10-08-28 Common Cause Voting Machines Report Malfunction and Malfeasance

8/9/2019 10-08-28 Common Cause Voting Machines Report Malfunction and Malfeasance

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ELECTIONREFORM

MALFUNCTIONANDMALFE

ASANCE

AREPORTONTHEELECTRON

ICVOTINGMACHINEDEBAC

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Acknowledgements

Te Common Cause team responsible or this report consisted o: Matt Shaer, chie researcher; Barbara

Burt and Susannah Goodman, writers; Mary Boyle, Edwin Davis, and Jenny Flanagan, readers; and StephenSteigleder, research assistant.

Te ollowing people contributed ideas, inormation, or comments to this report: Doug Chapin, Rich Garella,John Gideon, Eleanor LeCain, John McCarthy, oby Moore, Michelle Mulder, Lawrence Norden, SpencerOverton, Lawrence Rockeeller, Warren Stewart, and ova Wang. We are grateul or their insights but all mis-takes are ours alone. Please note that our acknowledgement o their contributions does not necessarily meanthey endorse our recommendations.

We are especially indebted to Pam Smith o Veried Voting. She and her colleagues provided the inormationthat made the charts possible. Pam also generously shared her vast knowledge o this issue to help us makesense o the current voting machine debacle.

A special Election Reorm report prepared by:Common Cause1133 19th Street NW, 9th FloorWashington, D.C. 20036202.833.1200

www.commoncause.org


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Contents

Executive Summary 3

Introduction 5

I. Political Forces That Led to the Popularity o DREs 5

II. The Weaknesses o DRE Systems 6

Studies Show That DREs Are Vulnerable to Tampering and Failure 7

Johns Hopkins University Inormation Security Institute Technical Report 7

2005 GAO Study on Election Machine Security and Reliability 8

Carter Baker Commission on Federal Election Reorm 8

May 2006 Black Box Voting Report on Criitical Security Issues with the Diebold TSx 9

Actual Machine Failures 10Texas 10

North Carolina 11

Pennsylvania 11

Florida 11

Virginia 12

New Mexico 13

III. Citizens and State Legislatures Take Action to Correct DRE-Related Problems 13

National Action 13

State Action 14

Nevada 14

Caliornia 15

Ohio 15

The Current Status o State Legislation 15

Rethinking the Bias Toward DREs 16

IV. Citizens and Reorm Groups Take Legal Action to Stop States rom Buying DRE Systems 16

Chart A Status o State Voting Systems 18

Chart B State-by-State Voter Risk Assessment 19Chart C High-Risk States That Allow No-Excuse Absentee Voting 20

V. Recommendations 21

VI. Endnotes 23


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Tis report includes a chart detailing the status o each state, along with achart detailing the level o risk or voters in each state, and chart showingwhich medium and high risk states allow no-excuse absentee voting.

o address these problems, Common Cause makes eight

recommendations:

Congress should immediately pass HR 550, The Voter Condence

and Increased Accessibility Act o 2005.

States should pass laws or adopt regulations requiring all voting

systems to produce a voter veriable paper ballot and mandate

that at least a random two percent o voting jurisdictions conduct

public audits o their voting systems.

Election ocials should take necessary steps to saeguard ma-

chines prior to Election Day.

State election ocials should, wherever possible, immediately ret-

rot DREs with printing systems to produce a voter veriable paper

ballot, and use those ballots in audits.

In the instance where DREs cannot be retrotted, Common Cause

recommends that state election ocials decertiy those DREs that

cannot provide a paper record and turn to other voting systems

such as optical scan machines or the November elections.

Congress and states should make emergency unds available or

purchase or lease o more secure, auditable machines.

Voters should be encouraged to vote on paper whenever pos-

sible. I acing the prospect o voting on paperless DREs in Novem-

ber, they should advocate or change with local election ocials

well beore the election. I that does not work, where possible,

voters should vote by absentee ballot.

Regardless o the voting equipment in a jurisdiction, citizens

should vote. While there is a chance that a vote wont be counted i

cast on a paperless DRE, not voting at all will assure that it is not.

Regardless of the voting

equipment in a jurisdic-

tion, citizens should vote.

While there is a chance that

a vote wont be counted

i cast on a paperless DRE,

not voting at all will assure

that it is not.


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Congress also provided ederal unding through HAVA or states to replacetheir voting systems with new systems that met these new requirements.Also, HAVA set a deadline or all the new voting system requirements to bein place. Tis deadline was to be the rst election involving ederal candi-dates in 2006in other words, the primary elections o this spring.

Because punch card and lever voting machines were used in many precincts,jurisdictions across the country were aced with the task o choosing entirelynew voting systems. Te DRE became one o the most popular options orseveral reasons, including the act that language in HAVA encouraged thepurchase o these machines, ederal unding was available to buy them andlooming deadlines demanded ast decisions.

Election ocials attraction to DREs was understandable. Te voting ma-chine manuacturers and other advocates o the systems claimed that theycould tabulate votes aster, were easy to use and could be easily adjusted tooperate in dierent languages. Perhaps most persuasive was the claim byDRE manuacturers that DREs meet the needs o disabled voters. 2 *

As a result o the perception that DREs could best meet the requirementso HAVA, DRE use in counties across the country has more than tripled,rising rom 320 counties in November 2000 to an expected 1,050 countiesthis November. In 2006, 39 percent o registered voters are expected to useDRE voting machines. Tat is only slightly less than the 41 percent o vot-ers expected to use the most popular type o voting equipment, the opticalscan machine.3

II. The Weaknesses of DRE Systems

Unortunately, despite the stellar sales pitch, DREs are highly vulnerable to

machine malunction and human manipulation. Te two largest concernsare their lack o transparency and the act that they do not produce a back-up system that can allow or a recount.

