The Price of Democracy

New voting mandate could prove an unwanted financial burden for states and counties.

by / March 26, 2004 0
The shift toward electronic voting technology has triggered debate over whether the technology is secure, and if not, how states and counties can afford to plug the security holes.

Driven by the Help America Vote Act of 2002 (HAVA), which funds replacement of lever and punch card devices for new voting technology, many jurisdictions are replacing old voting machines with new electronic systems. These systems, called direct recording electronic (DRE) voting machines, meet HAVA's technology requirement allowing those with disabilities to vote independently. They're also considered easier to use -- for voters and precinct workers -- than the old equipment.

Surveys from early implementations showed voters were confident that DREs recorded their ballots accurately. Since then, however, a multitude of computer scientists and activists have contested paperless DREs.

Opponents fear that DREs are susceptible to bugs and tampering, saying the current technology fails to provide a paper audit trail so voters can verify their ballots have been recorded as intended. The security of at least one DRE manufacturer's programming code has come under fire from university researchers.

Security concerns prompted some states to require that DREs be modified to print a paper record that lets citizens verify their votes. In Congress, several bills would create a national voter-verified paper audit trail (VVPAT) requirement. One bill proposed by New Jersey Rep. Rush Holt in May 2003 -- the Voter Confidence and Increased Accessibility Act -- while slow to warm up, has gained sponsorship from more than 100 representatives, including some Republicans. In early February, California Sen. Barbara Boxer introduced a bill similar to Holt's -- the Secure and Verifiable Electronic Voting Act -- that would also fund states for the addition of a printer to DREs.

But many county elections administrators see no need for a VVPAT and are concerned that such a requirement will add to the cost and complexity of elections administration during a historic fiscal crisis.

Voting Security or Voter Confidence?
At first, the notion that a hacker or computer malfunction could throw an election seemed only for the paranoid. It was more commonly referred to as an issue of "voter confidence." If many voters who currently show up and vote are part of this paranoid bunch who don't trust the machines, then maybe even fewer voters would appear at the polls in the future.

But recent scandals involving voting machine vendors caused decision-makers in states such as Maryland and Ohio to re-examine their DRE security. Maryland and Ohio ordered independent investigations after researchers at Johns Hopkins University questioned the security of programming code used by DRE manufacturer Diebold.

Reports by both states recommended that election officials and vendors make security enhancements, which Diebold said have since been made. The California Secretary of State's Office considered decertification of some Diebold systems when it found the vendor installed uncertified updates in several California counties. Several incidents where hackers infiltrated DRE vendor networks have also fueled doubts about the companies' abilities to truly secure the machines.

In 2001 and 2002, voter surveys showed that confidence in DRE accuracy hovered around 90 percent. In Georgia, where the entire state switched to DREs, a poll of 800 random respondents in December 2002 showed 93 percent were at least somewhat confident their votes were counted accurately, compared with 76 percent in 2001 -- before DRE implementation. In a few Washington counties, where electronic voting machines were piloted in late 2001, of 814 participants polled, 94 percent were confident their votes were recorded correctly.

Recent negative publicity, along with actions of decision-makers themselves, may be swaying public opinion from that confidence, said Dan Seligson, editor of, a nonpartisan organization that provides information on election reform.

"That was a year and a half ago, before the movement and backlash against these machines really got to be a national thing," he said. "In California, I would say you would not get the same numbers."

A more recent poll in Georgia showed a slight dip in voter confidence from the previous year. In November 2003, only 80 percent were at least somewhat confident the machines produced accurate results in the 2002 election.

As 2003 ended, a few states, including California, Washington and Nevada, mandated or introduced legislation requiring a VVPAT. As 2004 began, several more followed suit.

Although deadlines prescribed by California Secretary of State Kevin Shelley and officials in other states are approaching, the current machines will have to suffice in the meantime. In California, at least 10 counties will use paperless DREs for the 2004 presidential election.

"They said that by 2006, you have to have a voter-verified paper audit trail," said Seligson. "You have to have a piece of paper with every vote by 2006, but this year they're not going to have it. The secretary of state already demonstrated that he doesn't trust these machines without a paper trail, yet I'm voting for a race as important as president on that machine."

In a position paper outlining his security directives, Shelley said he allowed nearly two and a half years for the state to be completely VVPAT-enabled because at the time of his mandate, there were no VVPAT-enabled systems certified. The lengthy procurement process and the need for poll worker training on new equipment were also cited as reasons for the long transition period. "I do not believe that expediting the implementation schedule is feasible," he wrote. "A transition period is necessary in order to assure the fair and efficient conduct of elections in California."

