FEBRUARY 2008 BriefingBriefing

Back to Paper: A Case Study

n the not-too-distant past, American elections got an overhaul. The Iproblems identified in the 2000 presidential election with punch- card voting systems convinced policymakers in state capitals and on Capitol Hill that change was needed – particularly in the method by Inside which ballots were designed, cast and counted. Bolstered by public discontent and the availability of federal Executive Summary ...... 3 dollars, voter-rich states including Florida, California and Ohio New Mexico ...... 4 replaced older voting systems with touch-screen or scrolling-wheel electronic voting machines. Florida ...... 5 The newer machines offered flexibility and features the older California ...... 8 systems, mostly punch cards, never could – no more over-votes, the ability to display multiple languages on the same machine, accessibility Ohio ...... 11 for a wide range of voters with disabilities and no more ambiguity Colorado ...... 15 when determining a voter’s intent. Requirements for Paper Machines were bought. Millions of dollars were spent. Votes were Usage in Voting Systems ...... 17 cast. Controversy ensued. Not long after their introduction, computer scientists, voter Back to the (Paper) Future ...... 18 advocacy groups and others called into question the integrity, security Timeline ...... 20 and accuracy of the next generation of voting machines. By 2003, the Methodology/Endnotes ...... 22 calls of computer scientists for further research had blossomed into a movement. Problems at polling places strengthened their arguments and lawmakers listened. Misprogrammed machines in one North Carolina county failed to record votes, throwing a statewide race into confusion. Statistically Introduction

By 2007, a second overhaul was underway in some states.The experiment with direct-recording electronic machines would end abruptly or be phased out.

improbable numbers of under-votes plagued scrap expensive and recently purchased voting elections in some Florida counties, including a race technology could be the leading edge of a national to replace former Congresswoman and Secretary of effort to return to paper-based elections. Regardless State Katherine Harris (R) to represent the 13th of how election officials, advocates and voters stand District in the U.S. Congress. on the issue – many of whom strongly support Further, the security of systems was called into DRE voting and report excellent experiences using question in studies conducted by both the private the machines – once the big states have completed sector and by government agencies. the switch, others are sure to follow. In a growing list of states, the questions turned In this, the 21st Electionline Briefing, the to concern. Concern gave way to legislation and decisions by five states to adopt DREs only to legislation led to more changes at polling places. By reverse course are explored. Five states that have 2007, a second overhaul was underway in some adopted DREs only to reverse course are explored. states. The experiment with direct-recording The case study focuses on California, Colorado, electronic (DRE) machines would end abruptly or Florida, New Mexico and Ohio, states that have or be phased out. are in the process of moving away from touch- Six years, dozens of elections and millions of screen voting and back to paper again, all in a dollars after adopting new voting systems, the relatively short period of time. migration back to paper is not yet a full-blown movement. But high-profile bipartisan action to

2 electionline briefing Executive Summary

Six years and millions of dollars into a major overhaul about DREs, and again, a bipartisan response was the of the U.S. election system, a number of states are result led by a governor. After spending more than $30 contemplating returning to paper-based voting systems million to replace punch-card voting, another $27.8 after failed or troubled experiments with newer voting million would be spent six years later to buy optical-scan technology. machines for the 15 counties – including the state’s most populous – that purchased touch-screen voting machines. Electronic voting machines were considered the ideal Gov. Charlie Crist (R) led the charge, motivated largely solution to the problems of punch-card voting shortly by more than 18,000 lost votes in Sarasota County in the after the troubled 2000 election. Direct-recording race for the 13th U.S. House district. electronic (DRE) machines offer accessibility for people with disabilities, prevent over-voting and eliminate the California subjectivity of paper-based balloting that plagued the The verified-voting movement got its start among the Florida recount. state’s computer scientists, and caught on with two secretaries of state after a number of counties But DREs also began to raise questions shortly after experienced problems with DREs, because both of their deployment in major battleground states, including human and machine errors. A “top-to-bottom” review Florida, Ohio and California as well as in Colorado and of the state’s voting system in 2007 led to the New Mexico.These questions, along with problems at expansion of optical-scan voting and the curtailing of the polls, prompted decisions to scrap the recently DRE voting, limiting their deployment to one machine purchased machines. per polling place in the vast majority of counties.

More states are primed to follow, including Maryland, Ohio which was among the first in the country to purchase a Widespread punch-card use might have contributed to statewide DRE voting system, and New York,which will thousands of invalid ballots in 2000, but the planned end more than a century of lever machine usage with purchase of DRE machines led to concerns about the purchase of optical-scan machines and ballot- security and the ability to audit results. As in California, marking devices in 2009. Ohio’s secretary of state conducted a review of voting systems, determining that not only were DREs Reasons for the return to paper varied in each of the susceptible to security flaws, but precinct-count optical five states that opted to make the switch, but similarities scanners were vulnerable as well. Optical-scan ballots, exist as well. In each circumstance, a top-ranking state which will be centrally counted, will be offered as an official – the governor or secretary of state – raised alternative in the 2008 primaries in counties that use security and accuracy concerns about DRE systems. electronic voting systems, with a permanent DRE ban Advocates were active as well, questioning the integrity looming as possible for November. and auditability of DRE voting. Lawmakers from both parties eventually embraced change, though frequently Colorado concerns about the replacement cost of purchasing yet While a final decision on voting systems is pending another voting system came from both sides of the aisle. in the state, a troubled roll-out of DREs and a lawsuit over how the systems were certified New Mexico led to more stringent testing requirements by The state was the first to go from DREs in some incoming Secretary of State Mike Coffman (R) counties and back to paper in 2006, when Gov. Bill in 2007. A number of voting Richardson (D) signed a bill to standardize the state’s systems, including both DREs and voting to a uniform optical-scan system. optical-scan systems were decertified, to the chagrin of some local election Florida officials who said they would seek an all- Many voters in the state will cast ballots on the third mail election in November. A bipartisan voting system in as many presidential elections in bill requiring paper ballots appears November 2008. Again, under votes raised concerns headed for passage in the legislature.

electionline briefing 3 New Mexico: Governor Leads Swift Return to Paper Ballots

New Mexico was the first state systems to have a voter-verified million appropriated to fund the to scrap touch-screen voting paper trail. The legislation also transition, the state also used $9 machines and move to a uniform required post-election audits.4 million in HAVA funds. paper-ballot system, a decision that Nine months later, in January By November 7, 2006, less than some say has made the state a 2006, Richardson announced plans a year after requiring paper ballots pioneer. to standardize the voting systems in all counties, New Mexico voters Following the contested 2000 throughout New Mexico.5 headed to the polls and cast their presidential election, a study by The The plan would require a ballots on ES&S produced optical- Washington Post found that 678 standardized, paper-based system in scan machines. voters who cast their ballots early on all 33 counties.6 A study by researchers from the touch-screen voting machines in Rio At the time, there were six University of New Mexico, Caltech Arriba County never had their votes different voting systems being used and University of Utah about New counted. Al Gore won New Mexico in the state. But promises of state Mexico’s election administration by 366 votes.1 funding for voting machine process in 2006 generally lauded the Although some jurisdictions in purchases softened the blow. state, including how it handled the the state had been using older- Less than two months later, switch to all paper ballots. generation direct-recording Richardson signed the “New “The reports show a system that electronic (DRE) machines for more Mexico Make Every Vote Count” is fundamentally working, where than 15 years, some were skeptical. legislation into law. voter problems are infrequent, and Santa Fe County Clerk Valerie “Today we are moving New where voter and poll worker Espinoza indicated in 2004 that she Mexico from a hodge-podge of confidence is generally high,” stated would not purchase any voting varied voting systems to one, simple, the project’s authors.8 machines that did not provide a statewide, all paper-ballot system voter-verifiable paper trail.2 using optical scanners to count the Concerns over New Mexico’s vote – a system that provides voting systems – a combination of uniform accountability and an DREs and optical scanners – absolute paper trail should there be increased when the 2004 any questions regarding the presidential contest had one of the legitimacy of our vote,” Richardson highest rates in the nation of under- said at the signing. “With this step votes and over-votes – nearly 20,000 we will guarantee fair and accurate ballots that did not register or had elections, insure accessibility for more than one vote for president.3 voters who are disabled and restore The margin of victory for George faith in our electoral process.”7 W. Bush was 5,988 votes. The bipartisan bill included In 2005, Secretary of State improved training Rebecca Vigil-Giron (D), along with for poll workers, several voting machine vendors and established statewide local election officials were sued in standards for provisional federal court (Lopategui, et. al. v. The ballots, and simplified absentee State of New Mexico) over the 2004 voting as well as increased election. That year, Gov. Bill tougher enforcement powers for Richardson (D) signed legislation the secretary of state. requiring all New Mexico voting In addition to the $11

4 electionline briefing Florida: Seven Years Later, the ‘Envy of the Country’?

