Problems with Voting Systems and the Applicable Standards
Elections are a defining feature of democratic government, but all too frequently, we take the actual mechanics of the election for granted. We speak at length of such issues as who is allowed to vote, how campaigns are conducted, and how they are financed, but prior to the events in Florida last November, most people's understanding of the actual voting process was something like the following: "You go to the polls, cast your vote, and then they count it and they announce the winner." Here, my focus is on how you cast your vote, who they are who count it, how they go about counting it, and how the winner is determined. I will begin by discussing this in a historical context, and then I will discuss the regulatory environment that controls this process, I will give examples of significant shortcomings in this regulation, and finally, I will discuss changes that might be made. Some of the material here duplicates material that I presented in testimony before the United States Civil Rights Commission hearings in Tallahassee last January 11, but here, my focus will be on the relationship between the problems we have with today's voting machines and the current system of Federal and state standards that govern the use of these machines. A Very Brief History of Voting Machines
When most people speak of voting on paper ballots, they imagine that they are speaking of an ancient technology, and in a sense, this is true. Hand written paper ballots were first used in Rome in 139 BCE, and their first use in America was in 1629, to select a pastor for the Salem church. These early paper ballots offered only modest voter privacy and they were fairly easy targets for various forms of election fraud. The modern system of election using paper ballots was first used in 1858 in Australia. The great Australian innovation was to print standardized ballots at government expense, distribute them to the voters at the polling places, and require that the voters vote and return the ballots immediately. Today, the security against election fraud this provides seems obvious, but in the 19th century, it was not obvious to most observers, and it was not until 1888 that this ballot was used in the United States. A properly administered Australian paper ballot sets a very high standard, assuring voter privacy, preventing voters from revealing how they voted, and assuring an accurate and impartial count. It sets such a high standard that voters from many parts of the world find it remarkable that we in the United States are willing to trust our votes to anything else. This is particularly true of the British Commonwealth, where paper ballots remain the rule. The search for alternative voting methods in the United States was motivated by two factors. First, the entrenched political machines of late 19th century America learned quite quickly how to craft the laws governing the counting of votes under the rules of the Australian ballot so that those laws favored the entrenched political machine. One of the classic approaches to subverting any election technology is to take control of the vote count. In the case of any physical ballot involving marks on paper, there will be marks that are on the borderline between acceptable and unacceptable votes, and vote counting rules that allow selective counting of marginal marks lie at the heart of a broad class of election rigging. The most widely used approach to this is based on "objective and uniform standards for counting votes," a phrase heard often in discussions of the recent Supreme Court decision. If carefully chosen, these standards allow a skilled participant in the vote count to disqualify votes based on technicalities even when there is a clear indication of voter intent. Michigan's law governing the validity of ballot markings on hand counted paper ballots illustrates this approach remarkably well (See MCL...
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