To soothe voters' interim concerns, Shelley required implementation of operational procedures to minimize security risks. This would include a requirement that state testers conduct parallel monitoring of DREs, in which testers set aside certain DREs for testing on Election Day -- a random selection from each model in California -- and input predetermined votes to be sure the final tally matches votes entered. The testing process, which was to be in place for California's March 2004 primaries, is videotaped to ensure accuracy.

In his position paper, Shelley said he wants to ensure voter confidence in the election process. "I support a VVPAT not because DRE voting systems are inherently insecure, they are not," he wrote, "but rather because people understandably feel more confident when they can verify that their votes are being recorded as intended."

In the 30 days following the release of the Secretary of State's Ad Hoc Touch Screen Task Force Report in July 2003, the secretary accepted public comments. Of the 6,000-plus comments received, the comments were approximately two-to-one in favor of a VVPAT, said California's Assistant Secretary of State for Communications Terri Carbaugh.

California Counties Divided
While those who took time to send comments to the Secretary of State's Office favored a VVPAT, many California county elections administrators worry it will cause problems that cash-strapped counties are ill-equipped to deal with. California faces its third straight year of budget cuts in 2005.

Ann Reed, Shasta County clerk/registrar of voters and president of the California Association of Clerks and Election Officials, said she is confident the machines are currently accurate.

"We do a lot of logic and accuracy testing before the election," she said. "We're very comfortable when we send our DREs, that they're going to record every vote, and they're going to record it accurately."

She has several concerns about Shelley's mandate. She worries that printer jams could compromise voter privacy, that the visually impaired will again be forced to use separate voting equipment, and that her county -- and many others -- will be burdened by the cost.

"This is a great expense for counties, and they're going to have to come up with the money," she said. "If the state doesn't kick in and pay for it, I don't know what we're going to do."

Reed also worried that unforeseen operational difficulties could further burden counties. "I have to have all the paper on hand, so it's going to be a storage problem. There's just a whole bunch of unknowns I'm not looking forward to dealing with."

Though Reed said she wrote a clause into the purchase contract requiring the vendor to bear 50 percent of the upgrade costs, even half of the estimated $500 per machine can amount to a formidable cost for counties already using DREs countywide.

Carbaugh of the Secretary of State's Office said other counties made similar agreements in anticipation of Shelley's decision. According to Carbaugh, a combination of federal and state funds will probably help pay for the printers, though state funding sources had not yet been identified.

Warren Slocum, chief elections officer and assessor/county clerk/recorder for San Mateo County, Calif., said his county will supplement needed funds with a voting system replacement fund the county began seven years ago. "For any election we do -- for a jurisdiction like a city, for instance -- we have a charge in the billing formula that right now is 8 cents per registered voter that we charge the entity in addition to standard things like printing and labor costs."

The fee is based on the price of equipment depreciation.

Slocum said he supports the VVPAT because it is an issue of both voter confidence and voting security. "I think it strengthens voter confidence," he said. "It helps ensure the integrity of the election process, and I think it protects the people against either honest human mistakes that programmers could make, or mischievous hackers and people that wanted to do bad things to an election."

If You Can't Beat 'Em, Join 'Em
In Washington state, Secretary of State Sam Reed and some county election officials proposed a state bill to require a VVPAT. Unlike in California, Reed said the proposal is widely supported by county officials. "I certainly talked with them and their leadership before we did this," said Reed, "so we would be going in together on this."

Bob Terwilliger, Snohomish County, Wash., auditor, said though he is confident in the technology, activists brought the issue to the fore, and officials were forced to ease the public's growing concern.

"We really didn't have much choice in this situation," he said. "Voters were beginning to be concerned about the integrity of these systems. Rightly or wrongly, still, the perception is 100 percent of the problem as opposed to reality oftentimes."

Though Terwilliger said he has seen little opposition to the machines in his county -- which is the only Washington county to use DREs so far -- he said concerns were raised in the Legislature. "Frankly they would have had their own bill if we hadn't put one forward," said Terwilliger. "We just felt, knowing that that was going to happen anyway, it was a much better place for us to be to create that legislation than to react to something being created by somebody else."

The bill not only requires a VVPAT, it also aims to maintain voter confidence in other security areas, including creating a task force to examine the security of electronic voting systems, increasing the Secretary of State's Office's involvement in certification and writing operational security into state statutes.

Many DRE problems reported nationwide were because of operational inefficiencies in the implementation process, according to Terwilliger.

"What kind of training did they provide to their board workers before they implemented it? What kind of exposure did they provide to voters in terms of public presentations, fraternal organizations, chambers of commerce or public events like fairs?" he said. "So when it actually got implemented on day one for a primary or general election, it was not a surprise, and it was not like, 'Oh my god. I don't know what to do now that the machine's not working properly.'"

