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The 2010 Election: A Look Back At What Went Right and Wrong

Lawrence Norden submits testimony for the Committee on House Administration’s hearing “The 2010 Election: A Look at What Went Right and Wrong.” Mr. Norden’s testimony focused on the need to modernize our voter registration system and improve our ability to track voting machine failures.

Published: March 31, 2011

Down­load testi­mony [pdf]

United States House of Repres­ent­at­ives
Commit­tee on House Admin­is­tra­tion

State­ment of

Lawrence D. Norden

Deputy Director, Demo­cracy Program

Bren­nan Center for Justice at NYU School of Law

March 31, 2011
 

 “The 2010 Elec­tion: A Look Back At What Went Right and Wrong”

The Bren­nan Center for Justice thanks the Commit­tee on House Admin­is­tra­tion for hold­ing this hear­ing. We appre­ci­ate the oppor­tun­ity to share with you the results of our extens­ive stud­ies of the nation’s elec­tion infra­struc­ture, and to provide an over­view of the 2010 Elec­tions.

The Bren­nan Center for Justice is a nonpar­tisan public policy and law insti­tute that focuses on issues of demo­cracy and justice. We work to ensure accur­ate and fair voting and voter regis­tra­tion, and to promote policies that maxim­ize parti­cip­a­tion of eligible citizens in elec­tions. We have done extens­ive work on the subjects of voter regis­tra­tion, the main­ten­ance of voter regis­tra­tion lists, and ensur­ing the access­ib­il­ity, secur­ity and accur­acy of voting systems. This work has included conduct­ing stud­ies, publish­ing reports, provid­ing assist­ance to federal and state admin­is­trat­ive and legis­lat­ive bodies with respons­ib­il­ity over elec­tions, and, when neces­sary, litig­at­ing to compel states to comply with their oblig­a­tions under federal law and the Consti­tu­tion.

WHAT WENT RIGHT AND WRONG IN THE 2010 ELEC­TIONS

The way we conduct national elec­tions in this coun­try has changed radic­ally in the last few years: new statewide regis­tra­tion data­bases and voting machines, early voting and expan­sion of vote by mail programs repres­ent some of the biggest changes in elec­tion admin­is­tra­tion in decades. The Bren­nan Center and other invited guests have been asked by this commit­tee “what went right and wrong” in 2010?  Given the pace of change in the last few years, the answer to this ques­tion must be that a lot went remark­ably well. This is partic­u­larly true if one considers how drastic­ally state and local elec­tion admin­is­tra­tion budgets have been cut across the nation. It is because of the hard work and dedic­a­tion of state and local elec­tion offi­cials and their staffs that the vast major­ity of Amer­ic­ans who chose to vote in 2010[1] were able to do so, and regard­less of the method by which they voted, were confid­ent that their votes were accur­ately coun­ted.[2]

Unfor­tu­nately, in some import­ant ways, our national elec­tion infra­struc­ture has not kept pace with modern soci­ety. And that fail­ure to adapt has been the cause of some of the greatest Elec­tion Day prob­lems. In partic­u­lar, the 2010 elec­tions showed the continu­ing and crit­ical need for (1) modern­iz­a­tion of our coun­try’s voter regis­tra­tion system, includ­ing the adop­tion of auto­mated and online regis­tra­tion systems for consent­ing eligible citizens, and (2) the creation of a national data­base, access­ible by elec­tion offi­cials and others, that iden­ti­fies voting system malfunc­tions that are repor­ted by voting system vendors or elec­tion offi­cials.

While we have made import­ant progress in both of these areas in the last two years, much remains to be done.

A.        Modern­iz­ing the Nation’s Anti­quated Regis­tra­tion System

The 2010 elec­tion demon­strated, yet again, that our voter regis­tra­tion system urgently needs an upgrade. Developed in the early 19th century and still based largely on paper, the current system in most of the coun­try is costly, inef­fi­cient and unre­li­able. The system over­whelms elec­tion offi­cials with burden­some and need­less paper­work, and prevents many Amer­ican citizens from exer­cising their right to vote. This outdated system is the single greatest cause of elec­tion prob­lems for voters and elec­tion offi­cials alike.

The good news is that, as a result of the Help Amer­ica Vote Act of 2002, every state now has (or soon will have) a statewide voter regis­tra­tion data­base that can be lever­aged to modern­ize our anti­quated regis­tra­tion system. Build­ing on these lists, several states have been work­ing to auto­mate the regis­tra­tion process, and provide adequate safe­guards to correct errors or omis­sions on the voter rolls through online tools. Ulti­mately, these improve­ments will save state and local govern­ments signi­fic­ant money, ease burdens on elec­tion offi­cials, make our voting system less suscept­ible to fraud, and greatly increase the abil­ity of eligible citizens to register and vote.