If a Florida governor declaring reliability and auditability in light of affects the state’s most populous, his state would have “an election thousands of unvoted races on including Broward, Miami-Dade, system that is a model for the ballots. Sarasota and Palm Beach.13 nation” sounds like déjà vu, it’s Nearly six years to the day that Under the bill (H.B. 537) because it has, in fact, happened Bush signed S.B. 1118, Gov. Charlie enacted by lawmakers in May 2007 before. Crist (R) and U.S. Rep. Robert and signed by Crist a few days later, Seven years ago, to be exact. Wexler, D-Fla., stood together as DRE machines will continue to be Gov. Jeb Bush (R), just months after H.B. 537 was enacted, effectively in use for voters with disabilities the chaotic recount was ended by ending the state’s short and trying until 2012. But all-DRE precincts the U.S. Supreme Court and his experiment with touch-screen and early vote centers in the 15 brother was sworn into office, voting.10 counties still using touch-screen signed the law that would rid the It marked the third time in as systems in 2007 have switched over state of punch-card machines and many presidential elections that to optical-scan for the vast majority lead to uniform vote-counting parts of the state changed voting of voters.14 standards. systems. Since 2000, the state that “Every two years, millions of New electronic voting machines inspired and initiated election Americans express their opinion without any paper would have no reform has gone from paper to without fear of consequence,” Crist hanging or pregnant chad. Over- electronic machines and back again. said in a release. “People around the votes would be impossible, ballots world yearn for this freedom, and would be accessible to voters with a Investment repeated now Floridians will enjoy this wide array of disabilities and The move from paper punch freedom with confidence that their confusion and subjectivity would be cards to touch-screen direct- vote is counted.”15 relegated to the 20th century. recording electronic (DRE) machines For some, it could mark the first Gov. Bush declared a turning to optical-scan ballots has been time they do that in a long time. point in the Sunshine State. expensive. Florida invested more S.B. 1118 represented a “This measure will restore than $30 million after the 2000 comprehensive overhaul of the confidence in our election process election to replace punch-card voting troubled procedures and systems and will serve as a model for the rest systems in use in much of the state that led to the historic breakdown in of the nation...Floridians have a with touch-screen systems – 2000. Signed into law less than six voting system that will be the envy particularly the populous counties in months after the Bush v. Gore of the country,” Bush said, standing the southern part of the peninsula. decision that ended the state’s at a press conference flanked by While some counties had existing chaotic recounts, it banned the use then-Secretary of State Katherine optical-scan systems in place, the of punch cards, created uniform Harris (R).9 state estimated 65 percent of all ballot design and recount standards Things didn’t turn out quite as voters cast ballots on new machines and set up rules to determine voter planned. in the September 2002 primaries.11 intent.16 In fact, six years later, Bush’s Less than six years later, the Less than a year and a half later, successor would sign related state will pay another $27.8 million as Florida prepared for its first legislation, this time barring the use to change again, this time to major election since the 2000 of the very same electronic voting precinct-based optical scanners.12 Bush/Gore debacle, touch-screen machines that had frustrated poll Statewide, the change only affects machines, made by Diebold, ES&S workers and voters in their early 15 counties since the majority of and Sequoia, were implemented in implementation and later raised jurisdictions already use the system. 15 counties for the 2002 primary serious concerns about their Yet, just as in 2000, the change elections. At stake were statewide

electionline briefing 5 Florida

Scattered incidents of DRE voting machine Scattered incidents of DRE troubles started becoming the norm rather voting machine troubles started becoming the norm rather than the than the exception in the state, and sometimes exception in the state, and sometimes shortcomings in training and shortcomings in training and planning could not planning could not adequately explain adequately explain the problems. the problems. (see Timeline, p. 20) Under-votes doom DREs offices, including the governorship, away without voting because The race to represent the 13th as well as federal offices. Former machine malfunctions had paralyzed Congressional district in 2006 was U.S. Attorney General Janet Reno their precincts.18 the galvanizing event. was among those vying for the Miami’s Office of the Inspector While previously reported Democratic nomination for the General (OIG) wrote two reports problems with machines, poll- governorship, and public interest about the September 2002 primary, worker training and election and national attention were both the first noting that in addition to administration could, in the views of high for a mid-term race. poll worker training problems and some, be corrected with better Some were skeptical of Florida’s organizational deficiencies, the manuals, procedures, testing or new paperless system. machines did not have the ability to software upgrades, the results of the “Replacing the punch card present three distinct languages as Sarasota County election proved to machines has potential promised in the original contract be the final straw. shortcomings,” stated an August purchase.19 An estimated 18,000 votes were 2001 report from the U.S. A second report from the OIG not recorded on iVotronic Commission on Civil Rights. “First, further revealed that the ES&S machines, a number that exceeded local election officials have a limited machines used in both Miami-Dade the margin of victory for Republican choice of voting systems certified by and Broward counties were Vernon Buchanan, who according to the Division of Elections. Second, equipped with 386 EX processors – official results, won with fewer than there is the possibility that a technology first marketed in home 400 votes in the race to succeed malfunction or error will not be computers in 1986 and by 2002, Rep. Katherine Harris, the corrected because there is no paper long since obsolete. Republican former Secretary of ballot to provide vote verification.”17 “Including the limited flash State who certified the results of the memory internal to the [ES&S] 2000 election.22 ‘Hardly state-of-the-art’ iVotronic, the machines the county Reasons for the huge number of The 2002 primaries made some purchased are hardly state-of-the- under-votes varied. Some suggested nostalgic for punch cards almost art-technology,” the report stated.20 that poor ballot design on the county immediately after polls were Ed Kast, the state’s election machines – the race was on the same supposed to open. director at the time, said the screen as the six-person governor In Broward and Miami-Dade, problems were limited to the two race – could have caused some voters polls opened late – some not until populous South Florida counties. to miss the race altogether.23 the early afternoon. Machines broke “We didn’t see problems in 65 of 67 According to Sarasota County down throughout the day, with counties…the logistics, planning Supervisor of Elections Kathy Dent, inexperienced poll workers and training are the issues that need under-votes were intentional. A unfamiliar with troubleshooting to be focused on.”21 bitter, divisive campaign turned off procedures. Hundreds of voters Turns out it was a lot more than voters in droves. complained that they were sent that, however. Fat chance, said Charles

6 electionline briefing Florida

Stewart, an MIT computer science percentages of under-votes in the in early May. The budget to replace professor and member of the attorney general race. Sumter had DREs was pared down to $28 CalTech/MIT Voting Technology under-votes in 22 percent of all million that would be covered by Project. ballots cast in the race; Lee, 18 the Help America Vote Act. “…The under-vote rates in percent; in Charlotte, 21 percent. For the 15 counties still using Sarasota County were substantially The counties used the same type of DREs, changes would have to be higher than in Charlotte [County] ES&S voting system as Sarasota.26 made before the federal election in for both early voting (by 15.3 Placement of the race on the November 2008. Sarasota County, percentage points) and Election Day ballot was again considered a the primary inspiration for the voting (by 11.5 percentage points). possible culprit, as the race was low state’s second round of election These differences are substantial, on the electronic screen, beneath overhauls, would make the switch both in a substantive sense and a the governor’s race. One election earlier, having optical scans on hand statistical sense. These differences supervisor said she thought voters for the January 29 presidential are so large that there is one chance were missing the race then failing to primary.29 in 100 million that a difference this go back and make a choice after the Touch-screens would continue large in under-vote rates among the machine warned them on the review to be available for voters with early votes could have happened by screen that they had not made a disabilities until 2012, at which chance; there is 1 chance in 5 selection.27 point, they too would have to be million that a difference this large in replaced. “Ballot-on-demand” – under-vote rates among Election Day The end of an error? which allows the printing of optical- votes could have happened by Causes aside, Florida politicians scan ballots tailored to each voter’s chance,” Stewart wrote.24 had seen enough. specific local races – would be Buchanan was eventually Crist, who came into office in deployed at early-voting sites.30 declared the winner in the race. But the same election as the missing And Florida voters, at least in the questions over what happened Sarasota ballots, said a second wave the 15 affected counties, would cast to 18,000 Sarasota County votes of election reform was in order. ballots on the third voting system in persisted. Seven years after the Bush-Gore as many presidential elections after The U.S. Government debacle led to a voting overhaul in the state decided DREs raised more Accountability Office became the state, the Sunshine State’s questions than they offered answers involved in 2007, issuing a report to election system could hardly be to the state’s nagging voting a Congressional task force considered the “envy of the troubles. investigating the matter in February country,” as Gov. Jeb Bush declared The decision was hailed by 2008 indicated the machines most in 2001. Republicans and Democrats, as well likely performed as expected. GAO During a February 2007 as voting integrity groups, the posited that voters skipped the race, meeting of the Voters’ Coalition in League of Women Voters and hosts either because of poor ballot design, Delray Beach, Crist said he would of others. dissatisfaction with both candidates recommend more than $30 million “Governor Crist and the state or some other cause.25 for the purchase of a “verifiable legislature have come together and But Sarasota wasn’t the only paper trail of Florida’s voting delivered an election system that is a county having problems with system.”28 model for the nation,” said Wexler. machines. Retrofitting touch-screen “One person, one vote – guaranteed Press reports indicated that machines with printers to provide – with a paper record to prove it.”31 three other counties – Sumter, Lee paper verification was ruled out by and Charlotte – had high the time the legislature passed a bill

electionline briefing 7 California:A Pioneer in Adopting, Questioning and Banning Machines

