Could we actually get a ballot count in 2020 that would be fair and reliable?
There are now computerized voting machines producing digital ballot images that could help make that possible. But some election officials don't want to make the best use of them ... for reasons that aren't often clear.
The stakes could not be higher. And confirming the use of reliable, verifiable methods of casting and counting ballots in 2020 and beyond will require a huge grassroots effort.
A dozen years ago (in the wake of the Florida 2000 fiasco that put George W. Bush in the White House), paperless touch-screen "black box" voting machines spread throughout the US. Ronnie Dugger, the legendary editor of the Texas Observer, told me at an Ohio hearing that these machines "were perfectly designed to steal elections."
Financed by the 2002 Help America Vote Act, these "push and pray" electronic touchscreen Direct Recorded Entry (DRE) devices were easily hacked and impossible to monitor.
They clearly swung many an election (including Ohio 2004 and Michigan 2016) where local officials could make the outcomes be whatever they wanted. (A computer professor recently hacked one of those machines to play the University of Michigan fight song.)
Many are still in use, and could impact the 2020 vote count. But DREs are gratefully going extinct. Many have been replaced by paper-ballot-based systems.
Many election protection activists strongly question anything other than hand-cast and hand-counted paper ballots, and for good reason. This new generation of machines may solve some key problems by using a mix of paper ballots and more transparent, independent systems to do vote counts. Needless to say, they will be VERY carefully scrutinized going forward.
Here's how they work:
- The voter chooses a language and receives a ballot printed on the spot. This feature helps counties like Los Angeles, whose 4.3 million registered voters can legally vote in any one of more than a dozen languages. Providing a comprehensive supply of preprinted ballots is a virtual impossibility; the machines help make the situation manageable.
- The voter marks the ballot with a pen or special pencil.
- Some precincts are deploying touchscreen devices to mark the ballots. Some specially challenged voters need them. But many critics say they cost too much and can be hacked. (The blogosphere has filled with acrimony over whether these Ballot Marking Devices can be fairly monitored ... or should be banned altogether.)
- However it's marked, the voter then inserts the ballot back into the machine. (Many ballots will also be coming in by mail, and will be inserted by poll workers to produce a ballot image, with the mailed-in ballots being stored along with those cast in person at the voting place.)
- A digital image of the ballot is then stored in memory, to be tallied for the official vote count in the LA system.
- The paper ballot itself then flows through to a bin where it remains available for a manual recount should the electronic image tallies be challenged.
Many election protection activists are closely watching the LA system, which is different from other ballot marking devices. If the computer code is open to public scrutiny, hacking the digital images becomes pretty tough. Mal-programming can happen, but it isn't easy and could be detected, both by inspection of the source coding and a re-check against the original ballots. (On the other hand, the expense of the BMDs as opposed to simple pen/pencils will remain an issue.)
If they're reliably preserved (as required by federal law) the ballot images can be quickly inspected in a close and/or disputed election.
The paper ballots themselves provide an obvious backup for reliable recounting. But the chain of custody must be carefully protected for the required 22 months (i.e., nobody unauthorized can be allowed to get their hands on them, as happened in Ohio 2004 and elsewhere).
These digital ballot image machines are now widely available.
States and counties covering as much as 85% of the nation's voters are expected to use paper ballot-based systems in 2020. The systems are not uniform; there's a wide variety in play.
California has now become an all-paper state. Secretary of State Alex Padilla recently decertified all the old DRE touchscreen machines that came from the 2002 Help America Vote Act. They will be replaced in time for the 2020 presidential election with digital scanners and some BMDs.
But LA's source code is one of the few to open to public scrutiny. Few other counties in 2020 will have machines as advanced and transparent as the ones likely to be used in Los Angeles.
Meanwhile, there's (of course) another glitch: some states and counties simply do not want to preserve the ballot images.
Debbie Sumner of New Hampshire reports that "the legislature is removing ballot images from public records law. [It] doesn't need a LEGITIMATE reason to remove a document. Any old reason will do."
This borders on the absurd. A 1962 civil rights law requires that all materials from any federal balloting be preserved at least 22 months, i.e., to within two months of the next Congressional election.
These ballot images have become a cornerstone of our democracy. But some election officials say they can't be bothered to flip the switch that "produces the ballot images."
But that's an impossibility. Virtually none of these new machines will operate at all without producing the images (which makes them a matter of public record the instant they're created).
What in fact the officials want is the"right" to trash the images after they're produced.
It actually takes more work to discard these digital images than to preserve them. But election protection activist John Brakey and his group AUDIT just lost a legal skirmish in their crusade to stop this from happening.
A federal judge in Florida ruled that AUDIT's six Florida plaintiffs had no standing to demand the preservation of the digital images. Only the Justice Department, he said, has that right: "...while the Court is sympathetic to the plaintiff's claim ... 52 U.S.C. 20701 does not confer a private right of action of plaintiff."
Says Brakey: "We lost on a technicality and we will have to find a new way federally to get into the system, not only in Florida but in North Carolina, Michigan, and many other states."
Steven Rosenfeld, who reports on election issues at Voting Booth, says "Florida may pass a bill this spring that would allow its counties to use audit systems using digital images of paper ballots (hand and machine marked) for recounts."
In November 2016, about 1.3 million Florida votes were trashed because two counties (Broward and Palm Beach, with 714,000 and 584,000 votes respectively) failed to file their official recounts in time, potentially changing the outcome of bitterly disputed races for both governor and US Senate. Both Broward and Palm Beach go about 70% Democrat; the trashing of these ballots could well have affected both the governor's race and that for US Senate, both of which were "won" by Republicans.
There were many reasons for missing those deadlines, says Rosenfeld. But this new bill might "bring new transparency and accountability to the most contested elections, including possibly 2020's presidential, to help legitimize results whatever they are."
"It would also affirm the role of using a mix of the best of paper and digital records to try to account for every vote cast before winners become official."
So (ironically) Florida might become one of the most transparent states in the US. Other states following a parallel path could help us get a more credible vote count in 2020.
Our course ballot images won't be 2020's only election protection battleground.
Trump's GOP wants to strip from census and registration rolls millions of citizens of color, non-billionaires, and others who may be inclined to vote NO on a new dictatorship. The assault will target ways to (again) win the Electoral College while (as widely expected) losing the popular vote.
Al Gore, John Kerry, and Hillary Clinton all rolled over in races they legitimately won. Our survival now demands candidates willing to join Georgia's Stacey Abrams in refusing to concede stolen elections.
In the meantime, John Brakey (contact him at firstname.lastname@example.org), his AUDIT team, and many others (hopefully including you) will be fighting for systems that might actually get us nearer a fair and accurate vote count.
And nationwide, as the issues of ballot marking and imaging flow into the mix, the question of how to secure a reliable, verifiable vote count in 2020 and beyond will require a huge grassroots effort.
In this century, with the likes of Donald Trump in the White House, Thomas Jefferson's warning that preserving democracy requires "eternal vigilance" remains an epic understatement.