The Office of the California Secretary of State has issued a set of proposed emergency regulations for post-election manual tallying of paper election records. In this post, my first at FTT, I’ll try to explain and contextualize this development.
Since her election to office, California Secretary of State (CA SoS) Debra Bowen has methodically studied the shortcomings in California’s election equipment. She first initiated a Top-To-Bottom review (TTBR) of California’s voting systems that found them to be of poor technical quality and vulnerable to a myriad of security vulnerabilities, accessibility flaws, reliability issues and inadequate documentation and testing (a number of FTT regulars participated in the TTBR). For this year’s presidential primary in California, Bowen worked to mitigate these problems by decertifying this equipment and then recertifying it subject to a list of about 40 different conditions. One such condition is that the usual 1% manual tally under California law — counties must randomly choose and hand tally ballots cast in 1% of precincts — would be modified to include escalation that would mandate increased tallying for close races (where even small amounts of possible fraud and/or error could make a difference in the outcome of a contest).
Bowen issued these additional requirements (the “PEMT Requirements”) under her authority as CA SoS to regulate election technologies (here are the original PEMT Requirements). Unfortunately, the Registrar in San Diego County sued Bowen arguing that she 1) didn’t have such broad authority and 2) that, even if she did, she could only issue the PEMT Requirements through the California regulatory procedure (specified by the CA Administrative Procedure Act). A state Superior Court found in favor of the CA SoS but a Court of Appeal found that the PEMT Requirements did indeed betray characteristics of regulations and should therefore have gone through the regulatory procedure (for the legal eagles out there, see: County of San Diego v. Debra Bowen (2008) 166 Cal.App.4th 501).
By the time the Court of Appeal had made its decision on August 29, there was no time to follow the normal regulatory process, which takes about four months. Instead, the CA SoS had to follow the process for adopting an emergency regulation which applies when a regulation “is necessary for the immediate preservation of the public peace, health and safety, or general welfare.”
What is so special about these emergency manual tally provisions? First, it represents the increasing relevance and importance of adversarial considerations in the design of an election audit process. As we describe in the NYU Brennan Center / UC Berkeley Samuelson Clinic report on post-election audits (“Post-Election Audits: Restoring Trust In Elections”), fixed-percentage audits of election records are only particularly useful in detecting wide-ranging anomalies in vote counts. Methods that “tune” the amount of records audited depending on the margin in contests on the ballot do a much better job of ensuring that they’ll find evidence of possible error or fraud. Per the emergency PEMT Regulations, any contest with a margin (difference between the winning and losing choice in a contest) of 0.5% or lower is subject to a 10% manual tally, an order of magnitude more scrutiny than the statutory default.
Second, the CA SoS’ emergency PEMT Regulations reflect many best practices from audit theory and research: precincts to audit must be chosen randomly; the precincts to audit are only chosen after the semi-official vote tallies are arrived at; tally activities must be announced publicly and available for public observation; tallies must be conducted under “blind count” rules where the talliers do not know the totals in the precincts they’re tallying; differences between machine and hand counts must be explained or investigated.
The elephant in the room is always Los Angeles County; LA is so amazingly enormous for an election jurisdiction that some things simply aren’t possible. (For example, they frequently pick up ballot materials from precincts in helicopters; that is, traffic in LA is so bad and there are so many polling places (~5,000 or so) that the most reliable form of ballot transmission is via helicopter.) These rules are going to be exceedingly difficult for LA to comply with. I expect they will hire an army of tally managers and talliers to perform their tally and that it will be a race against the clock, counting 24 hours a day, seven days per week, to try and get it all done in the 28-calendar day canvass period.