When a citizen casts a vote on an electronic voting machine, there is noway or that person to ensure that the vote was recorded correctly. Sotwarecode inside the machine can be programmed to display the correct voteon the voting screen, but the vote in act could be recorded incorrectly. Inother words, a citizen could pick candidate John Smith or president, andthe screen could show that the citizen picked John Smith, but the computercould be programmed to record the vote or Bill Blue.

*Common Causebelievesthat every eortshould be made to en-able disabled voters tocast their votes privately.However, it is clear thatno one machine will beable to solve all the variedproblems disabled votersace. More likely, a menu oadd-on eatures will needto be used to make voting

truly accessible to all. Butparamount in our thinkingabout solving problems ophysical access should beconsideration o not onlyprivacy but also veriabil-ity. The ballots o disabledvoters deserve the samelevel o security as those oother voters.


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Because electronic voting machines do not produce an independently veri-able paper voting record, there is no good record that can be used or anaudit or a recount. Although some electronic voting machines do keep paperrecords o the complete ballot image, not every machine does. And unor-tunately, i the machine malunctions or the computer code has been thesubject o tampering, this record is no longer reliable.

In other words, there is no way to recount the vote tallies recorded by aDRE machine, nor is there any way to retrieve previously recorded votesi the data is erased or corrupted. Election ocials must place their trustinto the design and perormance o the machine, despite the act that the

sotware is trade-secret protected and cannot be inspected, even by electionocials in most cases.4 Tis lack o transparency and the lack o a back-upsystem makes these machines inappropriate or use in elections unlessappropriate saeguards are put in place.

Studies Show That DREs are Vulnerable to Tampering

and Failure

A number o studies and policy papers have concluded that DREs are vul-nerable to tampering. Four o the more prominent studies are reviewed here.

Johns Hopkins University Information Security Institute

Technical Report

In 2003, computer science proessors rom Johns Hopkins University, ledby Dr. Avi Rubin, released one o the rst widely circulated reports analyz-ing the security standards o a DRE system. In their report, Analysis o anElectronic Voting System, which reviewed Diebolds AccuVote-S systems,they ound a string o vulnerabilities making the machines susceptible totampering. For example, to operate the Diebold machines on Election Day,poll workers provide voters with smartcards, which are required to beentered into the machine to record a vote. Te study ound that it would berelatively easy or somebody to program their own smartcard and manipu-late data. Tey also ound that someone could intercept machines transer

inormation electronically and discovered weaknesses in the programmingcode. Dr. Rubin stated that he would have funked a rst-year student whoturned in a program with such weak code.5

ELECTION REFORMmalfunction and malfeasance

Because electronic votingmachines do not producean independently veri-able paper voting record,there is no good recordthat can be used or an au-dit or a recount. Althoughsome electronic votingmachines do keep paperrecords o the complete

ballot image, not everymachine does. And un-ortunately, i the machinemalunctions or the com-puter code has been thesubject o tampering, thisrecord is no longer reliable.


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Te Johns Hopkins study sparked a furry o concern. Te state o Mary-land commissioned RABA echnologies, a Columbia, MD based sotwaresystem and engineering rm to examine and critique the study. In its re-view, RABA echnologies called or a pervasive rewrite o Diebolds code. 6Te study was also reviewed in a report entitled Risk Assessment ReportDiebold Accuvote-S Voting System and Processes prepared by Science

Applications International Corporation, which also identied problems withthe Accuvote-S source code.7

2005 GAO Study on Election Machine Security and Reliability

In 2005, the Government Accountability Oce (GAO) released an exten-sive report assessing the signicant security and reliability concerns that havebeen identied with electronic voting systems. Te report, entitled Federaleorts to improve security and reliability o electronic voting systems are un-der way, but key activities need to be completed, surveyed over 80 studiesand research reports related to the security o electronic voting systems andocused on systems associated with vote casting and counting. Te report

noted that these studies listed a number o potential security faws includingweak security controls, system design faws, inadequate system version con-trol, inadequate security testing, incorrect system conguration, and poorsecurity management.

In characterizing some o the studies, the GAO noted that studies ound(1) some electronic voting systems did not encrypt cast ballots or system au-dit logs, and it was possible to alter both without being detected; (2) it waspossible to alter the les that dene how a ballot looks and works so that thevotes or one candidate could be recorded or a dierent candidate; and (3)vendors installed uncertied versions o voting system sotware at the locallevel.8

In their conclusion, the authors o the report noted that their review point-ed to a situation in which vendors may not be uniormly building securityand reliability into their voting systems, and election ocials may not al-ways rigorously ensure the security and reliability o their systems when theyacquire, test, operate and manage them.9

Carter Baker Commission on Federal Election Reform

In 2005, the Commission on Federal Election Reorm was established toresearch the state o elctions in the United States and oer recommendationsor improvement. Te bipartisan commission was led by ormer DemocraticPresident Jimmy Carter and ormer Republican Secretary o State JamesBaker. In September 2005, the commission released its broad set o reormproposals covering a wide array o election issues. Key among them were theissues presented by voting technology.

In their conclusion,the authors o the reportnoted that their reviewpointed to a situation inwhich vendors may notbe uniormly buildingsecurity and reliability intotheir voting systems, andelection ocials may notalways rigorously ensurethe security and reliabilityo their systems when they

acquire, test, operate andmanage them.