1. Voter Regis­tra­tion Prob­lems in 2010

At least three data points from the 2010 elec­tion point to the continu­ing need to modern­ize the coun­try’s voter regis­tra­tion system:

Elec­tion Protec­tion Data Reveals Voter Regis­tra­tion Still a Major Prob­lem

The 2010 Elec­tion revealed that voters still face many of the prob­lems they have exper­i­enced in previ­ous years. In 2008, the biggest obstacle to the ballot box was prob­lems with the voter regis­tra­tion system. Voter regis­tra­tion was the number one most repor­ted prob­lem to Elec­tion Protec­tion, the nation’s largest non-partisan voter protec­tion effort.[3]  In 2010, Elec­tion Protec­tion received over 21,000 calls to its voter hotline, of which regis­tra­tion prob­lems were 24% of the call volume, making it the second most repor­ted prob­lem.[4]  It is signi­fic­ant that in a midterm elec­tion with signi­fic­antly lower turnout and fewer regis­trants than in 2008, issues with our nation’s outdated regis­tra­tion system would persist at such a high rate.

Elec­tion Offi­cials Report Persist­ing Issues with Outdated Regis­tra­tion System

Elec­tion offi­cials, too, voiced commonly heard frus­tra­tions. In the coming months, the Bren­nan Center will release an analysis of post-Elec­tion reports from elec­tion offi­cials from across the United States. Our prelim­in­ary research reveals that offi­cials exper­i­enced the same yearly head­aches with the current paper-based voter regis­tra­tion system, from inac­cur­ate regis­tra­tions to a last minute flood of regis­tra­tion forms.

Voter Regis­tra­tion Rates Were Lower in 2010

The 2010 elec­tion also saw dramat­ic­ally lower voter regis­tra­tion rates as compared to the last midterm elec­tion. Almost every juris­dic­tion with avail­able data showed dramatic drops in new voter regis­tra­tions.[5]   

2. The Solu­tion: Voter Regis­tra­tion Modern­iz­a­tion

The current, paper-based voter regis­tra­tion system creates a range of prob­lems for elec­tion offi­cials and voters alike. Each elec­tion year, millions of Amer­ic­ans must submit new or updated voter regis­tra­tion forms, gener­at­ing a moun­tain of paper­work that must be processed by an army of elec­tion clerks. A substan­tial portion of voters submit their paper­work at the last minute before an elec­tion, and so elec­tion offices are typic­ally inund­ated with paper to process at the elev­enth hour of the elec­tion cycle — the very time their atten­tion should be focused on ensur­ing that Elec­tion Day oper­a­tions run smoothly. Such a labor-intens­ive system in such a compressed time frame is costly and inef­fi­cient. It also multi­plies the possib­il­it­ies for error. Inac­curacies on the voter rolls result from diffi­culties deci­pher­ing voter hand­writ­ing, typo­graph­ical and data entry errors, voters’ fail­ure to update their regis­tra­tion inform­a­tion, lost or incom­plete regis­tra­tions, and inab­il­ity to process regis­tra­tions on time, among other things. Inac­cur­ate voter rolls create a range of elec­tion admin­is­tra­tion and voter list main­ten­ance head­aches, includ­ing increased numbers of provi­sional ballots to process and confu­sion at the polls.

Fortu­nately, modern­iz­ing the voter regis­tra­tion system offers incred­ible oppor­tun­it­ies to make voting regis­tra­tion easier, faster, and more reli­able for voters, all while saving time, money, and resources for elec­tion offi­cials and making the voting system more secure. The Bren­nan Center applauds Repres­ent­at­ive Zoe Lofgren’s efforts to modern­ize the voter regis­tra­tion system through the Inter­net with H.R. 1719, intro­duced in the last Congress, and hope the Commit­tee will consider oppor­tun­it­ies to build upon her online regis­tra­tion bill.

Experts, elec­tion offi­cials, and poli­cy­makers across the coun­try are recog­niz­ing the need to modern­ize our outdated, paper-based voter regis­tra­tion systems. Those systems are overly costly, inef­fi­cient, error-prone, and can unne­ces­sar­ily exclude eligible voters at the polls. Fortu­nately, new tech­no­lo­gies point the way to an improved Twenty-First Century voter regis­tra­tion system. As more and more states are discov­er­ing, a modern voter regis­tra­tion system boosts regis­tra­tion rates, increases the accur­acy of the voter rolls, and reduces the oppor­tun­ity for fraud, while saving millions of dollars a year.

The key compon­ents of a fully modern­ized voter regis­tra­tion system are:

  • Auto­mated Regis­tra­tion.  Under an auto­mated regis­tra­tion system, states auto­mat­ic­ally register eligible, consent­ing citizens, includ­ing newly eligible citizens, when they inter­act with other govern­ment agen­cies. Elec­tion offi­cials retain their tradi­tional author­ity to determ­ine voter eligib­il­ity.
  • Perman­ent or Port­able Regis­tra­tion.  Under perman­ent regis­tra­tion, once a voter is on a state’s voter rolls, she will remain registered and able to vote at the polling place asso­ci­ated with her address so long as she contin­ues to reside in that state. Perman­ent regis­tra­tion can be accom­plished by auto­matic regis­tra­tion record updates and proced­ures allow­ing voters to update their records before and on
    Elec­tion Day.
  • Elec­tion Day Correc­tion.  Under an Elec­tion Day correc­tion process, citizens can correct errors and omis­sions on the voter rolls before and on Elec­tion Day.
     
  • Online Regis­tra­tion.  Online regis­tra­tion provides another crit­ical safe­guard to ensure accur­ate voter rolls.

