Law and Data: Voting Technology and the Law Henry E. Brady Class of 1941 Monroe Deutsch Professor of Political Science and Public Policy, University of California, Berkeley

Goals of the Voting Process: Protection of legal voting; prevention of illegal voting, Protection of legal voting; prevention of illegal voting, Accuracy in recording people’s voting intentions, Accuracy in recording people’s voting intentions, Security in counting people’s votes Security in counting people’s votes

Legal Concerns Fourteenth Amendment equal protection for all voters (Bush v. Gore) Fourteenth Amendment equal protection for all voters (Bush v. Gore) Voting Rights Act of 1973 and non-discrimination against minorities Voting Rights Act of 1973 and non-discrimination against minorities

Points of Vulnerability Marking the Ballot Marking the Ballot Mistakes: Errors by people, Voting equipment failures or poor programmingMistakes: Errors by people, Voting equipment failures or poor programming Fraud: Malicious programmingFraud: Malicious programming Counting the Ballots Counting the Ballots Mistakes: Poor counting; ballots read twice, poor programmingMistakes: Poor counting; ballots read twice, poor programming Fraud: False counts, ballots read twice, malicious programmingFraud: False counts, ballots read twice, malicious programming

Is Paper Trail the Answer? Is Paper Trail Necessarily Verified? Does it improve accuracy: making sure that voter intent is captured? Does it improve accuracy: making sure that voter intent is captured? Does it improve security: making sure that votes cannot be miscounted? Does it improve security: making sure that votes cannot be miscounted?

Getting Intent Wrong: Miscounted & Lost Votes From: Imperfect marks on ballots due to hanging chads, stray marks, etc. Imperfect marks on ballots due to hanging chads, stray marks, etc. Ballot format mistakes (“butterfly ballot”) Ballot format mistakes (“butterfly ballot”) Voting systems Problems: Voting systems Problems: Failing to record or to sense intended mark for a race (“unintentional undervotes”)Failing to record or to sense intended mark for a race (“unintentional undervotes”) Causing or sensing unintended multiple marks for a race (“unintentional overvotes”)Causing or sensing unintended multiple marks for a race (“unintentional overvotes”)

Persistent Question: Are Lost or Miscounted Votes… The Voter’s Fault or Intention? The Voter’s Fault or Intention? The Voting System’s Fault or Intention? The Voting System’s Fault or Intention?

Voter Errors

System Errors: The Butterfly Ballot

Enron Energy Traders on Voting Errors: KEVIN: So the rumor’s true? They’re [expletive] takin’ all the money back …you guys stole from those poor grandmothers in California? BOB: Yeah, Grandma Millie, man. But she’s the one who couldn’t figure out how to [expletive] vote on the butterfly ballot.

Types of Residual Votes Residual votes are sum of undervotes and overvotes: Residual votes are sum of undervotes and overvotes: Undervotes–no mark on a ballot for a race Undervotes–no mark on a ballot for a race Overvotes–marks for more than one race Overvotes–marks for more than one race

Presidential Residual Vote Rates for Major Voting Systems in 2000 Punchcards (435 counties) 2.6% Punchcards (435 counties) 2.6% Lever (323 counties) 1.7% Lever (323 counties) 1.7% Electronic (266 counties) 1.7% Electronic (266 counties) 1.7% Optical (1018 counties) 1.4% Optical (1018 counties) 1.4%

Are Residual Votes due to the Voter or to the Voting System? The Voter: The Voter: Voters intentionally overvote or undervoteVoters intentionally overvote or undervote Voters make mistakes that cannot be avoidedVoters make mistakes that cannot be avoided The Voting System: The Voting System: Voting systems fail to provide adequate feedback to check the intent of votersVoting systems fail to provide adequate feedback to check the intent of voters Voting systems are badly designed and avoidable mistakes occurVoting systems are badly designed and avoidable mistakes occur

Reducing Residual Vote Rate By Changing Systems—An Example Compare two adjacent counties in Illinois Compare two adjacent counties in Illinois One (St. Clair) stayed with Votomatic style punch-cards from 1996 to 2000 One (St. Clair) stayed with Votomatic style punch-cards from 1996 to 2000 The other (Madison) changed from Votomatic style punch-cards in 1996 to Optical Scan with precinct count and with notice of overvotes in 2000 The other (Madison) changed from Votomatic style punch-cards in 1996 to Optical Scan with precinct count and with notice of overvotes in 2000

Madison County St. Clair County Adjacent Illinois Counties— Stayed with Votomatic Punch Votomatic Punch in 1996 Optical Scan 2000

Madison County St. Clair County Adjacent Black Precincts in the Two Counties

Residual Vote Rate in Black Precincts Worse with Votomatic Style Punch But Same with Optical Scan

Residual Votes in Fresno County with Votomatic Punch in 1996

Residual Votes in Fresno County with Optical Scan Precinct in 2000

1996 and 2000 Side by Side

Why do Votomatic Style Punch- Cards Fail to Record Voter Intentions Accurately? No easy feedback No easy feedback Hard to align punchcard Hard to align punchcard Hard to calibrate to work right Hard to calibrate to work right No check of voter intention No check of voter intention Note: Other systems have some of these problems as well. Note: Other systems have some of these problems as well.

Whose Votes are Lost? Anyone using error prone voting systems Anyone using error prone voting systems Anyone using voting systems that fail to provide feedback to check voter intent Anyone using voting systems that fail to provide feedback to check voter intent Anyone whose personal characteristics makes it especially hard to use error prone systems that fail to provide feedback (the disabled, the elderly, those with low levels of education, etc.) Anyone whose personal characteristics makes it especially hard to use error prone systems that fail to provide feedback (the disabled, the elderly, those with low levels of education, etc.)

Does a Paper Trail Solve the Accuracy and Security Problems? Not with Votomatic style punchcards Not with Votomatic style punchcards Is optical scan a voter verified ballot? Is optical scan a voter verified ballot? Is a paper trail for a DRE a voter verified ballot? Is a paper trail for a DRE a voter verified ballot?