In March 2002 California voters study electronic voting37 and that encoders failed in San Diego. Back- approved a $200 million bond act the state would receive $195 million up paper ballots were not available.43 allowing counties to update their from the Help America Vote Act to In Orange County, poll worker voting systems.32 update voting systems.38 error led to as many as 7,000 voters During the discussions about casting the wrong ballots.44 what voting systems should be Paper trail movement and Counting software in San Diego considered, some grew concerned DRE decertification gain gave several thousand of Sen. John that election officials might select momentum Kerry’s votes in the Democratic paperless DRE voting machines. A state-sponsored task force presidential primary to Rep. Dick “I could not see how it was released a report in July 2003. Gephardt, who had already dropped possible, given the current state of While they could not come to out of the race.45 computer science, to make a consensus on the need for a voter- Following the primary, a state trustworthy paperless machine,” said verified paper audit trail (VVPAT), advisory committee recommended David Dill, a Stanford University the task force agreed that “the that the 10 counties using touch- computer science professor. “So, I creation of the permanent paper screens continue using them only in started asking experts, and no one record, if it is not a VVPAT, should conjunction with paper ballots.46 could explain to me how it was be done once all ballots are cast.”39 Shelley then banned the use of all done, either.”33 The findings led Shelley to touch-screen voting systems unless Dill conferred with others in the declare that, as of July 2005, election officials either added a technology field and authored the counties and cities could only buy paper trail or met 23 additional “Resolution on Electronic Voting.” voting systems that included a security measures for re- “Voting machines should not be VVPAT. Touch-screen voting certification.47 purchased or used unless they systems without VVPATs could not On June 4, Shelley announced provide a voter-verifiable audit be used after July 2006. Shelley the first set of standards for paper trail,” the document stated.34 explained that the lag time was trails in the country and called on In January 2003, Dill began necessary to allow for system the U.S. Election Assistance collecting petition signatures and certification, poll worker and Commission to establish nationwide within a few months had signatures election official training and voter standards.48 from about 200 prominent education.40 “These standards will be used computer scientists and security “As the state progresses with by voting system manufacturers to experts. Concerned citizens in fields new technology, all Californians develop the next generation of other than technology wanted to must have confidence that every California’s electronic voting add their signatures as well so Dill vote cast is a vote counted,” Shelley machines,” Shelley said. “These will opened up the petition to the said. “These new requirements will also establish the baseline for testing general public. Ultimately, more provide this confidence.”41 those systems to determine if they than 10,000 people signed.35 The March 2004 presidential should be state certified.”49 That February, Santa Clara preference primary did not inspire Shelley’s move to decertify County became the first in the confidence. angered some county election country to buy a touch-screen Poll workers at 20 percent of officials. Conny McCormack, Los voting system that printed a paper the polls in Alameda County had Angeles County registrar said, “He record of each voter’s ballot.36 That difficulties with vote-card encoders put out a report saying that touch same month, Secretary of State and voters were told to use paper screens were 100 percent accurate. Kevin Shelley (D) announced the ballots, go to a different polling And then two days later he formation of a special task force to place or return later.42 Similarly, decertified them.’’50

8 electionline briefing California

Shelley said that Diebold’s aggressive marketing drove election officials to purchase voting equipment that had not been tested or certified.

Indeed, Shelley’s office found equipment that had not been tested hundreds of millions of dollars on that touch screens were precise in or certified.55 The suit was settled in new voting equipment but there are random tests during the primary.51 December 2004. reports questioning their His decision to decertify led to In January 2005, Shelley certified accessibility, questions about the lawsuits but Shelley quickly the first voting system with VVPAT, reliability of electronic voting recertified systems in Merced, the AVC Edge with VeriVote printer systems, questions about the Orange, Santa Clara, Shasta, by Sequoia Voting Systems.56 training poll workers get to manage Tehama, and Napa counties once the high-tech equipment,” she they complied with new security Bowen brings top-to- said.”59 precautions.52 On August 24, Shelley bottom review Bowen appointed Lowell Finley, announced that electronic voting Election reform slowed down an attorney who had previously sued systems in all other counties had significantly in the state when voting machine manufacturers, to be been recertified.53 Gov. Arnold Shelley’s tenure was cut short by deputy secretary of state. Finley led Schwarzenegger (R) signed scandal. Schwarzenegger appointed a group that sued McPherson to legislation in September that Bruce McPherson, a Republican block his approval of a Diebold required all e-voting machines state legislator to replace Shelley in voting system.60 include a paper record by 2006.54 March 2005. Debra Bowen, a In March, Bowen’s office issued Meanwhile, Bill Lockyer, the former Democratic state senator draft criteria of a top-to-bottom Democratic state attorney general became secretary of state after she review of voting systems focusing on prepared a lawsuit against Diebold narrowly won the election over security concerns, accessibility for for defrauding the state by making McPherson in November 2006.57 minority language voters and voters false claims about its products. During her campaign, Bowen with disabilities and usability for Shelley said that Diebold’s promised to scrutinize electronic both poll workers and election aggressive marketing drove election voting machines.58 officials.61 officials to purchase voting “California counties have spent However, concerns about the

electionline briefing 9 California

review’s timing arose when The reviewers did not make any car is unsafe, it orders a recall. Here Schwarzenegger and the state judgments about the feasibility of we’re talking about systems used to legislature moved the 2008 any attacks.65 cast and tally votes, the most basic presidential primary to February. “This was not a security-risk tool of democracy,” Bowen said at a County election officials warned evaluation but an unrealistic, worst- December conference sponsored by Bowen that major changes in case scenario evaluation,” Steven electionline.org.70 elections in a short time span could Bennett, Sequoia Voting Systems’ Since the top-to-bottom review, potentially destabilize elections.62 spokesman said at a public hearing. San Diego, San Bernardino and State officials in May said they “We’re concerned about Santa Clara Counties have all put would be working with the extreme actions being taken. We thousands of voting machines in University of California to bring urge the secretary to ... refrain from storage. In Riverside County, 3,000 together three different teams to precipitous action until all the electronic voting machines that cost study the systems’ documents, relevant information is in,” added about $25 million have been placed source code and perform Deborah Seiler, San Diego County’s in storage as well. During a penetration attacks. A separate team registrar.66 November test run of paper ballots would assess the systems’ In August, six months until through scanners in San Bernardino, accessibility. Bowen’s office expected California’s February 2008 election officials found they could the review to cost $1.8 million and presidential primary, Bowen handle 10,000 voters per hour, so it planned to fund it with money from decertified then conditionally may take as long as 17 hours, HAVA and voting system vendors.63 recertified the systems evaluated by starting at 10 p.m. on election night, Preliminary review results came the review.67 While Bowen allowed to scan the anticipated 175,000 in July when the teams released the continued use of e-voting ballots, Kari Verjil, registrar said.71 their report noting experts were machines, she limited them to one “It seems like every time we get able to break into every voting per polling place for voters with a new secretary of state there is a machine being tested. Matt Bishop, disabilities and all votes cast on new voting system. Who’s to say the University of California–Davis touch-screens must be recounted by what will happen in four years if we computer science professor who led hand after the election.68 One type of get another secretary of state,” Verjil the team assessing vulnerability said system employed in the counties, the said.72 that he was surprised by how easy it eSlate, could still be used as the was to break into the machines, primary voting system. adding that his team would have Bowen also received criticism been able to find more problems if from election reform advocates who they had had more time.64 oppose all electronic voting. Steve Weir, Contra Costa Alan Dechert, Open Voting County registrar and head of the Consortium president said that California Association of Clerks and Bowen was caving to pressure from Election Officials, challenged the voting machine vendors and election relevance of the review. Review officials in allowing some machines team members had operating to still be used. manuals, source code and software “She is not requiring any for the machines, as well as changes in the software or hardware unlimited access to them, which used. This is not why we elected Weir said “is like giving a burglar her,” he said.69 the keys to your house.” “When the government finds a

10 electionline briefing Ohio: Moving Back to Paper, Facing Resistance

“I am committed to helping Punch cards out, DREs were 93,991 ballots cast that were Ohio deliver its electoral votes to deployed after delays invalid, according to the Ohio the president next year.’’73 While Florida withered under secretary of state’s office, and many These words, written by then- the glare of the national spotlight in of those were punch cards.76 Diebold Inc. CEO Walden O’Dell 2000 with its hanging, dangling and In October 2002 the American in a 2003 fundraising letter to like- pregnant chad further north, Ohio Civil Liberties Union (ACLU) of minded supporters of President also had thousands of punch-card Ohio filed a lawsuit against the state George W. Bush marked a seismic ballots that could not be counted, for using punch cards, arguing that shift in the debate over electronic though without much public notice. the use of the ballots in some voting machines in Ohio and across With a much larger margin of counties and not in others violated the country. victory – 165,019 votes – by George the Equal Protection Clause of the Existing skepticism about the W. Bush than in Florida the state 14th Amendment.77 security and reliability of direct did not face the scrutiny the The state did not wait for the recording electronic (DRE) voting Sunshine State did. However, there outcome of the lawsuit, which the systems crystallized and technology that some saw as the solution to the troubles of the 2000 election became the growing focus of potential problems for future votes. More than four years, two troubled elections and several voting system risk assessment reports later, Ohio Secretary of State Jennifer Brunner (D) recommended the state While Florida withered scrap both DREs and precinct- count optical scanners (PCOS) that tally paper ballots by November under the glare of the 2008.74 In the meantime, for the March 2008 primary, counties still using electronic voting machines national spotlight in 2000 with voter-verified paper audit trails (VVPATs) are required to provide voters the option of casting their with its hanging, dangling and pregnant ballots on paper.75 For several Ohio counties this will be the third type of voting chad, further north, Ohio also quietly system in place since 2004. And many of these counties are less than four years removed from the days of had thousands of punch-card ballots punch-card ballots. that could not be counted.