This reform leads to many bene­fits. A Bren­nan Center report, Voter Regis­tra­tion in a Digital Age, provides detailed inform­a­tion about the steps states across the coun­try have taken toward a more modern voter regis­tra­tion system. [6]  The report finds three main bene­fits of modern­iz­a­tion:

  • Increased Regis­tra­tion Rates. Regis­tra­tion rates at DMVs doubled in Wash­ing­ton and Kansas, increased even more in Rhode Island, and increased seven-fold in South Dakota after the states auto­mated the voter regis­tra­tion system at DMVs. After Arizona intro­duced online and auto­mated regis­tra­tion, regis­tra­tion rates for 18–24 year-old citizens rose from 28 to 53 percent.
  • More Accur­ate and Secure Rolls.  A 2009 survey of incom­plete and incor­rect regis­tra­tions in Mari­copa County, Arizona found that elec­tronic voter regis­tra­tions are as much as five times less error-prone than their paper-based coun­ter­parts.
  • Substan­tial Savings for States.  Upgrades to the voter regis­tra­tion system are surpris­ingly inex­pens­ive to imple­ment, ranging from no addi­tional cost to several hundred thou­sand dollars. This is imme­di­ately offset by enorm­ous savings.It cost Arizona less than $130,000 and Wash­ing­ton just $279,000 to imple­ment both online voter regis­tra­tion and auto­mated voter regis­tra­tion at DMVs. Online and auto­mated DMV regis­tra­tions saved Mari­copa County, Arizona over $450,000 in 2008. The county spends 33¢ to manu­ally process an elec­tronic applic­a­tion, and an aver­age of 3¢ using a partially auto­mated review process, compared to 83¢ for a paper regis­tra­tion form. Delaware’s paper­less voter regis­tra­tion at DMVs saves elec­tion offi­cials more than $200,000 annu­ally on person­nel costs, above the savings they reaped by partially auto­mat­ing the process in the mid-1990s. Offi­cials anti­cip­ate further savings. Wash­ing­ton saved over $120,000 in 2008 in Secret­ary of State’s office alone, and far more in each of its counties.

3. Progress In The States

States that have modern­ized their regis­tra­tion systems have saved hundreds of thou­sands of dollars on elec­tion admin­is­tra­tion, with savings likely to run into the millions after just a few years of imple­ment­a­tion. Because of this, there is incred­ible momentum in the states towards modern­iz­a­tion:[7]

  • Auto­mated Regis­tra­tion.  At least seven­teen states—A­ri­zona, Arkan­sas, Cali­for­nia, Delaware, Flor­ida, Geor­gia, Kansas, Kentucky, Michigan, New Jersey, North Caro­lina, Pennsylvania, Rhode Island, South Caro­lina, South Dakota, Texas and Wash­ing­ton—have fully or substan­tially auto­mated the voter regis­tra­tion process at DMVs.
  • Perman­ent or Port­able Regis­tra­tion.  Eight states—­Col­or­ado, Delaware, Flor­ida, Mary­land, Ohio, Oregon, South Dakota, and Wash­ing­ton—have systems of perman­ent regis­tra­tion that allow registered voters who move to cast valid ballots even if they do not update their regis­tra­tions before Elec­tion Day. 
  • Elec­tion Day Correc­tion.  Eights states—Idaho, Iowa, Maine, Minnesota, Montana, New Hamp­shire, Wiscon­sin, and Wyom­ing—of­fer Elec­tion Day regis­tra­tion, allow­ing eligible citizens to register or update their records on Elec­tion Day.  A number of other states offer same day regis­tra­tion in some circum­stances or allow voters to correct regis­tra­tion errors on Elec­tion Day.
  • Online Regis­tra­tion.  Eleven states—A­ri­zona, Cali­for­nia, Color­ado, Delaware, Indi­ana, Kansas, Louisi­ana, Nevada, Oregon, Utah, and Wash­ing­ton—­cur­rently or will soon offer online voter regis­tra­tion. North Caro­lina is consid­er­ing imple­ment­ing online regis­tra­tion.

Current voter regis­tra­tion modern­iz­a­tion bills are pending in Nevada and Massachu­setts,[8] and Mary­land has recently stated it will auto­mate at motor vehicle agen­cies.[9]  Beyond auto­ma­tion at motor vehicle agen­cies, Delaware is set to auto­mate at public service agen­cies. Geor­gia, too, has taken steps to do the same. We believe this Commit­tee should take notice of these successes in the states and work to bring the bene­fits of modern­iz­a­tion across the coun­try.

B. Creat­ing A National Data­base To Reduce Voting System Malfunc­tions

Much of the news relat­ing to the use of voting tech­no­logy in the United States is surpris­ingly posit­ive: nearly 10 years after Congress passed the Help Amer­ica Vote Act,[10] states and counties have success­fully replaced outdated and often unre­li­able systems that have dramat­ic­ally reduced the kinds of errors we saw in earlier elec­tions,[11] and many disabled voters have been able to vote privately and inde­pend­ently for the first time in their lives. Moreover, as elec­tion offi­cials, poll work­ers and voters have become famil­iar with these systems, we are avoid­ing many of the prob­lems that came with the initial trans­ition to new tech­no­logy: local­it­ies have developed better logic and accur­acy test­ing regimes, so that they have been able to catch system prob­lems before Elec­tion Day;[12] more states require redund­an­cies like inde­pend­ent voter veri­fied paper records,[13] which has made it easier for them to insti­tute post-elec­tion audit[14] and recon­cili­ation regimes,  and to catch fail­ures that might other­wise have resul­ted in lost votes,[15] and;  as elec­tion offi­cials have become more comfort­able with their new systems, they have had more time to focus on crit­ical issues like system usab­il­ity, util­iz­ing the EAC’s guidelines for ballot design,[16] and work­ing with organ­iz­a­tions like the Bren­nan Center, Design for Demo­cracy, and the Usab­il­ity Profes­sion­als Asso­ci­ation to create ballots that are as user-friendly as possible, within the constraints of state law and the limit­a­tions imposed by current voting tech­no­logy.[17]

