of Secretaries of State, and also served on that association's task force which helped develop HAVA. She has been at the forefront in voicing the need for uniform election standards, the lack of which she believes is one of the root causes for election mishaps. Florida, she says, "had 67 jurisdictions, 67 different boards of elections doing 67 different things, purchasing their own type of voting machines – punch cards, butterfly ballot – developing their own ballots 67 times."
These days, commitment to uniformity for Vigil-Giron's office has centered largely around implementation of a HAVA-required statewide voter system in which all counties' information is centralized through her office. The end result of this system will be automated updating of voter information.
As of now, Vigil-Giron says, all but two counties are fully working in the new system. Bernalillo and Santa Fe counties are the two. (Bustamante says her staff will use both the new system and the old one, but run the roster for the November 2004 election off the old system. HAVA, she believes, requires the counties to be in the system, not to run the roster off of it. "We know ours works," she says. As for the new system, it first should be tested in a smaller election. To use it in November, she says, is "too much of a risk".)
As for the state's voting machines, there are a variety of different types of machines made by Sequoia Pacific and Election Systems and Software. Some of these have been in use for nearly 20 years. Some are the touch-screen machines; some are the Optec systems, which use an optical scanning system to scan voters' ballots.
Vigil-Giron believes the concern over electronic voting stems from national attention to systems that have less security, as well as the well-publicized political affiliations of some of the company's key personnel.
The most notorious example is Diebold Election Systems Chairman and CEO Walden O'Dell, who has helped raise hundreds of thousands of dollars for Bush's re-election and publicly announced his commitment to having Ohio, where Diebold is based, "deliver its electoral vote to the president next year." (O'Dell later apologized for his comments and said they were personal feelings and not connected to his company).
Diebold also has some of the most well-publicized examples of security problems, and it will not be used in New Mexico, Vigil-Giron says. As for this state's potential to have its vote hacked, "It does not exist. It will not exist," she says.
Vigil-Giron acknowledges her office's director for the Bureau of Elections, Denise Lamb, has received "voluminous" e-mails and letters and phone calls on this issue "from people who have somehow heard or been contacted that, 'oh my god, elections officials don't care about security of the voting machines'. But they're painting all the voting machines with the same brush. And they're not taking into consideration within the state of New Mexico that the way we deal with security issues is by number one, making sure those voting machines sold in the state of New Mexico are properly secure and properly programmed."
One such letter Lamb received last month included 12 questions on the state of electronic voting in New Mexico, and ended with a plea for a paper trail that could be used for recounts "to regain confidence and trust in elections."
Lamb responded with a detailed explanation of New Mexico's triple audit procedures. The voter-verified paper trail, she writes, "is a phony feel-good solution that gains nothing."
What critics want, she says, is to prove a negative – that the machines haven't failed, and that's impossible. She's not wrong. Verified Voting NM founding member Dave Kraig says he has "no reason to believe that elections haven't been running fairly. However, I am concerned because there is no way to prove that they have." The burden of proof, he believes, should be on elections officials.
"I'm not saying Rebecca Vigil-Giron and Denise Lamb are up there plotting the overthrow of this government. But at best they're being nave and at worst they're pushing this for their own agenda so they don't have to deal with paper ballots."
In her office, Lamb is candidly perplexed by the voting critics. She characterizes the Black Box Voting movement as a "left-wing conspiracy thing." She describes receiving a phone call from someone who works at Los Alamos National Laboratory saying they had questions about the security of New Mexico's voting system. "I said I'd be glad to answer them, but first I have some questions about security at our national laboratory."
Lamb is critical of the much-touted study from Johns Hopkins released last summer that critics say shows the error-prone nature of this technology. The study was flawed, she says, and the researcher sat on the board of another voting company. Lamb says she's just as inclined to question the motives of electronic-voting critics as she is of its proponents. President of the National Association of State Election Directors, Lamb is quick to point out that it is a misnomer to believe HAVA was solely a reaction to the 2000 elections. The need for advanced voting technology, she says, grew out of the needs of the disabled and minority communities. Newer machines allow the blind to vote in secret for the first time, and translate ballots into dozens of languages for US citizens who don't speak or read English. Individual voter receipts, Lamb says, could create long waits at polling places and jeopardize the equally sacrosanct secrecy of individual votes. And what's to keep someone from disingenuously claiming the machine mis-tallied their vote?
As for the activists, she says, "Let's not assume they are knights in shining armor. A lot of this is political." Is the technology fail-safe? No. The machines, after all, don't program themselves. The 67,000-vote problem in Bernalillo in 2000 that delayed New Mexico's vote was the result of human error, plain and simple. "These people fly on airplanes," Lamb says. "They have surgery. They use anesthesia. It's just everybody is afraid George Bush is going to steal the election."
Probably everybody isn't afraid Bush will steal the 2004 elections. But with national polls showing approval for the president a near 50/50 split, it's safe to say close to half of us would find it hard enough to accept a legitimate win – let alone a stolen victory. But would we even be thinking about such a thing were it not for the events in Florida in November 2000? After all, a small margin of error for human or machine only becomes unacceptable when it makes a difference.
A few minutes after a telephone interview about the origins of Verified Voting NM, one of its co-founders, Bob Stearns, calls back. Stearns' participation initially grew out of the Democrat Action Group, a committee of the Santa Fe County Democratic Party. "I just would like to make the point we don't consider this a partisan Democrat versus Republican versus Green issue," he says. "All parties want fair elections."
At first, Stearns' assurances that this is a nonpartisan issue seem hard to buy. One need only to scan the new nonfiction titles to gain a sense of where the current liberal consciousness is. Consider titles such as Bush's Brain; How Karl Rove Made Gov. Bush President; The Buying of the President 2004; The Price of Loyalty; George Bush, the White House and the Education of Paul O'Neill; The President of Good and Evil; Amy Goodman's The Exception to the Rulers; and The Book on Bush: How George W. Bush (Mis)leads America.
Pat Leahan, a member of the Las Vegas, New Mexico, group The Las Vegas Committee for Peace and Justice, also makes this point. Leahan has been an activist since George McGovern ran for president in 1972. She became interested in the electronic-voting issue a year ago after reading about two of the seminal events in the electronic-voting world. One was the surprise victory of Nebraska Republican US Senator Chuck Hagel, the former chairman of American Information Systems, the company that developed into the Nebraska-based Election Systems & Software. The other was the mid-term elections in Georgia, the first state to replace all its voting machines with DRE.
Prior to the election, the Democrat incumbent was five points ahead of the challenger. But the Republican ended up winning by seven points. Diebold company files about this Georgia election are among those Bev Harris found and downloaded off the Internet. Nothing conclusive has ever come from them – just the possibility that our votes are not safe, regardless of party affiliation.
"It's sad," Leahan says. "I used to be able to believe our government officials. Then it became, 'OK I can't believe them anymore, but we can believe people who are affiliated with our party'. Now people are saying, 'I can't believe any of them, not Democrats, not Republicans'. The sense of mistrust is so deep now and so pervasive."
No wonder so many people don't vote.