electionline briefing 11 Ohio

ACLU eventually won in 2006. In problems, one of the most startling assessment titled Evaluation and May 2003 the state issued a request was with the Diebold voting system Validation of Election Related for proposal (RFP) for vendors to and its VVPATs. Equipment, Standards and Testing, supply the state with DRE voting One study found that 10 or EVEREST. The report found systems with the goal of replacing percent of the VVPATs were not “critical security failures” in the punch cards by March 2004.78 usable or readable due to printer voting systems. Brunner However, after qualifying jams or other problems.85 It was recommended eliminating DREs vendors in July 2003, the end of the particularly problematic because in and precinct-count optical scan month saw the first of several delays Ohio, like in most states that systems by November 2008 and in the final selection and require VVPATs, the VVPAT is the moving to central-count optical scan deployment of any new DREs official ballot of record.86 (CCOS) voting technology. Soon because the state wanted to perform after she directed all counties using more in-depth security reviews of A new secretary of state, a DREs to offer optically scanned the voting systems.79 fresh look at voting systems paper ballots for the March 2008 In late 2003, two state- Secretary of State Jennifer primary.89 sponsored reports were issued, one Brunner (D), assumed office after Less than two weeks after the of which cited 57 potential security the November 2006 election. A report’s release, Brunner cast a tie- risks with the technology. The former election lawyer and judge, breaking vote for the Cuyahoga findings delayed deployment of the Brunner replaced J. Kenneth County Board of Elections to have systems until August 2004.80 By the Blackwell (R) who left office in an that jurisdiction move to CCOS middle of 2004 a follow-up report unsuccessful bid to become voting technology by the March was issued and plans to have all governor. primary.90 counties switch to touch-screen In June 2007, Brunner issued an voting systems even by November RFP for outside consultants to Central count technology 2004 were delayed. At the same perform a risk assessment study of raises concerns time, a state law was enacted Ohio’s voting systems. After Election officials and observers requiring DRE voting systems to selecting the consultants, the testing expressed concerns about the move include VVPATs.81 was performed from October to to a CCOS system – where the The enactment left 69 of Ohio’s early December.87 paper ballots are not counted at the 88 counties using punch-card ballots During the testing period, in 2004.82 November elections took place and The first half of 2005 saw more again Cuyahoga County had delays, as well as legal action from a problems, this time tallying the vendor over the selection process.83 votes. The server that was By the November election, 44 performing the ballot count crashed counties had touch-screen voting several times as the night wore on. systems in place with paper trails. And when 10 races That number increased to 57 six needed to be recounted, it months later.84 Their debut in was discovered that 20 percent Cuyahoga County during the 2006 of the machines with these races primary did nothing to instill did not have VVPATs for some of confidence in the new systems. the votes due to paper jams.88 While the county experienced In December 2007, Brunner numerous election administration released the report of the risk

12 electionline briefing Ohio

polls and stored on memory cards dramatically decreased the number Brunner criticized the ACLU’s like with a PCOS system, but rather of uncounted votes, previously action. transported to a central location and caused when voters made errors by “They’re a bit tardy in filing counted there. The PCOS system inadvertently overvoting in this lawsuit. The closer we get to and DREs can alert voters to over elections. Second, counting all votes the election the tougher it’s going to and under-votes. Centrally-counted in a central location without the be for a judge to deny the voters of ballots do not afford voters the same benefit of precinct totals is a recipe Cleveland the right to vote in a opportunity. for massive error, particularly if presidential primary,” she said.96 The EVEREST report offered there is no post-election audit of the A judge agreed, denying the the state’s justification: “…The central count optical scanner (which ACLU’s motion. elimination from polling locations is not part of the Secretary’s Candice Hoke of Cleveland of vote recording and tabulation recommendations).”92 State’s Center for Election Integrity, machines such as DREs and After hearing similar concerns which has been the public monitor precinct-based optical scan from voter advocates and election of Cuyahoga County election reform machines (except to use optical-scan officials, Brunner backed off the since 2006, stated that the machines for determining over- central count requirement by compressed timeframe for votes and under-votes to satisfy November 2008. However, that implementing the change is not HAVA ‘second chance’ requirement is still in place in ideal. requirements) and instead migrating Cuyahoga County.93 “It’s going to be problematic to central counting of ballots, because you can’t anticipate ensures greater stability to the Cuyahoga County faces everything in this short time. There computer-based voting systems, challenging timeline are still many, many details to be because it eliminates multiple points The county, with more than 1 worked out,” Hoke said.97 of entry to a system not adequately million registered voters, has had secured.”91 less than three months to lease a Questions about cost, election Larry Norden, the director of new central count system, train poll results and poll workers the Voting Technology Assessment workers, and then educate voters Some of these details include Project at the Brennan Center for about the system, among other cost, reporting election results and Justice at New York University tasks. For the March election, the training poll workers. School of Law, praised the report county is estimating it will have Estimates put the price tag at for its focus on the security and about 60 PCOS systems placed $31 million statewide for the reliability flaws of DREs but raised randomly at polling places for voters transition to the new system. Some several points of concern about to check for over and undervotes - have suggested using the state’s Brunner’s plan. not at all polling places.94 rainy day fund, which has more than “The exclusive use of central The ACLU filed suit in $1 billion, but Gov. Ted Strickland count optical scanners to count Cuyahoga over this issue citing the (D) has objected. Another possibility votes is likely to cause the aforementioned concerns of the is money that will be allocated to disenfranchisement of thousands of Brennan Center and stating, “Every states this year through HAVA.98 voters, and in particular low-income voting system – paper ballot or not County election officials also and minority voters. Central count – must give voters a chance to fix a said they worry about the cost of optical scanners do not give voters mistake. Many votes will go adding paper ballots as an option for the notice and opportunity to uncounted if voters cannot verify March. correct errors. In-precinct DRE and that their ballots have been filled The 50-plus counties that have PCOS voting systems have out correctly.”95 DREs will need to have a minimum

electionline briefing 13 Ohio

“I think you’re adding a whole new level of confusion for the poll workers.These people are maxed out,’’ said Portage County Elections Director Lois Enlow (R).“They have so many responsibilities. Over the last several years since 2002, it’s been major, major changes at every election.’’

number of paper ballots amounting And of course all changes in questionable. It’s not a perfect to 10 percent of the ballots cast in systems and procedures have to be system.”103 previous presidential primaries.99 learned by those on the front lines A majority of county election Matt Damschroder (R), of election day - the poll workers. officials, though, don’t have Franklin County election director “I think you’re adding a whole new concerns about their current voting stated, though, that he received a level of confusion for the poll systems and don’t want to change, legal opinion from the county workers. These people are maxed according to a survey conducted by prosecutor saying state law requires out,’’ said Portage County Elections the secretary of state’s office.104 more paper ballots at the polls – Director Lois Enlow (R). “They Brunner has stated she is willing enough for all registered voters in have so many responsibilities. Over to work with election officials, but each precinct plus one percent. the last several years since 2002, it’s stands firm on getting rid of touch Secretary Brunner disagrees with been major, major changes at every screens in Ohio. this position. Damschroder said this election.’’102 “While the state’s elections could cost his county $200,000.100 Supporters acknowledge the officials have important views to Potential delays in counting new system might not be ideal, but consider, the bottom line is that we votes if large numbers of voters use see it as more transparent than the must do what is best for the voters paper ballots are also a concern. If touch-screen technology. in this state to ensure that anyone some portion of the ballots are not “All of these systems are who is eligible and wants to vote correctly filled out and cannot be flawed,” Cuyahoga County may do so without having to wait in read by the scanners, county boards Commissioner Tim Hagan said. “All long lines to vote on machines that will have to examine them and of these new technologies are have been shown to be substandard decide if the ballots should be questionable, as is the one we are and vulnerable to performance and remade and scanned.101 going to adopt. There’s no question security problems.”105 about that. I think it’s less

