Improving Voting System Investment, Credibility, and Transparency - from IDC analyst

by James D. Pettler Senior Research Analyst for Strategy, Governance and Reporting
IDC, Government Insights team
For original article

In This Perspective

This Government Insights Perspective suggests a strategy to provide more reliable, transparent, and affordable voting systems through the collection and better use of voting system information. Because states and local jurisdictions did not have enough information to support strategically informed purchase decisions, many are stuck with inadequate equipment. Future voting system investments must be shaped by adequate standards, appropriately timed funding, a certification process with plenty of sunshine, and thorough life-cycle cost analyses.

State and local governments should begin to document costs throughout the life cycle of various voting systems. Until this information has been collected and analyzed, voting system purchases cannot be strategically informed. At best, voting system purchases based only on initial cost are tactical responses to short-term complications.

Government Insights Opinion

The stock of voting machinery in the United States is complicated. Voters have lost confidence in the systems that collect and tabulate their votes. In an attempt to restore confidence in those enterprises, the federal government has provided states with funds to improve voting operations, largely through the purchase of new equipment. But because state and local jurisdictions did not have enough information to support strategically informed purchase decisions, many are stuck with inadequate equipment. Government Insights believes the choices jurisdictions make should be strategically informed and guided by the following external factors:

* Adequate voting system standards
* Appropriately timed funding
* Transparency throughout the system certification process
* Auditability

Tactical solutions — such as implementing particular technologies or physical security guidelines — are necessary in the short term for remediation, but they are not enough to satisfy the long-term strategic goal of ensuring that jurisdictions can make good ongoing technology purchasing decisions. To achieve that goal, Government Insights recommends that jurisdictions take the following actions:

* Begin to maintain records to inform life-cycle cost analyses
* Use those life-cycle cost analyses to make good purchases

Background

Nearly 82 million registered voters in the United States used different voting equipment in November 2006 than they used six years earlier. This widespread change is the result of the Help America Vote Act (HAVA), passed in October 2002 to address problems with voting machinery brought to the attention of the public during and after the 2000 federal election. Under HAVA, states were given $3.8 billion to replace punch-card and mechanical-level voting machines and to set up statewide voter lists.

Electronic voting systems are varied, complex, unproven, and at least as controversial as older systems. For the most part, HAVA funds to the states have been spent, yet voting systems are still not commonly trusted. Replete with federal dollars and given a deadline by which to purchase equipment, states bought new electronic voting systems without the benefit of thorough guidance, adequate security standards, or cost studies sufficient to justify their acquisition. Academics, advocacy groups, and members of the media continually report on voting systems that have much room for improvement.
Bush v. Gore

On November 7, 2000, voters across the United States went to the polls to vote for members of the Electoral College who would officially elect the next President on December 18. For more than one month following the November election, it was unclear for whom delegates to the Electoral College from the state of Florida would vote.

On December 12, 2000, the Supreme Court of the United States issued its opinion in Bush v. Gore. In that opinion, the Court observed "punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." It speculated, "it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."
Help America Vote Act

Fulfilling the Court's prophecy, Congress enacted the Help America Vote Act in October 2002 to establish the following:

* A program to provide funds to states to replace punch-card voting systems
* The Elections Assistance Commission (EAC) to assist in the administration of federal elections and to otherwise provide assistance with the administration of certain federal election laws and programs
* Minimum election administration standards for states and local units of government with responsibility for the administration of federal elections

Incentives Under HAVA

States choose whether or not to purchase new voting equipment. The federal government cannot obligate states to make these decisions. To the extent that the federal government can incentivize states through HAVA, they did.

In many cases, including the election of the President, the federal government acts as an agent of the states. The state legislatures' power to select the manner for appointing electors is absolute.

In Bush v. Gore, the Supreme Court acknowledged that until a state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College, individual citizens have no federal constitutional right to vote for electors for the President of the United States. A state may select the electors itself, which was the manner used by some state legislatures in the years following the ratification of the U.S. Constitution.