Terwilliger said the bill's requirements regarding logic and accuracy testing, device security and keeping audit trails will be nothing new for his county, but state statutes will ensure standards for counties that implement future DREs. "It's just spelled out in some more detail in this statute to speak to concerns raised by skeptics in the community who believe, or arguably are saying, 'We're not sure every county auditor is doing that, so we want to make sure they know they have to.'"

Maryland Gov. Robert L. Ehrlich Jr. ordered an investigation of Diebold's AccuVote-TS voting system in August 2003. Researchers found security issues the vendor needed to address, which according to Diebold have since been conducted. Researchers also reported some that could be addressed by implementing new procedures.

To better examine DREs at the state level, the Washington proposal would increase the Secretary of State's Office involvement in the certification process.

"When we get into more sophisticated technology, it gets a lot more complicated. Then we need to tighten up in terms of certifying, even when there are patches they make for their software," said Secretary Reed. "In the past, a lot of these patches -- they'd just go ahead and do them."

Another thing likely to make it into the legislation is a requirement for mandatory recounts in a certain percentage of randomly chosen precincts. Advocates contend the VVPAT is meaningless without random audits. Terwilliger said that was not initially included in the bill, but it's likely legislators will include the requirement in the final draft.

"The impact is simply going to be one of staffing, timing and getting it done," he said. "There'll be some monetary impact, but when the Legislature is making a decision like this, the impact on the locals usually doesn't really play so much."

Compromise, he said, is part of the legislative process. "You don't always get everything you want, and somebody else is going to get something they want," said Terwilliger.

Terwilliger said he hoped HAVA funds would help with the costs associated with the bill, but his county will likely have to pay a decent portion of the upgrade costs.

"If that ends up being a state statute, and we have to do it, and there's no money to do it with, we'll just have to figure out how to do it."

Secretary Reed said he expected the funds supplied by HAVA would cover the printer for counties that implement just the one DRE that HAVA requires in each precinct for accessibility. If counties choose to move entirely to DREs, the counties would have to come up with some of the money themselves.

Federal Funding
Some states are better positioned to deal with HAVA reforms than others, said Leslie Reynolds, executive director of the National Association of Secretaries of State, adding that a federal mandate would definitely increase implementation costs. Whether HAVA funds will cover its own mandates depends on each state's situation, said Reynolds.

"I think they would have a different answer based on the size of their state, the needs they have and what they had already done prior to HAVA," she said, noting that over the long term, it's generally agreed that HAVA funds won't cover all ongoing costs.

Some federal-level loopholes left states wondering when they will see the money from HAVA. In 2003, $1.5 billion of the federal budget was appropriated for HAVA, but states have seen very little of that money, said Reynolds. The General Services Administration distributed most of the $650 million permitted under Title I of HAVA, but the remainder was to be distributed by the Election Assistance Commission (EAC) that HAVA established.

"Unfortunately the Election Assistance Commission didn't exist," she said. "$830 million sat here in Washington, and the states had no access to it."

The four EAC commissioners should have been in place by Feb. 26, 2003, but were not confirmed until Dec. 9, 2003. In the 2004 budget, $1.5 billion was again allocated to fund HAVA, but since fiscal 2004 began in October, those funds also awaited the appointment of EAC commissioners.

Once the commissioners took their seats, the money didn't immediately start flowing to states. Though states promptly submitted the plans HAVA required, detailing how states intend to use and distribute HAVA funds, the EAC could not disburse those funds until the state plans are published in the Federal Register -- which would require approximately $800,000 from the EAC budget.

"They can't send out the grant money until the state plans are published, but they don't have enough money in their budget to publish the state plans," said Reynolds. "So it is a bit of a mess right now."

The EAC was only appropriated $2 million to accomplish the numerous responsibilities it has been given. President George W. Bush allocated the EAC $10 million in his budget proposal for 2005.

Tim Storey, a senior fellow with the National Conference of State Legislatures, said because of the comprehensiveness of HAVA's reforms and confusion over funding, some states could be ill-prepared to deal with a VVPAT mandate.

"States are sort of reeling with implementation of HAVA, so the thought of a new federal mandate across the one the states haven't even implemented -- I'm not sure it's the right time for that," he said. "HAVA mandates a lot of new equipment purchases, and of course, you don't want to get too far down the line and have the feds come back in and change the law again when you've already done a fair amount of purchasing."

Federal funding could cushion the blow, Storey said.

"If there's a new mandate, the key would be to make sure the federal government provides money because the states are actually still struggling with emerging from the worst fiscal situations they've had in decades," he said. "It does come down to the money in many ways, obviously because of the inability of states right now to generate revenue and their concerns that the mandates of the Help America Vote Act are going to be fully funded to start with."
Emily Montandon Staff Writer/Copy Editor