14 electionline briefing Colorado:A Rocky Road to Paper

To say Colorado’s voting system voting systems approved in immediately set to work on coming situation was in a state of flux in the Colorado to provide a voter-verified up with new testing requirements first quarter of 2008 would be a paper trail. The legislation was for electronic voting machines. He monumental understatement. approved by both bodies in May held public hearings to discuss the By the beginning of February, 2005 and signed by the governor in matter and worked with advocates, Secretary of State Mike Coffman June.108 citizens and technology experts. (R) had decertified the majority of In early 2006, then-Secretary of The new testing procedures the voting systems used in State Gigi Dennis (D) certified were adopted under the secretary’s Colorado, county clerks were several different voting systems rulemaking authority and are known demanding an all vote-by-mail including those manufactured by as Rule 45. The rule is comprised of election in November 2008, the Hart InterCivic, Diebold (now 46 pages of requirements for voting state legislature was considering Premier) and Sequoia.109 systems certification, including legislation to allow Coffman to test detailed security standards for all and recertify the machines and the A troubled roll out voting systems. The rule was governor and legislators were By November of that year, a adopted by the secretary of state in hoping to fast-track legislation that majority of Colorado voters used response to a court order, Conroy v. would bring paper ballots statewide electronic voting machines for the Dennis.112 in time for the November election. first time. Problems large and small Under the new testing But before the state got to this were reported in a number of procedures, the certification process point, there was a lot of history counties. involves 437 functional tests that a surrounding Colorado’s voting In Douglas County, electronic voting system will need to pass in system tug-of-war. voting machines crashed at vote order to be certified for use in Shortly after the 2000 centers when voters tried to produce Colorado. During the recertification presidential election, then-Secretary hard copies of their completed process, the secretary of state’s office of State Donetta Davidson formed a ballots.110 The crashes, and produced almost 2,000 pages of task force to review the state’s inadequate supply of voting documentation in the evaluation of election laws.106 machines, had some Douglas each voting system.113 By the time the 2004 election County residents waiting in line for “The recertification process will season rolled around, a number of up to four hours to cast a ballot. be tough, but fair,” Coffman said at jurisdictions were using new voting While the finger-pointing and the time. “My focus is on ensuring systems including optical-scan calls for firings came from all areas, that the electronic machines used in machines and DRE machines. Douglas County Clerk and our elections are secure, are able to However, all was not well in Recorder Carole Murray was one of accurately count every vote, and that Colorado. the few to shoulder some of the the results can be verified. A post-election audit of local blame. Electronic voting machines that elections by the Secretary of State’s “There are a lot of angry people meet this threshold will be office found that ballots were not out there and I don’t blame them. I recertified for use in Colorado’s counted in some jurisdictions, would be angry too because the elections.”114 including Garfield County, where a voting process is sacred,” Murray In December 2007, Coffman school levy and district council race said. “I offer my apologies and I announced that as a result of vote- were both won by 10 votes or less.107 want you to know I didn’t measure system testing he was decertifying As problems persisted, the state up the way I needed to.”111 Sequoia Edge II and Edge II Plus legislature took up a bill in March In early 2007, Coffman began voting machines as well as the of 2005 that would require all his tenure as secretary of state and optical-scan devices eScan and

electionline briefing 15 Colorado

Coffman’s decertification, not only of electronic voting machines, but also of certain scanners used to count optical-scan ballots, set off a maelstrom in Colorado.

BallotNow, manufactured by Hart Coffman to allow an all vote-by- cast in the country sometime after and ES&S as well as the iVotronic mail election for the November 1 a.m. on the following day.” said electronic-voting machine.115 2008 general election. The state Coffman.117 “I had to strictly follow the law legislature took up a measure that In late January, bipartisan along with the court order,” said would allow Coffman to retest and legislation was introduced that Coffman. “If I’m too lenient in possibly recertify the machines in would bring paper ballots to all determining what passes then I risk enough time so that they might be counties in Colorado. having the state taken to court by used in November. “Paper ballots are a tried-and- activists groups who will ask for an And less than 10 days after true election method that has injunction on the use of electronic decertifying the machines Coffman worked for decades. They ensure a voting machines for the 2008 himself publicly made an appeal to verifiable paper trail and minimize election, and if I exceed the the state legislature to move to all the possibility of technology failures requirements of state law and the paper ballots. that have caused Election Day court order, then I will be sued by “I have more confidence in problems in the past,” Gov. Bill the vendors who manufacture and having votes cast on paper ballots at Ritter (D) said, in support of the sell the equipment.”116 the polls rather than relying legislation. “Our democracy Coffman’s decertification, not exclusively on electronic voting depends not only on the people’s only of electronic voting machines, machines or in voting by mail. If ability to vote, but also on their but also of certain scanners used to Douglas County had paper ballots confidence that every vote count optical-scan ballots, set off a available for voters at their vote counts.”118 maelstrom in Colorado. centers in the 2006 mid-term At press time, some machines County clerks statewide cried election they would not have the were undergoing testing that could foul and joined forces to petition distinction of having the last vote lead to re-certification.

16 electionline briefing Requirements for Paper Usage in Voting Systems – January 2008

This map details usage of paper as a voter-verified paper audit trail (VVPAT) for use with direct-recording electronic (DRE) voting systems and requirements for paper-based balloting. The map does not intend to show prevalence of voting systems, but rather state requirements concerning verification.

WA

ME MT ND

OR VT MN NH ID SD WI NY MA WY MI CT RI

IA PA NV NE NJ OH MD IL IN DE UT WV DC CA CO KS VA MO KY

NC TN AZ OK NM AR SC

GA MS AL

LA TX

AK FL

HI

DRE voting systems [15 states]; VVPATs required DRE voting systems [3 states]; VVPATs employed but not required DRE voting systems [14 states; District of Columbia]; VVPATs neither required nor employed Paper-based voting systems [17 states]; primarily optical-scan systems Lever voting system [1 state]

Notes: Delaware, Georgia, Louisiana, Maryland and South Carolina use DRE systems statewide for all polling place voters. All other states with DREs use them in some, not all jurisdictions. Arkansas: Uses DREs both with and without VVPATs. Florida: State law allows voters with disabilities to use touch-screen systems until 2012. Idaho: Some counties use punch-card voting systems. Iowa: Some jurisdictions employ DREs without VVPATs. State lawmakers are debating how to meet the paper trail requirement. Maryland: State law requires voter-verifiable paper records by 2010. New Jersey: The state’s initial deadline for DREs to have VVPATs by January 1, 2008 has been delayed by six months. New York: The state has a VVPAT requirement but lever voting machines are still in place. Almost all counties plan to adopt paper-based voting systems by 2009. Oregon: Holds all vote-by-mail elections. Washington: 37 of 39 counties hold all vote-by-mail elections. electionline briefing 17 Back to the (Paper) Future: More States Look Ahead to Changes

Now that five states, including despite agreeing to purchase the According to estimates from some two of the nation’s most populous, Diebold DREs early in his term, local election officials it could be have moved from paper to said they presented “a lot to be more than 10 years before the electronic machines and back again, concerned about,” adding, “we want current batch needs to be retired.128 where will the other dominoes fall? to make sure this new technology is The plan has its critics, The question of whether the days of not used to undermine fairness.”124 particularly from the ranks of the paperless voting are ending soon has But her support was matched by state’s electoral board and from not definitively been answered. skepticism and sharp criticism of the registrars from across the state. system. Organizations representing both Plenty of determination, not A coalition of Maryland urged Gov. Timothy Kaine (D) to a lot of cash in Maryland organizations pushing for voter- delay endorsing S.B. 840 until it Maryland, among the first of verified paper ballots – including the became clearer what members of three states to scrap punch cards in ACLU, NAACP, the League of Congress would do with favor of DRE systems after the 2000 Women Voters and others – said the outstanding legislation on voter- vote (Florida and Georgia were the state had “the least secure and least verified paper audit trails.129 others), could scrap the state’s $55 transparent” election system in the million Diebold AccuVote TS country.125 A move toward paper in voting system in time for the 2010 At press time, the fate of New York gubernatorial election.119 SB 392/HB Maryland’s optical scan purchase After flirting with choosing a 18 was approved by lawmakers and was not yet settled. Voter integrity number of different voting systems signed in April.120 groups, including TrueVoteMD and to replace aged lever machines in Financial concerns have other grassroots organizations were use statewide, New York officials hampered attempts to meet that lobbying Gov. Martin O’Malley (D) announced in January 2008 that time table, however. Budget cuts to leave the funding in place for the they would implement new voting proposed in late 2007 included optical-scan machines. The Baltimore systems in 2009. hacking more than $3.3 million Sun chimed in as well, urging that New York differs substantially from the State Board of Elections.121 the $3.3 million needed for the from the other states in the case “It would mean no new voting switch be retained in the budget. study, as piecemeal reform in the system would be implemented,” said O’Malley left money in his 2009 state – and non-compliance with Linda Lamone, the state’s election budget, but the fate of the plan was federal law – has meant the state director, in a news report.122 still unclear at press time. was the last to make federally- Not that it would necessarily mandated changes to elections. trouble Lamone or other election A long goodbye in Virginia Further, New York’s move officials in the state. Lamone has Virginia has banned the future might not be considered a move consistently supported the paperless purchases of touch-screen DRE “back to paper.” But historians do system at home and on the national machines as part of plan to phase recall that the state used paper stage for the National Association of out the system, now in use as the ballots before the phase-in of lever State Election Directors. exclusive system in more than two- machines in the late 19th century.130 “I think the system is fabulous,” thirds of the state’s voting County officials will have a Lamone told The Washington Post. jurisdictions.126 choice of one of a number of “It’s probably the most secure S.B. 840, introduced in the models of optical scan machines/ system in the country.”123 2007 legislative session, requires the ballot-marking devices for voters She even took on former Gov. replacement of DRE systems “as the with disabilities this fall. All are Robert L. Ehrlich Jr. (R), who devices in operation wear out.”127 paper-based, and, in the words of

18 electionline briefing Back to the (Paper) Future

There is momentum in some states to go back to paper…there’s also an emerging consensus that the current generation of toilet-paper paper trails with DRE systems don’t work well.

