CASE Ohio - Rebuttal to Robert Ney's Article in Roll Call

In recent months, groups such as MoveOn.org and individuals such as former Vermont Gov. Howard Dean (D) have rallied the nation's editorial boards in support of legislation offered by Rep. Rush Holt (D-N.J.) that would require voting systems to produce a "voter-verified paper trail." Most recently, an editorial in favor of the Holt bill was published in Roll Call ("'Fraud at Polls'?," Sept. 8).

Before addressing the substance of the issue, I must debunk a widespread and misleading claim that is being spread by these groups and mistakenly published by many newspapers - that the House Republican leadership is somehow responsible for this bill not moving forward.

In March, Rep. Steny Hoyer (D-Md.) and Sen. Chris Dodd (D-Conn.) joined Senate Majority Whip Mitch McConnell (R-Ky.) and myself in co-signing a letter in which we expressed our concerns about the Holt bill. The letter makes clear why we do not believe action on the bill is timely or wise. The last time I checked, those two Democrats were, respectively, the House Minority Whip and the ranking member on the Senate Rules and Administration Committee - not positions typically associated with the Republican leadership. I can assure you the Holt bill is not being acted upon because of the concerns we expressed in that letter - and for no other reason. The claim that the House Republican leadership is somehow responsible is simply detached from reality.

A solution to this would be to let the entire House debate the issues and get the wisdom of many minds instead of just the few privileged .

As far as the reasons for our opposition, it is useful to consider the central tenet behind the arguments of paper trail proponents: that paper ballots are the only way to ensure an accurate election. This argument ignores the simple fact that manipulation of paper ballots has been at the root of virtually every case of election fraud in American history.

Of course, paper ballots have been the most dominant means of voting up to this point. The fraud typically centered on allowing ineligible voters to vote, allowing people to vote more than once, buying votes, and losing or misplacing ballots. And then with the Florida election of 2000, other shameful but more subtle means of defrauding the voter were laid bare for the world to see. As for losing ballots, the electronic machines have a history of losing those too.

I would also be remiss if I did not note the tremendous irony of this situation - in that the same individuals who decried the November 2000 election and the paper ballots in Florida are now coming back and telling the American people four years later that paper ballots are in fact the only way to ensure a fair election.

If you examine the facts surrounding the debacle in Florida the voting problems occurred as a result of several conditions: first - the use of butterfly ballots, second - chad trays that were not emptied which resulted in unpunched ballots, or dimpled or pregnant chads, third - poor voter education, and fourth - most significantly, the criminal disenfranchisement of tens of thousands of eligible voters under the guise of purging convicted felons.

The fact is that paper-based systems have a very long and documented history of failure and inaccuracy, with demonstrated error rates that exceed more modern electronic systems. While Holt supporters hold paper out as some sort of guarantor of electoral accuracy and integrity, the reality is paper systems have a long history of problems that electronic systems are designed to prevent.

Why is it that Representative Ney is so eager for the American voting public to accept electronic voting machines that offer no valid way to audit the election results. Why is he not pressing for the best of all worlds? a means for the voter to cast their ballot using the ease of electronic machines as well as a way to independently audit the results that the machines are displaying.

Why is it that Representative Ney feels that he is far more knowledgeable about the dangers of these systems than experts such as: the Election Assistance Commission established under HAVA; Cal Tech / MIT computer and election experts; the Brennan Center for Justice and the Leadership Conference on Civil Rights; Professor Douglas Jones of the University of Iowa computer science department; Rebecca Mecuri, PhD; Avi Rubin, technical director for the Johns Hopkins' Information Security Institute in Baltimore; and many others who have stated that elections should NOT be held on any electronic machine that does not offer a voter verified paper audit trail?

The House Administration Committee has looked at this issue extensively, including most recently at a hearing in July. At this hearing, one witness, Michael Shamos, a Distinguished Career Professor in the School of Computer Science at Carnegie Mellon University, testified, in part, that while a paper receipt may "assure the voter that her choices were correctly recognized by the machine, it provides no guarantee that the vote was counted or ever will be counted correctly, or that the paper viewed by the voter will even be in existence at the time a recount is conducted. And the paper trail surely does nothing to increase the reliability of a voting machine. If the device won't start on Election Day, then adding a printer to it certainly does not increase its chances of working."

I was not able to find any reference on the Internet to Mr. Shamos’ testimony before Congress in July of this year so I have to assume that Representative Ney accurately quoted Mr. Shamos. I did, however, find a record of his testimony in June, 2004, and quotes from that testimony are provide below. But Mr. Shamos’ comments that Representative Ney has provided above need to be addressed first, for they do not support his arguments, they actually undermine it.

First: that while a paper receipt may "assure the voter that her choices were correctly recognized by the machine, it provides no guarantee that the vote was counted or ever will be counted correctly…”

Representative Ney, don’t you see that this is exactly the point supporters of VVPAT have been trying to make. If the machine does not count the vote accurately how would anyone ever know? There is absolutely no other way to know without a paper audit trail that is first verified by the voter and then later hand counted, if necessary. Hand audits should be an integral part of tallying the votes from every electronic voting machine.

