If you know Guys & Dolls, you’re already singing the rest of this line: “His name is Paul Revere/And there’s a guy that says, when the weather’s clear/ Can do!’” The song conjures, for me, media campaign coverage of our elections. We don’t get much about the issues, but we get a horse race with entries (candidates), odds (poll numbers), stables (political parties), owners (donors) and trainers (campaign operatives.) We don’t get, however, something so important to horse racing that Frank Loesser put it in the opening verse: “When the weather’s clear.” That’s when Paul Revere “can do.” Otherwise, don’t bet on him.
No wonder the media doesn’t cover track conditions in any given race—they’re too damn hard to find out. But by not factoring them into the odds, we the people can be played for chumps.
No wonder the media doesn’t cover track conditions in any given race—they’re too damn hard to find out. But by not factoring them into the odds, we the people can be played for chumps.
So, too, your favorite candidates. Bad weather and lousy track conditions can do them in. The condition of U.S. electoral track varies by state because election law is a jealousy-guarded states’ right. Within the states, over 7000 small voting jurisdictions have some say in our elections. No wonder the media doesn’t cover track conditions in any given race—they’re too damn hard to find out. But by not factoring them into the odds, we the people can be played for chumps.
Four variables determine U.S. track condition: who can vote, who does vote, how the vote is cast, and how it’s counted.
WHO CAN VOTE
“The Constitution of the United States does not confer the right to vote on anyone.” That’s right. The Supreme Court ruled this in Minor v. Happersett (1875) and it’s still true that the federal power to intervene in state election law resides in stopping laws that are clearly unconstitutional. In 1875, it was fine for St. Louis Registrar Happersett to deny Virginia Minor the vote on the basis of her sex and it took the 19th Amendment to change that, in 1920, as the 15th Amendment, in 1868 had stopped states from denying the vote to male former slaves, due to “previous condition of servitude.” States still have wide latitude with election law. In Virginia and 10 other states, felons might never vote again unless their rights are restored by the governor. In Vermont and Maine, they can vote in jail.
The 1965 Voting Rights Act stopped state abuses like poll taxes and literacy tests that were used to disenfranchise voters disproportionately by race. But John Roberts’ Supreme Court gutted the Act in 2013, ending the requirement that states with a history of such laws submit their new election laws to the Justice Department for prior review. Immediately, many states started passing photo-ID-at-the-polls laws that once again burdened poor minority voters along with students and the elderly. State supreme courts overturned some of the laws, but others stand.
In 2002, the Help America Vote Act, passed ostensibly to correct problems in Florida, 2000 that marred George W. Bush’s ascent to the White House, created new obstacles with presumably good intentions. Statewide voter rolls became mandatory. These huge digital databases are now subject to glitch, hacking, and automatic purge. Purged voters arrive at the polls unaware, and must vote provisionally – a vote that will be counted late or not at all.
WHO DOES VOTE
Those who jump the hurdles cited above vote. They survive accidental or malicious roster purges; they know and have the correct ID for their polling place; they’re motivated and knowledgeable enough to follow changes in polling place location and requirements for absentee ballots, and they’re not turned off by campaign lies or deterred by long waits to vote that threaten work hours or child care. They vote. Turnout in the U.S. is often dismal
HOW VOTES ARE CAST
HAVA set national standards for vote-casting that could only be met with expensive new equipment that had to be purchased by 2006 or states and counties would face federal lawsuits. No protest came from Republican defenders of states’ rights and austere budgets. Democrats embraced the law hoping that computer voting would improve turnout in underserved urban communities. Computers were presumed to be colorblind—unlike some local election officials.
HAVA’s appropriated tax billions were reaped mostly by two brothers, Bob and Todd Urosevich, who ran computer voting companies, Diebold and ES&S, with voting equipment “shovel ready” to meet the standards. They sold DRE (Direct Record Electronic) computer voting machines that allowed votes to be cast on a touchscreen, and counted internally, by the computer, without paper. For counties that wished to retain paper ballots, there were optical scan computers that counted ballots much faster than the human eye. Other companies that sold HAVA-compliant computer voting equipment were Sequoia, Hart InterCivic, and Unisyn. All their computer code was, and is, trade secret intellectual property, readable only by its developers, licensed service contractors, and election offices’ IT staff.