– Dan Tokaji, associate professor of law,

The Ohio State University Moritz College of Law.

one advocate, “a low-tech paperless DRE system to optical- states to go back to paper…there’s solution.”131 A decision on voting scan or a paper-trail retrofit have also an emerging consensus that the systems for the rest of the state been unsuccessful in the past few current generation of toilet-paper should be announced in late years. Seven bills that would have paper trails with DRE systems don’t February or March. required voter-verified paper audit work well,” said Dan Tokaji, an trails (VVPATs) with the state’s associate professor of law at The Momentum building? DREs were left sitting in legislative Ohio State University Moritz New Jersey is working on limbo in the state since 2005.132 College of Law. “On the other retrofitting existing DRE machines Advocates for voters with hand, electronic voting is popular by the middle of this year. Iowa disabilities and elections officials find with many election officials, not to lawmakes are debating whether to plenty to like about paperless mention voters. DREs allow for retrofit DRE machines or move to systems. Paper, they contend, easier access for disabled and non- paper-based systems. Other increases the possibility of error. English proficient voters. They’re legislatures will almost certainly Paperless machines allow voters with also a more attractive option for in- debate paper trail or paper-based disabilities to vote in the same person early voting and vote voting systems during this year’s manner as everyone else. They allow centers. So I don’t think we’ve seen sessions. for multiple languages and eliminate the death of DREs, though I don’t But not everyone agrees that over-votes (while, some might expect we’ll see too many places the dominoes will continue to fall. contend, increasing under-votes). moving to the current DRE with Bills to move Georgia from its “There is momentum in some VVPAT systems.”133

electionline briefing 19 Timeline of Major Events

2000 2001 2002 2003 2004 2005

November: Assembly April: ACLU sues Jones March: California voters January: Santa Clara County Board of March: More than half of San Speaker Robert Hertzberg for using ''flawed and approve the Voting Supervisors Finance and Government Committee Diego’s polling places failed to (D) proposes a $300 discriminatory voting Modernization Bond Act, meets to discuss plans to buy a paperless open on time because of million plan to update systems,” alleging punch- allowing counties to spend electronic voting system from Sequoia. David Dill, problems with Diebold voting voting technology. card voting systems $200 million upgrading their computer science professor from Stanford machines. Secretary of State Bill inaccurately tally votes voting equipment. University and Kim Alexander from the California April: A report released by Jones (R) presents a and are used in counties September: Gov. Gray Voter Foundation both testify about security Shelley’s office states that Diebold $230 million plan to disproportionately Davis (R) approves AB 2525, concerns and the need for a paper trail. The sold counties new voting replace punch-cards with populated by minorities, requiring every polling place committee postpones their voting-system decision. equipment before it was federally touch screen voting violating their civil to have at least one voting February: Secretary of State Kevin Shelley (D), or state approved and installed machines. rights. machine completely accessible in response to concerns aired at the hearing in uncertified software in voting September: State to blind and visually- Santa Clara County, creates the Ad Hoc Touch machines. Shelley bans the use of lawmakers approve a impaired voters. Screen Voting Task Force. Santa Clara County more than 14,000 Diebold $200 million matching became first in the country to buy VVPAT-equipped electronic voting machines and grant program to assist touch screens. decertifies more than 28,000 counties with the May: More than 100 computer scientists sign a other voting machines unless purchase of new voting petition circulated by Dill calling for stronger they are used with extra security

CALIFORNIA systems. Jones orders security measures for electronic voting and a precautions. nine counties, including voter-verifiable audit trail. June: Shelley issues standards Los Angeles, to upgrade July: Shelley releases Ad Hoc Touch-screen Task for voting machine vendors their voting systems by Force Report. developing systems with paper 2006. November: Shelley halts certification of trails, including accessibility and Diebold’s latest touch-screen machines. He also alternate language requirements. announces no voting machines may be purchased September: Gov. Arnold after July 2005 without a voter-verifiable paper Schwarzenegger (R) signs a law audit trail (VVPAT) and all voting machines by requiring that all voting machines July 2006 must have a VVPAT. produce a VVPAT by 2006.

June: Colorado General Assembly passes legislation requiring that all voting systems in the state print a voter-verified paper trail. COLORADO

November: Disputed January: Gov. Jeb September: Counties deploy November: Under-votes in recount begins. Punch- Bush (R) signs “Florida DRE machines for the first the presidential election dropped card counting standards Election Reform Act,” time. Significant problems – to 0.4 percent. Over-votes and vary by county. ridding the state of including widespread machine under-votes in the state December: Supreme punch-card voting and human error – plague accounted for 3 percent of all Court offers opinion in systems by 2002. the vote in South Florida cast in the 2000 presidential Bush v. Gore, ending Uniform ballot design counties, including Miami- election. Florida recount; George and recount standards Dade and Broward. W. Bush wins with also included. November: Exhaustive

FLORIDA Florida’s electoral votes. preparations for the general election yield a smoother election.

April: Gov. Bill Richardson (D) signs legislation requiring all voting systems in the state to print a voter-verified paper trail. The legislation also requires post-election audits. November: Secretary of State Rebecca Vigil- Giron (D), several voting machine vendors and some local elections officials are sued in federal court (Lopategui et al v. the State of New Mexico) over the use of electronic voting

NEW MEXICO machines in the November 2004 presidential race.

November: Most October: ACLU of Ohio May: The state solicits bids for DRE voting May: Gov.Robert Taft (R) signs January: Secretary of State J. Kenneth voters cast punch-card sues the state for continued systems to replace punch cards by March 2004. bill requiring DRE systems have Blackwell (R) issues directive ordering counties ballots in the use of punch cards, arguing August: Vendor selection delayed for in-depth VVPATs. to select on optical scan voting system. presidential election. their use in some counties security reviews of voting systems. July: Last counties considering April: Blackwell issues new directive and not in others violates December: State releases full findings of using DRE systems for 2004 allowing counties to select a DRE with VVPAT the Equal Protection Clause security review performed by Compuware citing 57 general election are blocked from voting system as well. of the 14th Amendment. potential security concerns. Deployment of new doing so. May: ES&S sues state over deadlines and systems is delayed. November: Voters in a system selection process. OHIO majority of counties again cast September: Counties select voting punch-card ballots. systems from state list. November: 44 counties use new DRE voting systems with VVPATs.

20 electionline briefing Timeline of Major Events

2006 2007 2008

March: A group of 24 state voters sue Secretary of State July: Computer scientists hired by the state hack into voting systems Bruce McPherson (R) and county election officials to prevent in use in California and around the country, demonstrating that they the purchase of Diebold voting equipment. could alter vote totals, according to a report. August: California Secretary of State Debra Bowen (D) issues “Top- to-Bottom Review” of voting systems. Some are decertified but their continued use is allowed for the February primary with extra security precautions. November: Bowen files a lawsuit against Election Systems and Software for selling uncertified voting machines to five counties in

northern California. CALIFORNIA

February/March: Secretary of State Gigi Dennis (D) January: Secretary of State Mike Coffman (R) is sworn in. January 3: County clerks testify at public hearing and call for all vote-by-mail for certifies direct-recording electronic (DRE) voting systems. March: Coffman adopts new testing requirements for electronic the November 2008 election. June: Colorado voter group files lawsuit challenging the voting machines. January 10: Coffman tells lawmakers that a fix may be possible that would allow COLORADO Dennis’ certification of certain DRE voting systems. December: Coffman decertifies Sequoia Edge II and Edge II Plus him to re-certify voting machines. September: Denver District Court orders Dennis to enact voting machines as well as the optical-scan devices eScan and January 15: Legislation is introduced in Colorado House that would allow Coffman security standards for electronic voting machines and to retest BallotNow, manufactured by Hart and ES&S optical-scan devices as well to retest decertified machines. the four systems certified by the Secretary of State. as the ES&S iVotronic electronic-voting machine. Coffman recommends to January 16: Jefferson County joins several other counties in filing a formal request November: For the first time, a majority of Colorado the state legislature that the 2008 election should be conducted on to Coffman to reconsider the decertification of the county’s voting system. voters use electronic voting machines. paper ballots. January 17: Coffman tells county clerks that he will support their push for an all- mail election in November 2008. January 18 — Colorado House gives preliminary approval to legislation that would allow Coffman to retest the decertified machines.