Because states have absolute power to determine how they appoint electors, the federal government is subordinate in its role and cannot dictate methods by which states vote. State and local governments are responsible for planning, buying new systems, and implementing HAVA reforms. Incentives under HAVA require states to update voting equipment but do not specify the type or brand of voting equipment.

To encourage policy in areas over which it has no formal control, the federal government can provide financial incentives or sanctions to states. For example, this approach to compelling certain state behavior has precedent in legislation that resulted in a common nationwide drinking age. The federal government coerced states — to which the 21st Amendment gave the power to regulate alcohol — to raise their minimum drinking age to 21 by withholding funds from those that did not.

HAVA offered large sums of money through the EAC, and for the most part states gladly accepted that money and bought new voting systems. Few politicians were willing to pass on a federal offer to finance an upgrade to systems that were exposed as unsatisfactory during the 2000 elections. As a result, the methods by which voters in the United States cast their ballots became increasingly diverse. Unfortunately, as can be read daily in any newspaper during election times, some new systems encounter substantial glitches or failures that cause citizens to express a loss of confidence in the process by which they choose their representatives.

While HAVA does not prohibit the use of older voting systems, it does require them to be made accessible to persons with disabilities and be supplemented with a manual audit capacity. Only states that accept funds under Title I of HAVA ("Payments to States for Election Administration Improvements and Replacement of Punch Card and Lever Voting Machines") must replace their old systems.

Individual states may enact executive orders, legislation, or judicial orders to require jurisdictions to replace punch-card or lever systems, but HAVA does not. Section 301(a)(1)(B) even provides guidance for states that continue to use punch-card voting systems.
Voting Equipment Changes Since Bush v. Gore

Federal funds are a powerful incentive. Most local jurisdictions have changed the methods by which they count votes. Since 2000, 56.7% of the nation's counties changed their voting equipment. In 2000, 1,376 jurisdictions used punch cards, lever machines, or hand-counted paper ballots; 1,588 jurisdictions used optically scanned paper ballots or direct recording electronic (DRE) systems. By 2006, only 132 jurisdictions used punch cards, lever machines, or hand-counted paper ballots, while the number of jurisdictions using optically scanned paper ballots or DRE systems increased to 2,894.
Optically Scanned Paper Ballots

As with hand-counted paper ballots, voters using optically scanned paper ballots make selections by filling in markers next to their choice. Ballots are collected in secure boxes and either counted in a central facility or counted at the polling place. Optical scan systems contain software and hardware that can be subject to tampering.

During the November 2006 federal elections, 1,752 counties nationwide used optically scanned paper ballot systems. In November 2004, that number was 1,443; in November 2000, 1,279 counties used optically scanned paper ballots.
DRE Equipment

With DRE equipment, voters make selections using either a touchscreen, push-button, or keyboard interface. DRE equipment is designed to be user friendly and accessible. Votes are recorded directly into the electronic system. Most DRE equipment can print a record of votes cast; some have voter-verified paper audit trails (VVPATs) to provide printed versions of ballots, which voters may verify. DRE equipment is criticized for being too complex, not transparent, and subject to tampering.

During the November 2006 federal elections, 1,142 counties nationwide used DRE equipment. In November 2004, that number was 631; in November 2000, 309 counties used DRE equipment.
Nationwide Consensus

There is no nationwide consensus on what is the best voting system. Considering the pace at which technologies emerge, no consensus is likely anytime soon.
Process Limitations

To understand why so many different voting systems — some of which are not reliable or secure — are in place, look to the process by which the systems were acquired. The path leading to the purchase of new voting systems was contoured by good intentions to quickly guarantee the franchise of every citizen, a large amount of federal dollars offered to the states, incomplete and unenforceable voluntary standards, and a need for greater transparency and information throughout.