HOW THE VOTES ARE COUNTED
Computers count digitally. All digital counting programs are software, vulnerable to error and manipulation. Digital results without paper ballots the eye can read are unverifiable.
Whether first results must be audited for accuracy—recounted in any percentage to check the numbers—is up to the states. California has audits whereby a randomly-selected percentage of precincts in every county must be manually recounted, and it has paper ballots to recount.
But Georgia and South Carolina, two important primary states, have no audits and nothing to audit. Their elections are run entirely on DREs without a paper trail. Texas has audits, some paper ballots, and some paper trails—but so many paperless DRE counties that its audit law must be waived there, making statewide results unverifiable.
Alabama has paper ballots, but no audit law. The ballots aren’t automatically checked, even in suspicious elections like Governor Don Siegelman’s in 2002, where a wee-hours shift of 6000 electronic votes in one county was blamed on a “glitch” but the ballots were impounded and never inspected. Alabama needs verified elections, having shown bad faith with its electorate in passing a burdensome photo ID law, then trying to close DMV offices, where such ID is most easily obtained, in 54 mostly African-American counties. The Justice Department stopped the closures, but the photo ID law is in force, and an audit law is not.
TRACK CONDITIONS NOW
Private company’s trade-secret software is still in charge. Diebold changed its name to Premier after bribery convictions and other problems marred its image. It acquired ES&S, then shed it, due to an anti-trust lawsuit.
Dominion, a company whose name does not inspire thoughts of democracy, bought Premier and Sequioa and now counts about half of America’s votes. Hart InterCivic was in the news in 2012 for being part-owned by a hedge fund in which the family of presidential candidate Mitt Romney had financial control. The Romneys assured everyone that financial interest did not mean day-to-day operation and the press backed off. Unisyn, which still counts many U.S. votes, is also a leading maker of racetrack betting machines and is owned now by Benjar, a Malaysian company that operates global real estate, resorts, and casinos.
This condition of U.S. electoral track seems not to concern even politicians who have to run on it. In 2006, I asked Senator Ben Cardin if he knew how his voters voted, meaning their voting system and hoping to offer him an election protection strategy. “63% Democratic!” he replied. When I clarified, he admitted he’d voted absentee for so long he didn’t know what his voters faced at the polls.
On the House side, Selma civil rights hero John Lewis is very concerned. He offers a bill, every session, to establish mandatory nationwide paper ballots. It never leaves committee. Senator Al Franken knows the value of paper ballots though he refused to discuss election fraud as a radio host. Activists in Minnesota had saved the paper ballot when the push for electronic voting came to their state, and when opti-scanners returned Norm Coleman to the Senate in 2008, handing control of both houses of Congress to the GOP, Al demanded a recount. Human eyes on the ballots proved Al had won.
Ron Barber of Arizona lost his House seat in 2014 by 161 votes in a bitter political climate. His predecessor, Gabby Giffords, had been shot by a constituent. A recount was conducted on the same Diebold scanners that had counted the first time, though Arizona law requires recounts be done by an independent method. Results didn’t change. Arizona’s audit law requires a hand-count of 3-5% of precincts in each county, but the percentage was too low to catch errors in Ron’s slim margin. His race would have needed an entire hand-recount to know voters’ intent. Most election officials say that’s too much to ask—even for democracy.
In fact, losing candidates are shamed if they don’t “get over it” and “move on.” But unverified elections are no longer about individual politicians and their parties. It’s we, the voters, who are betrayed when strange, unverified results are blamed on our being fickle, stupid, apathetic, or lying to pollsters. We suffer leaders and policies the majority don’t seem to want. So we get discouraged and wonder if this distorted version of our nation is true – or the result of elections over which we’ve lost all control? It’s no longer paranoid to demand verification of election results. It’s patriotic.
War and peace are at stake, along with control of the world’s mightiest military and weapons of mass destruction. The welfare or our people and future or our planet are at stake—in even the smallest jurisdictions that affect the balance of power. We can no longer allow small-minded, short-sighted corruption to operate with the easy deceit provided by digital manipulation. Verification is deterrence.
