December 3, 2020

Archives for September 2020

Election Security and Transparency in 2020

Earlier this month I gave a public lecture at the invitation of the Center for Information Technology Policy and the League of Women Voters. The League had asked, “What can we as voters do to protect our elections and our representative government?”

The video is available here. A longer video, that includes introductions, Q&A moderated by the LWV, and some remarks by the Union County (NJ) Administrator of Elections, is available here.

First, I talk about how the principles of security, transparency, the secret ballot, and trustworthiness were built into American election procedures more than 100 years ago; how computerized voting machines affect these principles; and how the best solution is optical-scan paper ballots, counted by computers but recountable by hand, and with risk-limiting audits.

Next, starting at 12:50 (or 15:36 in the longer video), I talk about Ballot-Marking Devices, and their particular insecurity compared to hand-marked optical-scan ballots.

Starting at 20:18 (or 35:46 in the longer video), I talk about voting during the pandemic, which particularly means Vote By Mail in many states. How do election officials make the processing of absentee ballots secure and transparent, so that we (the public) can trust that it’s secure? I explain how vote-by-mail works (especially in NJ), and how we, the public, should vote in the year 2020. And I’ll explain why in some states we should really vote in person.

Vote-by-mail meltdowns in 2020?

If your state is voting by mail, then you can’t process all the ballot envelopes on November 3rd — it’s just too labor-intensive.

The details vary by state, as every state has different laws, but (basically) for each mail-in ballot received by the county election clerk, they must:

  • Sort the envelopes by “ballot style” (municipality or district) [CA and some other states don’t need to sort]
  • Look up the voter’s information (written on the envelope) in the voter-registration database (to find the signature for comparison, and to record in the database that the voter has voted, so therefore can’t vote twice)
  • Compare the signature and accept or reject the envelope
  • Remove identifying information from the envelope (to ensure the votes cannot be connected to the voter when the envelope is opened); in NJ it’s on a tear-off perforated tab
  • Open the envelope; check that the ballot type is right for the municipality or district
  • If the ballot is deemed unscannable, remake (copy by hand) the ballot
  • Flatten the ballot and put it in the batch for high-speed scanning+counting
  • Run the batch through the optical scanner

States that (usually) vote in-person, with just a few absentee ballots per county, can do all this processing on election day.

States that vote mostly by mail need to do all the labor-intensive parts (that is, all but running through the scanner) well in advance of election day — it is many days of work. Running through the scanner can perhaps be saved for election day (or the days immediately before), because the scanners can process 75 or 300 ballots per minute.

So therefore, vote-by-mail (or mostly-vote-by-mail) states such as OR, UT, CO, HI, WA have developed (over the years) procedures to process vote-by-mail envelopes in a timely way, as the ballots arrive in the weeks before the election. Some states that are mailing ballots to all voters just for the COVID-19 pandemic this year include NJ, CA, NV — and these states have adjusted their laws to allow processing the envelopes in the weeks before November 3rd. That makes sense.

Some states are sticking with in-person voting, but they allow processing of absentee ballots in a timely way (before November 2nd). That should be OK. Indeed, it is OK, as well as AK, AR, AZ, FL, GA, ID, IN, KS, ME, MN, MO, NC, NH, TN, TX, VT.

Some states are encouraging vote-by-mail — that is, they are mailing absentee-ballot request forms to every voter, while also planning for in-person voting. The states that are doing this (with timely processing of absentee ballot envelopes before November 2nd) are CT, DE, IA, IL, MD, MA, NE, OH, RI.

Signature cure: There’s another advantage to processing ballot-envelopes early. In many (but not all) of these states, if a voter’s signature does not match (or is missing), there’s time to contact the voter and let the voter fix the problem so the vote can count. If you process the signatures only on November 2nd or 3rd, that’s not possible.

Potential election meltdown states

Several states are sticking with in-person voting this year, and (as usual) planning to process all their absentee ballots on November 3rd or November 2nd. That will be OK, unless they experience a much greater rate of absentee ballots than usual. If a state is accustomed to 5% of the voters requesting (and returning) absentee ballots, and they get 40%, then it may take them several days after November 3rd to finish counting the votes. These states include AL, KY, LA, MS, NY, ND, PA, SC, SD, WV, WY.

