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What price convenience? Another confirmation that the Holy Grail of voting is not found in conventional wisdom

When you vote in November, consider: What price convenience? What cost convenience? What individual effort is Democracy worth?

To listen to elected officials and many activists, the Holy Grail of Elections, would seem to be Turnout. Given the emphasis you would think that almost nothing else matters: Integrity, candidate access, campaign finance, media bias, or costs – when focusing on turnout, it seems everything else is forgotten. A report from Ohio, confirms earlier studies that early voting does not increase turnout,

We posted a news item from Ohio, earlier in the week from the the Columbus Dispatch: Early voting hasn’t boosted Ohio turnout <read>

Early voting has not led to more voting in Ohio, at least not in terms of total votes cast.
A Dispatch analysis of the vote totals from the past three presidential elections in the state shows that overall turnout in the 2012 race, when Ohioans arguably had the most opportunities in state history to vote early, was lower than in the 2004 election, when there was virtually no early voting in Ohio.
Turnout in 2008, the first presidential race in which Ohioans had no-fault absentee voting and also the first time an African-American was on the ballot, was about 1 percent higher than in 2004.
“People who vote early are people who are typically going to vote anyway,” said Paul Beck, a political science professor at Ohio State University. “So, early voting hasn’t really succeeded in turning out more people to vote. We’ve made it a lot easier to vote, but on the other hand, some people are very discouraged about politics and might not care how easy it is to vote.”

This November voters in Connecticut will vote on a Constitutional Amendment to let the General Assembly to chose early voting methods, if any, for Connecticut. Conventional wisdom is that early voting will significantly increase turnout, wrong! That ignores the evidence. Proponents will tell us that there is almost no absentee voting fraud, wrong! that ignores the evidence.

We posted the evidence almost years ago: Researchers: Early Voting alone DECREASES turnout <read>

States have aggressively expanded the use of early voting, allowing people to submit their ballots before Election Day in person, by mail and in voting centers set up in shopping malls and other public places. More than 30 percent of votes cast in the 2008 presidential race arrived before Election Day itself, double the amount in 2000. In 10 states, more than half of all votes were cast early, with some coming in more than a month before the election. Election Day as we know it is quickly becoming an endangered species…

But a thorough look at the data shows that the opposite is true: early voting depresses turnout by several percentage points…Controlling for all of the other factors thought to shape voter participation, our model showed that the availability of early voting reduced turnout in the typical county by three percentage points…

Even with all of the added convenience and easier opportunities to cast ballots, turnout not only doesn’t increase with early voting, it actually falls. How can this be? The answer lies in the nature of voter registration laws, and the impact of early voting on mobilization efforts conducted by parties and other groups on Election Day.

That was just one, will conducted study. Here in Connecticut, Secretary of the State, Denise Merrill created an Election Performance Task Force. Election administration expert Doug Chapin summarized his review of available studies, covered here: Elections Performance Task Force: Technology Fair and Doug Chapin <read>

Early voting, no-excuse absentee voting, and voting centers are strong trends. They can provide voter convenience. They can save money or add to costs. Data does not support significant changes in participation.
Once you start early voting, taking it away can have an impact, once people are accustomed to it. (As taking away local polling place voting may also have a similar impact)
Survey voters to determine their levels of satisfaction and confidence in the process.
Do not expect increases in participation based on changes or reforms in election administration. Satisfaction and convenience can be increased but not participation.

Thus the Ohio research tends to confirm the other studies. (We say “tends to confirm”. It is not as thorough a study as the early ones, since it covers whole statewide elections and is not a thorough comparison between matched districts in states with and without early voting – there are a lot of factors which affect turnout, so just comparing elections in a single state cannot attribute differences to any one factor.