In Kentucky, eight Clay County officials are serving hard time for election fraud. Some confessed, others were convicted, of colluding, from ’02-’06, to flip electronic votes and teach others to do so. Are they the only ones? Has it happened before or since? Weird results from Kentucky were reported without question in 2015; voters were blamed for the strangeness of popular Democratic Attorney General Jack Conway losing his governor bid by an overnight 14-point shift, while three Democrats down-ballot got tens of thousands more votes than Conway did at the top.
Kentucky counties mix paperless DRE machines with opti-scanned paper ballots. State audit law requires a recount of ballots from 3-5 % randomly-selected precincts per county. But digital result counties can’t be publicly verified, so statewide results are UNVERIFIABLE. Voting system vendors are: Dominion; Diebold/Premier/Dominion; ES&S; Danaher; Hart InterCivic, and Microvote, which lost 3800 votes in a single county in 2012. Non-photo-ID required at polls. Felons lose rights permanently unless restored by governor.
Kentuckians can start improving elections immediately by insisting on their citizen right to observe manual audits and recounts where paper ballots exist. For their audit law to be enforceable they must end paperless voting. They must call for paper ballots. DRE paper trails are less reliable. For now, they can demand to see “poll tapes” from paperless DRE voting machines as a matter of public record. These tapes are produced at the end of voting, from each machine, showing the results in each race from the votes cast on that machine. The numbers on the tapes can be added for a precinct result to match with that posted on the Secretary of State’s website.
This is a minimal fraud deterrent, but it is better than nothing. Yet access to poll tapes has been denied to activists with the argument that seeing them violates trade secrecy of software or voter anonymity. Neither reason is valid. The tapes are the only public record of the vote on DRE systems, and they’re anonymous. Citizens have a right to see. File a request. If denied, ask why, and publicize the answer.
Here are maps and info about track conditions in early primary states. You can see your own state’s laws and systems at VerifiedVoting.
- Does it help or hinder voting?
- When machines fail, who shows up to service them?
- Are your voter rolls accurate or do a lot of voters end up voting provisionally?
- Can the reason be corrected before the next election?
Tour your county election office, preferably with a group. Ask to observe the election night count and the absentee and provisional count after. If denied, ask why and publicize the reason. You might be told you’re obstructing well-run elections. Answer that you’re on common ground with your officials, there, and well-run elections require public observation to deter crime! Ask about chains of custody, of equipment and ballots, including absentees before they’re mailed and after they’re returned.
If answers are denied, ask why and publicize the reason. Practice counting paper ballots: run your own workshop with mock ballots made from an online template or a sample test ballot from your county. Copy a dozen unvoted ballots. Vote them randomly. Copy that dozen to a precinct batch of 300. Follow these instructions. You are not a Luddite. You’re preparing for service that will save democracy.
FEBRUARY 1 & 9 – IOWA
Iowans caucus for party primaries; they don’t use their voting systems. Still the map is instructive:
Iowa has all paper ballots but no state audit law. Results VERIFIABLE but UNVERIFIED. Opti-scan vendors: Diebold/Premier/Dominion; ES&S; Hart InterCivic, and Unisyn (racetrack betting-machines, Malaysian real estate/casino/resort owner). No ID at the polls. Felon voting rights restored after probation.
February 1 – IOWA DEMOCRATS: Party members gather at precinct meetings, stand publicly in groups for their candidates for a head-count. Results VERIFIABLE by human eye and video.
February 9 – IOWA REPUBLICANS: Party members gather at precinct meetings and vote on secret paper ballots. Ballots are opened and counted publicly at the meeting, and results announced and phoned into party headquarters, with written results mailed afterwards. Results VERIFIABLE by public observation, including on video, of ballot count at the meeting and announcement of results.