Still, as in past elec­tions, the 2010 elec­tion saw some seri­ous voting system related prob­lems.[18]   That should not be surpris­ing. The voting systems used in the United States today are complic­ated machines; each runs on tens of thou­sands of lines of soft­ware code. As with auto­mo­biles and airplanes, auto­matic garage door open­ers and lawn­mowers, occa­sional malfunc­tions are inev­it­able – even after rigor­ous product test­ing.

When it comes to system fail­ures, however, voting machines are differ­ent from auto­mo­biles and airplanes, and other products, in at least one import­ant respect: for the vast major­ity of voting systems in use today, (1) manu­fac­tur­ers are not required to report malfunc­tions to any govern­ment agency, and (2)  there is no agency that either invest­ig­ates such alleged fail­ures or alerts elec­tion offi­cials and the general public to possible prob­lems (let alone requires voting system manu­fac­tur­ers to fix such prob­lems).

1. Recur­ring Voting System Prob­lems

           

The fail­ure to require manu­fac­turer report­ing of prob­lems, or to require inde­pend­ent invest­ig­a­tion and noti­fic­a­tion of such fail­ures has had unsur­pris­ing consequences. As docu­mented in the Bren­nan Center in Voting System Fail­ures: A Data­base Solu­tion, a study issued in Septem­ber 2010, too often in the past this has meant that voting systems fail in a partic­u­lar county in one elec­tion, and then again later under similar circum­stances, in another locale and elec­tion.[19] These repeated fail­ures disen­fran­chise voters and damage public confid­ence in the elect­oral system.

Because there is no cent­ral data­base of voting system fail­ures, to conduct its study, the Bren­nan Center combed through hundreds of cases repor­ted in the media. News items about voting system troubles tend not to include many details; this makes it diffi­cult to identify from the reports the precise nature of the partic­u­lar prob­lem. Whatever the causes of a partic­u­lar prob­lem, it is fair to assume that their occur­rence in one juris­dic­tion will often even­tu­ally be repeated in another unless elec­tion offi­cials through­out the coun­try are made aware of both the causes of the prob­lem and how to avoid them.

Of the hundreds of reports of voting system malfunc­tions and vulner­ab­il­it­ies, the Bren­nan Center closely stud­ied four­teen. Most of the elec­tion offi­cials we inter­viewed in connec­tion with these case stud­ies claimed to have had no prior warn­ing of the prob­lems even­tu­ally iden­ti­fied. By contrast, in most cases, the vendors were (or should have been) aware of the prob­lems – often because the same prob­lem had been repor­ted to them earlier by another elec­tion offi­cial.

Three funda­mental find­ings result from the Bren­nan Center’s study of past repor­ted prob­lems, review of current law and contracts for the use and regu­la­tion of voting systems, and inter­views with elec­tion offi­cials:

There is no cent­ral loca­tion where most elec­tion offi­cials can find compre­hens­ive inform­a­tion about prob­lems discovered with their systems before each elec­tion.

State and local elec­tion offi­cials we inter­viewed tell us that they must rely almost exclus­ively on the voting system vendors for inform­a­tion about malfunc­tions, defects, vulner­ab­il­it­ies and other prob­lems that the vendors have discovered, or that have occurred with their voting systems in other states. These prob­lems are compoun­ded by the fact that a change in elec­tion admin­is­trat­ors can some­times mean a loss of know­ledge about all of the poten­tial prob­lems with a voting system as well as proced­ural safe­guards neces­sary to prevent those prob­lems.

Vendors are frequently under no legal oblig­a­tion to notify elec­tion offi­cials or the public about prob­lems with their systems.

While purchase or service contracts some­times bind elec­tion offi­cials to inform vendors of malfunc­tions, vendors are not always simil­arly oblig­ated to inform offi­cials of prob­lems repor­ted to them. At the same time voting system vendors are under no legal oblig­a­tion to notify any federal agency of prob­lems they discover with the vast major­ity of their systems in use in the United States today, despite the fact that hundreds of millions of federal dollars have been spent to purchase such equip­ment.

The same fail­ures occur with the same machines, in one juris­dic­tion or another, elec­tion after elec­tion.

Most of the elec­tion offi­cials we inter­viewed in connec­tion with our review of repor­ted prob­lems claimed to have had no prior warn­ing of the issues we discuss. By contrast, in most cases, the vendors were (or should have been) aware of the prob­lems – often because the same prob­lem had been repor­ted to them earlier by another elec­tion offi­cial. Frequently, these malfunc­tions – and their consequence, disen­fran­chise­ment – could have been avoided had elec­tion offi­cials and/or public advoc­ates known about earlier prob­lems and had an oppor­tun­ity to fix them.