Experts are particularly concerned about PA based on experience in the primary; and because of the late adoption of procedural changes, delayed by lawsuits that have only just been resolved.

Voters in these states should strongly consider taking this advice: vote in person.

Probable election meltdown states

What would be really dysfunctional would be to encourage vote-by-mail, but then to wait until November 3 (or November 2) to start processing those envelopes. That’s a recipe for election meltdown. The states that are heading for this disaster are MI, VT, WI. Iowa, Michigan, and Wisconsin are mailing absentee-ballot-request forms to every voter; but waiting until the last minute to process them after they’re returned. Vermont is even worse: the state is mailing a ballot to every voter, but won’t start processing the returned envelopes until November 2nd.

The Michigan State Senate recently approved a bill to start processing on November 2nd instead of November 3rd. If passed into law, that’s better than nothing — it will certainly help — but it may turn out to be inadequate.

Voters in these states should strongly consider taking this advice: vote in person.

Late ballot arrival states

Some states will count ballots postmarked by November 3rd, as long as they arrive by November 5th, or November 10th, etc. (depending on the state). (And the post office doesn’t “postmark” prepaid “business reply mail”, but can provide other evidence of when it was mailed, so states should be careful about how they use the word “postmark.”)

AK, CA, DC, IL, IA, KS, MD, MN, MS, NV, NJ, NY, NC, ND, OH, PA, TX, VA, WA, WV.

In these states, final election results cannot be known until several days after the election. If the late-arriving ballots are more for one candidate than another, this will cause an apparent shift in election results. That’s a meltdown of a different kind.

No-late-ballot-arrival states

Several states do not accept ballots that arrive after election day, even if postmarked before the deadline. If the postal service is unusually slow this year, then these states may disenfranchise many voters: AL, AZ, AK, CO, CT, DE, FL, GA, HI, ID, IN, KY, LA, ME, MA, MI, MN, MO, MT, NE, NH, NM, OK, OR, PA, RI, SC, SD, TN, VT, WI, WY.

I’m not saying which is the right or wrong answer: accept ballots past November 3rd (if postmarked by the state-set deadline) and suffer from delays in reporting results; or stop accept ballots November 3rd and disenfranchise voters. Pick your poison. A compromise in the middle is to accept absentee ballots dropped off in drop boxes, vote centers, and polling places, as several (but not all) states do.

Polling-place meltdown states

So far, I’ve just been talking about the processing of absentee ballots. But some states and cities, in the past, have experienced hours-long lines at polling places, because of (1) underprovisioning of touch-screen voting machines, or (2) voting machines (or e-pollbooks) failing to turn on in the morning, or both at once.

Famous examples include Cleveland in 2004, and Atlanta in 2020 (primary election). Not coincidentally, both of these cities used touch-screen voting machines–because those are expensive (and slow to vote on), this can lead to underprovisioning of machines compared to how many voters there are.

In contrast, states that use hand-marked paper ballots can (usually) provide enough pens and enough cardboard privacy screens for many voters. The challenge, this year, will be to do this while also social distancing.

Let’s hope that the in-person voting states, this year, can avoid meltdowns (long lines, or COVID transmission) at their polling places.

The data from this article came, in part, from the National Conference of State Legislatures (and this NCSL page too).

[edited 9/22/20: MN is a late-ballot-arrival state]

Election Audits in NJ 2020

It has been well understood for more than 15 years that computerized voting machines can be hacked to make them cheat (or might be misconfigured by accident), and therefore it is essential to have random audits of the ballots. That is: Human inspection of paper ballots that the voters marked, of a random sample of the ballots or ballot-boxes (batches); so that if the computers had been hacked (or misconfigured) to produce the wrong outcome, there is a good chance (statistically speaking) of catching and correcting the error.

New Jersey’s Legislature passed such an audit law in 2007, shortly after they passed a law requiring paper ballots. The paper ballot law was “suspended” in 2008–most counties still use paperless touchscreen voting machines–but the audit law remains in force. So, New Jersey’s law requires the audits of paper ballots that don’t exist.