Plus we highlight many instances of votING fraud after almost every election via absentee voting, in Connecticut and across the country <here>

Here is the bottom line:

Early Voting (unlimited absentee voting or in-person early voting) does not increase turn out. Alone it decreases turnout.
Election Day Registration increases turnout (Except perhaps in Connecticut, where we have implemented in a much less convenient way than in states where it has proven effective)
When Early Voting is combined with Election Day Registrati0n (maybe not in Connecticut) turnout is not harmed or helped by Early Voting.
In-person Early Voting would be expensive or impossible in Connecticut, given our New England style town by town election administration and jurisdictions. It might be done expensively, and in a way biased against some populations.
Fraud has been demonstrated in absentee voting. In Connecticut with excuse absentee voting, it occurs frequently.
It does increase convenience.

When you vote in November, consider: What price convenience? What cost convenience? What individual effort is Democracy worth?

The dirty secret(s) of vote counting

In college I followed our nationally ranked hockey team. With ringside seats at an ECAC semi-final game, we struck up a conversation with a referee, who frequently stood just in front of us on the ice. For a long while it was a tie, and we learned from him that refs do no like tie games, with the pressure on every call in a sudden death overtime. Elections can get rougher than hockey, there are more and tougher calls in close contests – calls that can easily expose the little know vulnerabilities of our election system and the flaws in the promise to “count every vote”.

Some of those vulnerabilities are covered in an op-ed in the Sacramento Bee. All that, more and less, could happen in Connecticut.

Some of those vulnerabilities are covered in an op-ed in the Sacramento Bee: Paul Mitchell: The dirty secret of vote counting <read>

If there’s one thing elections officials pray for, it’s wide margins on Election Day.

A clear and convincing election result allows final tallies to be announced. Winners receive congratulations, losers give concession speeches and everyone else returns to work.

But that’s not what’s happening this year.

In the state controller’s race, we find an incredibly close result that has changed leads repeatedly throughout the counting period. Republican Ashley Swearengin is solidly in first place, nearly guaranteed a spot in the runoff.

But the vote differential between second and fourth is a mere four-tenths of a percent, with hundreds of thousands of votes to count. This easily could go to a recount if the margins remain this narrow.
With the spotlight on and representatives of each campaign lurking over their shoulders, elections officials are engaged in the painstaking process of validating ballots mailed in during the last days of the election or dropped off at polling locations. They are reviewing tens of thousands of provisional ballots used by voters who couldn’t get regular ballots at their polling places.

California doesn’t have the infamous hanging-chad or butterfly ballot, but there are damaged ballots and signatures that don’t match. Ballots are dropped off in the wrong county or mailed in the wrong envelope. Voters show up the day after the election and try to hand in their absentee ballot. Piles of ballots are marked “too late” because the mail arrived after Election Day.

The issue of signatures not matching is becoming an increasingly important wrinkle as more voters cast ballots by mail. Elections officials are reviewing more than 400,000 signatures of the 2 million early absentee voters in the June 3 election who signed registration 25 years ago. Similarly, few new online registrants realize that the signature on their registration form is actually their DMV signature, which could also be decades old. If non-matches can’t be resolved before Election Day, those ballots are invalidated.

All that, more and less, could happen in Connecticut.

We do not routinely check signatures on absentee ballots. Would a court be receptive to a challenge based on checking and verifying signatures? Maybe not, but just the exposure of the lack of actual checking would decrease confidence in a close result.
Unlike several other states we do not require voters to sign in at polling places. That does preclude any checking and embarrassment. Yet, the absence of the signature would leave many questions of error and fraud unanswerable.
Remember that close election for Governor in 2010? Many recall that there were hundreds of ballots not counted yet a citizen recount showed that they tended to confirm the winner. How many recall that the system never recognized those votes, never addressed the question? How many know that the number of voters signed in did not match the number of ballots by large margins in several districts? In a really close election, checking those counts might expose a very soft underbelly – it has happened at least twice since, in other municipalities with little public concern.
We also must point out that most of these problems in California are all related to absentee ballots, in a state with a rising percentage of such ballots. We will have a question on the ballot this November authorizing the General Assembly to provide the same for the Nutmeg State.

“It happens all the time.” All over the place (Part 3)

Here we continue our review of are some of our posts of past errors surfaced in Connecticut and around the country, selected from our over 900 posts, covering 2009.