Despite this transparency, Mitt Romney emerged from Iowa as frontrunner in 2008 by error or intent: a precinct vote-counter with the ironic name Edward True had posted his precinct results on his Facebook page after the meeting. They’d favored Santorum. When he saw the state party page said Romney had won in his precinct by a margin that also gave Romney the state, he protested. The party couldn’t find the precinct’s mail-in results for 16 days, but when found, they confirmed True’s numbers. Did anyone hear the whispered apology from party and media? No. Mitt was off and front-running
February 9 – NEW HAMPSHIRE PRIMARY
New Hampshire uses its statewide voting system for the primaries: all paper ballots, some opti-scanned, some hand-counted at precincts on election night. No state audit law but a good recount provision, making it relatively easy for candidates to obtain recounts. WHOLLY VERIFIABLE but PARTLY UNVERIFIED. Opti-scan vendors: Diebold/Premier/Dominion; ES&S; Hart InterCivic. No ID at the polls. Felon voting rights restored after incarceration.
South Carolina uses its statewide system for primaries. Paperless DREs from ES&S at the precincts. No state audit law. Results UNVERIFIABLE and UNVERIFIED. Paper absentee ballots opti-scanned by ES&S. Non-photo ID at the polls (photo ID law passed but overturned by state supreme court.) Felon voting rights restored after probation.
ES&S has a marred history, including being banned from CA for selling uncertified equipment. In Ohio in 2012, ES&S service technicians applied a last-minute “patch” to machines in several counties. Alert activists filed a restraining order in federal court to have it removed, but the judge refused the request. The activists went to county court; a Franklin County judge agreed to hear expert testimony by phone and told ES&S lawyers she would keep the case open so that if anything seemed strange about the election results, she would allow a case to go forward. Some believe this was enough to deter use of the patch, resulting in Karl Rove’s meltdown on national TV when late Ohio results didn’t go for Romney. He thought the patch was operative, but ES&S didn’t use it, deciding the risk of getting caught was too great.
MARCH 1 – SUPER TUESDAY
Georgia uses its statewide system for primaries. All paperless DREs. Vendor: Diebold/Premier/Dominion. Results UNVERIFIABLE and UNVERIFIED. No state audit law. Photo ID at the polls. Felons’ rights restored after probation.
Tennessee uses statewide voting system in primaries. Paperless DREs at the polls except two counties with paper ballots scanned by Unisyn and Dominion. DRE vendors: Diebold/Premier/Dominion; ES&S; HartInterCivic; Microvote (3800 votes lost in one county in Kentucky) and Unisyn (Malaysian-owned, racetrack betting machines.) Absentee and 2 paper ballot counties opti-scanned by ES&S. State law passed requiring paper ballots – then voided when legislature changed. State audit law requires recount of 3% early voting and 3% randomly-selected precincts per county but without paper is unenforceable. Results UNVERIFIABLE and UNVERIFIED. Photo ID at the polls. Felons lose right to vote permanently unless restored by governor.
Arkansas mixes 3 counties’ paperless DREs (Danaher Shouptronic) with paper trail DREs (ES&S) and one county’s opti-scanned paper ballots (ES&S) at the polls. ES&S scans absentee paper ballots. State law requires paper trails on machines bought after 2006. No state audit law. Arkansas results SLIGHTLY VERIFIABLE but WHOLLY UNVERIFIED. Photo ID law passed but overturned by Arkansas Supreme Court. Felon voting rights restored after probation.
Virginia mixes paperless DREs with paper-trail DREs from Dominion, Diebold/Premier/Dominion, ES&S, Sequoia/Dominion, HartIntercivic, Unisyn and Unilect. Absentee and paper ballots scanned by same vendors. No state audit law. Virginia results are SLIGHTLY VERIFIABLE but WHOLLY UNVERIFIED. Photo ID at polls. Felons may lose vote permanently or appeal to governor for restoration.
Texas mixes paperless DREs, DREs with paper trails, and opti-scanned paper ballots. Vendors for both: Diebold/Premier/Dominion, ES&S, Hart InterCivic; absentee ballots opti-scanned by same vendors. State audit law mandates recount of 1% randomly chosen precincts in counties with “electronic voting” but no guidance on paperless DRE audits and Secretary of State can waive this requirement. Statewide results UNVERIFIABLE. Photo ID at the polls. Felon voting rights restored after probation
Alabama polling places have paper ballots opti-scanned by ES&S statewide. No state audit law. Alabama results are WHOLLY VERIFIABLE and WHOLLY UNVERIFIED. Photo ID at the polls. Some felons’ rights restored after incarceration, parole and probation; others lose their rights permanently.
