Not Again! How Our Voting System Is Ripe For Theft and Meltdown in 2012
Voting in America is ripe for a major meltdown in 2012.
The most fundamental of democratic processes has become more barrier-filled and error-prone than at anytime since Florida’s 2000 election, when voter list purges, flawed voting technology and a partisan U.S. Supreme Court majority ended a statewide recount and installed George W. Bush as president.
This fall’s potential problems begin with a new generation of voter suppression laws and aging voting machines in a handful of presidential battleground states. And other important factors are in play, such as election officials curtailing voting options due to fiscal constraints, the increasing age of poll workers—volunteers averaging in their 70s—who must referee an ever more complex process, and the likelihood that close races will end up in post-Election Day legal fights.
Voters tell academics they want consistency in voting. Yet emerging trends are poised to upend that hope in many states. This year’s big questions are: where will the meltdown—or meltdowns—occur, what will go wrong, on what scale, and, when it comes to computer failures or tampering, will we even know about it?
“The arc of American history has always moved toward expanding the electorate,” Attorney General Eric Holder told the NAACP Tuesday, saying the Justice Department was pushing back on new voter suppression laws, calling voter ID rules the modern version of segregationist poll taxes. “We will simply not allow this era to be the beginning of the reversal of that historic progress.”
“We need good technology and we need good laws,” said Barbara Simons. The retired IBM computer scientist and nationally known expert on voting technology is co-author of a new book, Broken Ballots: Will Your Vote Count? which details America’s history of voting machinery and election administration, and concludes that many states have neither good technology nor good vote count rules.
“We are running elections in this country as if we are still in the 19th century,” she said. “The results are announced and there is no verification. At minimum, we should be doing manual post-election ballot audits for all major elections whether or not the results are close, because there even could be a major problem with an election with a wide margin.”
The More You Look, The More Problems
What’s alarming in 2012 is that different experts are citing a variety of worst-case scenarios, all of which might involve many states and vast numbers of voters. Some scenarios have been well covered in the media, such as the GOP’s war on Democratic voting blocks, which the Washington Post’s Eugene Robinson this week called “a crime.” And some have barely been covered, especially as the focus shifts to election administration or vote counting.
“Those of us who specialize in election law engage in a heart-wrenching task: attempting to make an educated guess about the likelihood that one or another election irregularity will lead to a Bush v. Gore-style meltdown,” wrote Nathaniel Persily, a Columbia Law School professor this past Sunday in the New York Daily News. “My candidate for the honor of the next potential chad to dangle: absentee ballots.”
Persily makes a persuasive case in this corner. In 2010, 18 percent of the country voted by mail-in ballots and another 8 percent voted early, in special polling places set up before Election Day. He suggested that potential problems surrounding absentee ballots may be more troubling than the polling place chaos created by harsh voter ID laws, which could create delays that prompt people to leave without voting, and push poll workers to issue many provisional ballots that have to be verified before they are counted.
In the recount that followed Minnesota’s 2008 U.S. Senate race, one in 25 mail-in ballots were disqualified, Persily noted. “This error rate is more than triple the intolerable error rates Florida experienced with its punch card ballots in 2000. Political scientist Charles Stewart of MIT estimates that in the 2008 election 'four-million ballots were requested but not received… and 800,000 ballots were returned for counting but rejected.’”
Persily has an informed viewpoint. However, there are other expert analyses that are equally informed and troubling. What’s striking about 2012 is how many different trends are not boding well—and could be of a magnitude affecting millions of votes.
Most Visible: Partisan Voter Suppression
The most publicized problems have come from the partisan frontlines. Since last year, nearly a dozen GOP-led states have adopted more restrictive voter ID laws, in addition to curbs on registration drives. Some laws have been blocked in court (i.e., Wisconsin’s voter ID, Florida’s voter drives) and others are being challenged by the Justice Department. (The Texas voter ID case is in court this week, which prompted Holder’s comparison of that law to a “poll tax” before the NAACP). But many new laws and related efforts are still in play. In Mississippi, for example, the Justice Department has yet to approve or reject its stricter voter ID law.
In recent weeks, the state-by-state impact has become clearer as the details of how these efforts would work have emerged. In Florida, that state’s Tea Party governor, Rick Scott, is involved in a nasty legal fight with the DOJ over purging what he claims may be 180,000 non-citizens from his state’s voter rolls.
That fight is now in court, although one under-reported fact is that Florida’s county election supervisors, who run Florida’s elections, have not jumped at Scott’s order to purge their lists. They don’t want another debacle on par with 2000 on their watch, which is laudable. But Florida also has some of the worst recount laws in the country—another consequence of not wanting to be the poster child of election failures. In Florida, the county results have to be certified before a recount can occur, and that can only happen after a court order. That upside-down legal backdrop initially concealed a big error by computer scanners counting ballots in Palm Beach County in March, where an audit a week later revealed that in two local contests the wrong winner had been declared.
In Pennsylvania, the situation is potentially more troubling. The GOP-controlled Legislature passed a tough new voter ID law that state officials now say could disenfranchise 750,000 people, more than 9 percent of its registered voters. That state’s Republican House leader was caught on camera bragging that the ID law would “win the state” for Romney. Despite fierce criticism, it appears the state’s Republicans are not retreating, and nearly a quarter of the people lacking a state driver’s license—the most common photo ID—live in Philadelphia, that state’s traditional Democratic stronghold.