Here we continue our review of are some of our posts of past errors surfaced in Connecticut and around the country, selected from our over 900 posts. Last time we covered the 2nd half of CTVotersCount posts from 2008. Continuing from there:

In CT we count most of the votes for most of the parties and most of their candidates, at most <Jan 2009>

Another month and more incorrect results are found from the CT election four months earlier <Feb 2009>

Voter fraud in CT makes national news <Feb 2009>

The limits of paper: Machine votes for wrong candidates, not noticed by voters who are blind <Apr 2009>

Also a problem if you don’t look at or can’t find the paper <Apr 2009>

No paper no problem – or just don’t look at it <Aug 2009>

Again, move along, you can’t see the ballots <Aug 2009>

Exporting questionable elections? <Oct 2009>

Haddam: Who won in ? Without ballot security, we will always have questions of credibility <Nov 2009>

Don’t count your ballots up in Massachusetts <Nov 2009>

We will leave it here until next time, we have completed 2009.

“It happens all the time.” All over the place (Part 2)

Here we continue our review of are some of our posts of past errors surfaced in Connecticut and around the country, selected from our over 900 posts. Last time we covered the 1st year of CTVotersCount. 2007-2008. Continuing from there:

It seems the 2nd half of 2008 was a good year for uncovering problems, not so good for credibility.

Here we continue our review of are some of our posts of past errors surfaced in Connecticut and around the country, selected from our over 900 posts. Last time we covered the 1st year of CTVotersCount. 2007-2008. Continuing from there:

Book Review: “Witness To A Crime” The result of three years of persistent, detailed investigation of the 2004 election in Ohio. This book proves several times over that the election was stolen. <Jul 2008>

French take back seat to no one, with differences between voters signed in and ballots counted <Jul 2008>

Partisan consultant behind election firewall in Ohio. Maybe nothing wrong, but certainly does not provide credibility <July 2008>

Was something being covered up? Election Observer Arrested – Taken Away In Handcuff <Sep 2008>

Palm Beach officials and machines can’t seem to get counts to agree <Sep 2008> <Oct 2008>

We’ve covered this several times since. Crime and Punishment: Election stolen from Popular Governor – he is punished – in fact he is still in jail <Aug 2008>

How could the Social Security Adminstration contribute to reducing voting integrity <Sep 2008>

CT accused of illegally purging voters <Oct 2008>

Another Audit – Another Diebold Error <Dec 2008>

Shelton Snafu <Dec 2008>

Eurekia! Or should we say just another bug <Dec 2008>

More errors in CT results <Dec 2008> As we predicted, even more <Dec 2008>

We will stop here. It seems the 2nd half of 2008 was a good year for uncovering problems, not so good for credibility.

“It happens all the time.” All over the place (Part 1)

I wish we could say for sure “It doesn’t happen all the time.” We do not know for sure, its one of those unknowns, but from what we do know of those surfaced, our bet is that it is much more likely “that it happens frequently in Connecticut, say at least once or twice every statewide Election and Primary. More likely than not in our guesstimate”

A fellow integrity activist forward this a few days ago: It happens all the time: Interview with the consultant who discovered the Medford miscount <read>

Wow,” I replied. “If I’d discovered such a major error, I’d surely remember it!”

“Oh, this kind of thing happens all the time,” he said. “The details are always different, but there’s an endless number of ways the people who run our elections can botch them up. Every election has something.”

I glanced at my prepared questions and slid them into the wastebasket. Lordamighty, the guy who makes his living working with election records doesn’t even remember what I had considered a jaw-dropping discovery! Fortunately, I didn’t need to come up with new questions; Grebner was eager to talk.

“You want stories? I can tell you lots of stories.” he continued. “Everybody finds different ways not to follow the instructions.”

