Legal Issues, Policy Issues, and the Future of Democracy

Our system of self-government works only if we believe it does.

The presidential election of 2000 is still fresh in most of our minds, and—no matter whom we voted for—everyone agrees that the post-election spectacle and controversy left a black mark on democracy in the United States. Congress responded immediately, and in 2002, passed the Help America Vote Act (HAVA) shortly before the very next general election. HAVA was landmark legislation that authorized almost $4 billion in funding to states to enable them to upgrade their voting systems and improve the administration of elections. Yet more controversy followed.

The presidential election in 2004 was subject to an official challenge in the House and Senate that hadn’t been seen in more than 100 years.¹ When Congress reconvened in January 2005, one senator and one representative issued a joint challenge to the certificate of the electoral votes of the state of Ohio. A lengthy debate ensued before the matter was put to a vote and the certificate was approved.² Although the certificate was ultimately accepted, the first general election following the enactment of HAVA had delivered another blow to the integrity of the electoral system.

In 2006, the first general election after HAVA had been fully implemented, at least one contest resulted in substantial, unresolved controversy. In Florida’s 13th Congressional District, a winner was declared by a margin of 369 votes, but the votes of 18,000 voters for the congressional race were unaccounted for. The under-vote rate on the electronic voting machines in one of the five counties in that district—Sarasota County—was an astonishing 14.9 percent, as compared to a rate of 2.5 percent for absentee ballots in the same county and 2.2 percent to 2.5 percent in the surrounding four counties in the same congressional district.³ Therefore, when the 110th Congress convened, I rose when the new members were about to be sworn in, to enter a parliamentary inquiry into the record to ensure that the seating of the new member from Florida’s 13th Congressional District would not prejudice the pending legal action to uncover the truth about those 18,000 votes and what those voters intended.⁴

Almost six months later, the mystery surrounding the missing electronic votes is no closer to being solved. In fact, it is impossible to solve it because there are no voter-verified paper ballots to enable us to check the accuracy of the electronic tally.

The Greatest Invention
I often visit schools, and when I’m with students who are interested in science and technology, I ask them what they consider the greatest invention in human history. Knowing that I am a physicist by background, they often come up with technological answers, such as the microchip, the iPod, or the wheel. But in fact, I think the greatest invention in human history is our system of self-government, which is constantly growing, subject to self-criticism, and allows for self-correction. Indeed, it is designed specifically to be self-correcting.

Free and fair elections are the very cornerstone of democracy, but democracy only works if we believe it does. Today, in the age of computer-assisted elections, if we have questions about the election results, the voting-system manufacturers simply assure us that the software counts votes accurately and we have nothing to worry about. But this leaves voters feeling that neither they nor their election officials are in control of the democratic process.

If a voter casts a vote on an electronic voting machine, no election official, computer scientist, or voting-system manufacturer can reconstruct what that voter intended. The voter votes in secret, so only the voter can verify that his or her intention has been recorded correctly. That is why an independent paper copy of each vote—verified by the voter and preserved for use in recounts and audits—must be required for every vote that is cast.

Votes are, in a sense, the “currency” of democracy—the mechanism by which we preserve and maintain the vibrant life of the greatest invention, our democracy. Thus votes are inherently valuable, and anything valuable must be independently auditable and regularly audited.
_________________________

Our system of self-
government is designed
to be self-correcting.
_________________________

Disappearing Evidence of Voter Intent
Probably the most memorable image of the 2000 general election is of election officials in Florida holding punch-card ballots up to the light and squinting in an effort to discern whether a so-called “hanging chad” (the punched spot on the card) was sufficiently detached from the punch card to count as the voter’s intended vote. The image was replayed over and over on television screens across America, as if to burn into our collective consciousness the notion that ambiguous evidence of voter intent is the enemy of the democratic process.

As Congress took up the issue, a consensus was reached that punch-card machines were unreliable and should be replaced. Arguments were also made that paper-ballot-based voting systems were inaccessible to voters with disabilities. The result of this double-pronged argument against paper ballots was that HAVA funded the replacement of punch-card and other voting machines deemed to be obsolete and unreliable and explicitly recommended the use of “direct recording electronic” voting machines (DREs) to meet the disability-access requirements of the bill.⁵

On the one hand, this was simply not necessary. On the other hand, it created a substantial security and integrity risk to the electoral system. Although DREs may be accessible to voters with disabilities (if fully outfitted), they record all voting data internally where it cannot be inspected or independently verified by the voter. In contrast, ballot-marking devices, which may also be accessible, produce an external paper ballot that the voter can verify. Achieving accessibility did not require removing paper ballots from the voting process.

In the end, HAVA encouraged the purchase and use of voting systems that were not necessarily more accessible than ballot-marking devices and that had a fatal flaw—they left no direct, permanent evidence of voter intent verified by the voters. In other words, there was nothing that could be used to conduct a meaningful recount after an election.
_____________________________

Unless we require voter-
verified paper ballots, we
might as well outlaw recounts.
_____________________________

“Lack of Evidence” vs “Voter Intent”
Consider again the race in Florida’s 13th Congressional District in this context. How can the losing candidate prove that the reported result did not reflect the intent of the voters? (The losing party must be convinced of the results; the winner always accepts and believes them.) The votes that show on the screen surface evaporate the minute the voter hits the “Cast Vote” button, and there is left behind no tangible copy of anything verified by the voters. The electronic record could be erroneous, either by innocent error or malicious hacking. And no election official, computer scientist, or voting-system manufacturer can definitively reconstruct what the voters intended.

