Article: We Need Legislation to Assure Freedom of Access to Elections Information

MUCH OF WHAT WE WANT IN ELECTION REFORM can be achieved once we have agreement on the civil rights issues. Yes, we need paper ballots, but that does no good unless we also have a right to information.

ELECTION REFORM LEGISLATION MUST DEAL WITH THE PUBLIC'S RIGHT TO KNOW

The American constitutional form of representative government is based upon the principle that government is the servant of the people, and not the master of them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.

Elections are the mechanism through which the citizenry conveys its instructions to the government, and therefore, elections must provide full freedom of access to information to all citizens, which includes access to the information needed to validate and audit the election.

Without this, it is only a matter of time before our system of government crumbles.

THE GOOD NEWS

We can base real electoral reform on a body of law that's already in place: Freedom of Information Acts (FOIA). Elections are a special circumstance, and current FOIA laws don't quite work the way they are currently structured, but with tweaks specifying the kinds of Freedom of Information rights we need for elections, WE might just work wonders to make everybody happy.

FIVE PROBLEMS WITH FREEDOM TO ELECTIONS INFORMATION

FOIA has enormous potential for correcting many of the problems we're seeing, but not until it's adapted for elections. For any election system to work properly:

1) The information to enable citizens to oversee all aspects of the election must actually be produced. With the move to computerized voting, some aspects of the right to observe and the right to examine information have been removed from public access. We need to get those back.

Currently, even when elections information is produced it may be deleted or kept out of print. For example, according to responses to Black Box Voting public records requests issued in New England, elections contractor LHS Associates tends to do business verbally. According to elections officials in Vermont, even purchase orders are often not put in print! In addition, we are finding evidence that elections vendors don't always itemize their invoices.

What we get is that "something" was done to or for the computerized voting system, but there is no document the public can examine to learn exactly what's going on, or even what their tax dollars are paying for.

SOLUTION: One of the things we need to get to work on is identifying what information MUST be produced (in written form) by whatever voting system is used. We're also going to have to mandate sensible retention policies for election-related e-mails and correspondence, because some public officials are telling us they throw away their e-mail correspondence immediately, including communications records with vendors and directives from the state.

2) Information is not provided to citizens timely. Freedom of Information laws are not designed with elections in mind. Almost always, you can't get the records until weeks after the election is certified. By then, it's too late.

And this is getting worse. When Black Box Voting obtained some early precinct results from Georgia counties, we were astonished to find that candidates had been unable to get hold of their own results! While they could get their totals, the precinct detail results were simply not available. Candidates were contacting Black Box Voting just to get their own elections results, because precinct results were not released until certification of the election was imminent.

3) The costs for elections-related records are prohibitive in many states. We love Ohio and North Carolina for their willingness to part with public records at a reasonable price, but in Texas it can cost you $500 just to get a precinct-level report of the results for a single county, and Michigan once tried to charge us $1,600 just to look for a single letter, with no guarantee of finding it, and a requirement for a non-refundable prepayment. South Dakota doesn't really have to give you any records; one South Carolina county insists that you have to travel there if you want to see elections records. And San Diego, Calif. wants to charge over half a million dollars for citizens to audit the paper ballots.

Assuming the right of Freedom of Access to Elections information can be established more uniformly, many of the cost issues can be remedied by requiring elections information formats with fast turnaround time, cost effectiveness and usability in mind.

4) The claim of proprietary trade secrets gets in the way of access to critical information. Some of this is solvable with open source, but not all. Black Box Voting has obtained a letter from the lawyer for Election Systems & Software claiming trade secrets on its customer list -- mind you, their customers are the PUBLIC counties and municipalities that use their voting system. ES&S also claims trade secrets on costs and contracts, for equipment and services purchased with taxpayer money!

The big voting system companies are also farming key election functions out to subcontractors. In West Virginia, Casto & Harris has control over programming ES&S memory cards; in Texas it's DecisionOne. You'll find Printelect, LHS, Harp, Control Central, and Fidlar, along with many others when you dig around to find out who really has intimate access to the chain of custody for your electronic ballot information.

None of these firms seems to feel that they should be subject to your civil rights under Freedom of Information law, even though they are supported by YOUR tax money.

Good luck trying to find out:
- The names of their programmers, much less their qualifications for the job of programming your election
- The prices they charge
- What, exactly, they do

By placing key elections information outside of government custody, these firms have effectively removed your civil right to oversee your own government elections.

5) Even when the necessary information is produced, it is not generated in a usable form. Currently it takes a small wheelbarrow and two months of free time to audit a single jurisdiction, assuming you can get the records timely, which you cannot.

Much of this is solvable by requiring that the necessary information be aggregated into the same report rather than parsing it out into several different reports. Currently, trying to make sense of the reports is literally like trying to put Humpty Dumpty back together again.

SOLUTIONS HAVE TO START BY GUARANTEEING PUBLIC ACCESS TO ELECTIONS INFORMATION

FREEDOM OF INFORMATION -- The fundamental civil right embodied in Freedom of Information laws is that people must have access to information on the workings of their government in order to oversee the instruments of government they have created.

Elections-related information at the local, state, and federal levels needs to be made available to any person under the civil rights principles embodied in the Freedom of Information Act, in a way that addresses the special circumstances in elections.

LEGISLATIVE CONSIDERATIONS

- First, the information necessary for citizens to validate elections must actually be produced by the voting system and its accompanying elections procedures. To the extent that it is not produced, reporting mechanisms must be enhanced.

- Second, when information to validate the election is requested timely, it must be provided timely, that is, before recount and contest periods have expired. To the extent that this is overly burdensome for elections officials, consideration needs to be given to the design of systems that free up their information quickly, accurately and easily.

- Third, the information must be provided in a usable and cost-effective format. To the extent that this is not possible, alternative solutions need to be explored, like the groundbreaking proposals involving public release of ballot images, originally suggested by Finnish security expert Harri Hursti, introduced to the public in 2005 by Black Box Voting, and now on the horizon for real elections with concrete, cost effective proposals in Humboldt County Calif.

- Fourth, citizens must be allowed to access elections-related information without restrictions imposed by proprietary claims, and without removal of access to the information by placing it outside of governmental custody.

A BEGINNING TOWARDS REAL HEALING OF OUR ELECTION SYSTEM

To these ends, we need to first agree upon what information a system must produce. At a minimum, it must be no worse than the traditional hand counted paper ballot system in terms of the information and observation provided for
the citizenry.

Next, we must implement more efficient and information-rich reporting systems, a task that is probably not difficult once we have consensus on what information is really needed.

And last, we need to eliminate the concept of proprietary secrets from the areas that citizens need information on to validate the integrity of elections.

America has prospered not only because of our freedom, but because of our collective ingenuity. We can do this thing.

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"Governments are instituted among men, deriving their just powers from the consent of the governed." -- Declaration of Independence