Second: “…or that the paper viewed by the voter will even be in existence at the time a recount is conducted.”

This is actually quite simple, if the paper that the voter verified as being an accurate representation of their vote is missing then someone goes to jail. I believe that our Boards of Elections are capable of establishing polices to protect each voter’s receipt. Perhaps the standards ought to be set by the EAC. In any event, severe penalties need to be handed out to those responsible for losing votes or not following proper procedures. I have full confidence that if the proper procedures are established and followed under the watchful eye of a bipartisan poll monitors the system should work quite well. Don’t you think that with the proper guidance our Boards of elections are capable of this, Mr. Ney?

Third: “…And the paper trail surely does nothing to increase the reliability of a voting machine. If the device won't start on Election Day, then adding a printer to it certainly does not increase its chances of working."

Good point! At their present state of development theses machines have a documented history of failing which means that are not yet ready for prime time. Standards should be set for the development of high quality machines that do start each and every time. Right now the voting machine manufacturers have been so greedy to get at the HAVA funds that they have rushed to market an extremely inferior product. In any other industry such companies would be out of business, yet for some reason, these companies continue to thrive. Makes one wonder why, doesn’t it Mr. Ney?

Whether the devise starts on election day or not is certainly an important issue. If the devise won’t start then voters will be disenfranchised and that’s a major problem. But the problem of faulty devises that won’t start can be mitigated by (1) only buying equipment from vendors who have demonstrated that they produce a quality machine, (2) extensive testing just before the elections, (3) well trained pollworkers, and (4) just in case, by having an adequate supply of the good old fashioned paper ballots available for delivery from several central sources throughout each county.

Here are a few other comments made by Michael Shamos over the past few months that Representative Ney chose to ignore. Each of them not only highlights the need to be ever vigilant, but also underscores the fact that electronic voting machines should NEVER be accepted unless they offer a voter verified paper audit trail:

”Despite concerns over whether the so-called touch-screen machines can be trusted, the testing companies won't say publicly whether they have encountered shoddy workmanship. … 'I find it grotesque that an organization charged with such a heavy responsibility feels no obligation to explain to anyone what it is doing,'' Michael Shamos, a Carnegie Mellon computer scientist and electronic voting expert, told lawmakers in Washington. “The system for ''testing and certifying voting equipment in this country is not only broken, but is virtually nonexistent,'' Shamos added.

The following are quotes taken from testimony given Mr. Shamos before the Environment, Technology, and Standards Subcommittee of the U.S. House of Representatives’ Committee on Science, June 24, 2004. They are anything but a ringing endorsement of electronic voting in its present form, as a matter of fact they are just the opposite. They document the need to keep these machines out of our polling booths until serious questions are answered and serious flaws are corrected. And they underscore the need for an independent means of verifying that the machines actually do record the voter properly, something only a voter verified paper audit trail can do.

“one of the principal election security worries is the possibility of a computer virus infecting a voting system. Yet the FVSS place virus responsibility on the voting system vendor and do not provide for any testing by the Independent Testing Authority (ITA). Furthermore, the standards do not even require that a voting system contain any virus detection or virus removal software at all…”

“The current process of qualification testing by Independent Testing Authorities certified by the National Association of State Election Directors (NASED) is dysfunctional. As proof I need only cite the fact that the voting systems about which security concerns have recently been raised, such as Diebold Accuvote, were all ITA-qualified. Some of these systems contain security holes so severe that one wonders what the ITA was looking for during its testing…”

“Assuming that the machines operate properly when delivered, there is no assurance that they will be stored, maintained, transported or set up properly so they work on Election Day. While many states provide for pre-election testing of machines, in the event of a large-scale failure they can find themselves without enough working machines to conduct an election…”

“In this whole discussion we have ignored the matter of where the software used in the machine comes from. It may have worked when delivered by the vendor but may have been modified or substituted, either deliberately or innocently, by persons known or unknown. We need a central repository for election software to which candidates and the public has continuous access, so it may be known and verified exactly what software was used to present the ballot and tabulate the results…”

“The means by which voting machines are modified, updated and provided with ballot styles and software should be tightly controlled, with meaningful criminal penalties for violations. Right now, a vendor who distributes uncertified software risks little more than adverse newspaper coverage…”

“The current pall that has been cast over computerized voting in the U.S. can only be lifted through greater public involvement in the entire process.”

Further, the committee also heard testimony from a top Georgia election official who indicated that prior to the deployment of Georgia's new, modernized electronic voting system, the state's error rate for a top-of-the-ballot race under their old paper ballot system was 4.8 percent. After the implementation of the new voting system, that error rate fell to a miniscule 0.87 percent rate. These figures translate into 71,000 people whose votes were lost in the older paper-based system, but whose votes were counted by the electronic system. Those lost votes under a paper ballot system are real, and they should be acknowledged by those who are warning of unseen and unproven "dangers" posed by newer systems.

