In July, 2012, the Verified Voting Foundation, together with Common Cause and the Rutgers School of Law released a report that surveyed election prepraredness for the 2012 General Election.
Summary of Our Joint Report
On Election Day, Nov. 6, the stakes will be high. A number of critical races will be very close, and some might be decided by very few votes. At the same time, it is highly likely that voting systems will fail in multiple places across the country.1 In fact, in every national election in the past decade, computerized voting systems have failed – machines haven’t started, machines have failed in the middle of voting,2 memory cards couldn’t be read be read,3 votes were mistallied4 or lost.5
Our elections are so complex, with so many different jurisdictions and varying technologies, that problems are inevitable. And, as the technology used for elections has become more complicated, the opportunity for error has substantially increased.
Listed below are examples of past machine failures and how they impacted various elections:
- Following a June 2009 election, officials in Pennington County, South Dakota, discovered a software malfunction that added thousands of non-existent votes to the county totals.6
- In a municipal election in Palm Beach County, Florida, in March 2012, a problem with election management software allotted votes to the wrong candidate and the wrong contest. The official results were only changed after a court-sanctioned public hand count of the votes.E-voting System Awards Election to Wrong Candidates in Florida Village, Computerworld, (Apr. 4, 2012).]
- In the 2008 Republican presidential primary in Horry County, South Carolina, touch screen voting machines in 80 percent of the precincts temporarily failed, and when precincts ran out of paper ballots, voters could not cast ballots in their home precinct.7
- In a test-run for an online election in the September 2010 Washington, D.C., primary, a hacker team was able to change all of the votes to “elect” their own candidates. The online voting system was days away from being launched in a real election for use by overseas and military voters. After the incident, the Internet voting system was canceled.8
Similar vote-counting errors may go undetected during the 2012 elections unless the mistake is so large and obvious – like the software malfunction in South Dakota – that it can’t be ignored, or the state has adopted procedures – like the post-election audit done in Florida – as recommended in this report.
A more detailed breakdown of findings in the five categories we assessed:
- Sixteen states use paperless machines in some or all counties, prompting an “inadequate” grade. In other words, these machines produce no independent record of the vote cast, which is necessary for recounts or audits. These states are: Arkansas, Colorado, Delaware, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, Pennsylvania, South Carolina, Tennessee, Texas and Virginia. The other 35 states use voting systems which either require the use of a paper ballot or produce a paper record.
- On contingency preparation for possible equipment failures, three states – California,Indiana and Ohio – ranked “excellent” because they required most or all of the best practices requiring machine repair and replacement and provision of emergency ballots. None were ranked “inadequate” and seven states – Colorado, Delaware, Louisiana, Mississippi, Nevada, Utah and West Virginia – were ranked “needs improvement.” The rest of the 41 states ranked “good” or “generally good,” or were not ranked because paper ballots are the standard polling place system.
- Nineteen states protect voters by prohibiting electronic return of marked ballots over the Internet and instead require the voter’s original paper ballot to be returned: Alabama, Arkansas, Connecticut, Georgia, Illinois, Kentucky, Maryland, Michigan, Minnesota, New Hampshire, New York, Ohio, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Wisconsin, and Wyoming. These states were ranked “excellent.” One state, New Jersey, permits electronic return of votes for military and overseas voters, but requires the physical ballot to be returned as well. New Jersey was ranked “generally good.” Twenty-five states permit electronic return of votes for military and overseas voters without restrictions, subjecting the ballots to the risk of corruption: Alaska, Arizona, California, Delaware, District of Columbia, Florida, Indiana, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Utah, Washington and West Virginia. These states were rated “inadequate.” Six states allow electronic return but seek tocontain the risk by making electronic return of voted ballots available only to a restricted group of voters (e.g., military voters in combat zones): Colorado, Hawaii, Idaho, Iowa, Missouri and Texas. These states were ranked “needs improvement.”
- Twenty-two states have paper-based voting systems and conduct audits. These states received a “good,” a “needs improvement,” and in one case, an “excellent” ranking, depending on the quality of their audits: Alaska, Arizona, California, Connecticut, District of Columbia, Florida, Hawaii, Illinois, Minnesota, Missouri, Montana, Nevada, New Mexico (which received the “excellent” ranking), New York, North Carolina, Ohio, Oregon, Utah, Vermont, Washington, West Virginia and Wisconsin. Four statesrequire audits but do not use paper-based voting systems statewide and so a portion of their ballots go unaudited. These states – Colorado, Kentucky, Pennsylvania and Texas – received a “needs improvement” rating. And 25 states conduct no audits at all and received an “inadequate” rating: Alabama, Arkansas, Delaware, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, New Hampshire, New Jersey, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia and Wyoming.
- Four states – Iowa, New Hampshire, North Dakota and Vermont – require most or all of the ballot accounting and reconciliation best practices, and were ranked “excellent.” Another 18 received a “good” ranking: Alaska, Arkansas, California, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Montana, Nevada, North Carolina, Oregon, Washington and Wyoming. Three states received a “needs improvement” rating – New Jersey, South Dakota and Utah. The remaining 26 states ranked as “generally good,” and none were ranked “inadequate.”
Pamela Smith is President of VerifiedVoting.org and the Verified Voting Foundation, nonprofit affiliates working to safeguard elections in the digital age. She provides information and public testimony on verified voting issues at federal and state levels throughout the U.S., including to the U.S. House of Representatives Committee on House Administration. She oversees an extensive information resource on election equipment and the regulations governing its use at the federal level and across the 50 states. Ms. Smith is coeditor of the Principles and Best Practices in Post Election Audits and the author of an introductory chapter on audits for Confirming Elections: Creating Confidence and Integrity through Election Auditing. She has been a small business and marketing consultant and nonprofit executive for a Hispanic educational organization working on first language literacy and adult learning.