You read the post for a bunch of stories of election mess-ups recalled by one consultant. We just want to remind our readers and ourselves of some similar error discovered in Connecticut – what worries us are not those that are surfaced in time to correct results, or the ones surfaced eventually that did not change the results – its the ones never discovered or covered up. I wish we could say for sure “It doesn’t happen all the time.” We do not know for sure, its one of those unknowns, but from what we do know of those surfaced, our bet is that it is much more likely “that it happens frequently in Connecticut, say at least once or twice every statewide Election and Primary. More likely than not in our guesstimate”

Here are some of our posts of past errors surfaced in Connecticut and around the country, a selection from our over 900 posts:

Dan Rather Reports, was it really inadvertent hanging chads in FL 2000, a gross error, or intentional? <Aug 2007>

A New Britain Candidate’s company moving voting machines…not a great formula for confidence in our elections <Nov 2007>

A pretty obvious problem in accurate hand counting when no actual planning is involved <Nov 2007> Would we trust these people with petty cash? We trust them with our Democracy!

Half of Registrars Follow Last Minute Procedures <Jan 2008>

We won’t find many problems where there is a Blind Faith In our Scanners <Feb 2008>

Paper ballots useful, only if you don’t lose them <Jun 2008>

Gov loses election by fraud. Nice to know, but a lot better if the loser was not jailed <Apr 2008> He is still in jail. Pardon our upset and the Governor.

New Milford did not compute <Jun 2008>

It also helps confidence and integrity if the number of voters and votes is close (a Bridgeport preview of 2010?) <Jun 2008>

We will stop here, covering the 1st year of CTVotersCount. Perhaps we will continue this review soon.

Would this, could this happen in Connecticut…we hope so.

Contractor error causes wrong candidate to be declared winner, error discovered, results corrected!

Texas: Private election tabulating firm missed some votes at Ore City and New Diana <read>

Results overturned:

The original unofficial returns released Saturday night for the Ore City election showed Steve Heim leading incumbent Jeannette Orms by four votes, 48 -44, but the complete count showed they received 55 each, Ms. Weir said. Rather than having a recount or special election, either ofwhich would cost the city money, the candidates approved having the flip at a special City Council meeting set for 7 p.m. Tuesday at City Hall, she said.

The delay also showed that Ore City voters renewed the one-fourth of one percent sales tax for street repairs by a vote of 79 to 26 in unofficial complete returns. The originally-announced count was 65 to 23

What happened?

The tie was discovered after Hart InterCivic, the firm tabulating the votes at the Upshur County Courthouse in Gilmer on Saturday night, originally failed to count the votes from one of the city’s electronic voting machines and some of the votes in the nearby New Diana bond election, Ms. Weir said.

She had discovered that the election returns she was given Saturday night did not match the total number of voters, and said she called the County Clerk’s Office on Monday to report it. A court order from 115th District Judge Lauren Parish was required to finish the count in the elections.

This is actually good news. The way we would expect the system to work!

While many would fault the system: For hiring a contractor in the first place. The contractor for placing a neophyte in charge. The neophyte for the error. But we ask for a pause to consider that the system actually worked the way we w0uld like it to:

A mistake or two were made. There are always mistakes. What is important is the system’s reaction to them.
The error was quickly discovered by officials
It was surfaced and corrected by officials

This is how the system SHOULD react. We should expect the system to find most errors and to surface them, not cover them up. We rare sure this could happen in Connecticut. But we have seen instances where it has not.

We know of a referendum where a human error caused a machine mis-count (That is often the case. No machine mal-function. No fraud. A human error causes the machine to provide an inaccurate count.) Citizens, not officials noticed a discrepancy in the number of ballots counted vs. the number of voters checked-in. Officials recounted. A bit worse than this case in Texas – since officials did not notice the error.
Same thing in 2012, an error was discovered by officials in a audit. To their credit they investigated and determined the cause. Good but best would have been if they had checked the check-in counts vs. ballots – fortunately it did not change the winners.
But then we have Bridgeport 2010 – the Governor’s race hung in the balance – everyone in the State kneWe w that. But the system did not work. There were many discrepancies between the check-in counts and ballots counted – if any checked, it was never surfaced by officials. The Secretary of the State was powerless to check or change the result. A newspaper gained access to the ballots and they were recounted with assistance of the Citizen Audit. Fortunately, the initial winner was correct – Fortunately, because the system has yet to officially recognize the correct results. Using that as an instructive example, the errors in Texas could happen in Connecticut, yet might not ever be corrected.