November: More than 18,000 under-votes were recorded January: In response to problems in Sarasota, Gov. Charlie Crist (R) January: Fourteen Florida counties hold their final primaries using DRE systems. in Sarasota County in the race to replace Rep. Katherine Harris announces his intention to add paper to Florida elections. Sarasota County uses optical-scan systems, marking the third voting system in as many (R) in the U.S. House of Representatives’ 13th Congressional May: Crist signs H.B. 537 into law, effectively ending the use of DREs presidential cycles.

District. Other counties report similar under-vote problems on in the state as of November 2008. The remaining 15 counties using FLORIDA the same voting system (ES&S iVotronic). the voting system – including some of the state’s most populous – will move to optical-scan systems for the next presidential election. DREs will continue to be available for voters with disabilities until 2012.

January: Richardson announces a plan to standardize voting MEXICO NEW systems that will include paper ballots for optical-scan machines. March: Richardson signs legislation requiring uniform voting systems by May. November: State has one of the nation’s highest under- and over-vote rates in the general election.

April: Appeals court rules Ohio’s use of punch-card ballots in June: Bids solicited by Brunner to perform risk analysis of voting January: Brunner issues directive mandating all counties using DRE systems offer some counties but not others violates the Equal Protection systems. optically-scanned paper ballots for the March 2008 primary. ACLU sues the state and Clause of the Fourteenth Amendment. November: Cuyahoga County experiences problems with vote Cuyahoga County to block county from switching to central count optical scan system. May: 57 counties use DRE voting systems with VVPATs; tabulation and with VVPATs. Brunner waives requirement for states to use central count systems in November 2008

Cuyahoga County has a number of election administration December: Brunner releases report on voting systems and — requirement remains in place for Cuyahoga County for the March primary. OHIO problems including with its new voting system. recommends all counties move to central count optical-scan systems by February: ACLU motion denied. August: Election Science Institute releases DRE analysis for November 2008. Cuyahoga County’s May primary. December: Brunner casts the tie-breaking vote in Cuyahoga County November: Jennifer Brunner (D) elected secretary of state. to mandate that county move to a central count optical-scan system in time for the March 2008 primary.

electionline briefing 21 Methodology/Endnotes

Research was compiled through the use of primary and secondary sources including data derived from state law, state election Web sites, news accounts and reports from government and non-governmental organizations. All sources are cited below in the endnotes. The opinions expressed by election officials, lawmakers and other interested parties in this document do not reflect the views of nonpartisan, non-advocacy electionline.org or The Pew Charitable Trusts. All questions concerning research should be directed to Sean Greene, project manager, research at [email protected].

1 Keating, Dan. “Lost votes in N.M. a 20 Mazzella, Christopher. “OIG Final Report: 37 Shelley, The Hon. Kevin. Press release: cautionary tale,” The Washington Post, Aug. 22, Miami-Dade County Voting Systems, “Secretary of State Kevin Shelley Creates 2004. Contract No. 326, Office of the Inspector Special Task Force to Review Paper Trails 2 Grimm, Julie Ann. “S.F. holds off on touch- General of Miami Dade County, May 20, 2003. and New Electronic Voting Systems,” screen voting,” The New Mexican, Aug. 1, 21 Ibid. California Secretary of State, Feb. 19, 2003. 2004. 22 “Barkakati, Dr. Nabajyoti. “Further Testing 38 Shelley, The Hon. Kevin. Press release: 3 Bronsan, James. “In 2004, New Mexico worst Could Provide Increased but Not Absolute “Secretary of State Kevin Shelley Outlines at counting votes,” Scripps Howard News Assurance That Voting Systems Did Not Objectives for California’s Share of Federal Service, Dec. 22, 2004. Cause Undervotes in Florida’s 13th Election Reform Funding,” California 4 Richardson, The Hon. Bill. Press release: Congressional District,” U.S. Government Secretary of State, Feb. 21, 2003. “New Mexico Governor Signs Sweeping Accountability Office, Oct. 2, 2007. 39 Ad Hoc Touch Screen Task Force Report – Election Reform Package,” Office of Gov. Bill 23 Tamman, Maurice and Matthew Doig. Section 4, California Secretary of State. Richardson, April 6, 2005 “Analysis suggests undervote caused by ballot 40 Shelley, The Hon. Kevin. Press release: 5 Richardson, The Hon. Bill. Press release. design,” Herald Tribune, Nov. 16, 2006. “Secretary of State Kevin Shelley Announces “Gov. Bill Richardson pledges $11 million for 24 Stewart, Charles III. “Declaration of Charles Directives to Ensure Voter Confidence in voting machines, urges standard system for all Stewart III on Excess Undervotes Cast in Electronic Systems,” California Secretary of counties,” Office of Gov. Bill Richardson, Jan. Sarasota County, Florida for the 13th State, Nov. 21, 2003. 12, 2006. Congressional District Race,” 41 Ibid. 6 Ibid. www.electionupdates.caltech.edu, Nov. 20, 2006. 42 Feist, Paul. “Bi-partisan call to scrap voting 7 Richardson, The Hon. Bill. Press release: 25 Stacey, Mitch. “Panel Votes to End Fla. by touch-screen,” San Francisco Chronicle, “Governor Richardson signs legislation to Election Probe, The Associated Press, Feb. 8, March 12, 2004. ensure that every vote is counted,” Office of 2008. 43 Lucas, Greg. “Electronic voting machines Gov. Bill Richardson, March 2, 2006. 26 Stratton, Jim, Mark K. Matthews and Roger dealt blow,” San Francisco Chronicle, April 23, 8 Alvarez, R. Michael, Atkeson, Lonna Rae and Roy. “Voting problems hit four counties,” 2004. Hall, Thad E. “The New Mexico Election The Sun-Sentinel, Nov. 10, 2006. 44 Op. Cit. Feist. Administration Report: The 2006 November 27 Ibid. 45 Wildermuth, John. “’Touch’ voting a worry,” General Election,” Aug. 2, 2007. 28 “Florida to replace touch-screen machines San Francisco Chronicle, April 26, 2004. 9 Seligson, Dan. “Florida adopts sweeping with optical-scan equipment in all precincts 46 “National Briefing: West: California: Paper voting reforms,” Stateline.org, May 4, 2001. statewide,” GovTech.com, Feb. 4, 2007. Ballots Recommended,” The New York Times, 10 Crist, The Honorable Charlie. Press release: 29 “Vote Sarasota County: 2008 Voter Guide,” April 29, 2004. “Governor Crist Signs Legislation Creating Office of the Supervisor of Elections of 47 Shelley, The Hon. Kevin. Press release: Paper Trail for Florida Votes,” May 21, 2007. Sarasota County, www.srqelections.com, last “Secretary of State Kevin Shelley Bans 11 Election Reform Information Project, visited Jan. 15, 2008. Diebold TSx for Use in November 2004 “What’s Changed, What Hasn’t and Why: 30 Crist, The Honorable Charlie. “Testimony of General Election,” California Secretary of Election Reform Since November 2001,” Charlie Crist, Governor of Florida, before the State, April 30, 2004. electionline.org, October 2002. Committee on House Administration 48 Shelley, The Hon. Kevin. Press release: 12 Ibid. Subcommittee on Elections,” U.S. House of “Secretary of State Kevin Shelley Unveils 13 Decamp, David. “Paper ballots to cost Representatives, Committee on House Historic Paper Audit Trail Standards for E- county,” St. Petersburg Times, May 13, 2007. Administration, Subcommittee on Elections, Voting Machines,” California Secretary of 14 Op.-Cit, Crist. March 23, 2007. State, June 15, 2004. 15 Ibid. 31 Op.-Cit., Crist press release. 49 Ibid. 16 “2001 Overview of Election Reform Activity 32 The Voting Modernization Bond Act of 2002 50 in the States,” National Conference of State (Shelley-Hertzberg Act) in “Official 51 Seelye, Katharine Q. “He Pushed the Hot- Legislatures,” May 9, 2001. Declaration of the Result of the General Button of Touch Screen Voting,” The New 17 “Voting Rights in Florida 2002: Briefing Election Held on Tuesday, March 5, 2002, York Times, June 15, 2004. Summary,” United States Commission on Civil throughout the State of California on 52 2004 News Releases, California Secretary of Rights, August 2002. Statewide Measures Submitted to a Vote of State. 18 Op.-Cit., Election Reform Information Electors,” California Secretary of State. 53 Shelley, The Hon. Kevin. Press release: Project. 33 Via email, Jan. 22, 2008. “Secretary of State Kevin Shelley Announces 19 Mazzella, Christopher. “Office of the 34 Ibid. All Remaining E-Voting Counties Have Met Inspector General Inquiry into Circumstances 35 Ibid. Standards for Recertification,” California Surrounding the Sept. 10, 2002 Election in 36 Gathright, Alan. “Santa Clara County OK’s Secretary of State, Aug. 24, 2004. Miami-Dade County, Office of the Inspector touch-screen voting,” San Francisco Chronicle, 54 Murphy, Dean E. “National Briefing: West: General, Miami-Dade County, Sept. 20, 2002. Feb. 26, 2003. California: Governor Approves Election Changes,” The New York Times, Sept. 29, 2004.