In 2006, Governor Don Siegelman was announced the winner on opti-scanned paper ballots on election night. In the wee hours, electronic results in one county shifted, giving the win to his opponent Bob Riley with no effect at all on the down-ballot races. Riley’s campaign manager was married to Leura Canary, the US prosecutor who had been investigating Don without success. After his unverified “loss”–Attorney General William Pryor impounded the ballots under threat of indictment to anyone who touched them–Don was brought to trial on charges that 113 former and current states attorneys general called unprecedented: “crimes” that were never crimes until this prosecution concocted them. It is not paranoia to want verified results in Alabama; the closing of DMV offices where necessary photo ID can be obtained to vote is a visible scheme by which government insiders seek to control elections. The federal Department of Justice stepped in and stopped it.
Massachusetts has statewide paper ballots at the polls opti-scanned by Diebold/Premier/Dominion; Dominion; ES&S. Same with absentee ballots. Diebold and ES&S service contract in 5 New England states held by LHS, a single company with “kingpin” access to the trade-secret election software. Massachusetts results are WHOLLY VERIFIABLE but UNVERIFIED. No ID at the polls except from first-time voters. Felon voting rights restored after incarceration.
North Carolina counties have a mix of paper ballots and DREs with paper trails at the polls. Statewide vendor for all (including absentee ballot opti-scanners) is ES&S. State audit law permits each county to determine statistical number of ballots necessary to manually audit. Results VERIFIABLE and PARTLY VERIFIED. Photo ID at the polls (first state to pass one after SCOTUS gutted Voting Rights Act) unless voter brings notarized affidavit. Felon voting rights restored after probation.
Oklahoma has all paper ballots. All ballots, including absentee, opti-scanned by Hart InterCivic. No state audit law. Oklahoma results are VERIFIABLE but UNVERIFIED. Non-photo ID required at polls. Felons’ rights restored after probation.
Vermont has paper ballots, some hand-counted, some opti-scanned by Diebold/Premier/Dominion. No mandatory audit law but audits may be ordered by Secretary of State. VERIFIABLE somewhat VERIFIED. No ID required at polls. Unrestricted felon rights; may vote in prison.
Mississippi counties mix paperless DREs, DREs with paper trails, and opti-scanned paper ballots. Vendors: Diebold/Premier/Dominion and ES&S. Paper ballots, including absentee, opti-scanned by ES&S. No state audit law. Results UNVERIFIABLE and UNVERIFIED. Photo ID at the polls. Some felon rights restored after probation, others lost permanently unless restored on appeal to the governor.
A 46-year old truck driver named Robert Gray won the Mississippi Democratic nomination for governor in 2014. He spent $60 on his campaign, didn’t tell his family he was running, and didn’t vote himself in the election because he was “too busy.” His 51% victory margin was exactly what was needed to avoid a runoff with either of two credible rivals, one of whom, trial lawyer Vicki Slater, spent $200,000 on her campaign yet “lost” by nearly 60,000 votes. Explanation offered and accepted: voters think the name Robert Gray looked good on the ballot. A perfect example of blame-the-voters (they’re stupid) instead of verifying unaudited computer results.
Colorado caucuses for both parties are precinct meetings with VERIFIABLE results by public head-count or public count of anonymous paper ballots. But the map is instructive: Colorado is an all vote-by-mail state. All registered voters receive mailed paper ballots. Voted mailed ballots are opti-scanned by ES&S, Diebold/Dominion, Hart InterCivic, and Sequoia/Dominion. Voters must surrender unvoted absentee ballot at polls if they prefer to vote there on DREs with paper trails from Diebold/Dominion, Sequoia/Dominion, Hart InterCivic or ES&S. State audit law requires 1% of voting devices per county must have their paper trails matched to the digital totals on the machine memory cards. Statewide results are PARTIALLY VERIFIABLE and PARTIALLY VERIFIED. Non-photo ID required at polls. Felon rights restored after parole.