Lost votes represent a terrible tragedy and everything should be done to correct the system. But a system that is in need of repair should not be replaced by another broken system, one with even more insidious flaws. Each lost vote represents a disenfranchised voter. But each vote that is cast into a machine that offers no way to independently verify the results is putting the entire voting public at risk for disenfranchisement not only by lost votes, but by votes that are secretly changed by the machine. In addition, Georgia’s experience, if accurate, is an anomaly. Studies conducted by Cal Tech/MIT have shown that nationally between 1988 and 2000 the residual vote count (lost votes) for electronic voting machines was 2.3% versus 2.5% for punch cards and 1.89% for paper ballots. Optical scan performed even better at 1.50% Also, the experience of Gadsden County in Florida has shown that with the proper voter education techniques residual (lost) votes can be dramatically reduced by over 50%. And of course, having empty chad receptacles and properly designed ballots would go along way towards improving the punch card and paper ballot results.

But the real issue here is not whether we eliminate electronic voting and stick with a totally paper based system as Mr. Ney would have us believe. The real issue is whether we will decide to implement an electronic voting system, with all of its advantages, in conjunction with an anonymous, voter verifiable paper audit trail with all of the advantages that it has to offer. And those advantages are extremely significant, not the least of which is the ability to independently audit the election results that the machines would have us believe. In addition, the voter verified paper receipt would provide a means of saving voters from disenfranchisement should the machines fail in some catastrophic way and subsequently lose all of their records.

Finally, the House Administration Committee has also heard from virtually every major disabled rights group in America, all of whom are opposed to the Holt bill. In a recent letter to Congress, the Consortium for Citizens with Disabilities noted that the Holt bill "erodes the rights of voters with disabilities under HAVA" and "eviscerates the accessibility provisions of HAVA.”

That statement is not accurate, because the Holt bill does nothing to either "erode the rights of voters with disabilities under HAVA" or to weaken the accessibility provision of HAVA; rather, it moves up by one year the date by which polling places must be accessible. In addition, it provides specific exemptions that permit disabled voters to continue using paperless electronic voting machines, if they so chose, until such time as voting machines with an accessible voter-verified paper audit trail system are available in their jurisdiction.

It is important that everyone be sensitive to the needs of individuals that are disabled in any way. Although I believe that one day electronic voting machines will be of benefit to the handicapped, the jury is still out on their ability to provide that assistance today (see the comments quoted below.) But the discussion of the handicapped needs to be framed within the bigger picture: Should every American today give up their right to honest, secure, fair and voter verifiable elections for the sake of the handicapped who want to be able to vote in private today? The answer to that question is a definite no. The better solution is to press for the development of properly designed, tested, voter verifiable and open source code, quality machines. Until then, the handicapped will, unfortunately, be asked to use the existing systems.

The sad part is that machines that do meet the needs of the handicapped and which do offer a voter verifiable paper audit trail and which do meet the current (low) federal standards are available from companies such as Avante, AccuPoll, and others. Avante’s machines have even been used for European Union elections in Italy. But these companies do not have the political connections and clout to have their voices heard above the din. I am not recommending either company, but they have demonstrated that the technology exists to offer the voter a verified paper audit trail.

"Disabled-rights groups have been some of the strongest supporters of electronic voting, but blind voters in Santa Clara County said the machines performed poorly and were anything but user-friendly in the March election ..." (San Jose' Mercury News, May 15, 2004)

"Noel Runyan, a blind voter and computer scientist who is an expert in designing accessible systems, said touch screens are a good idea in theory, but they need a thorough redesign to work in practice. He said the voting companies appeared to have ignored feedback they solicited from groups of blind voters as they were developing their systems ...." (San Jose Mercury News, May 15, 2004.)

“ ... Election officials feel that they have been bullied by the members of the NFB, many feel that they have no choice but to acquiesce ... As a blind person, it is important to me to be perfectly clear, so I will explain. The Diebold, Inc. machines have no accountability, no way of verifying votes." — Kelly Gutensohn, a blind mother of eight who recently filed a racketeering lawsuit against Diebold and the National Federation of the Blind. (From www.BlackBoxVoting.org)

My reservations about amending the Help America Vote Act to require paper receipts, however, in no way lessen my interest in ensuring that electronic voting systems meet the most rigorous security and operational standards. The American people demand and deserve a voting process in which they can have full confidence. And that is why I am pleased to see that questions regarding voting systems security, as well as many others, are now being examined by the entity responsible for doing so under existing law, the Election Assistance Commission (created by HAVA), in conjunction with the National Institute of Standards and Technology. Their review should be allowed to continue before Congress recklessly begins imposing new costs and new requirements, just months before the 2004 presidential and Congressional elections, that have not been fully considered.

A valid point. It’s unfortunate that the bill has been tied up in Representative Neys’ committee for months, a committee he chairs, by the way. Unfortunately, we are so close to the elections that mandating a machine produced paper audit trail for use in 2004 is probably not reasonable. Far more reasonable would be the restriction in 2004 of the use any machine that does not offer such a voter verifiable receipt, and which has not been tested and approved even by today’s lax standards. These machines should be banned from use and replaced by optical scan or paper ballots, if only for the federal government races.

Daniel Kozminski
CASE. Ohio – Citizens’ Alliance for Secure Elections
Dedicated to secure, reliable and voter verifiable elections in Ohio.