Estonia defends I-voting system, critics respond

Two days ago we posted the video and referenced the web by security experts showing the hacking of and their concerns with the Internet voting system used in national elections by Estonia. Yesterday there were further developments, responses, and rebuttals:

A story in the Guardian which was a summary of the information from the video and press conference <read>

The results showed that “although the Estonian system contains a number of security safeguards, these are insufficient to protect against the attacks we tried”, said Alex Halderman, assistant professor of computer science at the University of Michigan, who was an e-voting election observer in Estonia in 2013.

Those attacks included taking over voters’ PCs to cast fake votes, and hacking into the vote-counting servers to install software that would alter the final count.

Estonian voters use a combination of smartcards, with built-in chips, and smartphone verification to confirm their votes. Even so, the researchers said it was vulnerable; and Kitcat warned that e-voting might be an area which could never be guaranteed safe from hacking.

A defense by Estonia’s National Electoral Committee was quickly releases<read>

The results showed that “although the Estonian system contains a number of security safeguards, these are insufficient to protect against the attacks we tried”, said Alex Halderman, assistant professor of computer science at the University of Michigan, who was an e-voting election observer in Estonia in 2013.

Those attacks included taking over voters’ PCs to cast fake votes, and hacking into the vote-counting servers to install software that would alter the final count.

Estonian voters use a combination of smartcards, with built-in chips, and smartphone verification to confirm their votes. Even so, the researchers said it was vulnerable; and Kitcat warned that e-voting might be an area which could never be guaranteed safe from hacking…

And quickly followed by a rebuttal by the security experts <read>

Here we provide the full rebuttal, which repeats and responds to the issues raised by the Estonia Committee

The National Election Committee of Estonia have published a response to an article by The Guardian which reported the findings we have published on the Estonian e-voting system.

Here is our response to the claims of the Election Committee:

“The system has been used in six elections (municipal, national and European) without a single incident which have influenced the outcome.”

Our research argues that a well resourced attacker, such as a nation-state like Russia, would be able to undetectably steal votes in an election using the Estonian e-voting system. We maintain that the Election Committee cannot, by virtue of the failings in the systems used, irrefutably prove that the six elections thus far conducted were never influenced nor could they prove that for elections using the system in the future based on the current design.

This is one of the fundamental problems with Estonia’s design, which depends on complex software to report on votes stored invisibly within the `black boxes’ of servers. A key benefit of paper-based elections is that post-election audit and verification using proven techniques can provide a very high level of confidence in the integrity of the results.

“Estonia has conducted its online balloting in a unique spirit of transparency: every aspect of online balloting procedures is fully documented, these procedures are rigorously audited, and video documenting all conducted procedures is posted online.”

We have warmly welcomed these moves to transparency but they have not been sufficient. Video demonstrably does not cover all critical procedures conducted.
Even when a procedure has been taped, only portions of the activities were captured because there was one camera but two computer screens in use at the same time.

“In addition to opening every aspect of our balloting to observers, we have posted the source code of our voting software online.”

As confirmed at our meeting with Mr Martens and his colleagues from the Election Committee on 13th May 2014, the source code for both the voting clients and log server software has never been released. The committee never intend to release the code to those elements despite them being, by the Committee’s own admission, fundamental to its operations and security protections. Thus the claim that the source is posted online is a very partial claim. Furthermore source code availabilty, while an important basic requirement for transparency in such a system, is not in any way sufficient to ensure its security and accuracy.

“We believe that online balloting allows us to achieve a level of security greater than what is possible with paper ballots. “

The Election Committee have failed to demonstrate or prove this very significant claim. Our independent and detailed analysis of their system’s procedures, design and available source code suggests that the system provides security far below that of a well-run paper-based election.

