Election Lawsuits Looming?

All over the country, election officials are having to choose between complying with HAVA and breaking state laws. State laws typically require electronic voting machines to be certified for use. But HAVA, the Help America Vote Act, requires that punch card and lever voting machines be removed by the 2006 elections. HAVA also promised millions of dollars in funding for states that switched to computerized voting machines. And therein lies the rub. As states have rushed eagerly to purchase systems from Diebold, ES&S, Sequoia, and Hart Intercivic, to name the major vendors, activists around the country and a hacker from Finland have been exposing the numerous points of vulnerability these systems present.

Now, county registrars face tough choices. If they stick with older systems, they risk being sued for non-compliance with HAVA. But the HAVA-created Elections Assistance Commission has not been able to certify - for very good reasons - many of the voting machines currently being sold. But if they purchase new systems, most of them are not yet federally or state certified, meaning, they are untested, unproven technologies. And using uncertified software in an election often violates state law. So Registrars are truly caught between a rock and a hard place, with no easy solution.

Here are a list of concerns rasied by these systems:

1. Who is checking the software? In most cases, the vendors are certified by "ITAs" - "Independent Testing Authorities." But how independent are they? They are selected, paid for by, and answerable only to the vendors themselves.
2. Even if ITAs were trustworty, and we have no reason to believe they are, machines that have not been certified by ANY authority are being purchased in Los Angeles County in California, in Allen County in Indiana, Adams County in Illinois, and in many other counties all over the country.
3. Even if the uncertified software was trustworthy, registrars typically have no expertise in computers and trust the vendors' employees to run the election. Even if software was tested and certified, registrars would not know if a vendor's employee substituted new software at the last minute. The checks simply aren't in place for an "inside job". Most security breaches in software companies are not from outside hacks, but from the employees themselves.
4. Votes can be changed after the fact in a digital system. Even if you vote on paper ballots, they are scanned into a computer and coutned by a system that can be altered as easily as the DRE systems. The presence of a paper record means nothing if the paper record is never examined. And even if the DRE or scanning system records the vote accurately, the vote is eventually tallied in the "central tabulator", a system which takes votes from different machines and ostensibly spits out a summary. I say ostensibly because as Howard Dean showed, under Bev Harris' tutelage on TV, anyone with minimal training can alter the votes within one of the most common central tabulator systems, the Diebold GEMS program, and alter the votes without leaving a trace.

But there is a solution! All is not lost. ALL of these problems could be mitigated by a rigorous audit.

The problem is, few states beyond California have a a provision for a mandatory surprise manual audit. And In California, state election code requires that 100% of the votes cast in only 1% of the precincts be audited. To date, even this 1% audit has not been properly conducted. Many counties have already been using DRE or Direct Recording Electronic machines that produce no paper record. The only way to recount the votes for an "audit" has been to reprint the (possibly already altered) results again. Hello, that is NOT an audit.

An audit means counting paper records by hand, with all political parties on the ballot represented, in front of numerous people. And while a 1% audit would have a 99% chance of catching fraud if some 15% of the precincts had been altered, it would have only a 78% chance of catching fraud if the fraud was grouped into 5% of the precincts. (I'm basing this on the audit calculator provided by US Count Votes, but have been unable to find a recent link to this spreadsheet on their site.)

A 2% audit, such as the bill HR 550, proposed by Congressman Rush Holt, would raise the chances of finding alteration in 5% of the precincts to 96%. A 3% audit would have a 99% chance of catching fraud in 5% of the precincts. NOTE: the numbers change slightly based on the number of precincts in a state. So a 2% audit would have less of a probability of finding fraud in smaller states containing fewer precincts than California.

There have been vigorous and sometimes rancorous debates among voting activists as to whether we should support Rush Holt's legislation or not. I've been listening to these arguments for 15 months, looking for a single fact that would cause me concern re Holt's bill. But the sum of the arguments against Holt's bill is that 1) it doesn't go far enough and 2) it will give people a false sense of security. That's not, for me, reason enough to oppose this important legislation.

The benefits of Holt's bill are: 1) a paper record would be mandated for all states. This battle would no longer need to be waged on a 50-state basis, as is the current case. And 2) Holt's bill would provide the vast majority of states that have no audit with a decent - not perfect, but decent - audit with a good chance of finding fairly small scale fraud. (Try altering a statewide election by changing votes in only 5% of the precincts - it's tough, because you'd have to have visibly huge swings from normal precinct behavior. It's easier to spread low-level fraud among a number of precincts than to commit high level fraud in just a few precincts.)

Passing Holt's bill does no harm beyond the psychological. And no law is ever permanent. Is some legitimate, numerical reason why Holt's bill wouldn't work surfaced, it could be amended or changed by future legislation. WITHOUT Holt's bill, however, we are faced with waging a 50-state battle when the activist community is not evenly spread out among the states. We saw in the last election how one state could alter the effect of an entire election. Holt's bill allows us to force paper records and a minimal audit upon all states at once. No perceived or expressed harm in my opinion can yet outweight that highly desired result.

MyDD ran a good summary recently outline the key points of the debate, with links to the arguments pro or con. If you are unsure, please read more. The future of our democracy depends on whether or not our votes count. Surely the issue is worth a few minutes of your time.

I hope you will take a minute to write your Congressional representative to ask them to support Rush Holt's bill HR 550. If we don't get some FEDERAL legislation in place THIS YEAR, it will be too late to address the 2008 election. And that should scare us all into action. 2006 is already at risk. Dare we carry the risk forward to the next presidential race?