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Te commissioners surveyed existing reports, academic studies, and othermaterial to ormulate their recommendations or DRE technology. Teyconcluded that the benets o DREs were oset by a lack o transparencyand noted that DREs do not allow voters to check i their ballot is recordedcorrectly and that some DREs have no capacity or an independent recount.In their nal report, the commissioners recommended that Congress passlegislation requiring all voting systems to produce a voter veried paperrecord and that states adopt ormal auditing procedures to reconcile anydisparity between the electronic ballot tally and the paper ballot tally. Tetext o the recommendations ollows:

Congress should pass a law requiring that all voting machines be

equipped with a voter-veriable paper audit trail and, consistent withHAVA, be ully accessible to voters with disabilities. Tis is especiallyimportant or direct recording electronic (DRE) machines or our rea-sons: (a) to increase citizens condence that their vote will be countedaccurately, (b) to allow or a recount, (c) to provide a backup in caseso loss o votes due to computer malunction, and (d) to test-throughrandom selection o machines whether the paper result is the sameas the electronic result. Federal unds should be appropriated to theEAC to transer to the states to implement this law. While paper trailsand ballots currently provide the only means to meet the Commissionsrecommended standards or transparency, new technologies may do somore eectively in the uture. Te Commission thereore urges researchand development o new technologies to enhance transparency, security,

and auditability o voting systems.

States should adopt unambiguous procedures to reconcile any disparitybetween the electronic ballot tally and the paper ballot tally. Te Com-mission strongly recommends that states determine well in advance oelections which will be the ballot o record.10

May 2006 Black Box Voting Report on Critical Security Issues with theDiebold TSX

In May 2006, Finnish computer security expert Harri Hursti working withthe organization BlackBoxVoting.org released a report documenting several

security issues with the Diebold electronic voting terminals Sx and S6.According to the report, the security threats seem to enable a maliciousperson to compromise the equipment even years beore actually using theexploit, possibly leaving the voting terminal incurably compromised.11 Inother words, a computer hacker, doubling as a poll worker, would only needa ew seconds o physical access to the machines to introduce a virus tothe sotware by putting a memory card inside o the machine. Because thememory cards are transerred rom one machine to another, this could causethe machines to ail or to simply change the vote outcome by switchingvotes.12


States should adoptunambiguous proceduresto reconcile any disparitybetween the electronicballot tally and the paperballot tally. The Commis-sion strongly recommendsthat states determine wellin advance o electionswhich will be the ballot o

record.


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Computer scientists who work in the eld reacted with shock at the ex-tent o the vulnerability. Michael Shamos, a computer science proessor atCarnegie Mellon University and long-time proponent o electronic votingmachines, said: Its the most severe security faw ever discovered in a votingsystem.13 Dr. Rubin, the computer science proessor at Johns Hopkins andco-author o the previously mentioned study exposing technical faws in

a Diebold voting machine, said he eared that the latest security problemcould be serious enough to cause an Election Day meltdown that couldput precincts o machines out o action.14 It is like the nuclear bomb ore-voting systems, Dr. Rubin said. It really makes the security faw weound in [in prior years] look trivial.15

Actual Machine Failures

Problems with DREs are not theoretical. Tere are a number o instanceswhere electronic voting machines have added or removed votes in real elec-tions, throwing the outcome o the election into question. Below are just aew examples where voting machine ailures were so egregious that they weredetected.

Texas

During this years exas primaries in March, a programming error causedvoting machines in arrant County to record an additional 100,000 votesthat were never actually cast. Election ocials were shocked when the initialtallies showed that 158,000 voters came to the polls, a number that wouldhave shattered the previous primary turnout record and more than doubledthe turnout o 76,000 in 2002.

A programming mistake in the machines sotware by a company respon-

sible or both hardware and sotware, Hart Intercivic, boosted vote totalsar beyond the 58,000 votes that were actually cast. Te company said thatthe error boosted the totals equally or every candidate and that the electionoutcomes were not aected.16

Hart Intercivic accepted ull responsibility or the error, but some peoplewere not satised with the outcome. Justice Steve Smith, a candidate or theexas State Supreme Court, led a ormal challenge to the election results,which showed he lost his bid by 6,000 votes. In a statement to the FortWorth Star elegram, he wrote, We have good reason to believe that thevote total in incorrect, and we believe that the election must not be nallydecided until all the votes are correctly counted.17

Dr. Rubin, the computer

science professor

at Johns Hopkins and co-

author o the previously

mentioned study exposing

technical faws in a Diebold

voting machine, said he

eared that the latest secu-

rity problem could be seri-

ous enough to cause an

Election Day meltdown

that could put precincts omachines out o action.

10


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North Carolina

In November 2004, 4,438 votes were lost by an electronic voting machinein Carteret County, North Carolina, leaving the race or state agriculturalcommissioner in limbo or months. On Election Night, 3.3 million ballotswere cast and Republican Steve roxler led Democrat Britt Cobb by 2,287votes. With almost twice that amount o votes permanently erased, a con-tentious legal battle ensued that only ended three months later when Cobbdecided to concede the election.18

Te source o the error was the Unilect Patriot, a touchscreen voting ma-chine. Like most DREs, it had no backup system. In 2005, the Cartaret

Board o Elections unanimously voted to replace the Unilect machines. Youcannot believe how much damage that has done to the question o votercondence in the county, said Ed Pond, the county elections boardchairman.19

Pennsylvania

In April 2005, Pennsylvania decertied the UniLect Patriot electronic votingmachine ater concluding that deects in the system were responsible ormore than 10,000 uncounted votes in three dierent counties in November2004. When the state re-examined the machines ater the elections, it ound

that the machines oten ailed to register votes ater the voter pressed thescreen to make his or her selection. Te machines were also prone to reez-ing up during use.20