The Brennan Center at NYU Law School last year projected that the cumulative national impact of new voter suppression laws could reach 5 million voters. Persily’s absentee ballot projections could also involve large numbers of rejected ballots. And so too could the machine problems highlighted by Simons and Pamela Smith of the Verified Voting Foundation, whose Web site tracks America’s voting systems county by county.
“A number of states are limping along with technology that is a decade old and really showing signs of wear,” Smith said.
Across the country, two families of voting technologies were adopted as a response to Florida’s computer punch card debacle in 2000. About one-quarter of the country uses all-electronic voting systems with no paper record or audit trail—just computer memory. The rest of the country tends to use hybrid systems where people mark a paper ballot with a pen and those ballots are run through high-speed computer scanners to be counted.
In the decade since Congress passed the Help America Vote Act of 2002, which gave election officials $4 billion to spend on new voting systems, a mix of top state election officials in California and Ohio, academics across the country and activists have documented all kinds of software and hardware bugs with the computerized parts of these systems. For example, touch screens and scanners do not read every vote accurately. Central tabulators can lose votes. And hackers can easily breach the security features.
“The machines are very, very old,” Simons said, speaking of systems that now are older than most computers used in the business world. “There are physical problems with these machines. Sometimes things go wrong. They also have to replace parts. They are obsolete in addition to all the security, accuracy and reliability problems. And we know that when they were new they had reliability problems. I think that one of the things that we can expect to see is voter disenfranchisement because of machine failures.”
Disenfranchisement by Machine
Yet these machines are how many swing states and vast stretches of the country will vote in November, according to Simons and Smith. In fact, the Verified Voting Web site lists more than 1,000 election jurisdictions nationally, with more than 60 million registered voters, which will be using entirely paperless voting systems.
The worst situation affects most voters in the presidential swing states of Pennsylvania and Virginia, Simons said, because they will be using paperless systems that cannot do recounts, and have no way to recover any votes that are lost. In addition, two big suburban counties around Denver, Colorado, also use all-electronic voting systems where there is no audit trail.
Much of Ohio and Nevada are equipped with touchscreen electronic machines that print a cash register-like record of votes, although Ohio does require polls to have backup paper ballots. These machines are seen as slightly better than all-paperless systems, but their printouts may not be the legal equivalent as a paper ballot marked by a voter if a recount is needed.
But there are examples from recent local elections where the scanners missed votes. Earlier this year in Palm Beach County, Florida, scanners identified the wrong winner in two local contests, an error that was discovered a week later in a routine audit. In 2010 in Humboldt County, California, a different kind of scanning error occurred. There, local officials eventually figured out that when they re-scanned batches of mail-in ballots, that the previous batch count was erased. The manufacturer knew about that bug, Simon said, but a new local election official had not been told.
And on the botched process side of the ledger, the recent New York City congressional primary involving Rep. Charlie Rangel incited rounds of finger-pointing after local officials apparently did not record all of the results from optical scan tabulators, an omission that initially resulted in some precincts reporting zero votes.
These recent examples are not alone; they just do not make national news.
“I heard an election official—this was an experienced [county] election official who has been around for a long time—say that when she did her pre-election testing for the voting system she was going to be using in a recent election  that she had about 20 percent or more that didn’t work,” Smith said, referring to paperless machines in Missouri. “That’s a pretty big chunk of your inventory. If you have high turnout, and a presidential year often is, you probably need everything you’ve got.”
Election officials, of course, know what is going on with their voting systems. Trade publications, such as the National Conference of State Legislatures’ The Canvass, have reported on the aging voting machine fleet and lack of funds—from Congress or the states—to shore up current stockpiles.
These publications tend to take a dispassionate view and highlight the pioneering work done by a handful of wealthier counties to develop new voting procedures and technologies, such as Los Angeles and Travis County, Texas. But most medium- and small-size jurisdictions are stuck with what they have. They are looking at cost-cutting ideas that might confound voters, such as replacing established polls with vote centers and printing paper ballots on demand.
While nobody is hoping for voting systems to fail—or be tampered with—the frontline in November, as in all elections, are poll workers. These are local people who are paid a pittance and have an increasingly difficult job. They must not only contend with voting technology issues, but they also have to implement the new voting laws—which often come with fine print.
The average age of poll workers is going up. In 2010, more than half nationwide were older then 60. In recent years, it has been increasingly hard to find enough poll workers, election trade publications have reported. Looking to this fall, that could be problematic. In Virginia—a state with some of the oldest and least reliable electronic voting systems—the state announced earlier this year that localities could use unpaid poll workers if people wanted to volunteer.
Insider's Advice To Election Officials
Doug Chapin, a blogger and self-described election geek who founded an election administration training program at the University of Minnesota, dropped his chin-up demeanor recently, comparing the East’s heat wave to 2012’s elections, where he sees “a rising tide of anger and frustration—almost across the board—on just about every detail of the election process.”
“Quite simply, this isn’t good; not for the field and not for democracy overall,” he wrote. “It’s going to get hotter and hotter as November approaches: My plea to you is simple: stay cool.”
That’s the view looking outward from the eye of an emerging hurricane. For those of us looking inward and vesting our hopes in a fair vote, there’s no shortage of fuel for cynicism, as new voter suppression laws, other anti-democratic antics, aging equipment, overwhelmed poll workers, litigation-prone partisans and vote count uncertainties are hovering.
One can always hope that the presidential race will be decisive and not come down to a single problematic state. But there certainly will be close congressional and state contests, where it will be anyone’s guess just what might undermine the democratic processes. And that’s exactly the problem in 2012: the closer you look, the more you find cause for concern.