Recommendations to Secure our Election System

Draft-Updated January 12, 2018

IMPORTANT NOTE FOR 3/9/2018: MY UPDATED AND IMPROVED VERSION OF THIS DOCUMENT IS LINKED HERE: https://medium.com/@jennycohn1/handout-the-truth-about-our-computerized-election-systems-c4a17539de71

This handout highlights serious concerns with our existing electronic election systems — including Direct Record Electronic (“DRE,” usually touchscreen) devices, Ballot Marking Devices (“BMDs”), optical scanners, computer tabulators, and election management systems. It also outlines specific recommendations for both new and old systems going forward into 2018.

PROBLEMS WITH EXISTING ELECTION SYSTEMS

1. Hacking: All electronic election systems can be hacked through the internet, even if not directly connected to it. They are also subject to malicious initial programming, coding errors, and other malfunctions. (FN 1.)
2. Vendor ownership & control: States have used taxpayer money to buy systems from vendors owned or controlled by foreign nations, convicted felons, politicians, and the Religious Right. These vendors successfully claim their “proprietary” hardware and software preclude public oversight or examination of their taxpayer funded systems. (FN 2.)
3. VVPATS and Summary Cards: About 1/4 of the votes in the U.S. are cast on and counted by touchscreen voting machines with or without VVPATs. And some jurisdictions are considering buying touchscreen BMDs — a type of “electronic pencil” that generates a paper summary card— for all voters, even though they were designed for disabled voters. (FN 3.)

• While paperless touchscreens make election results 100% unverifiable, touchscreens with VVPATs are not much better. Studies show that voters rarely review VVPATs for accuracy and don’t notice computer vote flips, even when they undertake such review. (FN 4.) No human usability studies have been conducted on summary cards to see if they can be verified or audited successfully, but their highly abbreviated format bodes poorly.
• In addition, elections conducted with summary cards from touchscreen BMDs are not as secure or efficient as hand marked ballots (counted on optical scanners). Touchscreen BMDs have already had problems with vote flipping, inability to show all candidates on a single screen, and vendor non-compliance with certification requirements. (FN 5.)

4. Hand recounts are hard to get: We often hear that any problems with electronic vote tallies can be detected via hand recounts. But most states require a hand recount, if at all, only when the margin of victory is less than a small percent. (FN 6.) As we saw in 2016, when the specified margin is exceeded, courts rarely allow a meaningful hand recount through the courts. (FN 7.)

5. Post-election audits are insufficient or non-existent: Just 12 states have statutes requiring regular post-election audits. Of those, only a few conduct post-election audits considered by experts to be anywhere near sufficient to detect programming errors or intentional manipulation of results. (FN 8.)

6. Chain of custody: Even when post-election hand audits or recounts are conducted, public confidence in the process is undermined by chain-of-custody issues between Election Night and the audit or recount, when the public loses sight of the ballots and security protocols are such that ballot alteration and substitution cannot be ruled out. (FN 9.)

7. Ballot image destruction: Many newer optical scan systems capture digital ballot images, a vital auditing tool that can protect the chain-of-custody by showing whether paper ballots have been altered or substituted between Election Night and a post-election audit or recount. But many election officials destroy them by refusing to activate the “save” feature. (FN 10.)

8. Optical scanners with modems: Several popular optical scanners come equipped with modems. This is unacceptable. (FN 11.)

RECOMMENDATIONS FOR BOTH NEW AND OLD VOTING SYSTEMS:

1. Hand marked paper ballots: Every voter must be allowed to cast a hand marked paper ballot. Lawmakers must not use disabled voters as an excuse to force computer marked ballots from BMDs on all voters. Existing law requires only one disabled accessible system such as a BMD per polling place, not even per precinct.

• Beware the phrase “Voter Marked Ballots”: If you want hand marked ballots, you must be specific and not use the general phrase “Voter Marked Ballots,” which can encompass computer marked ballots from BMDs as well.

2. Manual audits: Statistically sound, meaningful public manual audits must be conducted after every election, with a full public manual recount if the audit indicates the possibility of a different winner than the electronic tally

3. Ballot image preservation & posting: Full preservation of all optically scanned, digitally captured ballot images on systems that allow such capture, must be mandated with images promptly and publicly posted.

