The troubling truth about voting in America today is that a majority
of the electorate casts their ballots on computers that run software that is
hidden from public view and lacks any independent means of verification. The
process by which our votes are cast and counted is controlled by private corporations
to an extent that threatens the foundations of democracy.
Last September, the Government Accountability Office released a report on the
security and reliability of electronic voting machines. The report, which detailed
the findings of a nine-month study, said that "concerns about electronic
voting machines have been realized and have caused problems with recent elections,
resulting in the loss and miscount of votes." The GAO reported that it
had confirmed instances of "weak security controls, system design flaws,
inadequate system version control, inadequate security testing, incorrect system
configuration, poor security management, and vague or incomplete voting system
While acknowledging that efforts were under way to improve the situation, the
report warned that "these actions are unlikely to have a significant effect
in the 2006 federal election cycle." Not exactly reassuring.
And the situation has hardly improved in the months since. In many states,
it is still unclear what kind of voting machines will be used in primaries only
a few months away. Running elections has always been a daunting and largely
unappreciated job performed by state and county officials. But the challenges
they face in 2006 are unprecedented, and many have their fingers crossed hoping
their experiments with voting technology will work out.
In the wake of the 2000 election debacle, Congress passed the Help America
Vote Act (HAVA), which authorized $3.8 billion to help states upgrade voting
equipment and establish statewide voter registration databases. HAVA established
the Election Assistance Commission (EAC), which was given the task of developing
guidelines to assist states in spending federal funds on voting systems and
with establishing a new process for certifying voting equipment.
All this was supposed to have happened in time for the 2004 elections, but
George W. Bush didn't nominate the EAC commissioners until the fall of 2003,
and Congress appropriated just a fraction of the agency's intended budget in
its first fiscal year. As a result, new guidelines were only released in December
2005 and plans for the new testing and certification process are just now taking
With all the delays, almost every state applied for a waiver of the original
2004 deadline for HAVA compliance, until the first federal election in 2006.
While some states long ago completed their voting system upgrades, many are
still scrambling to meet the requirements.
A BOON FOR THE VOTING BIZ—HAVA marked the first time
that the federal government had ever provided funding for the administration
of elections, and it was recognized as an unprecedented sales opportunity for
the voting industry. With such an opportunity unlikely to occur again, there
was little incentive to develop "better" machines and every incentive
to sell as many machines as possible, especially if those machines required
expensive ongoing programming and maintenance. Voting machine manufacturers
were eager to promote Direct Recording Electronic (DRE) voting machines, particularly
the new "touch-screen" models, as the solution to all the problems
ever faced by an election official. Few of those officials had the technological
or financial resources to evaluate, independently, the merits of the industry's
multimillion-dollar marketing campaign, and officials in many states erroneously
believed that HAVA required them to replace all of their voting equipment with
Experience has now demonstrated what the voting industry no doubt knew in 2002:
elections using DREs are significantly more expensive—and therefore more
lucrative for vendors—than those using paper ballots.
And while they're more expensive, they are not necessarily better. Even before
HAVA set off a spending frenzy for new equipment, computer scientists and public
interest groups were voicing serious criticism of electronic voting machines.
In 2003, Johns Hopkins and Rice University researchers concluded that the software
used in electronic voting systems lacked "even the most minimal security
standards," and warned that "as a society, we must carefully consider
the risks inherent in electronic voting, as it places our very democracy at
risk." That same year, ninety scientists from universities and laboratories
across the nation signed a "Resolution on Electronic Voting," stating
that "computerized voting equipment is inherently subject to programming
error, equipment malfunction, and malicious tampering."
YOUR INVISIBLE VOTE—Fundamental to the argument against
electronic voting is that there is no opportunity to observe the counting of
votes. When using DREs, the recording and counting of votes is performed by
software—software that is considered "proprietary" by the voting
machine vendors, and that is therefore kept secret even from election officials.
Not only is the software secret, but the process by which it is tested and the
results of that testing are also secret. The laboratories that test the software
and hardware are paid by the vendors, but of course all these financial transactions
are—you guessed it—secret.
So perhaps its not surprising that there are hundreds of reported incidences
of malfunctioning electronic voting machines in every election cycle—and
those are just the errors that have been identified. After all, we are talking
about computers. And they are computers that sit in warehouses for 364 days
a year and then face maximum use for thirteen hours in an election. If my laptop
freezes, I risk losing unsaved changes to whatever I'm writing. When an electronic
voting machine malfunctions, it is the integrity of democracy that is lost.
The absence of a complete meltdown of the system is little comfort. Electronic
voting is inherently non-transparent. You simply have to trust the machines.
In November 2004, over 50 million Americans—almost 40 percent of all
voters—cast their ballots on machines that offered no independent means
of verification. There's no way to know if their votes were recorded as the
THE FIGHT FOR REFORM—Before the ink on HAVA was dry,
legislation was being written at the federal level to amend it so that safeguards
could be put in place against the demonstrated security risks posed by electronic
voting. In particular Representative Rush Holt (D-NJ) introduced the Voter Confidence
and Increased Accessibility Act, a bill that would mandate that all voting systems
produce or require the use of a permanent paper record of every vote. It would
also require a random hand-counted audit of 2 percent of the ballots cast in
federal elections as back-up verification for the accuracy of electronic tabulation.
Holt's bill would also prohibit the use of undisclosed software and wireless-communication
devices in voting machines.