HAVA established the Elections Assistance Commission to guide, assist, and direct the effective administration of federal elections through funding, innovation, guidance, information, and regulation. In the past, federal legislation imposed limits and requirements on the administration of elections. However, HAVA funds are the first federal dollars provided to improve the administration of federal elections.

By the 2006 federal elections, nearly all money available through HAVA was distributed to the states. For the most part, states gladly accepted the federal aid and bought new equipment. Unfortunately, those purchases were not well informed for the following reasons:

* Incomplete voting system standards
* Unreasonable time frame to deploy new equipment
* System certification processes without transparency
* Absence of life-cycle cost analyses

Because those decisions were not well informed, states now possess a complex assortment of voting systems that may or may not meet security standards and that may or may not be affordable in the future.

Voting System Standards
Federal Election Commission Standards

Prior to HAVA, voluntary voting system standards were developed by the Federal Election Commission (FEC) in 1990 and again in 2002. The 1990 standards sought to specify general performance criteria and detailed test criteria. Because the 1990 standards did not keep pace with newer technologies such as touchscreen machines or machines that print VVPATs, new standards were needed.

Following the 2000 elections, interest renewed in voting equipment and standards. The FEC sought to give election officials a means by which they could assure the public of the integrity of computer-based election systems. The 2002 Voting System Standards were written to provide a common set of requirements across all voting technologies, using technology-specific requirements only where essential to address the specified technology's impact on voting accuracy, integrity, and reliability.

Each standard was developed by volunteers from the elections community. The FEC standards were developed by groups in which voting system vendors were overrepresented and technical experts on matters such as security were underrepresented. Compared with other technical standards, the 2002 Voting System Standards were more descriptive than prescriptive. How laboratories tested voting equipment to determine if the systems were compliant was generally left to the individual laboratories. The result was differences in interpretation and application of the standards. With clear room for improvement, the EAC began to craft a new standard.
2005 Voluntary Voting System Guidelines

Under HAVA, technical standards for voting system hardware and software are developed by the Technical Guidelines Development Committee (TGDC). The TGDC is a 14-member panel chaired by the director of the National Institute of Standards and Technology (NIST). The 2005 Voluntary Voting System Guidelines (VVSGs) update the 2002 Voting System Standards to reflect advancements in computer technologies. The EAC adopted the 2005 VVSGs in December 2005; they will take effect in December 2007. The 2005 VVSGs offer specifications and requirements for voting system testing and establish evaluation criteria for the national certification of voting systems.

The 2005 VVSGs are recognized as incomplete, especially in the area of security. The TGDC opted not to include open-ended research on possible attacks in the guidelines. Without an option for open-ended testing, the inquisitiveness, concern, and creativity of security researchers are needlessly limited.

The 2005 VVSGs are voluntary to encourage the adoption of requirements and procedures without enforcement mechanisms. Voting system vendors conform to the standards in order to compete in the marketplace provided by the states. Presumably, states will purchase only voting systems certified under the most recent standards. Unfortunately, the 2005 VVSGs were released only one month prior to the date by which states were required to replace punch-card and lever-machine voting systems.

Timing of Purchases

The federal government encouraged states to replace lever and punch-card machines without providing guidance. One of EAC's key mandates is to test, certify, decertify, and recertify voting system software and hardware. To achieve this objective, the commission implemented voting system guidelines. These guidelines provide technical requirements for voting system performance and identify methods to test how well systems meet those requirements.

Because the 2005 VVSG standards were approved one month prior to the decertification date of the old machines, it was impossible for the states to use the new, though incomplete, standards to inform their voting system purchases. As a result, states have voting systems that meet different standards, if any standard at all. Importantly, new voting systems were bought without rigorous life-cycle management process being applied and the benefit of current knowledge.