2. Recent EAC Progress

Prior to the 2010 elec­tion, the Elec­tion Assist­ance Commis­sion (the “EAC”) took some import­ant steps toward address­ing these prob­lems, and making inform­a­tion about voting system issues more read­ily avail­able to elec­tion offi­cials and the general public. In partic­u­lar, the EAC adop­ted a number of import­ant report­ing require­ments for both voting system manu­fac­tur­ers and test­ing labs that parti­cip­ate in its newly estab­lished Voting System Test­ing and Certi­fic­a­tion Program.[20] Pursu­ant to the Qual­ity Monit­or­ing Program estab­lished in the Voting System Test­ing and Certi­fic­a­tion Program Manual (the “VSTCPM”) the EAC now posts on its website “test reports” for all systems tested for EAC certi­fic­a­tion, regard­less of whether or not they are ulti­mately certi­fied. These test reports include a list of “discrep­an­cies” iden­ti­fied during the test­ing.[21] It also posts inform­a­tion related to site audits that it conducts on manu­fac­tur­ers who parti­cip­ate in its program.[22]  All of this is poten­tially valu­able inform­a­tion for the public and elec­tion offi­cials as they consider purchas­ing new machines.

Under the VSTCPM, elec­tion offi­cials and the public get more data about certain voting system fail­ures in EAC certi­fied systems. Vendors must report to the EAC “malfunc­tions” of EAC certi­fied systems. The VSTCPM defines “malfunc­tion” as “a fail­ure of a voting system, not caused solely by oper­ator or admin­is­trat­ive error, which causes the system to cease oper­a­tion during a Federal elec­tion or other­wise results in data loss.”[23] The EAC posts this inform­a­tion on its website.

As a result of this new system, elec­tion offi­cials and the public learned of two import­ant voting system prob­lems ahead of the 2010 elec­tion.[24] The discov­ery and publi­city of these fail­ures provided elec­tion offi­cials with valu­able inform­a­tion and allowed them to ensure that their voters’ choices were accur­ately recor­ded on Elec­tion Day.

3. Limits of the EAC’S VSTCPM Report­ing Process

While the recent steps by the EAC are unques­tion­ably valu­able, there are a number of factors which limit the useful­ness of this report­ing system. They are discussed in greater detail in the Bren­nan Center report Voting System Fail­ures. The EAC is in the process of address­ing some of these limit­a­tions,[25] but others remain. Among them:

  • Because the VSTCPM report­ing rules only apply to EAC certi­fied systems, most machines in use today are not covered by these report­ing rules, or any federal report­ing require­ments for that matter.[26]
  • Report­ing under this system is limited to vendors and elec­tion offi­cials for a very specific type of prob­lem. For instance, it is not clear that manu­fac­tur­ers would have to report poten­tial flaws they discover before they result in actual loss of votes on Elec­tion Day, or “merely” because they cause delay and long lines rather than a loss of data.
  • Inde­pend­ent invest­ig­at­ors and voters with cred­ible reports, no matter how numer­ous or seri­ous, are not entitled to report prob­lems.
  • Some elec­tion offi­cials have complained that neither the EAC nor the vendors are required to notify elec­tion offi­cials imme­di­ately upon learn­ing of a malfunc­tion. Douglas A. Kell­ner, co-chair of the New York State Board of Elec­tions, in a letter to the EAC prais­ing them for issu­ing their first Voting System Tech­nical Advis­ory last June, noted that it came two months after the EAC was first noti­fied of the prob­lem and urged “the EAC to put in place a system that would allow an imme­di­ate prelim­in­ary notice to be distrib­uted to all juris­dic­tions using the equip­ment involved as soon as EAC staff has been able to verify a report.”[27]

For these and other reas­ons, most state and local elec­tion offi­cials we inter­viewed tell us that they must still rely almost exclus­ively on the voting system vendors for inform­a­tion about malfunc­tions, defects, vulner­ab­il­it­ies and other prob­lems that the vendors have discovered, or that have occurred with their voting systems in other states.[28] As Jane Plat­ten, Director of the Cuyahoga County Board of Elec­tions put it, “One of the more frus­trat­ing aspects of encoun­ter­ing prob­lems [with voting systems], often while prepar­ing and test­ing for elec­tions as well as on elec­tion day or during tabu­la­tion, is that the vendors them­selves often know about the prob­lems and never disclose any details what­so­ever prior to the moment of crisis.”[29]

Of course, vendors do frequently notify elec­tion offi­cials of prob­lems when they occur, and often provide soft­ware patches or other proced­ural safe­guards to ensure that such prob­lems do not occur in the future. Unfor­tu­nately, in at least some instances, vendors have appeared slow to acknow­ledge such prob­lems.[30]

More to the point, there is no cent­ral­ized loca­tion where elec­tion offi­cials can find inform­a­tion about anom­alies, malfunc­tions, usab­il­ity concerns,[31] and other prob­lems discovered with systems they are currently using before each elec­tion. A change in elec­tion admin­is­trat­ors can some­times mean a loss of know­ledge about all of the poten­tial prob­lems with a voting system as well as proced­ural safe­guards neces­sary to prevent those prob­lems.[32]

The result, as Voting System Fail­ures demon­strates, is that all too frequently the same fail­ures in the same voting systems occur in one juris­dic­tion or another, elec­tion after elec­tion. Often, these malfunc­tions – and their consequence, disen­fran­chise­ment – would have been avoided had elec­tion offi­cials and the public known about previ­ously encountered prob­lems and had an oppor­tun­ity to fix them.