But even though the bill has over 160 bipartisan co-sponsors, Representative
Bob Ney (R-OH), until recently the powerful chairman of the House Administration
Committee, had kept it buried without a hearing for three years, along with
every other election reform proposal. Ney, one of the principal authors of HAVA,
was recently forced to resign his chairmanship as a result of his link to the
Abramoff investigation. Election reform activists are hopeful that that the
new chairman Vernon Ehlers (R-MI) will be more open to reform. Ehlers was responsible
for the language in HAVA requiring improved voting system testing standards
and certification—improvements that have not yet been implemented due
to all the delays.
While efforts to provide election safeguards have been stalled at the federal
level, significant legislation has been successful in many states. Over half
the states now require a voter-verified paper record of every vote, and a dozen
states have provisions for a mandatory additional hand count of a percentage
of the votes. Similar legislation is pending in several states during the current
legislative session. Several have also addressed the problem of proprietary
voting software by requiring at least a limited disclosure of source codes.
Most of these new laws take effect in 2006.
DRAMAS ARE UNFOLDING—A bafflingly complex situation
is developing in the country right now as this year's elections grow near. It
has arisen as a result of intersecting federal mandates and new state laws;
untested voting equipment; inevitable partisan politics; and, not least, a testing
and certification process that is heavily influenced by the vendors that fund
it. There is a drama unfolding in every state, with many states trying out their
new voting systems by "beta-testing" it, while in other states it
is still unclear what equipment voters will see when they go to the polls.
Connecticut and New York are both in much the same situation relative to the
deadlines for HAVA compliance, though they followed different paths to get there.
Both states have used old-style mechanical-lever machines for decades. Last
year, they both passed requirements for using voter-verified paper records and
mandatory audits. After a controversial procurement process Connecticut was
on the verge of signing a contract with the Danaher Corporation last December,
until the state became aware that Danaher's equipment had not yet been submitted
for federal certification, as the company had represented, and therefore could
not be used, according to state law.
As a result, Connecticut has started over. Given that the process is unlikely
to be completed in time for upcoming elections, the state has announced its intention
of employing its trusty lever machines yet again in those elections. Whether or
not this will require the state to return $33 million in federal funds earmarked
for replacing those machines and face additional penalties remains to be seen.
There are suggestions that New Yorkers will once again be using the familiar
lever machines as well. New York has yet to certify any voting systems for counties
to purchase, and it looks unlikely that they will be able to do so in time for
the primaries. The state has also failed even to begin work on a voter-registration
database, and it is in danger of losing more than $230 million in federal funds.
In Pennsylvania a pitched battle is being waged, with vendors intent on selling
paperless DREs to one of the few large states that do not yet require a voter-verified
paper trail. Activists and county governments are fighting back against bringing
in dubious machines. The situation became even more fraught recently when a
judge ruled that HAVA did not take precedence over the state constitution's
requirement that counties hold a public referendum to approve changes in voting
systems—even though the state's Department of Elections had been saying
that it did. No such referendums have been held, so far, so counties across
the state are now in limbo, pending the state's appeal and the likelihood of
similar legal actions. Stay tuned here too.
Maryland, along with Georgia, was one of the first states to adopt paperless
touch-screen voting systems statewide. Like Georgia, Maryland has had its share
of problems, with concerned citizens pointing to the use of uncertified software
in elections in 2002 and 2003, and thousands of lost votes on machines in Baltimore
County in 2004. After failing in the state legislature last session, bills that
would require voting machines to provide voter-verified paper records have considerably
more momentum in this session. The governor recently issued a blistering attack
on the state's election administration and stated his strong support of a paper
trail requirement. His move has set off a lively exchange of political accusations
that threaten to deflect from the real issues of the integrity and accuracy
of the elections. It remains to be seen by what method voters in Maryland will
cast their votes this year.
Earlier in the year, New Mexico's governor convinced the legislature to adopt
a voting system that uses paper ballots and verifies them through the use of
a machine that does an "optical scan." In such a system the paper
ballots are marked by the voter, either manually or through a ballot-marking
device for voters with disabilities, resulting in a ballot that is inherently
voter verified and allows for the possibility of counting votes without the
use of any software. (While optical scanners would initially count the ballots,
they can be counted by hand in the state's mandatory audit or in a recount.)
Details of deadlines and funding for the new plan have not been worked out,
so stay tuned here as well.
Then there's California, where on the Friday before the Presidents' Day weekend,
the secretary of state ended months of speculation by "conditionally"
re-certifying both the Diebold AccuVote-OS optical-scan and Accu-Vote TSx touchscreen
voting systems for use in the state. It is doubtful that this is the last word
in the saga concerning the use of Diebold's machines in California, one that
dates back to not long after Diebold got into the election business in 2002.
The conditional re-certification relied heavily on the report of state advisory
panel of computer scientists. It concluded unequivocally that the presence of
interpreted code in Diebold's software was in violation of federal standards.
While the report's authors reasoned that increased security procedures could
lower the risks of using interpreted code, California's election code does require
that voting systems meet those standards as a prerequisite to state certification.
In a letter to Diebold published along with the certification documents, the
secretary of state said that the company must substantially modify its software
in order to be certified, and asked it to report back in a week about the feasibility
of such modifications. Even though a complete overhaul of Diebold's voting software,
if it is even possible, would take years of work, Diebold machines are likely
to be used to record and count votes in the state of California this year. Legal
challenges to this situation seem inevitable, and the dust is far from settled.
So, again, please stay tuned.
To be fair, there are states whose new equipment has been delivered on time
to their county clerks, who are busy training and preparing for this year's
elections. But most of those states will be employing at least some of their
equipment for the first time. Thomas Jefferson said that "eternal vigilance
is the price of freedom," and this is certainly a year when vigilance is
required. More than ever before, we need to pay attention to how are votes are