“1. The researchers have not discovered any new attack vectors that had not already been accounted for in the design of our system as a whole.”

We disagree. The Committee are mis-portraying the client-side attack we have identified as using a ‘keylogger’ when this is not the case.

“2. It is not feasible to effectively conduct the described attacks to alter the results of the voting.”

We are surprised the Election Committee feel able to make such a strong claim given that in the same statement they also complain that they say, “At this point, we can give only preliminary answers to allegations published in the Guardian, as the researchers have not shared the full results of their work with us.” We don’t believe it is reasonable for the Committee to have such certainty in refuting our research when they acknowledge they don’t have the full details.

We regret that we have not been able to publish as much detail as we would have liked, as quickly as we would have liked. This has been a significant project which we have undertaken independently and without contact with any parties or groups in Estonia to ensure full independence. As soon as our research identified the seriousness of the vulnerabilities we prepared to explain the situation to Estonia as quickly as possible. To ensure our impartiality we wanted to make sure that nobody in Estonia had advance and unfair notice of our findings. We also felt ethically duty-bound to inform Estonia of the issues before the system was used again for the binding European Parliamentary elections later this month.

On Tuesday 13th May 2014 we privately met members of the Estonian Electronic Voting Committee to disclose technical details of our findings. We have been working hard to publish appropriate technical information in public.

“3. The electoral committee has numerous safeguards and failsafe mechanisms to detect attacks against the elections or manipulated results.”

It is unclear how meaningful or effective these claimed measures might be as the Election Committee will not disclose any details as to the type of safeguards in place. If the Committee was truly confident in the measures they would explain them to us and the citizens they are serving.

The attacks we describe are the result of architectural weaknesses in the Estonian system, and they could be virtually impossible to detect if carried out by a sophisticated state-level attacker.

“4. The website put up by the security researchers (estoniaevoting.org) contains numerous factual and detail errors, and does not provide technical details on the alleged vulnerabilities in our system.”

We are happy to correct any errors or misunderstandings but unfortunately the Election Committee have chosen not to identify what they might be referring to on our website. We remain open to hearing any corrections.

“Nevertheless, their last minute claims, published two days before the beginning of online balloting for elections to the European Parliament, give us no reason to suspend online balloting.”

We first published information late on Sunday 11th May 2014 and sent email notifications on Saturday 10th May 2014. Electronic voting in Estonia opens on Thursday 15th May 2014. Thus we dispute the claim by the Committee of ‘two days’ warning.

We look forward to the continuing debate around e-voting.
[Updated 14th May 2014 to clarify that we had privately met the Electronic Voting Committee to disclose technical information.]

Ethical Hackers 2, Internet Voting 0

Two days ago an international team of investigators demonstrated attacks and articulated weaknesses in the Estonian voting system used by 20% to 25% of voters in their national elections.

In the fall of 2010 Washington D.C. ran a brief open test of the Internet voting system it was proposing for use in that year’s November election. It was quickly hacked by a team of graduate students from the University of Michigan, lead by Professor Alex Halderman. <summary and video>

Two days ago an international team of investigators including Professor Halderman and graduate students demonstrated attacks and articulated weaknesses in the Estonian voting system used by 20% to 25% of voters in their national elections. Information is all available at https://estoniaevoting.org/

The video summary is a great way to understand what they did.

What we found alarmed us. There were staggering gaps in procedural and operational security, and the architecture of the system leaves it open to cyberattacks from foreign powers that could alter votes or leave election outcomes in dispute. We have confirmed these attacks in our lab — they are real threats. We are urgently recommending that Estonia discontinue use of the system.

They easily demonstrated attacks on the election servers and on personal computers used for voting. They found additional means of attack that they could have demonstrated. While they applauded Estonia’s efforts at transparency, they found it both insufficient and that it exposed server passwords on the Internet during the voting period.