4. The Solu­tion: A National Data­base of Voting System Prob­lems

Given the nature and import­ance of voting systems to our demo­cracy, we need a new national system to ensure that voting system defects are caught early, disclosed imme­di­ately, and correc­ted quickly and compre­hens­ively. We conclude that this new system must center around a mandat­ory national clear­ing­house, admin­istered by a federal agency empowered to invest­ig­ate viol­a­tions and enforce the law.

Based upon our inter­views with elec­tion offi­cials and regu­lat­ory experts, and our review of analog­ous regu­lat­ory struc­tures in other import­ant indus­tries, we conclude that the clear­ing­house must include four key elements to work effect­ively:

  1. A Publicly Avail­able, Search­able Cent­ral­ized Data­base. Elec­tion offi­cials, in partic­u­lar, would bene­fit from a publicly avail­able, search­able online data­base that includes offi­cial (i.e., elec­tion offi­cial-repor­ted or vendor-repor­ted) and unof­fi­cial (i.e., voter-repor­ted) data regard­ing voting system fail­ures, and vulner­ab­il­it­ies, and other repor­ted prob­lems and estab­lishes criteria for the data­base’s contents and organ­iz­a­tion.
  1. Vendor Report­ing Require­ments. Vendors must be required to notify the appro­pri­ate govern­ment agency of any known and suspec­ted voting system fail­ures and vulner­ab­il­it­ies, and other repor­ted prob­lems, includ­ing customer (i.e., elec­tion offi­cial) complaints, warranty claims, legal actions and/or actions taken by the vendor to satisfy a warranty or invest­ig­ate a repor­ted prob­lem.
  1. A Federal Agency with Invest­ig­at­ory Powers. The best way to ensure that vendors address poten­tial prob­lems in a timely manner is to empower the appro­pri­ate govern­ment agency to invest­ig­ate all voting system fail­ures and vulner­ab­il­it­ies listed on the data­base, grant the agency subpoena power to facil­it­ate its invest­ig­a­tions, and require vendors to, among other things, main­tain records that may help the agency determ­ine whether there are indeed voting system fail­ures or vulner­ab­il­it­ies, and whether the vendor has taken appro­pri­ate action to address the fail­ures or vulner­ab­il­it­ies.
  1. Enforce­ment Mech­an­isms. The appro­pri­ate govern­ment agency must have the power to levy civil penal­ties on vendors who fail to meet the report­ing require­ment or to remedy fail­ures or vulner­ab­il­it­ies with their voting systems.

CONCLU­SION

Elec­tion offi­cials and staffs should be applauded for their success­ful efforts in 2010. Under seri­ous budget constraints and vast changes, they over­saw another success­ful national elec­tion. The recom­mend­a­tions offered in this testi­mony – to modern­ize our anti­quated regis­tra­tion system and estab­lish a national data­base of voting machine prob­lems – would signi­fic­antly ease the burden we place on them, allow­ing them to focus on elec­tion manage­ment, and make it easier to ensure that all eligible voters are able to vote and have their votes accur­ately coun­ted.


[1] The estim­ated 2010 voter turnout among the voting eligible popu­la­tion was only 40.9%. Michael P. McDon­ald, United States Elec­tion Project, 2010 General Elec­tion Tunout Rates (2010), http://elec­tions.gmu.edu/Turnout_2010G.html.

[2] Voters Show Confid­ence in Tues­day’s Elec­tion Process, Rasmussen Reports,  Nov. 8, 2010, http://www.rasmussen­re­ports.com/public_content/polit­ics/general_polit­ics/novem­ber_2010/voters_show_confid­ence_in_tues­day_s_elec­tion_process.

[3] Elec­tion Protec­tion, Elec­tion Protec­tion 2008: Help­ing Voters Today, Modern­iz­ing the System for Tomor­row (2008), avail­able at http://www.866our­vote.org/tools/docu­ments/files/0077.pdf. Polling place prob­lems were the number one repor­ted prob­lem.

[4] Elec­tion Protec­tion, Elec­tion Protec­tion 2010 Report, (forth­com­ing 2011).