4. Posting of precinct tallies: Where precinct counting is done, precinct level results must be posted outside each precinct for public viewing before transmission beyond the precincts.

5. Criminal background checks: A public written warranty must be mandated from all companies that sell, distribute, maintain, install, repair, and/or program electronic election equipment and software that no one affiliated with the company or with a parent company (as officer, director, owner, shareholder, employee, contractor, or consultant) has been convicted of a felony (or its equivalent if outside the United States).

6. Transparency re: vendor ownership: Public online disclosure must be mandated of the names of all officers, directors, owners, and shareholders of all companies (and of their parent companies) that sell, distribute, maintain, install, repair, and/or program electronic election equipment and software for the state.

7. Personal liability & citizen suits: A provision must be included for personal liability, substantial civil penalties, and private citizen lawsuits based on the loss, destruction, supplementation, or alteration of ballot images or paper ballots.

8. Hand counted election pilot programs: Comprehensive government-funded pilot programs should be implemented to determine the viability of conducting precinct-based publicly hand-counted elections in the U.S. Responding to security concerns, most western democracies have rejected voting machines in favor of publicly hand counted elections. (FN 12.) The U.S. should do the same if it proves viable here. Some New Hampshire precincts already do this and can provide guidance. Lawmakers may also want to look to Columbia, New York, where all competitive races are counted both on optical scanners and by hand (though from a central location rather than at the precincts, creating possible chain-of-custody issues).

9. Optical scanners with modems must be banned, including without limitation the ES&S200, ES&S100, and Sequoia/Dominion Optech Insight.

FN 1 https://medium.com/@jennycohn1/all-voting-machines-can-be-hacked-including-through-the-internet-8d054645e860 [ATTACHMENT: All voting machines can be hacked via the internet, even if not connected to it]

FN2 https://medium.com/@jennycohn1/updated-attachment-states-have-bought-voting-machines-from-vendors-controlled-and-funded-by-nation-6597e4dd3e70 [ATTACHMENT: States have bought voting machines from vendors controlled by nation states, convicted felons, and partisan politicians]

FN3–5 https://medium.com/@jennycohn1/ballot-marking-devices-add-a-second-layer-of-vulnerable-electronics-to-our-elections-5f6bcfe82adb [ATTACHMENT: Ballot Marking Devices add a second layer of unnecessary electronics to our elections. They must be limited to voters who are unable to hand mark their ballots.]

FN6-FN8 https://medium.com/@jennycohn1/it-is-difficult-to-get-a-hand-recount-in-the-u-s-even-when-voting-machines-use-paper-ballots-3a9b65feea60 [ATTACHMENT: It is difficult to get a hand recount in the U.S., even when voting machines use paper ballots]

FN9–10 https://medium.com/@jennycohn1/the-secure-elections-act-must-be-amended-to-require-preservation-publication-of-digital-ballot-6a4170f5d2d1 [ATTACHMENT: The Secure Elections Act Must be Amended to Require Preservation of Digital Ballot Images, which can Detect Alteration of the Paper Ballots]

FN11 https://www.verifiedvoting.org/resources/voting-equipment/sequoia/optech-insight/ [ES&S100 and Sequoia/Dominion Optech Insight come equipped with optional modems]; https://whowhatwhy.org/ [ES&S200 comes equipped with a modem]

FN12 https://medium.com/@jennycohn1/breaking-news-most-western-democracies-flee-voting-machines-america-clings-to-them-while-refusing-569e5036695f [ATTACHMENT: Most western democracies flee voting machines]

Background: Jennifer Cohn is an attorney and election integrity advocate in the San Francisco Bay Area who graduated from UCLA and Hastings College of the Law. As an attorney, her areas of practice included insurance coverage and appellate law. She practiced law for more than twenty years, including about seven years as a partner with Nielsen Haley & Abbott, LLP. Since 2016, she has devoted her professional efforts full time toward investigating our insecure election system and approaches to improving it. She can be contacted through her Twitter account, @jennycohn1.