Human Rights

Is California Decision Death Knell For Voting Machines?

California Secretary of State Debra Bowen will remove most touch-screen electronic voting machines before next February's presidential primary.
Saying California's touch-screen electronic voting machines can not prevent hackers or partisans who want to alter vote counts, Secretary of State Debra Bowen announced late Friday that she will remove thousands of the machines from use in California's new early 2008 presidential primary next Feb. 5. Southern California - from San Diego to Orange County to Los Angeles - will most seriously affected.

Bowen issued a series of directives that will allow individual California precincts to use only one touch-screen machine manufactured by Diebold Election Systems and Sequoia Voting Systems, if those manufacturers make security improvements well before next year's presidential primary. Even with those improvements, Bowen said those brands were not secure enough to be fully outfit a precinct, which typically use a half-dozen or more of the same voting machines. Instead the lone machine will primarily be used by disabled voters, who in surveys, say they prefer the touch-screen machines.

In contrast, counties using touch-screen voting machines made by Hart InterCivic could continue to use several of those machines in precincts, Bowen said, because those systems were more secure - provided that company also adopted new security measures. However, voting systems made by a fourth firm, Election Systems and Software, or ES&S, could not be used until the company completed a comprehensive security review. That decision affects Los Angeles County, the nation's largest voting jurisdiction with more than 4 million registered voters.

Bowen also ordered election directors in California's 56 counties to prepare security plans for electronic voting machines in 45 days, and said she would soon issue rules on handling security issues posed by the machines. She also will soon issue new rules for expanded vote count audits and recounts in close elections.

"When you look at how people actually vote in the state, more than two-thirds and probably three-quarters will not be affected by the decisions that I am announcing today," Bowen said, emphasizing she had a duty to investigate and address concerns about the integrity of California elections. "The systems that we use to cast and tally votes in this state are the most fundamental tools of democracy. If our citizens don't have faith in the tools, then election officials have to investigate their citizen's concerns."

Bowen's decision came after a University of California study on election security issues that she commissioned reported the state's touch-screen machines had extensive security flaws that could be breached by people who want to alter election results. The results of that study were released in late July. This past Monday, a public hearing on the findings was held in Sacramento. Bowen had to make a decision by Friday night under a state law requiring any change in election machinery be issued 180 days before the election.

The new touch-screen voting machine voting policy was quickly criticized by the voting machine manufacturers and county election administrators' trade association.

"California-based Sequoia Voting Systems is disappointed," Michelle Shafer, Vice President of Communications and External Affairs for Sequoia Voting Systems, said in an e-mail. "Today's voting systems used in California and throughout the United States are the most tested, secure, accurate, auditable and accessible voting systems in our nation's history."

"Thank you. Now can you please tell us what voting systems we can use," said Stephen Weir, California Association of Clerks and Election Officials president and Contra Costa County election director, who was present for Bowen's announcement. "I think the registrars are stunned by this. I don't think we are in a position to react."

Weir said the several large southern California counties would be hardest-hit by Bowen's directives. San Diego, San Bernardino, Riverside and Orange Counties all use the touch-screen voting systems. Los Angeles County is in a different category because it uses a paper ballot that is marked with a pen and then scanned by computers. However, the maker of that system, ES&S, did not initially cooperate with a U.C. study, prompting Bowen to decertify its use until it completes that review. Bowen said it could still be approved for the 2008 primary.

Weir said 22 of California's 56 counties use touch-screen voting systems for all voters in their precincts. Another 14 counties use the machines for early voting, and 42 counties use single machines in each precinct for voters with disabilities. He said it was an open question whether the counties and voting machine manufacturers would comply with Bowen's directives in time for the 2008 presidential primary.

"We're going into the worst election cycle we have ever had," he said, referring to a fall vote in November and three major statewide elections next year. "In primaries, you have a lot of ballot types. It is a very precise science. You don't do it lightly... You can't do it at Kinko's."

Apart from Los Angeles County, the rest of the state evenly splits its voting between absentee ballots - paper ballots that are mailed in before Election Day and scanned by computers - and a variety of electronic precinct-based voting machines, including the touch-screen systems. Weir said the ballot-scanning systems used to count absentee ballots were now overtaxed and could not accommodate the additional voters who have been using the touch-screen systems in their neighborhood precincts. He said shifting to these paper-ballot scanning systems by next February - Bowen's preference - would be nearly impossible because neither the manufacturers of those machines nor the ballot printers could ramp up before the 2008 primary. The busy early presidential primary season was already taxing these sectors of the voting machine industry, he said.

"There is not enough paper. There are not enough printers - in California and across the country," Weir said, adding only paper from certified printers can be used for ballots. "If you push people back to paper ballots, no vender can support all of California."

But Bowen predicted that California counties could and world meet the deadlines she set, including transitioning to new systems where paper ballots are counted by scanning. She said all California now use these systems for their absentee ballots. While these voting systems were not hacker-proof, the fact paper ballots were used ensured voter intent could be determined in a recount, she said, which touch-screen systems lack.

"No one has to start over, Bowen said. "No county is in a position where they cannot use equipment they don't already have.

Bowen said federal funds were still available to help counties buy new voting systems. Moreover, she said cost should not be an issue, saying her directive to safeguard the vote was on par with other government agencies acting to protect public health or safety.

"I reject the notion that I should not require significant changes to be made to California's voting systems because the money has been spent (on flawed machines)," she said, adding other government agencies - like NASA or the Food and Drug Administration - don't wait to act on a known threat because of cost.

Bowen announced her decision at the 11th hour - before midnight Friday night - just shy of a 180-day legal deadline for changing procedures in upcoming elections. As reporters waited throughout the day and night, county election officials called some reporters saying they had heard rumors of Bowen's decision. One commented that she would defy Bowen's orders, saying her rural county has never had a problem with electronic voting. Weir, who drove to Sacramento for the Secretary's announcement, said that scenario, if true, could end up in court, although county supervisors would first have to commit to paying the legal costs of challenging the Secretary of State.

"It would not be shocking for us to be sued, so we spent some good lawyer time," Bowen said, in response to that scenario and explaining why her Friday announcement was delayed until minutes before midnight. "My decisions will hold up. They are much more mild than decisions prior secretaries have made."

Bowen's directives are the second time a California Secretary of State has decertified electronic voting machines. In 2004, then-Secretary of State Kevin Shelly barred the use of Diebold touch-screen machines in Alameda and San Diego Counties after the voting systems broke down in the March primary election. Then, the machines did not start up and properly function, forcing voters to use paper ballots or return later in the day to vote.

California's new touch-screen voting machine policy will likely have a national impact. Other states, including Florida, Connecticut and Ohio are undergoing similar reviews of their touch-screen voting systems. Meanwhile, Congress is reviewing its first-ever legislation to regulate electronic voting. The proposed bills in Washington largely echo California's law, which require a paper trail for touch-screen machines and audit standards. Other federal agencies are also reviewing security standards for electronic voting machines.

"I think much of what we have done here will be incorporated into standards that will be adopted at the federal level," Bowen said.
Steven Rosenfeld is a senior fellow at and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).
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