Michelle Mulder is a Visiting Scholar and Fellow with the Rutgers School of Law – Newark Constitutional Litigation Clinic, and a Consultant to the Verified Voting Foundation. Prior to that, she served as Counsel to U.S. Representative Rush Holt, responsible for election reform and other policy matters, and in particular, for legislation that would require all voting systems to use voter-marked paper ballots and require all jurisdictions to conduct routine random audits of electronic vote tallies. Prior to her work in Congress, she was in private practice as a corporate transactional attorney in the New York office of a major international law firm. Ms. Mulder is a graduate of Georgetown University Law Center.
Susannah Goodman directs Common Cause’s national Voting Integrity Campaign. She works with national staff and Common Cause state offices to press for reforms that repair and strengthen our voting system at both the state and federal level. She has testified before Congressional committees, appeared on national news elevision programs, and has coauthored a number of reports on elections and voting including Malfunction and Malfeasance: A Report on the Electronic Voting Machine Debacle, Voting at Risk 2008, Is America Ready to Vote? State Preparations for Voting Machine Problems in 2008, and Voting in 2010: Ten Swing States. Ms. Goodman joined Common Cause in 2004 after more than 15 years of advocacy and organizing experience. She is a graduate of Wesleyan University.
This report would not have been possible without the contributions of many dedicated partners and researchers and other supporters. The authors would like first to thank Larry Norden and the Brennan Center for Justice at New York University Law School, for their contributions to the 2008 version of this report, Is America Ready to Vote: State Preparations for Voting Machine Problems in 2008, which they coauthored. In particular, the authors commend Mr. Norden and the Brennan Center for their thorough research, detailed analysis and development of the Ballot Accounting and Reconciliation section of the report (set forth in Section V of this report). The 2008 report was the foundation for the 2012 update of the report, and provided the authors with an indepth and comprehensive starting point for this report.
In addition, this report would not have been possible without the partnership of the Rutgers Law School Newark Constitutional Litigation Clinic, which contributed both facilities and students to assist in the statutory and regulatory research necessary to update the report to reflect the law as it exists today and changes that occurred between 2008 and 2012. The authors would like to thank in particular Penny Venetis, Clinical Professor of Law and CoDirector of the Constitutional Litigation Clinic, Frank Askin, Distinguished Professor of Law, Robert E. Knowlton Scholar, and Director of the Constitutional Litigation Clinic, and the Clinic staff for their support and assistance. The authors would also like to thank the Clinic’s law students who conducted a 50 state survey of statutes and regulations governing voting procedures, Michael Bittoni, Kevin Fitzpatrick, Mark Heinzelmann, Lee Lowenthal, and Jordana Mondrow, for their tireless and meticulous efforts. In addition, the authors would like to thank Clinic students Alexandra Hayes, Anastasia Milazzo and Valerie Werse for their research into recent incidences of voting machine failures in the 50 states, which illustrate how the election preparedness issues discussed in the report impact actual elections. We also thank other volunteers including Barbara Simons, Susan Greenhalgh and others for their assistance in reviewing the report.
This report also would not have been complete without review and input from election officials from across the country, whom the authors thank very much for their time and their thorough and considered commentary on the report. That commentary was obtained over the course of several months through the equally tireless and diligent efforts of Verified Voting staffers Neal Lewis and Anne Grasser, and Common Cause staffer John Amman, whom the authors also thank very much.
The authors would like to thank the following individuals for their invaluable assistance in conducting a final confirmation of the voluminous endnotes in the report as it was being finalized for publication, and the organizations that donated their services: Paralegals Larry Gallwas, Lisa Magee and Marlon Munoz of Fenwick & West, LLP; Interns Whitney Merrill and Max Mishkin of the Electronic Frontier Foundation, and law student Peter Klym, an Intern with Common Cause.
The authors gratefully acknowledge the support of the Threshold Foundation of our work on securing elections. The authors gratefully acknowledge the generous financial support of the John Merck Fund, without which this report would not have been possible.
Finally, the authors gratefully acknowledge the support of the John D. and Catherine T. MacArthur Foundation. The MacArthur Foundation supports creative people and effective institutions committed to building a more just, verdant and peaceful world. In addition to selecting the MacArthur Fellows, the Foundation works to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society. More information is at www.macfound.org.
- Our Vote Live Election Incidents, Voting Equipment Problems, 2010 General Election (last visited June 28, 2012). ↩
- Cameron W. Barr, Md. Election Problems Fuel Push for Paper Records. ↩
- See, e.g., Brian C. Mooney, Voting Errors Tallied Nationwide, Boston Globe, Dec. 1, 2004; Mary Pat Flaherty, Ohio Voting Machines Contained Programming Error That Dropped Votes, Washington Post, Aug. 23, 2008. ↩
- See, e.g., Nedra Linsey, McComish’s District 20 2nd-place Finish Confirmed, Arizona Republic, Sept. 24, 2004. ↩
- See, e.g.,More than 4,500 North Carolina Votes Lost Because of Mistake in Voting Machine Capacity, USA Today, Nov. 4, 2004. ↩
- milie Rusch, Scanner Glitch Blamed for Election Miscounts, Rapid City Journal, June 3, 2009. ↩
- Domenico Montanaro, SC Voting Problems, First Read, Jan. 19, 2008. ↩
- Wheaton, Sarah, Voting Test Falls Victim to Hackers New York Times, October 10, 2010. ↩