16 October 2014

This week, the House is expected to pass the first-ever bill regulating electronic voting. But will the legislation unleash new election treachery in American elections?

If history is a guide, political machinations will outsmart the latest efforts to bring accountability to America's newest voting machines. Recent books on how American elections have been stolen - from the founding of the country to 2004 - suggest voting machinery may change over time, but sleazy partisan tactics do not: they adapt to the newest way of counting votes. And when grassroots election integrity activists add their experience of wrestling with new electronic voting to this continuum, it seems doubtful that American elections will be cleaned up.

"It is the same game," said Rebecca Mercuri, one of the country's top electronic voting experts and an opponent of the House bill. "They will just now do it electronically. The bill makes it seem like something will be done. It will cause the public to be complacent. That is very scary. People will not be watching. They will not be looking at elections."

"It is not just the electronic machines. It is a pandemic in our political culture," said Tracy Campbell, a University of Kentucky historian and author of Deliver the Vote: A History of Election Fraud, an American Political Tradition 1742-2004. "I am not sure why we are so surprised by it. We cheat in baseball. We cheat on our wives. Why not cheat in elections?"

(Book link: http://www.amazon.com/Deliver-Vote-Election-Political-Tradition-1742-200...)

This week soon after Congress reconvenes, the House is expected to approve H.R. 811, The Voter Confidence and Increased Accessibility Act of 2007. The bill is intended to bring accountability to the newest election technology, the paperless electronic voting machines that were ushered into American elections after Florida's punch-card ballot debacle in 2000. After hanging chads became the most high-profile feature of that presidential vote count, Congress passed the Help America Vote Act, or HAVA, and appropriated $3.9 billion for states to buy a new generation of voting machines. By November 2006, one-third of the country was voting on paperless touch-screen voting machines.

Once introduced, the problems with these machines became well-known. Most notably there was no way of knowing if the data put into the machines - votes - would be accurately reported at the end of the day. Moreover, academics and others discovered that the machines were poorly designed, but the software and performance problems were all-but ignored by the independent testing labs that were supposed to certify their accuracy. In numerous elections in 2002 and 2004, voters saw their choices jump between candidates; votes were lost as totals were compiled, and election officials often spent more time tallying results than they had with the voting systems they replaced. By last fall's election, the machines' performance had improved somewhat, but there were notable exceptions, such as in Sarasota, FL, where 18,000 votes vanished in a close U.S. House race. While that was publicized, grassroots activists later discovered numerous other lost votes, or undercounts, such as in Miami and Dade Counties, where one in 10 ballots did not record a vote for Florida attorney general: 70,000 votes went missing.

While some of these problems have become well-known, it is important to note that it wasn't flawed technology in Florida that kept Democrat Al Gore from the White House. More pivotal to the vote count were partisan decisions by then Secretary of State, Katherine Harris, a Republican, who allowed overseas ballots - allegedly from the military - to be counted, even though many lacked postmarks and those were suspected to be fraudulent. Amid that controversy the Supreme Court intervened, stopping the recount and declaring George W. Bush the winner.

"Florida was a great case of our eyes being off the target," Campbell said. "We were looking at butterfly ballots (punch cards). But it was the absentee ballots that came in after the election that Katherine Harris certified that gave the election to George W. Bush. I bet plenty of grieving military families don't realize it was absentee ballots that brought us the war in Iraq."

In short, political manipulation of the process - on top of flawed election machinery - was the determining factor in Florida's presidential election in 2000, and for that matter in Ohio in 2004, in 1960, and in other earlier presidential elections.

Congress's response to the latest crisis in flawed election machinery has been led by Rep. Rush Holt, a New Jersey Democrat who taught physics at Princeton University before entering politics. His bill, H.R. 811, seeks to fix the problems with the latest electronic voting machines by requiring manufacturers add a paper print out so individuals can verify their vote. The bill also creates new audit and recount procedures based on that paper trail. It also allows people who sign confidentiality agreements to view still-secret vote counting software. And it imposes new conflict-of-interest rules for voting machine makers and the testing labs that certify their product's accuracy. Finally, it provides money to counties to make these changes.

Proponents, such as People for the American Way, say the bill may not solve every problem, but makes significant progress. But the solution that many grassroots election integrity activists want - dumping the touch screen machines - is not in the bill. And the opponents have other worries. They say a paper receipt legally is not the same as a ballot marked by a voter, which will complicate recounts. They don't trust this paper trail will mirror the count in the voting machine's computer's memory. They don't want any secret software. And they worry new audit procedures could allow election insiders to tamper with reported results, which would be a return to counting votes in smoke-filled rooms.

"It's not better than nothing," Mercuri said. "It forces feeds a bill onto the states. The states have to follow certain things for federal elections, but not for local elections. The technology is still a problem. H.R 811 doesn't solve many of the problems, but it creates a new invitation to insider election fraud."