In a separate incident in Berks County, Pennsylvania, involving votingmachines manuactured by Danaher Controls, 111 votes were lost when thecartridges used to record votes were accidentally programmed as trainingcartridges during the May 2005 primary election.21 Election results showedthat three races were decided by less than 111 votes. Ater much controversy,the Berks County Election Board ultimately voted against having a re-vote.22

Florida

During a special election on the issue o slot machines, Miami-Dade Coun-tys new Elections Systems & Sotware (ES&S) iVotronic electronic votingmachines produced more than 1,200 undervotes, despite the act that therewas only one issue on the ballot. Undervotes are counted ballots that con-tain no votes or candidates or issues, and a high number o them typicallyindicates a problem with the machine.


In April 2005, Pennsylvania

decertied the UniLect Pa-

triot electronic voting ma-

chine ater concluding that

deects in the system were

responsible or more than

10,000 uncounted votes in

three dierent counties in

November 2004.

11


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Te county already had a history o election troubles. It was one o thecounties scrutinized during the 2000 presidential election, and had contin-ued problems in 2002 and 2004. Approximately one-third o the miscastvotes were blamed on improper coding o cartridges by the county sta.Similar discrepancies were ound in ve other elections in the prior twelvemonths, though ocials say that the amount o undervotes couldnt have

aected the outcome o any o those elections.23

o explain the other undervotes, Elections Supervisor Constance Kaplansaid that many voters did not understand the ballot question and let inrustration beore casting votes. ES&S and Kaplan blamed each other orthe coding errors. Kaplan said that an ES&S program manager should havecaught the error. According to ES&S ocials, the primary responsibility orthis particular aspect or the election lies with the county. County ocialpublicly criticized Kaplan and she was soon orced to resign.24 In the mean-time, the current elections supervisor Lester Sola has since recommendedthat the county replace their $25 million system or an optical scanningsystem, citing the decline in voter condence and increasing costs associated

with the current DRE system.25

Virginia

Te ailure o ten electronic voting machines cast doubt on the results o alocal election in Fairax County, Virginia during November 2003. Votersclaimed that the machines ailed to register their votes or incumbent schoolboard member Rita S. Tompson (R), who lost by 1,662 votes. When test-ing one o the questionable machines, elections ocials observed that itappeared to subtract a vote rom Tompson or about one out o every 100attempts to vote or her.

According to reports rom multiple voters, the machine would initiallydisplay an x next to Tompsons name ater she was selected, but the xwould disappear seconds later. Another voter said that it took him our orve tries to register his vote or Tompson.26

It was impossible to determine whether lost votes were intended or Tomp-son or whether other candidates also lost votes, and the questionable elec-tions results were certied without any adjustment.27

Voters claimed that the

machines ailed to register

their votes or incumbent

School Board member Rita

S. Thompson (R), who lost

by 1,662 votes. When test-

ing one o the question-

able machines, elections

ocials observed that it

appeared to subtract a

vote rom Thompson or

about one out o every 100attempts.

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New Mexico

A week beore the 2004 election, Bernalillo County Clerk Mary Herreraadmitted recurrent problems with vote recording sotware and that phantomvotes had been recorded in three separate elections. She said that, in oneinstance, a candidate received an additional 4,000 votes that did not exist.However, Herrera claimed that the phantom votes were ound beore theywere added to the nal tally.28

In 2002, only three-quarters o ballots cast in Bernalillo Countys earlyvoting period were initially tallied by Sequoias DRE voting machines. Ac-cording to Sequoia, 12,000 votes were omitted because an employee had

missed a step in the tallying process. Apparently, the sotware program usedto report election results did not have the capacity to handle the data.29 Tecompany developed a patch to expand the programs capacity, but it wasntpassed along to its technician in Bernalillo County. Te mistake, originallynoticed by a partisan attorney during post-election analysis, delayed certi-cation o the election results while the Board o Commissioners correctedthe results.30

III. Citizens and State Legislatures Take Action to

Correct DRE-Related Problems

As reports continue to reveal the potential vulnerabilities o DREs, con-cerned citizens in states and counties that have already bought or are in theprocess o purchasing these machines argue that i DREs must be used, thenthey should be outtted with the capacity to produce a voter-veried paperballot to conrm tallies produced internally by the machines. On June 12,2006, at their annual convention, the League o Women Voters passed aresolution in support o voter veried paper records and mandatory randommanual audits o voting systems nationwide. Other national groups suchas Common Cause, Veried Voting, and VoterustUSA have been workingwith citizens, election ocials, and elected representatives to pass correctivelegislation at the state and ederal level.

National Action

In May 2003, Representative Rush Holt (D-NJ) introduced ederal legisla-tion calling or a voter-veried paper record or every vote cast, as well asmandated audits comparing the paper records with machine totals.31 Tebill was introduced into the House Administration Committee, which at thetime was led by Representative Bob Ney (R-OH), a HAVA sponsor. Neyreused to bring the bill beore the committee or discussion and a vote.32


On June 12, 2006, at their

annual convention, the

League o Women Voters

passed a resolution in sup-

port o voter veried paper

records and mandatory

random manual audits o

voting systems nationwide.

