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recount

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NJ Election Officials, Displaced Voters, Email Ballots, and more

There's plenty of activity in the NY/NJ area reacting to voters' difficulties because of Super-Storm Sandy, including being displaced from their homes or otherwise unable to get to polling places. As always, the role of technology captured my attention. But first, the more important points. Some displaced people are having trouble even finding a place to shelter temporarily, so extra special kudos to those that manage to vote, whatever the method of voting they use. Likewise, extra praise for NJ and NY election officials putting in the extra extra-hours to be available to voters in advance of the election, inform them about changed polling places, and equip them to get the word out to their neighbors. The amount of effort on both sides is a great indicator of how seriously people take this most important form of civic activity.

Next, the technology, and then the policy. On the technology front, Gov. Christie of NJ announced an emergency (and I hope temporary) form of voting for displaced voters: sending an absentee ballot via email. That's a bad idea in the best of circumstances -- for several reasons including the vulnerability of the email data in transit and at rest, and the control of the e-ballot by people who are not election officials -- and these are not the best of circumstances. For example, I doubt that in every county elections office in NJ, somebody has a complete list of the people with access to the email server and the ability to view and modify data on it.  But while you can see that Christie's heart in the right place, there are several issues beyond these, as described in a NJ news report here.

And this is only one of the emergency measures. In both NJ and NY people can cast a provisional ballot at any polling location -- see NJ's announcement here, and if you have the similar one for NY, please provide it as a comment!

Finally, on the policy side, it's not even clear what these ballots represent, and that's the policy problem. My legal and policy colleagues here at TTV, and in the legal side of the election integrity community, certainly know more, but I don't! Are the provisional ballots cast under these emergency rules required to be processed exactly the same as non-emergency provisional ballots? Are the e-mailed ballots provisional ballots or absentee ballots? If so, what serves as the affadavit? Do the email ballots have to be followed up with the paper hardcopy that the voter scanned and faxed? (The NJ Lt. Gov. office has issued some seemingly inconsistent statements on that.) If not, what happens in a recount? If so, why email the ballot at all, rather than just emailing a "my ballot is coming soon" message?

I could go on and on, but I think you get the idea. The general issue is that in the case of a close election (most likely a local election, but state house or congress, you never know!) there will be some of these not-exactly-your-regular ballots involved, and the potential for real disputes -- starting with concerns over dis-enfranchisement of people mis-informed about how to do a "displaced vote", and going all the way to dispute about whether counted ballots should have been counted, and whether uncounted ballots should be counted. But let's hope that it does not in fact get that messy in NY and NJ, and that every voter is able to make the extra efforts for their ballot to be cast and counted.

-- EJS

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Election Transparency Must be Apolitical

For those of you who have been following the recount saga in Wisconsin, here is a bit of news, and a reflection on that. So, the news from a couple of days ago (I'm just catching up) is that the process of re-counting is complete, but the resolution of that close election may not be.  The re-counting did not change which candidate is leading, and apparently expanded the margin slightly.

Trailing candidate Joanne Kloppenburg explains her motivation for the recount in a newspaper letter to the editor, building on the old but true assertion that, "One may be entitled to their own opinions, but they are not entitled to their own facts."

We steer clear of political food fights, and I have no opinion on her motivation. But we are all about transparency and transparency should not have any political agenda attached.

To that end, what Kloppenburg does point about some of the irregularities, problems, and issues with the re-counting process (which are not the same as the problems with the original count), including lack of physical security on ballots, and uncertainty as to whether the re-counted ballots were the same ballots as the originally counted ones -- are reasonable questions about transparency.  More importantly, Kloppenburg offers some reflections about the re-count that are important and correctly apolitical:

When races are this close, there is a significant public interest established both by statute and by common sense in determining that votes were counted and counted accurately.

This election was close, and there were many who have expressed doubts about whether it was clean. The right to vote is fundamental. It is a right that courageous people fight and die for every day.  In America, that right carries with it a promise: that elections are fair and open, that election results are untainted by deceit or fraud, and that the electoral process provides every eligible voter with an equal opportunity to privately and independently cast a ballot.

In order to make that promise real, there are appropriate and established steps that help make sure the outcome of elections, when in doubt, can withstand scrutiny. That, no more and no less, is exactly why this recount is so important.

That is, in fact, a fine description of the purpose of a recount.

It's unfortunate that in this particular case, the re-count process seems to have a similar or greater level of problems that cast doubt on the result.  We can only hope that the full scope of the process, warts and all, becomes transparent to the public.

For me, I find that regardless of candidate or political preferences, there is a point couched in the last two sentences excerpted from her letter that matters most:

...there are appropriate and established steps that help make sure the outcome of elections, when in doubt, can withstand scrutiny

Transparency in process.  There should be nothing political about that.

GAM|out

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Dispute Settled in Minnesota - the Recipe for Success

The legal disputes are finally finished in the Coleman-Franken Senate election in Minnesota, with the ruling by the MN Supreme Court. Though it was a torturous path, we can say today that the recount and following resolution was a success -- and ask what the recipe for success was, and whether it is a recipe for others to use in the future. It's particularly important to look at that recipe because of views like this one:

Coleman v. Franken will set the governing standard for analysis of Equal Protection claims in post-election disputes over which candidate won, and Bush v. Gore will constitute a narrow exception to that governing standard.

(For more, see the MN Post's analysis.)

So what exactly is that election process recipe that enabled MN to actually resolve an incredibly close election? Here is my version, drawn from remarks of MN's Secretary of State Mark Ritchie, and other MN election officials:

  • statewide use of paper ballots, counted using optical scan tabulators;
  • hand marking of paper by ballots by those able and willing to do so;
  • electronic ballot marking devices available as an alternative to hand marking;
  • vote by mail for voters who expect not to be able to vote in person;
  • vote by mail also available as a form of early voting;
  • a statewide voter registration system including same-day voter registration;
  • uniform state-wide standards for conducting same-day registration procedures for identification and reporting;
  • a statewide practice of each county automatically auditing the machine count, using common standard procedures;
  • county-level procedures for determining the admissability of vote-by-mail ballots and provisional ballots.

Though the last element was the focus of much of the legal wrangling, the net effect of this entire recipe was an election process, including the recount part of it, that was highly transparent and credible. The transparency was the result of the public conduct and reporting of the election process. The credibility resulted in part from the benefits of the hybrid system (see earlier posts for more info) and partly because citizens felt that they knew enough to form their own opinions about the recount. This latter point is illustrated by a story from Mark Ritchie, based on the publication on the Internet of images of disputed ballots. Ritchie reported that a proverbial irate elderly woman stopped him on the street and showed him a printout of one of these images, complaining that they didn't record that ballot's votes correctly; but aside from that one mistake, she said, the election folks were doing a fine job, keep up the good work!

Of course, I love this story because it's an illustration of technology fostering transparency, citizen awareness, and ultimately, confidence. But the story is also a great illustration of the public benefit that derives from that particular recipe using in that particular election in MN. It may not be the best recipe -- certainly there is room for improvement -- and it may not be right for every state, but the result of using that recipe is an outcome that sets a great goal for other states.

-- EJS

PS: Tomorrow: an improved recipe for less controversy in recounts!

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Minnesota: Five 9s of Success

I'd like to set the record straight on Minnesota's handling of their November 2008 close election for U.S. Senate. It's not a debacle, it's a miracle. And it's no longer a recount, it's a series of court cases.

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