Common Sense: The good, bad, and ugly secret ballot

We often take for granted the idea of the secret ballot. One alternative to the secret vote is the public vote. Sometimes we would prefer a public vote, sometimes it is necessary,

Note: This is then ninth post in an occasional series on Common Sense Election Integrity, summarizing, updating, and expanding on many previous posts covering election integrity, focused on Connecticut. <next> <previous>

We often take for granted the idea of the secret ballot. We see elections in other countries with people putting a folded ballot into a ballot box. We go into a voting booth and want our privacy. Some want to conceal their vote from relatives, friends, employers, fellow union members, or church members. Yet there are alternatives and sometimes we want them, sometimes they are necessary.

Researching the history of the secret ballot, in The Hidden History of the Secret Ballot, a couple of years ago, I was surprised to learn:

It was implemented in the U.S. generally after the Civil War
It was implemented for partisan reasons – to suppress the black vote, under the assumption it would hamper the illiterate from voting.
There is also the tradition of the New England Town Meeting with voters standing or raising their hands to vote.

This year we have fought hard to protect the secret vote in Connecticut, yet not for partisan reasons. It has several benefits:

It keeps votes from being bought, sold, or intimidated – prior to the Civil War votes were regularly bought and voters under peer and other pressures to vote in particular ways.
It helps the losers accept the election result as the actual will of the people.

One alternative to the secret vote is the public vote. Sometimes we would prefer a public vote, sometimes it is necessary:

Our representatives in the Legislature, Congress, and most public bodies vote in public. Not so long ago, committees in Congress voted in secret. Members could tell both sides of the public and lobbyists that they agreed with them and it was ‘others’ who voted the wrong way, blocked, fixed, or promoted legislation. Without a public vote we would have no idea how our elected officials actually voted. No way to hold them individually to account.
Where votes are proportional, they need to be recorded and verified by ownership. Examples include stockholder votes or condo associations where some votes are based on ownership proportions.
A public vote is much easier to verify. After every close election we hear charges by the losing side or their supporters than a particular vote was incorrectly counted – by a candidate or party in Connecticut – or a government official unhappy with the declared winner in another country. Sometimes those charges may be true. In every case it reduces the trust in the process and in democracy.
On the other hand, a public vote can also lead to charges of payments or intimidation deciding the election.

The Connecticut Constitution gives us the right to the secret vote. In considering the Constitutional Amendment this year, we note that it represents a third alternative: A semi-secret vote, if anything a worse alternative than either a secret vote or a public vote with the disadvantages of each. It would allow a special, very vulnerable class of voters, deployed military, to waive their right that their vote be secret – a right we claim is not theirs, but every voters’ right that everyone’s vote be secret. It would have none of the advantages of a public vote, since nobody knows if the soldiers votes are known, only perhaps, a few insiders may know. There would be no public verification, even for the soldier.

One final example. Last year we had a petition circulated in our condo complex to ask the Board to rescind a vote to remove part of a border fence. It became very hot issue. Over two-thirds of the residents signed the petition. The contingent in favor of removing the fence charged that many people were intimidated in signing the petition, others mislead, and others did not know what they were signing. There probably were some cases where each of those concerns were justified. We have had similar changes in every public vote. There are two issues: 1) What would be the actual free choice of the majority? 2) How can the losers accept the result? The answer is to actually conduct a secret vote – yet it must be in a way that everyone trusts the process.

Judge Stevens: Missing at least one amendment to the Constitution

Retired Justice Stevens has a new book: Six Amendments: How and Why We Should Change the Constitution. We have not read the book, but we have seen Justice Stevens interviewed on NPR and from the table on contents understand the outlines of his six proposed amendments. From the interview he indicated his goal was correcting recent errors of the Court in following the intent of the Founders.

We say he missed a big one. The problems of our electoral system and the Gore v. Bush decision in 2000.

Perhaps it is his criteria that was too restrictive or perhaps he will issue a sequel. (Gore v. Bush was really based on decisions in 1876, not so recent. And apparently the Founders did not anticipate the partisan election systems and problems that quickly evolved). I am sure there are more than six good ideas out there, but many more bad ideas, to cure actual and perceived Constitutional problems and limitations.