13


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California

In April 2004, Kevin Shelley, then Caliornias secretary o state, announcedhis intention to have all voting machines used in his state produce a papertrail. He also announced a ban o the use o all Diebold Sx systems andtemporarily decertied all other DRE systems until security measuresare met. In addition, Shelley asserted, Diebolds persistent and aggres-sive marketing led to installation in a number o counties o touchscreensystems that were neither tested, qualied at the ederal level, nor certiedat the state level--and that Diebold then lied about it to state ocials.39Shelley eventually recertied other machines on a county-by-county basis

as they met specic security conditions, but 2004 was the last year that themachines operated without a paper printer. In September, Governor ArnoldSchwarzenegger signed a law that would require all DRE machines to beequipped with a voter veried paper printout in 2005.40

Unortunately, Shelleys replacement, Secretary o State Bruce MacPherson,reversed Shelleys ban on Diebold Sx machines. Tere is currently a lawsuitin Caliornia to challenge the secretary o states certication o these previ-ously banned machines.41

Ohio

Ohio passed a law in May 2004 that would require DRE voting machines to

be equipped with a voter veried paper ballots by 2006.

In early 2004, Ohio Secretary o State Ken Blackwell gave approval or Ohiocounties to purchase one o three brands o touch-screen voting machines:Diebold, ES&S and Hart Intercivic. Five months beore the general elec-tion, however, Blackwell halted the deployment o the Diebold machinesbecause o security concerns. Tis meant that the counties originally sched-uled to use the touch screen machines had to rely predominantly on theunreliable punch cards that most Ohio counties had used in the past. Ohiosuse o punch cards became the subject o a lawsuit against the state by theACLU, which claimed that the use o punch cards disproportionately harmslow-income and minority precincts because their ballots are more likely to

be thrown out.

The Current Status of State Legislation

Ater the 2004 election, a number o state legislatures passed laws thatrequired their voting systems to produce a voter veriable paper record. Ad-ditionally, a number o secretaries o state and governors took up the issueand either by supporting statewide legislation or by regulation have requiredtheir voting systems to produce voter veriable paper records.


Ohios use o punch cards

became the source o a

lawsuit against the state

by ACLU, who claimed that

the use o punch cards

disproportionately harms

low-income and minority

precincts because their

ballots are more likely to

be thrown out.

1


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For example, in January 2006, New Mexico Governor Bill Richardson askedthe legislature to pass a law retiring all electronic paperless voting machinesrom use in the states polling places, and requiring that optical scan ma-chines be installed instead.42 Te bill passed and was signed into law inMarch.43

As o this printing, 27 states have enacted laws or established administra-tive rules requiring voting systems to produce voter-veriable paper records.Fiteen o those states require an audit o the voting system to ensureaccuracy (see chart A on page 20).

Rethinking the Bias Toward DREs

Among the rst to purchase and implement DRE machines, states includingFlorida, Georgia and Maryland are now actively considering changing vot-ing systems, refecting a sea-change in the condence citizens have in thesemachines.

When Georgia purchased its $54 million DRE voting system, electionocials were proud to be among the rst to update their machines in thewake o the 2000 presidential election debacle. But ears about the securityvulnerabilities inherent in DRE machines have caused the state legislatureto consider implementing a paper record requirement that may render theirour-year old system obsolete. A new law will allow Georgia to launch a pi-lot program in a ew precincts using machines tted to print a voter veriedpaper ballot.44

Furthermore, Marylands Governor Robert Ehrlich, a long-time proponento the states system o Diebold machines, called or a paper ballot require-ment earlier this year. Te Maryland House o Representatives unanimously

voted to approve Ehrlichs plan to remove the DRE machines or theNovember elections and replace them with leased optical scan machines.45Te proposal ell victim to partisan wrangling and was let unresolved whenMarylands legislative session ended. Maryland is expected to revisit the issuenext year.46

Citizen and Reform Groups Take Legal Action to Stop

States from Buying DRE Systems

Citizens in a number o states have taken legal action to stop election o-cials rom buying DREs. Law suits have been led in Arizona, Caliornia,Colorado, New Jersey, New Mexico, New York and Pennsylvania. For ex-ample, Arizona residents led or an injunction to stop the purchase o twotypes o touch screens, the Diebold Sx and Sequoia Edge II. Te citizensalleged in their complaint that those machines, are seriously fawed, have adocumented history o inaccurately recording and tabulating votes, and arevulnerable to manipulation by hackers.47

Citizens in a number

o states have taken legal

action to stop election

ocials rom buying DREs.

Law suits have been led

in Arizona, Caliornia,

Colorado, New Jersey, New

Mexico, New York and

Pennsylvania.

1


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Voter Action, a nonprot legal organization, is partnering with local lawrms throughout the country to provide these eorts with legal expertise,expert witnesses, legal research and election data analysis.48 Tey argue thatvoter veriable ballots are essential to the integrity o our voting process andsuggest that ailure to block the purchase and implementation o DREs willimpact elections or the entire lietime o the voting machines.49

IV. State DRE Use and the Risk of Compromised

Elections

As the November election nears, 37 states will be using DREs either in everyprecinct, in certain counties, or as an alternative to other voting technolo-gies in various polling places. Because these machines have been known tomalunction and also present signicant security concerns, jurisdictionsusing these machines are at high risk o a compromised election due to DREailure.

However, this risk is mitigated in some states and counties because the statehas either: 1) passed a law requiring that all voting systems produce a paperrecord that a voter can veriy and mandating an audit comparing machinetallies to hand counts o the paper records, or 2) purchased equipment thatautomatically produces a paper record, although the state has made no or-mal requirement.

CHAR A shows the status o each state regarding the use o DREs andwhich, i any, security saeguards are in place.

CHAR B characterizes states on a risk level rom 1 to 3.

A state is considered a low risk state i they do not use DREs but insteaduse another voting system. A state is also considered low risk i the stateuses DREs but the DREs produce a voter veried paper ballot that will becounted in an audit.