Mercuri, who has been a poll worker for two decades and whose engineering Ph.D. is on electronic voting technology said H.R. 811 fails to address both the technical problems of electronic machines and the political problems of partisan tampering with vote counts. She points to numerous examples from last fall's election to show how the bill's reforms would play out in the real political world - and it is not pretty.

First, Mercuri said the 2006 election showed the new voting machines are not always accurate, despite their modern high-tech appearance. She cited litigation following a judicial race in Columbus, Ohio, where the county election board's director testified that in 86 percent of the precincts the county's new electronic machines did not give accurate vote count totals. The number of voters who signed precinct signature books - the people who showed up, signed in and voted - equaled the electronic count in only 14 percent of Franklin County's precincts. "In some precincts the numbers were off by single digits, in others they were off by dozens," she said. "Usually, it's a single voter here or there." The county's election director told the judge the discrepancies were "typical," Mercuri said.

Then Mercuri pointed to New Jersey, where new state-issued rules say voter will only get three attempts to vote on a new electronic machine, even if the voting machine does not accurately register their choice in any of those tries. Problems of electronic votes hopping between candidates dates back to at least 2002, when it was reported by some journalists across the country. The burden of proof should be on the machines and local officials to run smooth elections, Mercuri said, not on a confused voter. And she cited a 2006 municipal election in California that ended up in court, where a local judge simply rejected using the electronic voting machine's paper trail in a recount despite state law - the same paper record that is the backbone of H.R. 811.

But the biggest problem Mercuri saw involves the bill's audit procedures, where local election officials will compare the newly required paper trail to electronically produced vote totals - to ensure an accurate vote count. It took many decades in the early 20th century to get past the era where ballot boxes were routinely stuffed by local political bosses who manufactured the results they wanted - regardless of the actual vote. That problem eventually was solved when ballot boxes, once sealed, could only be opened in court before a judge. But H.R. 811's new audit provisions will allow local officials to open the ballot boxes to verify the count - which Mercuri said was an open invitation to tinkering with paper records and the vote count.

"The audits require the breaking of the seals on the ballot boxes," she said. "It allows the opening of the ballot boxes. It is not done in front of judges. It is done in the back room again. Handful of ballots will be taken out and handfuls will be put in. God only knows what will go on."

What is notable about Mercuri's litany of concerns is these same problems - from inaccurate machines, to manipulating vote totals, to mediocre or possibly fraudulent election administration - have plagued American elections for decades.

"That is the point of my book," Campbell said. "This is not just something that popped up in November 2000."

Deleting or swapping votes between candidates was a political fact of life when America used mechanical lever voting machines in the mid-20th century. Miscounting votes did not start with today's electronic voting machines, but with punch-card voting machines that arrived in the 1960s when some election discovered how to tinker with the cards that programmed county tabulators. Manufacturers of the older mechanical lever voting machines even testified in Congress how this was done, to try to stop the spread of the newer punch-card machines. Padding the count by voting for people who did not show up at the polls or by stuffing ballot boxes goes back to George Washington's day and even elected John F. Kennedy to the presidency in 1960.

Under H.R. 811, voters may soon get a paper receipt of their vote, but it might not match the precinct total at the end of the night. There might be some access to proprietary vote-counting software, but it will be hard to prevent software-savvy partisans from switching or deleting votes. Unscrupulous election workers, feeling justified by political necessity, could cast ballots for people who did not show up at the polls, or conceivably could alter the paper trail - with new access to the ballot box during the audit phase of the election.

"It's an important symbolic step to say we want to have transparent verified elections," said Andrew Gumbel, author of Steal This Vote: Dirty Elections and the Rotten History of Democracy in America, speaking of H.R. 811. "But it's only one small piece of the puzzle. Even in regards to the paper trail, what guarantee do you have that the paper trail is more accurate than the count of the machine?"

(Book link: http://www.amazon.com/Steal-This-Vote-Elections-Democracy/dp/1560256761/...)

In more than two centuries of American elections, Gumbel said politicians and the public have often been swayed by arguments that technical improvements in election machinery would bring clearer and fairer elections. "There has been an illusion that if you fix the technology, the rest will be fine," he said. "In the book, I repeatedly show that when the stakes are high, and one party can do things, things will happen."

As Republican Rep. Peter King, R-NY, famously told filmmaker Alexandra Pelosi a year before George W. Bush defeated John Kerry in 2004, "It's all over but the counting, and we'll take care of the counting."

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Steven Rosenfeld is co-author, with Robert Fitrakis and Harvey Wasserman, of What Happened in Ohio, a Documentary Record of Theft and Fraud in the 2004 Election, from The New Press (2006).