- When candidates start demanding recounts in the aftermath
of Tuesday's election, many will make an unsettling discovery: In the
districts
that used electronic voting machines there won't be a way to conduct a
meaningful recount.
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- That's because the paperless machines provide no method
for conducting an independent analysis of the votes other than what's in
the machine's memory. And collecting the data necessary to prove fraud
or irregularities on a touch-screen machine will be uphill battles, since
courts and election officials have been unsympathetic to losing candidates
making such claims in the past.
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- As many activists have pointed out over the past year,
conducting recounts on e-voting machines means that election officials
simply re-run the same electronic data on the same machines. If machines
recorded the votes inaccurately the first time or if the counting software
contained flaws or malicious code that produced untrustworthy results,
a recount using the same software would produce the same untrustworthy
results. Garbage in, garbage out, as they say.
-
- The other option is to examine the internal workings
of the machines. But since the software used on the machines is
proprietary,
most courts have been unwilling to grant candidates access to the
code.
-
- This hasn't always been the case. In 1984, a court did
allow plaintiffs in a disputed election to examine the source code. That
year, when Ronald Reagan was re-elected president, lawsuits in Florida,
Indiana and West Virginia charged fraud and vote manipulation in local
races. Fingers pointed to the company that made the machines used in the
election -- Votomatic punch-card machines, made by Computer Election
Systems,
or CES, of Berkeley, California, which used computer software to tally
the votes. Experts said the company designed the machines and software
so that vote totals could easily be altered without leaving a trace.
-
- Losing candidates in one race charged that when the
computer
acted up on election night, a CES employee inserted control cards into
the machine. The plaintiffs sued to retrieve the source code, and the
court,
for once, consented. When computer experts examined the software, they
determined that CES had changed the computer's instructions for tallying
votes on election night. But because the program lacked adequate auditing
mechanisms to track the nature of those changes, no one could determine
if the company had rigged the election. The plaintiffs lost the case
because
the court ruled that their claims were mere conjecture.
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- "Mere conjecture" is a phrase likely to be
heard a lot this year. That's because election officials and courts so
far have not been helpful in providing losing candidates with backup and
peripheral data, such as machine audit logs and software source code that
might help determine if votes on a machine were recorded
inaccurately.
-
- "How can you show fraud or error if you've been
denied access to any of the tools that can show you the existence of fraud
or error?" said California attorney Greg Luke, who has litigated
election
disputes. "We need to get procedures in place long before elections
that tell officials what they need to preserve and hand over in a recount.
It's a messy thing to try to have courts step in and tell people what they
should have been doing from the beginning."
-
- A recent California case highlights how an election
dispute
with touch-screen machines in this election could play out.
-
- Last March in California's Riverside County, Linda
Soubirous,
a candidate for board of supervisors, lost her race to an incumbent and
missed a chance for a runoff by only 45 votes. California election law
allows any citizen the right to request a recount. When Soubirous did so,
the county simply ran the same electronic data through the machines to
get the same results. Soubirous said this was inadequate and sued the
county
and former registrar of voters Michelle Townsend to obtain audit logs and
the electronic memory cartridges from the machines where the votes were
stored.
-
- The recount gave Soubirous even more reason to believe
there might have been problems with the original count, because election
officials discovered 300 additional paper ballots that they had missed
during the first count. There were also eyewitness reports that on election
night Townsend had halted vote counting for a period of time and allowed
employees of the voting machine company, Sequoia Voting Systems, to access
the computer containing the counting software.
-
- Townsend refused to hand over the audit logs and memory
cartridges, saying they were irrelevant to a recount. This was strange
because Townsend had been telling e-voting critics for the past year that
voters shouldn't worry about the security of touch-screen machines because
they stored three redundant versions of votes which could always be
examined
in a recount. Riverside was the first county in the state to purchase
touch-screen
machines, spending $14 million in 1999 for them.
-
- Townsend didn't give a clear reason why she believed
the redundant data and logs were irrelevant to a recount. Nonetheless,
California Superior Court Judge James S. Hawkins ruled that Riverside
County
voting officials did not have to hand over the logs or cartridges and that
the county had a right to decide what materials were relevant to a
recount.
-
- Luke, who is representing Soubirous in an appeal of the
decision, said he thinks it has a good chance of being overturned, since
California law specifies that anyone disputing election results has the
right to request the relevant data. But even if Luke succeeds in winning
access to the data, it's possible that its authenticity has been corrupted
with the passage of time and recent moves by election officials to copy
the data onto a server.
-
- Luke is lucky that the Riverside data didn't go the way
of redundant data that disappeared earlier this year in Florida. After
voting activists filed a request to view audit logs for votes cast on
touch-screen
machines during the 2002 primary election, officials claimed the logs were
lost when a computer crashed in 2003. Officials in Miami-Dade County later
found the backup data, but the lapse didn't give voters confidence in the
voting systems or in the ability of election officials to preserve valuable
data for recounts.
-
- On its own, the redundant data can't prove an absence
of fraud. For this, Luke and other litigants would need to have access
to the source code of the machines' software. But voting companies have
succeeded until now in getting courts to agree that parties that contest
an election have no right to see the proprietary code.
-
- Election laws across the country need to be revised to
keep pace with the new technology, Luke said. As they currently stand,
the laws set an impossible bar for anyone to prove fraud. In most states,
he said, election law requires that someone contesting an election have
some proof of fraud before they can request access to the vote data.
-
- "Contests are expensive and they almost always
require
someone to show in advance that they think a certain number of votes were
wrongly counted," he said. "When you file the contest you have
to say, for example, that 501 votes were incorrectly counted. You have
to have a reasonable basis. The catch-22 is that unless you have been
denied
access to all of this secondary material which gives you some information
about whether the machines have functioned improperly, it's very difficult
to make that allegation."
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- Some 50 million registered voters live in counties where
more than 100,000 touch-screen machines will be used this week. Given the
number of machines, it's highly likely that some machines will fail to
record votes or fail to record them accurately. Will we know about those
problems? No one knows. In close elections there is always more scrutiny
on how the machines counted the votes. But in elections with wide margins,
no one seems to care if machines miscount votes. That's why election
officials
are praying for wide margins this year. They're not likely to get them.
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