THE REST OF THE NATION
Again, thanks to Pam Smith and the indefatigable researchers at VerifiedVoting for years of info-gathering.
VERIFIABLE RESULTS – Results that can be proven as accurate by publicly observable count of visible ballots.
UNVERIFIED RESULTS – Results obtained internally by computer code seen only by developers, election tech staff, and contracted service vendors. No public count of tangible ballots. .
DRE (Direct Record Electronic) – Computer voting machines with touchscreens that voters touch to make choices and cast voted ballot. Votes are recorded on digital memory cards and tallied internally by the machine. Memory cards are usually removed and tallied together with other precinct machines’ memory cards in a central tabulator for county results. Sometimes wireless networks are used.
VVPAT (Voter Verified Paper Audit Trail) – A paper record of the voters’ DRE ballot. It prints out the voters’ choices and shows them under glass, disappearing when the voter touches the final Cast Vote button. Research shows voters do not always check the VVPAT for accuracy before voting. They cannot take the VVPAT with them. It stays in the machine for use by election officials in audits or recounts, but in many jurisdictions, no audits or recounts occur and the DRE VVPAT serves no practical purpose. Digital results are certified.
DRE POLL TAPES – A paper printed at the close of polls from each DRE voting machine that shows results in every race from the votes cast on that machine. Those totals can presumably be matched to the memory card totals that are carried to the central tabulator for tallying as the precincts’ official results and published on the Secretary of State’s website, but public access to the tapes for this purpose has been denied. At opening of polls, pollworkers must print a tape showing 0 votes in each race on each machine to prove no digital ballots-stuffing.
AUDIT – A partial recount to check the accuracy of election results by state or county. Most state audit laws require a statistical percentage of precincts to be randomly chosen, per county, for a full hand recount. But there is often no guidance for procedure if the percentage audit shows problems. Manual counts of VVPATs are less reliable that paper ballot recounts because the VVPAT often was not checked for accuracy by the voter. Auditing by opti-scan for a recount is not public verification. Audits of paperless DREs (DRE w/o VVPAT) by re-tabulating memory cards, or even tallying poll tapes together, is also not public verification, because DRE counting code is vulnerable to undetectable glitch and malware.
Los Angeles Registrar Connie McCormack quit her position in 2006 in part because she refused to count the VVPATs from Diebold DREs used in early voting in LA. Secretary of State Debra Bowen had mandated the VVPAT count when a technical review found the Diebold software inaccurate. McCormack said the curly thermal paper and fading ink made the trails impossible to count – a problem activists had warned about for years.
RECOUNTS – A complete second count of a race. Whether it constitutes public verification of results depends on whether there is anything publicly observable to recount, i.e., on the voting system used in the race, and the process used to recount.
TS (TouchScreen) – The DRE screen that voters touch to make choices and cast their final ballots.
DRE w/o VVPAT – A paperless computer voting machine with no verification of results possible.
DRE w/ VVPAT – A computer voting machine with a paper trail that may be inaccurate and is difficult to count.
OPTI-SCANNER – Scanners that process and count paper ballots with software, much faster than human eye. Opti-scan results can be VERIFIED in public by manual counting of ballots. Manual counting of paper ballots in mandatory statewide audits is currently the best verification any election jurisdiction offers, but dark patches in ballot chains of custody, and statistical insufficiency of partial hand-counts, can still be manipulated by determined fraudsters.
There is a lot we can do: the promise of citizen oversight alone is powerful. And it works. Election activists in Pima County, Arizona, convinced GOP state Senator Jack Harper to carry and pass legislation requiring security cameras on all county tabulators to deter illegal access.
Activist John Brakey, who’d watched in person his county tabulator’s Logic & Accuracy, saw on his computer later that afternoon that someone had entered the tabulator room and was removing the security seal. He drove to the office to ask why, in person; the embarrassed registrar’s explanation convinced John that the intrusion wasn’t needed for any licit reason. Whatever the intruder had intended to do didn’t stay done.
Knowledge is power. Power to the people.