As we have said here many times, we generally favor the popular election of the President with equal votes for all citizens, yet we oppose the National Popular Vote Compact <our NPV index>. The Compact would make the problems that led to Gore v. Bush worse. Making a risky system more risky. It would not, in fact, make every vote equal.

What is needed is a system that actually requires that every vote be equal, as system that we can trust that is enforceable, and enforced, one that provides uniform enfranchisement, access, security and public verifiability across all states. It would require a Constitutional Amendment that at a minimum would:

Require the direct election of the President by a uniform popular vote
Require uniform requirements for citizens to vote, uniform rules for voter check-in and identification, uniform requirements for early voting and absentee voting.
Repeal the 12th amendment which governs electoral accounting and was a major factor in the legal decisions of 1876 and 2000.
Require that votes and results be publicly verifiable, with effective and uniform election audits and with recounts for close votes, prior to the certification of the winner.
Require an effective method for mandating appropriate procedures, adjudicating issues, and certifying the winner.

For more information on what is wrong we the current system and the Constitutional limitations, we refer to our testimony and the work of Edwin B. Foley of the Moritz School of Law, referenced frequently in pages 2-6 of our testimony.

Reality: Even if somehow states agreed to a national state by state recount, the Supreme Court can be expected to rule as it did in Gore v. Bush that it would be unfair since it would not be uniform:

“Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them …there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949

Even though the Court claimed the decision was not to be used as a precident, on what basis would they rule differently when faced with a challenge to a far from uniform state by state recount? See Moritz School of Law Profesor Edward B. Foley’s comments on Gore v. Bush and equality: http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8099 …

Quoting Professor Edward B. Foley and Nathan L. Colvin, of the Moritz School of Law, in their recent paper, “The Twelfth Amendment: A Constitutional Ticking Time Bomb”:

Although the Supreme Court’s decision in Bush v. Gore averted congressional confrontation over electoral votes pursuant to the deficient framework of the Twelfth Amendment, the episode signals the possibility that a similar dispute might arise again—but this time without the saving intervention of the Supreme Court. Although the events of 2000 produced passing interest in the mechanism established by the Twelfth Amendment, since then there has been no sustained plan to prepare the nation if a dispute over electoral votes goes all the way to Congress. Nevertheless, the history of the Twelfth Amendment and the commentary on it during the nineteenth century show that the nation needs a contingency plan of this sort.…like putting off preparations to defend against a once-a-century category five hurricane, it is easy to postpone considerationof a constitutional amendment designed to protect against another debacle of the kind that occurred in 1876… it is also worth proposing a second-best legislative solution that would modify the Electoral Count Act… either of the two major political parties will want to block any measure it perceives as disadvantageous to its interest …our country has embarked on a meandering journey of ad hoc approaches to resolving electoral disputes. The decision of the Supreme Court in 2000 marked only the most recent stop on this journey but was met with as much dissatisfaction as previous historic stops such as the Electoral Commission and the Twenty-second Joint Rule. Instead of waiting for the next electoral dispute and hoping that the Court or a bipartisan split in Congress might save our country, Congress should address this historic problem with an amendment to the Constitution that clearly addresses the electoral count procedures… The starting issue for an analysis of electoral vote determination under the Constitution is ascertaining where the Constitution vests the power to count and/or determine the validity of votes, and this is where the first ambiguity comes from. There are four possible actors: (1) the Vice President of the United States acting as the President of the Senate, (2) the two houses of Congress acting together, (3) the two houses of Congress acting separately, and (4) the states.13 The text of the Twelfth Amendment is unclear on this subject, and, throughout our history, various theories have prevailed.

They also quote Justice Joseph Story:

In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes . . . . It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned.

References:

The Twelfth Amendment: A Constitutional Ticking Time Bomb
http://www.law.miami.edu/studentorg/miami_law_review/issue_archive/pdf/vol64no2/MIA204.pdf

The Founders’ Bush V. Gore: The 1792 Election Dispute and Its Continuing Relevance
http://indylaw.indiana.edu/ilr/pdf/vol44p23.pdf