A state is considered medium risk i the voting systems produce a paperrecord but no audit is required. In these states, there will be paper recordback ups i machines malunction, but because there is no audit required,there is no systemic way to detect whether the machines are systematically

adding, dropping or switching votes due to programming errors or mali-cious code.

A state is considered high risk i the DREs are in use but they do not pro-duce a paper record at all. In these states, votes will simply be lost i ma-chines malunction or votes are compromised due to programming errors ormalicious code.

CHAR C shows states in which Common Cause recommends that vot-ers choose to vote by absentee ballot i their polling place only uses DREs.Tese are states with no-ault absentee voting laws in place.


As the November electionnears, 37 states will beusing DREs either in everyprecinct, in certain coun-ties, or as an alternative toother voting technologiesin various polling places.

1


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CHART A Status of State Voting Systems 1

1Although weve made every eort to be accurate at the time o publication, there may be subsequent changes not recorded here.2 This means that at least one jurisdiction in the state employs DREs. There may be others that do not use DREs.3 The Arizona legislature recently passed a bill that would require VVPB and mandatory audit or voting machines, but it has not yet been signed into law

at the time o publication4 All counties are required to perorm a post-election audit5 These states currently have no DRE systems in place but they have yet to purchase voting machines that will meet the requirements or disabled voters

and may choose a DRE system with VVPB. Massachusetts voting systems are not legally required to have a VVPB or a mandatory audit

1

Sources: Veried Voting Foundation, Election.org

State

DRE Voting

Systems Used inState2

Require Voter-

Veried PaperBallot (VVPB)

Bought DREsystems with VVPB

(even though nostate law)

Require Automatic

Audits of PaperRecords

Have Not Yet

Purchased Systemwith HAVA Funds

Allow No-Fault

Absentee Voting

Alaska YES YES YES YES

Alabama YES

Arkansas YES Some counties YES

Arizona3 YES YES YES

California YES YES YES YES

Colorado YES

Most counties. All

counties by 2010

Most counties. All

counties by 20104 YES

Connecticut YES YES YES YES

Delaware YES

District of Columbia YES

Florida YES YES

Georgia YES YES

Hawaii YES YES YES

Iowa YES Some Counties YES

Idaho YES YES

Illinois YES YES YES

Indiana YES

Kansas YES Some Counties YESKentucky YES

Louisiana YES

Massachusetts5 YES

Maryland YES YES

Maine5 YES YES YES

Michigan YES

Minnesota YES YES

Missouri YES YES YES

Mississippi YES Most counties

Montana YES YES

North Carolina YES YES YES YES

North Dakota YES

Nebraska YES

New Hampshire YES

New Jersey YES 2008 YES

New Mexico YES YES YES

Nevada YES YES YES

New York YES YES YES YES

Ohio YES YES YES

Oklahoma YES

Oregon YES YES

Pennsylvania YES

Rhode Island

South Carolina YES

South Dakota YES YES

Tennessee YES YES

Texas YES

Utah YES YES YES

Virginia YES

Vermont YES YES

Washington YES YES YES YES

Wisconsin YES YES YES YES

West Virginia YES YES YESWyoming YES YES YES


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1

State Risk Level

Alaska LOW

Alabama MID*

Arkansas HIGH^

Arizona MID

California LOW

Colorado MID#^

Connecticut LOW

Delaware HIGH

District of Columbia HIGH

Florida HIGH

Georgia HIGH

Hawaii LOW

Iowa HIGH

Idaho MID*

Illinois LOW

Indiana HIGH

Kansas HIGH^

Kentucky HIGH

Louisiana HIGH

Massachusetts MID

Maryland HIGH

Maine MID

Michigan MID*

Minnesota LOW*

Missouri MID

Mississippi MID^

Montana MID*

Nebraska MID*

New Hampshire MID*

New Jersey HIGH#

New Mexico LOW*

North Carolina LOW

North Dakota MID

State Risk Level

Nevada MID

New York LOW

Ohio MID

Oklahoma MID*

Oregon MID*

Pennsylvania HIGH

Rhode Island MID*

South Carolina HIGH

South Dakota MID*

Tennessee HIGH

Texas HIGH

Utah MID

Virginia HIGH

Vermont MID*

Washington LOW

Wisconsin MID

West Virginia LOW

Wyoming MID

Chart Key

Low Risk Use paper-based system with man-datory audit of machines or DRE Sys-

tem with VVPB and mandatory audit.

Mid Risk Use paper-based voting systems orDRE voting systems that have VVPB

but no audit requirement.

High Risk DRE systems used without VVPB

* No DRE systems used

# DRE systems will have VVPB and willrequire audits in future

^ Some but not all counties will beusing DRE systems with VVPB

CHART B State-By-State Voter Risk Assessment

PLEASE NOTE: Risk is assessed according to

availability of VVPB and mandatory random audits.

DRE - Direct Record Electronic

VVPB Voter Verifed Paper Ballot


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20

CHART C Mid-and High-Risk States That Allow No-Fault Absentee VotingState

Allow No-Excuse

Absentee VotingRisk Level

Arkansas Yes HIGH

Delaware HIGH

District of Columbia HIGH

Florida Yes HIGH

Georgia Yes HIGH

Iowa Yes HIGH

Indiana HIGH

Kansas Yes HIGH

Kentucky HIGH

Louisiana HIGH

Maryland Yes HIGH

New Jersey Yes HIGH

Pennsylvania HIGH

South Carolina HIGH

Tennessee HIGH

Texas HIGH

Virginia HIGH

In those states marked yes in the chart above, Common Cause recommends voting

by absentee ballot if voters only other option in their precinct is a paperless DRE.