[5] Flor­ida: From Janu­ary through August 2006, 370,190 Flor­ida citizens registered to vote, compared to 267,933 in the same period in 2010, a 27.6% decline. Source: Flor­ida Divi­sion of Elec­tions, Voter Regis­tra­tion Stat­ist­ics, http://elec­tion.dos.state.fl.us/NVRA/reports.shtml (last visited Feb. 2011); Illinois: From Novem­ber 2004 through Novem­ber 2006, 823,988 Illinois citizens registered to vote, compared to 687,462 from Novem­ber 2008 through Novem­ber 2010, a 16.6% decline. Source: Email from Illinois State Board of Elec­tions Offi­cial (Jan. 24, 2011) (on file at the Bren­nan Center); Indi­ana: From Janu­ary through Octo­ber 19, 2006, 175,235 Indi­ana citizens registered to vote, compared to 113,893 for the same period in 2010, a 35% decline. Source: Email from Indi­ana Elec­tions Divi­sion Offi­cial (Oct. 19, 2010) (on file with Bren­nan Center); Louisi­ana: In 2006, 132,573 Louisi­ana citizens registered to vote, compared to only 126,310 in 2010, a 4.7% decrease. Source: Email from Office of Louisi­ana Secret­ary of State (Jan. 21, 2011) (on file at the Bren­nan Center); Mary­land: From Janu­ary through Septem­ber 2006, 155,114 Mary­land citizens registered to vote, compared to 121,814 in the same period this year, for a decline of 21.5%. Source: Mary­land State Board of Elec­tions, Voter Regis­tra­tion Stat­ist­ics, http://www.elec­tions.state.md.us/voter_regis­tra­tion/stat­ist­ics.html (last visited Feb. 2011); North Caro­lina: In 2006, 311,127 North Caro­lina citizens registered to vote, compared to 222,696 through the end of August this year, a 28.4% decline. Source: Email from North Caro­lina State Board of Elec­tions Offi­cial (Oct. 19, 2010) (on file with Bren­nan Center); Ohio: In 2006, 530,873 Ohio citizens registered to vote, compared to only 457,171 in 2010, a 13.9% decline. Source: Email from Office of Ohio Secret­ary of State Elec­tion (Jan. 20, 2011) (on file with the Bren­nan Center); Tennessee: From Janu­ary 2006 through June 2006, 111,417 Tennessee citizens registered, compared to 92,611 regis­trants during the same period in 2010, a 16.9% decline. Source: Tennessee Depart­ment of State Elec­tions Divi­sion, Elec­tion Stat­ist­ics, http://www.tn.gov/sos/elec­tion/data/index.htm (last visited Feb. 2011); Utah: In 2006, 70,466 Utah citizens registered to vote, compared to only 55,491 regis­tra­tions in 2010, a 21.3% decline. Source: Email from Office of Utah Lieu­ten­ant Governor (Jan. 25, 2011) (on file at the Bren­nan Center); Wiscon­sin: From Janu­ary through Octo­ber 19, 2006, 181,977 Wiscon­sin citizens registered to vote, compared to 103,258 during the same period for 2010, a 43.3% decline. Source: Tele­phone inter­view with Wiscon­sin Govern­ment Account­ab­il­ity Board Offi­cial (Oct. 18, 2010) (on file with Bren­nan Center); Clark County, Nevada showed a smal­ler drop than other juris­dic­tions, drop­ping from 89,401 regis­tra­tions from Janu­ary through Octo­ber 2006 to 86,863 for the same period in 2010, a 2.8% decline. Source: Email from Clark County, Nevada Elec­tion Offi­cial (Oct. 11, 2010) (on file with Bren­nan Center). The county might have exper­i­enced greater drops had the state not intro­duced online regis­tra­tion, known to boost regis­tra­tion rates, in Septem­ber 2010. Before that, in August 2010, the county’s regis­tra­tion figures were lagging more than 5% behind the 2006 figures.

[6] Chris­topher Ponoroff, Bren­nan Ctr. for Just., Voter Regis­tra­tion in a Digital Age (Wendy Weiser, ed.) (2010), avail­able at http://www.bren­nan­cen­ter.org/content/resource/voter_regis­tra­tion_in_a_digital_age/.

[7] Bren­nan Ctr. for Just. Voter Regis­tra­tion Modern­iz­a­tion in the States, http://www.bren­nan­cen­ter.org/content/pages/voter_regis­tra­tion_modern­iz­a­tion_states (last visited Mar. 28, 2011).

[8] Nevada AB 108, 76th Reg. Sess. (2011), avail­able at http://www.leg.state.nv.us/Session/76th2011/Reports/history.cfm?ID=246; Massachu­setts S 306, 187th Gen. Ct. (2011), avail­able at http://www.malegis­lature.gov/Bills/187/Senate/S00306.

[9] Annie Lins­key, “MVA to over­haul voter regis­tra­tion process,” The Baltimore Sun, Mar. 20, 2011, avail­able at http://articles.baltimore­sun.com/2011–03–20/news/bs-md-motor-voter-20110320_1_voter-regis­tra­tion-mva-office-voter-rolls.

[10] Pub. Law 107–252.

[11] See Michael Traugott, et. al., The Impact of Voting Systems on Resid­ual Votes, Incom­plete Ballots, and Other Mea­sures of Voting Beha­vior (confer­ence paper presen­ted at the Midw­est Polit­ical Science Asso­ci­ation, Chicago, IL, Apr. 7–10, 2005), Charles Stew­art III, Resid­ual Vote in the 2004 Elec­tion (Caltech/MIT Voting Tech­no­logy Project, VTP Work­ing Paper No. 2.3, 2005).

[12]  See Joan Mazzo­lini, 10 percent of Cuyahoga County’s voting machines fail pre-elec­tion tests, The Plain Dealer, Apr. 14, 2010, avail­able at http://blog.clev­e­land.com/metro/2010/04/some_cuyahoga_countys_voting_m.html.

