Part 2: "...anonymous voter-marked ballots"

This article is Part 2 in a series explaining the Free and Fair Elections Amendment. More information is available at www.freeandfairelections.org.

The central feature of American elections since the earliest times is the secret ballot. Citizens vote in total privacy and without their names attached to the ballot. Likewise, since the beginning, citizens had to mark their own ballot because there was no other way to cast a private anonymous ballot. The assumption of anonymity and voters marking their own ballots was built into the technology. Now, with the advent and deployment of electronic voting machines, both of these assumptions are disconnected from the technology, thereby requiring the American people to clarify whether or not the assumptions still apply to our judgment and determination of a “sound election.”

Retention of those assumptions—that voters are anonymous and mark their own ballots—requires their restatement in a constitutional amendment so that they may enter the dogma of American self-government. The assumption that voters mark their own ballots is fundamentally contradicted by electronic voting machines which mark either a receipt or nothing at all. When voters mark their own ballots, at least three salutary effects are preserved. When electronic voting machines intervene, two of these are lost, and one is seriously corroded; the result is a weakened public consensus about the outcome of our elections.

First, the voter must be able to know that the permanent record of his or her vote is recorded exactly and precisely as he or she intended it. When a voter marks his or her own ballot, verification is inherent in the marking and examination of the physical ballot. The voter looks at his ballot, ensures that he or she has marked the correct areas of the ballot, and the ballot is submitted to the ballot box. No examination of printouts. No receipts. Just a voter and his ballot—the permanent record of his vote.

Electronic voting machines, where the vote tally and the ballot itself are held inside the electronic lock box, violate this basic provision: The voter has no way to know that the permanent record of his vote is accurate. Even with very specialized technical knowledge of the machines, he or she cannot ensure that his own vote is being recorded correctly. In essence, there is no way to verify for himself that the “ballot” is correct.

The gold standard here is that the voter inherently examines his or her actual ballot to affirm that yes, it is what he or she intended. Such a ballot can then be deposited in a machine for counting and storage of the ballot. No receipt will affirm the vote, only the voter himself can provide such affirmation, and the ballot is the permanent record.

Second, voter-marked ballots protect the anonymity of the voter—a central principle to American democracy. The voter marks his or her ballot, makes no self-identification, and turns in the ballot. A permanent record is left behind—the ballot itself. The ballot is a physical representation of one’s vote, and it may be recounted if necessary. No connection to the voter can ever be made.

Procedures that require citizens to examine a confirmation receipt violate this standard. There is no way for the voter to be assured that the recording of his vote inside the machine matches the printed report of that vote. Hence, the voter cannot actually verify her own vote. Some have suggested the provision of a receipt to voters, such as you receive from an ATM machine. Receipts constitute a major corruption of the anonymity of the system. Such receipts could be demanded by coercive players in the system, such as employers, vote-buyers, teachers or religious leaders, for example. The voter must be able to verify that his or her ballot is marked exactly the way he or she intends to mark it while maintaining anonymity. Today, physical ballots are the only way to meet this requirement.

Voter-marked ballots also provide the access needed for observable counts because they require physical ballots that can actually be marked. Only with such ballots can average citizens, operating as election judges, see and verify that the counts in the machine are actually adding up to the numbers on the ballots—in other words, the counting machine can be verified by average people acting as election judges without special technical knowledge. This is a requirement. The American people must not and cannot place all the confidence for the operation of our elections in technicians and software engineers. It is, after all, the sovereignty of the people which is at stake. It is we, all the people, who vest power in our elected representative, and so it is and should be we, all the people, who have access to the system, the count, and the administration. Without this, it is we the people ourselves who are losing sovereignty. “We the people” becomes “We the technicians…” and “We the software engineers…” Beyond a mere erosion of power, it is the usurpation of the very sovereignty of the people on which the American Revolution, and all our government and liberty, was based.

The current debate over electronic voting machines pits one expert against another, but the bulk of the American people are the ones disenfranchised by the inability to verify their own votes. This must stop. By enshrining the right to mark our own ballot in the Constitution, we can make sure that any system we adopt will provide these safeguards.

The text of the Free and Fair Elections Amendment is proposed as follows:

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Transparent and well-regulated elections, being necessary to the security of a free state, the right of the people to anonymous voter-marked ballots, visual observation of the vote count, public inspection of registration records, legal US Citizenship of all voters, and an audited, certifiable electoral process, shall not be infringed.

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