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21

Recommendations

Congress passed the Help America Vote Act (HAVA) in 2002 to rectiyproblems in our election system exposed during the 2000 presidential elec-tion. Plagued by the memory o election ocials haggling over hangingchads, Congress included requirements calling or technological advances inelection system machinery.

Many election ocials perceived DREs as the best answer to some HAVArequirements. As a result, DRE use exploded. Te number o counties na-tionwide using DREs more than tripled in the last six years, jumping rom320 counties in November 2000 to an expected 1,050 counties in Novem-bers mid-term elections. About 39 percent o registered voters are expectedto use DRE voting machines on Election Day 2006.

However, because these machines are proven to be prone to malunctionand ailure and vulnerable to computer hacking, it is clear that we must takebold action to saeguard our elections, or it is likely that they will be com-promised. ransparent methods or proving the accuracy o election tallieswill help reassure voters that the election results are correct.

Common Cause recommends the ollowing steps to mitigate the riskscaused by DRE machines and to create long-term solutions to protect elec-tion integrity:

Congress must immediately pass HR 550, Te Voter Condence andIncreased Accessibility Act o 2005. Representative Rush Holt (D-NJ) lastyear re-introduced his Voter Condence and Increased Accessibility Act o2005, a bill that would requires all voting machines to produce a voter-veri-ed paper record and to be subject to routine unannounced audits by hand-count. Common Cause ully supports HR 550 and encourages citizens tocontact their members o Congress to co-sponsor the bill. Currently, thereare 191 co-sponsors o this bill rom both parties.

States should pass laws or adopt regulations requiring all voting systems toproduce a voter veried paper ballot and mandate that at least two percento voting jurisdictions, randomly selected, conduct public audits o their

voting systems. In the past ew years, 27 states have enacted laws or adopt-ed administrative rules requiring voting systems to produce voter-veriablepaper records. However, only 15 o those states also require an audit o thevoting system to ensure accuracy. Without an audit to compare computertallies to manual tallies o voter veried paper records, there is no way toknow i the voting machine is malunctioning [note: malunctions mayshow up but they cant be resolved and, in some cases, they may not showup at all], whether due to programming errors or malicious code. Unlessand until a ederal law such as HR 550 is passed, states must individuallysaeguard their voting systems.

Many election ocials

perceived DREs as the

best answer to some

HAVA requirements. As a

result, DRE use exploded.

The number o counties

nationwide using DREs

more than tripled in the

last six years, jumping rom

320 counties in November

2000 to an expected 1,050counties in Novembers

mid-term elections.



23/24

Common Cause

recommends that emer-

gency unds be made

available to states or the

purchase or lease o more

secure, auditable ma-

chines.

States and localities must take necessary steps to saeguard machines priorto use. Jurisdictions must implement security plans to ensure the machinesare guarded and only authorized persons are able to program and retrieveinormation rom the machines. Poll workers need proper training on theuse o new equipment. Pre- and post-election tests must be perormed toensure the voting systems are working accurately. Local election ocialsshould make emergency paper ballots available to voters in case o machinemalunction.

State election ofcials should, where possible, retrot DREs with printingsystems to produce a voter veriable paper ballot, and use those ballots inaudits. Common Cause realizes that certication rules may stand in the wayo this change. However, we oer this advice: Where theres a will, theres away. Te certication process can be expedited.

When DREs cannot be retrotted, Common Cause recommends that stateelection ofcials decertiy those DREs that cannot provide a paper recordand turn to other election systems such as optical scan machines or usein the November elections. Paperless DREs are unacceptable or use in asystem that relies on the condence o voters or its legitimacy.

Common Cause recommends that emergency unds be made available tostates or the purchase or lease o more secure, auditable machines.Because they lack the unding to acquire new machines, many election o-cials may assume that its impossible to retrot or discard their DREs andswitch to better technology. Secure, veriable elections are worth the invest-ment.

Common Cause recommends that citizens be aware o the voting systemsin use in their locality. I a polling place is equipped with a paperless DRE,

voters may seek to vote on a paper ballot. Given that paperless DREs pres-ent the highest security risk, Common Cause urges voters to identiy whatkind o voting equipment is used at their polling place. Voters can their

secretary o states oce, county clerk, registrar, or local board o elections.Voters who discover that their polling place will use voting machines withno voter-veriable paper record should vote by absentee ballot, i their stateallows no-excuse absentee voting [see chart C on page 21]. Voters who willvote by absentee ballot should check with their Secretary o States oce tomake sure they are aware o the rules around absentee voting. For example,there may be deadlines and requirements or witnesses and other criteria.

I voters nd themselves in a precinct using DREs in a state that doesnt al-low no-excuse absentee voting, Common Cause urges those citizens to rstwork with advocacy groups to demandwell beore the electionthat localelection ocials make emergency paper ballots available on Election Day incase o machine malunction. Citizens can also request that paper ballots bemade available or any voter who doesnt wish to vote on a DRE. However,citizens should not accept the option o voting on a provisional ballot,which is not accorded the same status as the ballot o a voter who is properlyregistered and whose name appears on the voter rolls

22


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1 Public Law No. 107-252, The Help America Vote Act of 20022 Press Release. First in Bay Area: Alameda County to Introduce Touch-Screen Voting from Diebold Nov. 5, Diebold viaBusiness Wire,

Sept. 18, 20023 Press Release. 69 Million Voters Will Use Optical Scan Ballots in 2006: 66 Million Voters Will Use Electronic Equipment, Election