HAVA will require additional funding in the future. Currently no mechanism for continued funding exists. The $3.8 billion already appropriated through HAVA covered much of the expense to ensure compliance with the 2002 Voting System Standards, flawed as they are. Without additional federal funding, modifications and upgrades demanded by changes in the 2005 VVSGs and future guidelines will be the financial responsibility of state and local governments, which may or may not be able to afford them.

Jurisdictions bought voting systems with HAVA funds in a remedial effort to quickly fix voting system defects and restore faith in the voting process. Those purchases were guided by a will for technology solutions. While usability needs were well addressed, security wants were largely unaddressed. In the future, all voting system purchases should be informed by thorough studies of their reliability and security.

Transparency of System Certification Process

Voting system vendors contract and pay for private testing laboratories to conduct certification testing in private. Citing "trade secrets" and "confidentiality," vendors avoid public oversight. When voting systems fail tests conducted by testing laboratories, only the vendor is informed. There is no obligation to disclose whether the flaw violates a VVSG. Due to the enormous and obvious implications of public interest, vendors should not be relied upon to disclose flaws in their own merchandise.

HAVA assigned NIST the role of conducting evaluations of independent, nonfederal laboratories. NIST submits to the EAC a list of laboratories it proposes to be accredited to carry out the testing. To further increase the independence of and boost public confidence in accredited laboratories, the EAC should take a more proactive role by facilitating vendor testing. In a more transparent testing environment, vendors would submit technologies for testing through the EAC, which would publicly disclose testing results and could also serve as a useful clearinghouse of security vulnerabilities against which all new voting systems would be tested.

Vendors should not be permitted to evoke proprietary privileges as a way to avoid informing the public how their products manage and verify votes. The secrecy around voting system source code prevents independent evaluation and breeds distrust.

The EAC must have enforcement powers in the area of voting system security. As long as vendors and testing laboratories are permitted to work in private, the public cannot know that oversight has a meaningful effect.

Purchase Decisions Informed by Life-Cycle Cost Analyses

Voting system purchases should be guided by the amortized price per vote over the lifetime of a voting system. This total cost for operations is more important for voting system purchases than the total cost for acquisition. Unfortunately, no comprehensive guidance exists in this area. There have not been large-scale attempts to document the costs of existing systems or to predict the costs for new systems.

Most counties spent their HAVA allocations based on up-front costs only. These counties may not be able to afford to keep their new systems. Counties must consider a range of factors when making a purchasing decision. In addition to up-front capital, local jurisdictions should be prepared to pay additional costs such as for operation, storage, transport, repair, upgrade, training of workers, consulting by vendors, and disposal of voting systems.

State and local governments should begin to document costs throughout the life cycle of various voting systems. Until this information has been collected and analyzed, voting system purchases cannot be strategically informed. At best, voting system purchases based only on initial cost are tactical responses to short-term complications.

Learn More

* Brennan Center for Justice at New York University School of Law, Recommendations of the Brennan Center for Justice and the Leadership Conference on Civil Rights for Improving Reliability of Direct Recording Electronic Voting Systems, 2004.
* Center for Democracy and Election Management, Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform, September 2005.
* Douglas Jones, "Connecting Work on Threat Analysis to the Real World," paper presented at Threat Analyses for Voting System Categories: A Workshop on Rating Voting Methods, Washington, D.C., June 8–9, 2006.
* U.S. Congress, House of Representatives, Committee on House Administration, Committee on Science, Voting Machines: Will the New Standards and Guidelines Help Prevent Future Problems? 109th Cong., 2nd sess., July 19, 2006.
* U.S. Congress, House of Representatives, Committee on House Administration, Electronic Voting Machines: Verification, Security, and Paper Trails, 109th Cong., 2nd sess., September 28, 2006.
* U.S. Election Assistance Commission, Fiscal Year 2005 Annual Report, 2006.
* U.S. Government Accountability Office, Elections: The Nation's Evolving Election System as Reflected in the November 2004 General Election, June 2006.