In Florida, “lack of evidence” is the winner and “intent of the voters” is the loser. Even though neither the loser nor the winner of an election has any evidence to prove the intent of those 18,000 voters, the “lack of evidence” tips the scale, by default, in favor of the declared winner. Thus the intent of the voters, because it cannot be proven to support one candidate or the other, is irrelevant to the end result.

The Future of Recounts
We simply cannot go forward into another general election without addressing this problem head on. Fifteen states do not use paper-ballot-based voting.⁶ That means that these 15 states are in the same position as Florida’s 13th Congressional District. Unless we require voter-verified paper ballots, we may as well outlaw recounts. The outcome of the 2008 presidential election may hang in the balance in one of those states.

Being a physicist, I consider myself a bit of a techie. Thus, I find it ironic, if not downright humorous, that some have attributed my call for voter-verified paper ballots to what they perceive as technophobia on my part. Nothing could be further from the truth. In fact, computer scientists from the most prestigious universities in America—the very people who understand computers and computer security better than anyone else—are the ones urging Congress to require voter-verified paper ballots as an independent auditing mechanism to ensure accurate tallies that voters can believe in.

Computer scientists have recognized that computer-generated recounts are more like reruns, repeats, or replays than actual recounts. A recount on an electronic voting system is simply a replay of the same answer the computer gave the first time. If the software translation of the voting data entered into the machine was wrong the first time, the “recount” will never reveal that.

Less Reliance on Technology Is More
Shortly after HAVA was enacted, and before most jurisdictions had an opportunity to spend any of their equipment replacement funds, I introduced legislation to address this crisis. That legislation, the Voter Confidence and Increased Accessibility Act (HR 811 in the current, 110th Congress) includes the following provisions:

• Requires a voter-verified, durable paper ballot for every vote cast to serve as the vote of record.
• Requires routine, random audits in a specified percentage of precincts in every federal election and a higher percentage of precincts when races are extremely close.
• Bans the use of wireless devices, undisclosed software, and Internet connections to machines upon which votes are cast.
• Preserves and enhances the accessibility requirements of HAVA and funds the development of new, accessible, ballot-marking and ballot-reading technologies.
• Authorizes hundreds of millions of dollars to defray the costs of implementing the paper ballot and accessible-verification requirements of the bill.

This legislation, which is likely to come to a vote in the House of Representatives as this article goes to press, will strike an appropriate balance between the accessibility and the auditability of voting in our electoral system, making a much-needed adjustment to HAVA.

Restoring Trust in Government
When I ran for Congress eight years ago, restoring the trust of the people in their government was one of my principal motivations. The rampant cynicism about government that seems to infuse political commentary almost daily concerned me greatly, although I did not focus my efforts on the specific mechanism of our democracy until the 2000 elections.

After the enactment of HAVA, public discussion increased about the dangers of the push towards using paperless electronic voting machines. It became apparent to me, perhaps because of my technical background, that we should not rely on the word of software engineers working for private voting-system manufacturers to tell us who wins an election.

After my legislation was introduced and people became aware that the voting machines purchased under HAVA did not have to use or produce voter-verified paper ballots, groups demanding integrity in electronic voting sprang up in virtually every state in the nation to support the legislation. As far as these groups were concerned, HAVA may have made it easier for some Americans to vote, but it did virtually nothing to ensure that all of those votes would be counted as cast.

Restoring the trust of the public in the machinery by which they exercise their right to govern themselves was a critical objective in my running for Congress in the first place. Today, after a four-year-long effort, and thanks largely to the attention of the voting public to this issue and their fierce passion for making sure that all voters can be confident that their votes have been counted as they intended, the legislation is now perceived as a mainstream idea and is on the verge of passing. It may always seem odd that a physicist would be the staunch proponent of a low-technology solution. But as so many computer scientists have shown, simpler can sometimes be better.

FOOTNOTES

1 Prior to the 2004 general election, the last time the certificate of all of the electoral votes of any state (and in that case, a number of states) was challenged in Congress was in 1877, in the Hayes-Tilden election of 1876. Congressional Research Service Report for Congress, Electoral Vote Counts in Congress: Survey of Certain Congressional Practices, December 13, 2000.
2 See 151 Cong. Rec. 2 (2005), for the debate on January 6, 2005, concerning the challenge to the certificate of the electoral vote of the State of Ohio from the 2004 General Election.
3 Complaint at 2 and 7, Jennings v. Elections Canvassing Commission of the State of Florida et al., No. 2006 CA 2973 (2nd Cir. Nov. 20, 2006).
4 153 Cong. Rec. 1, H5 (2007).
5 Section 301(a)(3)(B) of HAVA (42 U.S.C. 15481(a)(3)(B)) provides that jurisdiction shall meet the accessibility requirements of the bill “through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.”
6 http://verifiedvoting.org as updated April 6, 2007.