[13] In 2004, only 10 states provided a voter-veri­fi­able paper record (VVPR) for every vote cast (Robert Kibrik, Voter-Veri­fied Paper Record Legis­la­tion, Veri­fied­Vot­ing.org, June 18, 2009, http://www.veri­fied­vot­ing.org/article.php?list=type&type=13); as of 2010, 40 states have moved towards requir­ing VVPR. However 7 states did not fully imple­ment their VVPR require­ments until some time after the 2010 elec­tion (Veri­fied­Vot­ing.org, Amer­ica’s Voting Systems in 2010, (2010) http://www.veri­fied­vot­ing­found­a­tion.org/down­loads/VV_Back­ground­erNov2010.pdf).

[14] Prior to 2005, only five states had enacted legis­la­tion with provi­sions requir­ing manual audit require­ments. As of 2010, 25 states and the District of Columbia have enacted legis­la­tion with provi­sions requir­ing manual audit require­ments (Veri­fied­Vot­ing.org, Manual Audit Require­ments (2010), http://www.veri­fied­vot­ing.org/down­loads/State%20Manual%20Audit%20Pro­vi­sions-05–24–10.pdf.).

[15] For examples of a lag in vendor acknow­ledge­ment of voting system prob­lems, see the case stud­ies in Lawrence Norden, Voting System Fail­ures: A Data­base Solu­tion, Bren­nan Ctr. for Just. (2010), from Butler County, Ohio (at 10 – 11) and Humboldt County, Cali­for­nia (at 12 – 13), avail­able at http://www.bren­nan­cen­ter.org/content/resource/voting_system_fail­ures_a_data­base_solu­tion/ [here­in­after Voting System Fail­ures].

[16] U.S. Elec­tion Assist­ance Commis­sion, Effect­ive Designs for the Admin­is­tra­tion of Federal Elec­tions (2007), http://www.eac.gov/assets/1/work­flow_staging/Page/68.PDF.

[17] These three organ­iz­a­tions have worked directly with elec­tion offi­cials to improve ballot design in Cali­for­nia, Flor­ida, Kansas, New Hamp­shire, Nevada, New York, Oregon, Texas, and Wash­ing­ton State, among other loca­tions.

[18] See Joan Mazzo­lini, 10 percent of Cuyahoga County’s voting machines fail pre-elec­tion tests, The Plain Dealer, Apr. 14, 2010, http://blog.clev­e­land.com/metro/2010/04/some_cuyahoga_countys_voting_m.html. (noting prob­lems with the voting systems in Cuyahoga County, Ohio); Elec­tion Protec­tion estim­ates that 11% of the calls to its voter hotline were for voting system prob­lems, Elec­tion Protec­tion, Elec­tion Protec­tion 2010 Report, (forth­com­ing 2011).

[19]  Voting System Fail­ures, supra note 15  at 1.

[20] U.S. Elec­tion Assist­ance Commis­sion, Test­ing and Certi­fic­a­tion Program Manual Version 1.0  (2007) [here­in­after VSTCPM].

[21] E-mail from Jean­nie Layson, Director of Commu­nic­a­tions and Congres­sional Affairs, U.S. Elec­tion Assist­ance Commis­sion, to Lawrence Norden, Senior Coun­sel, Bren­nan Center for Justice (May 14, 2010, 17:09 EST) (on file with the Bren­nan Center).

[22] Id.

[23] VSTCPM, supra note 20 at 2.3.2.7.

[24] See Voting System Fail­ures supra note 15 at 8–9 for a discus­sion of these prob­lems and the notices that were sent.

[25]See gener­ally U.S. Elec­tion Assist­ance Commis­sion, Test­ing and Certi­fic­a­tion Program Manual Version 2.0  (forth­com­ing 2011) (Draft for Public Comment, on file with the Bren­nan Center).

[26] U.S. Elec­tion Assist­ance Commis­sion, Certi­fied Voting Systems, http://www.eac.gov/test­ing_and_certi­fic­a­tion/certi­fied_voting_systems.aspx (last visited Mar. 28, 2011).

[27] VSTCPM, supra note 20 at 8.7.4.

[28] Compare County of San Diego Regis­trar of Voters Contract No. 46619 between County of San Diego and Diebold Elec­tion Systems, Inc. and Diebold Incor­por­ated at 20–21 (2003), avail­able at http://accur­ate-voting.org/contracts/CA/San_Diego/CA_sandiego_2003.pdf (demon­strat­ing a contrac­tual oblig­a­tion for the county to inform the ven­dor of defects in the voting system with no similar oblig­a­tion on the part of the vendor), with Contract No. 08455, Voting Equip­ment Agree­ment between Elec­tion Systems and Soft­ware, Inc. and Kansas Secret­ary of State at 7 (Nov. 16, 2005) (stat­ing that the contractor will notify the customer of any defects or prob­lems that arise.

[29] See Voting System Fail­ures supra note 15 at 9.

[30] For examples of a lag in vendor acknow­ledge­ment of voting system prob­lems, see the case stud­ies in., Voting System Fail­ures supra note 15, from Butler County, Ohio (at 10 – 11) and Humboldt County, Cali­for­nia (at 12 – 13).

[31] By usab­il­ity concerns we mean flaws in the machine’s program­ming, soft­ware or hard­ware that make poll worker or voter error signi­fic­antly more likely, and which lead to signi­fic­ant disen­fran­chise­ment.

[32] This appears to be precisely what occurred in Humboldt County, Cali­for­nia in 2008. This case is detailed Voting System Fail­ures supra note 15 at 12–13.