In 2019, things started to change: three or four counties purchased voting machines with a paper trail, and the Division of Elections (correctly) determined that those counties must perform audits.

The gold standard for election audits is the Risk-Limiting Audit, a class of methods that combines high assurance with high efficiency. New Jersey’s law does not prescribe RLAs, because back in 2007 those were not well understood. New Jersey’s audit law was pretty good for its time, but RLAs are more effective and it would be a good idea to update the law.

In 2019, the Division of Elections did some “pilot audits,” using the RLA method on three or four county-level elections in those counties that had paper-ballot equipment. These were for the purpose of training local election administrators in how RLAs work, learning about the process, adapting RLAs to New Jersey’s equipment and regulations, and so on.

In 2020, things changed a lot more: the November 2020 general election will be conducted almost entirely with hand-marked paper ballots, as a public-health measure during the COVID-19 pandemic. The vast majority of ballots will be mail-in ballots (that can returned, in their signed envelopes, either by U.S. mail, in county drop-boxes, or at polling places). Voters who wish to may vote in-person on November 3rd at a polling place, using a provisional ballot (also a hand-marked paper ballot). (Provisional, to give election administrators the ability to ensure that nobody votes by mail and in person.) A tiny proportion of votes will be on paperless DREs that have disability accommodations, for voters who cannot mark a paper ballot and do not wish to vote with assistance on a paper ballot.

So, for the first time in more than a century, New Jersey will have a (practically) all-paper-ballot election, and you might think that the 2007 audit law will finally come into force. And apparently the Governor thinks so as well!

Governor Phil Murphy’s Executive Order 177, dated August 14th (in the 245th year of the Independence of the United States) outlines the many emergency procedures that will accommodate this year’s election to the pandemic. Some of the more major components of this EO were (2 weeks later) passed as laws by the Legislature.

Among the provisions of the Order are that “to allow enough time for results to be certified prior to the meeting of electors, N.J.S.A. 19:61-9(c)(8) is suspended, and counties may certify their election results prior to the commencement of the election audit required in N.J.S.A. 19:61-9.”

That is, normally the audit must be complete before election results are certified. (This is essential, to make audits meaningful.) This year, that deadline is suspended. But the rest of the Audit statute is not suspended, including, “Within a reasonable period of time after the final vote count after an election, the Attorney General, with the audit team, shall determine and then announce publicly the election districts in the State in which audits shall be conducted, and within 24 hours of that announcement, the audit shall be commenced.” That is, the audit must be commenced “within a reasonable period of time.”

Certification of election results must be done by November 20th, in part so that New Jersey can meet its Federal “safe harbor” deadline of December 8th to choose Electors. Because of the unprecedented (for New Jersey) all-by-mail-and-provisional-ballot election, county election officials may need all of those days between November 3rd and November 19th to finish counting the votes, and may not have time to do audits before November 20th.

The Secretary of State has informed county election officials that the audits shall take place between November 23 and December 4. Normally I would like to see the audits completed before results are certified, as the law requires. But this seems like a reasonable compromise in light of the pandemic. Completing the audits by December 4th means:

  • If the audit uncovered anything drastically wrong in the Presidential election, there’s still time to do something before December 8th.
  • If the audit uncovered anything drastically wrong in any other election, there are several weeks before Inauguration day (for Congressional offices), and recounts can be done.

New Jersey’s audit law could still use some updating, but audits using the current law are far better than no audits. I hope that in future years, New Jersey continues to use all-hand-marked paper ballots; that in future years, the timetable for counting votes allows audits before certification as the law requires; and that (based on experience with statutory audits and pilot RLAs) the Division of Elections recommends to the Legislature that the law be updated to more modern methods.

And one more thing: The statute requires that the chief election official shall appoint an independent audit team to design the audit, and the “procedures and assumptions shall be published prior to any given election, and the public shall have the opportunity to comment thereon.” If the audit team has been appointed, I urge them to comply with the law and publish their procedures soon.