22 electionline briefing Methodology/Endnotes

55 “National Briefing: West: California: Suit 79 Welsh, William. “Ohio holds on voting 104 Brunner, The Hon. Jennifer. Press release: Threat on Voting Machines,” The New York machine purchase,” Washington Technology, “Many Ohio Elections Officials’ Views Times, Sept. 8, 2004. Aug. 15, 2003. Inconsistent with Voters’ Concerns,” The 56 Shelley, The Hon. Kevin. Press release: 80 Blackwell, The Hon. J. Kenneth. Press Office of the Ohio Secretary of State, Jan. 24, “Secretary of State Kevin Shelley Certifies release: “Blackwell Seeks Improvements and 2008. Voting System with Paper Audit Trail,” Additional Security Assurances from 105 Ibid. California Secretary of State, Jan. 21, 2005. Electronic Voting Machine Vendors,” The 106 Staff Reports. “Secretary of State to form task 57 Doyle, Jim. “Bowen beats McPherson in Office of the Ohio Secretary of State, Dec. 2, force,” Rocky Mountain News, Dec. 22, 2000. secretary of state race,” San Francisco 2003. 107 McKibben, Mike. “Election investigation Chronicle, Nov. 8, 2006. 81 Carr Smyth, Julie. “Blackwell blocks use of uncovers many miscalculations,” Grand 58 Ibid. new voting machines,” The Plain Dealer, July Junction Sentinel, April 27, 2004 59 Wildermuth, John. “Election issues beset new 17, 2004. 108 S.B. 198, Colorado State Legislature, 2009. secretary of state,” San Francisco Chronicle, 82 “Electronic voting machines nixed,” the 109 Dennis, The Hon. Gigi. Press release: Jan. 29, 2007. Lorain County Morning Journal, July 17, 2004. Secretary of State Dennis announces 60 Wildermuth, John. “New Secretary of State 83 Tokaji, Dan. “Voting Machine Vendor Sues certification of a third voting system,” March taps voting machine foe as deputy,” San Ohio Secretary of State,” Equal Vote Blog, May 10, 2006. Francisco Chronicle, Politics Blog, Jan. 9, 2007. 3, 2005. 110 Staff Reports. “Denver Auditor wants people 61 Bowen, The Hon. Debra. Press release: 84 “Election Administration Preview, Ohio fired over election snafu,” The Denver “Secretary of State Debra Bowen Releases Primary Election,” electionline.org, May 2, Channel, Nov. 8, 2006. Draft Criteria for Top-to-Bottom Voting 2006. 111 Ibid. Machine Review,” Secretary of State Debra 85 “DRE Analysis for May 2006 Primary, 112 Coffman, The Hon. Mike. “Coffman Bowen, March 22, 2007. Cuyahoga County, Ohio,” Election Science strengthens testing requirements for 62 Wildermuth, John. “Early primary squeezes Institute, Aug. 2006. electronic voting machines,” Office of the review of voting systems,” San Francisco 86 Ohio Revised Code 3506.18. Colorado Secretary of State, March 20, 2007 Chronicle, March 30, 2007. 87 Op. cit. “Risk Assessment Study of Ohio 113 Ibid. 63 “Secretary of State Debra Bowen Unveils Voting Systems.” 114 Op. Cit. Coffman. Details on Top-to-Bottom Review of 88 Thompson, Clive. “Can You Count on Voting 115 Colorado Secretary of State’s Web site California’s Voting Systems Scheduled to Machines?” The New York Times, Jan. 6, 2008. www.elections.colo.gov. Begin Next Week,” Secretary of State Debra 89 Op. cit. “Risk Assessment Study of Ohio 116 Coffman, The Hon. Mike. Press release: Bowen, May 9, 2007. Voting Systems.” “Coffman completes electronic voting 64 Wildermuth, John. “State Vote Machines 90 Guillen, Joe. “Cuyahoga County’s return to equipment tests,” Office of the Colorado Lose Test to Hackers,” San Francisco Chronicle, paper ballots still a mystery to some,” Plain Secretary of State, Dec. 17, 2007. July 28, 2007. Dealer, Dec. 26, 2007. 117 Coffman, The Hon. Mike Press release: 65 Ibid. 91 Op. cit. “Risk Assessment Study of Ohio “Coffman supports paper ballots at polls for 66 Wildermuth, John. “Makers of voting Voting Systems.” ’08 election,” Office of the Colorado machines battle critics over UC study,” San 92 Norden, Lawrence. “Comment of Lawrence Secretary of State, Dec. 26, 2007. Francisco Chronicle, July 31, 2007. D. Norden, Director of the Voting 118 Staff Reports. “Paper ballots will be used in 67 Wildermuth, John. “Elections chief gives OK Technology Assessment Project at the this year’s election,” The Denver Channel, to vote machines,” San Francisco Chronicle, Brennan Center for Justice at New York Jan 23, 2008. Aug. 4, 2007. University School of Law,” Hearing on the 119 “Overview of Maryland’s Voting System,” 68 Wildermuth, John. “Touch vote machine ban EVEREST Review of Ohio’s Voting Systems Maryland State Board of Elections, hurts counties,” San Francisco Chronicle, Aug. and Secretary of State Brunner’s Related www.elections.state.md.us, last visited Jan. 17, 5, 2007. Recommendations for Cuyahoga County, 2008. 69 Ibid. Dec. 17, 2007. 120 House Bill 18/State Senate Bill 392 70 Wildermuth, John. “Secretary of state casts 93 McCarthy, John. “State elections boss backs (Maryland 2007). doubt on future of electronic voting,” San off centralized vote-counting plan,” The 121 Wyatt, Kristen. “Budget cuts put new voting Francisco Chronicle, Dec. 2, 2007. Associated Press as published in The Examiner, system for Maryland in question,” The 71 Op. Cit., Vartabedian, Ralph and Richard C. Jan. 18, 2008. Associated Press, Nov. 6, 2007. Paddock. 94 Ibid. 122 Ibid. 72 Ibid. 95 Niquette, Mark. “ACLU sues to block switch 123 Vogel, Steve. “Touch-screen machines stir 73 Warner, Melanie. “Machine Politics in a to paper ballots,” The Columbus Dispatch, Jan. election anxiety in Maryland,” The Digital Age,” The New York Times, Nov. 9, 17, 2008. Washington Post, Aug. 19, 2006. 2003. 96 Kropko, M.R. “ACLU Challenges New Ohio 124 Ibid. 74 “Risk Assessment Study of Ohio Voting Voting System,” The Associated Press, Jan. 18, 125 Press release: “Maryland moving toward Systems,” Project EVEREST (Evaluation & 2008. reliable voting system; Caolition for paper Validation of Election-Related Equipment, 97 Guillen, Joe. “Cuyahoga elections director ballot increases to 23 statewide Standards, & Testing), Dec. 14, 2007. Platten racing toward March primary,” Plain organizations,” TrueVoteMD, Feb. 8, 2006. 75 Brunner, The Hon. Jennifer. “Directive 2008- Dealer, Jan. 13, 2008. 126 “Voting Systems Used in Virginia as of Jan. 3, 1: Optical-Scan Ballots for Voters in Counties 98 Milica, Joe. “State Mulls Options to Pay for 2008,” Commonwealth of Virginia State using DREs,” The Office of the Ohio $31M Elections System,” The Associated Board of Elections, www.sbe.state.va.us, last Secretary of State, Jan. 2, 2008. Press, Jan. 9, 2008. visited Jan. 17, 2008. 76 Andrews, Cindi. “Punch-card ballots raise 99 Op. cit. “Directive 2008-1.” 127 State Senate Bill 840 (Virginia 2007). new worries,” The Enquirer, Aug. 14, 2004. 100 Niquette, Mark. “Price tag for ballot directive 128 Whitley, Tyler. “Voter groups ask Kaine to 77 Press release: “ACLU Victorious in may rise,” The Columbus Dispatch, Jan. 9, delay signing of bill,” Richmond Times- Challenge to Ohio’s Punch-Card Ballots,” 2008. Dispatch, March 8, 2007. The American Civil Liberties Union, April 101 Higgins, John. “Paper ballot rule may delay 129 Ibid. 21, 2006. count,” Akron Beacon Journal, Jan. 5, 2008. 130 Matthews, Cara. “Back to the future for N.Y. 78 “RFP # SOS0428365: State of Ohio Request 102 Op. cit. Higgins. voters,” The Ithaca Journal, Jan. 26, 2008. for Proposal on Behalf of the Office of J. 103 “Cuyanoga County Hurriedly Switching to 131 Ibid. Kenneth Blackwell, Ohio Secretary of State New Voting System,” The Examiner, Jan. 11, 132 “Voter-verified paper record legislation,” for Statewide Voting Systems,” The Office of 2008. VerifiedVoting.org, last visited Jan. 18, 2008. the Ohio Secretary of State, May 23, 2003. 133 E-mail correspondence with Dan Tokaji, Jan. 16, 2008.

electionline briefing 23 Briefing

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