Data Services, Feb. 6, 20064 Thompson, Clive. A Really Open Election, The New York Times, May 30, 20045 Rubin, Avi. Testimony before the U.S. Election Assistance Commission, May 5, 2004 (see http://www.eac.gov/docs/Testimony%20-

%20Avi%20Rubin.pdf)6 Trusted Agent Report. Diebold AccuVote-TS System, by RABA Innovative Solution Cell (RiSC), January 20047 Risk Assessment Report. Diebold AccuVote-TS Voting System and Processes, by Science Applications International Corporation, Sept. 2,

20038 Government Accounting Ofce. Elections: Federal Efforts to Improve Security and Reliability of Electronic Voting Systems Are

Underway, but Key Activities Need to Be Completed (GAO-05-956), September 2005, p. 29 Ibid, p.5310 Commission on Federal Election Reform. Building Condence in U.S Elections, September 200511 Hursti, Harri. Critical Security Issues with Diebold TSx, A Black Box Voting Project, May 11, 200612 Rubin, Avi. Security Risk Seen in Diebold Voting Machine, Weekend Edition, National Public Radio, May 20, 200613 Davey, Monica. New Fears of Security Risks in Electronic Voting Systems, The New York Times, May 12, 200614 Desmon, Stephanie. Experts See New Diebold Flaw, The Baltimore Sun, May 12, 2006, http://www.securityfocus.com/news/1139115 Lemos, Robert. Diebold Voting Systems Critically Flawed, Security Focus, May 12 2005. http://www.securityfocus.com/news/1139116 Tinsley, Anna and Spangler, A. Vote Spike Blamed on Program SnafuFort Worth Star-Telegram, March 9, 2006

17 Tinsley, Anna. Judicial Candidate Files ChallengeFort Worth Star-Telegram, April 6, 200618 Robertson, Gary. Troxler to Take Commissioners Post After Cobb Concedes, Associated Press, Feb. 4, 200519 Bonner, Lynn. Cartaret Elects to Ditch Voting Machines, The News & Observer, July 15, 200520 Press Release. Secretary of the Commonwealth Decerties Unilect Patriot Voting System in Pennsylvania, Pennsylvania Department of

State, April 7, 200521 Walter, Kori. Vote Machines Will Work Well, Supplier Says,Reading Eagle, Nov. 3, 200522 Editorial. Board Should Hold a Revote for the City,Reading Eagle, July 20, 200523 Schwartz, Noaki and Negrete, Tere. Voting Glitches Found in 6 Recent Elections, Miami Herald, March 31, 200524 Schwartz, Noaki and Negrete, Tere. Dade Election Chief Kaplan Resigns, Miami Herald. April 1, 200525 Kidwell, David. Dade Could Resume Low-Tech Voting, Miami Herald, May 29, 200526 Cho, David. Fairfax Judge Orders Logs of Voting Machines Inspected, TheWashington Post, Nov. 6, 200327 Ibid.28 VotersUnite.org: (see http://www.votersunite.org/article.asp?id=3421)29

Zoretich, Frank. Election Results Certied After Software Blamed,Albuquerque Tribune,. Nov. 19, 200230 12,000 Early Votes Skipped in Count,Albuquerque Tribune, Nov. 16, 2002;.31 Cohen, Robert. Key Reforms Wont Be in Place for 2004 Elections,Newhouse News Service, May 28, 200332 Keller, Amy. Questions Swirl On Voting Reform,Roll Call, March 25, 200433 http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00550:34 Yachnin, Jennifer. Ehlers Named Mayor; New Chair for House Administration,Roll Call, January 18, 200635 Anselmo, Joseph. Physicist Ehlers Is the Go-To Guy on Science Matters, Congressional Quarterly Daily Monitor, June 24, 200336 Rep. Ehlers. Statement during a town hall meeting at the Gerald R. Ford Museum in Grand Rapids, MI. May 6, 200637 Riley, Brandon. Nevada Decides on New Voting MachinesAssociated Press , Dec. 10, 200338 News Release. Secretary of State Heller Announces Direct Recording Electronic Voting Machine Choice, Nevada Ofce of the

Secretary of State, Dec. 10, 200339 News Release. Secretary of State Kevin Shelley Bans Diebold TSx for Use in November 2004 General Election, Ofce of the

California Secretary of State, April 30, 200440 Vogel, Nancy and Rau, Jordan. Governor Returns Primary to June; Signature on Bill Ends a Futile Effort to Increase the States Clout in

Presidential ElectionsLos Angeles Times, Sept. 28, 200441 Kravets, David. Voters Sue to Keep Diebold From Elections, Associated Press, March 22, 200642 Massey, Barry. Governor Proposes Standardized Paper Ballot System Statewide,Associated Press . Jan. 12, 200643 Baker, Deborah. Governor Signs Paper Ballot Bill Into Law,Associated Press , March 3, 200644 Campos, Carlos. Georgias 4-Year Old Voting Devices Looking Old. Theyre Paperless, and Thats the Problem,Atlanta Journal

Constitution, April 30, 200645 Marimow, Ann. Maryland House Approves Paper Ballots, The Washington Post, March 10, 200646 Brewington, Kelly. Paper Ballot Crumbling: Electronic Voting Machines Seem Likely to be Retained, The Baltimore Sun, April 7, 200647 Chavez v. Brewer (Arizona Superior Court Maricopa County, May 9, 2006) (see http://www.voteraction.org/States/Arizona/Documents/

Legal/MtnPrelim%20Injtcn.pdf)48 Voter Action: http://www.voteraction.org/about.html