Think the Florida Recount Was Bad? Just Wait Until November 6

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While the nation fixates on stamping out non-existent voter fraud with photo-ID requirements, the perils of electronic voting go unchallenged.

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Electronic voting in Chicago in 2008 (John Gress/Reuters)

The movie Unstoppable is playing this week on HBO, and it's hard not to watch even just the trailers for the action-adventure film without seeing parallels to the coming election. Folks, we are just a little more than two weeks away from Election Day, and we may well be the runaway train, barreling straight toward an election-night, voting-rights crash-and-burn which easily could be worse and more damaging to the nation than Bush v. Gore. Not only is there no Denzel Washington to save us, not only is there no guarantee of a happy Hollywood ending, but none of the so-called adults running the country even seems willing to publicly acknowledge the danger.

You think the hanging chads in Florida were bad in 2000? You think the patch of procedures, appeals, and standards of review was crazy? At least a human being was looking at those ballots. At least some of the rest of us were able to look at that human being looking at those ballots. At least there were ballots to be seen. In 2012, on the other hand, loose technology, lax industry oversight, political indifference, and partisan bigotry mean there is the potential for mischief -- and by that I mean democracy-crushing voter fraud -- on a scale that would make the high drama and low comedy of November 2000 seem mundane.

How about thousands upon thousands of votes instantly disappearing from the electronic count of one candidate, or being added to the count of another, with no paper trail left behind? How about electronic voting machines whose programs can be breached and hacked -- patched for fraud, is the new term -- from thousands of miles away? How about new voting technology controlled largely by corporations with strong partisan ties? Not only can it all happen in two weeks, there is a viable case to be made that it's already happened -- in both the decade before and the decade since Bush v. Gore.

And of course the great irony of it all, one of the most under-reported stories of this campaign, is that the politicians and activists who have tried so hard this election cycle to make it harder for poor, ill, and elderly voters to vote are some of the ones most closely aligned with the operatives who can, with a click, determine the outcome of the coming election. Instead of securing accurate voting rights for all, they want to deprive voting rights for some. This is the important message Victoria Collier sends us courtesy of a trenchant piece (not currently online) in the November issue of Harper's *, titled "How To Rig An Election." Collier writes:

Old-school ballot-box fraud at its most egregious was localized and limited in scope. But new electronic voting systems allow insiders to rig elections on a statewide or even national scale. And whereas once you could catch the guilty parties in the act, and even dredge the ballot boxes out of bayou, the virtual vote count can be manipulated in total secrecy. By means of proprietary, corporate-owned software, just one programming could steal hundreds, thousands, potentially even millions of votes with the stroke of a key. It's the electoral equivalent of a drone strike.

Collier's piece is timely and jaw-dropping because of the context it offers for this cycle's voting-rights fights. It suggests persuasively that the Florida recount, and the federal legislation it spawned, have made our elections less reliable and thus more susceptible to partisan disenfranchisement than we ever could have imagined watching those hapless bureaucrats count those chads. We took a bad situation, in other words, and made it much worse. If the coming election is as close as everyone seems to think it is, there is no reason to believe with any confidence that honest officials could prevent someone from stealing it outright.

The Ancient Past

For many of us long of voting age, we'll never forget the 2000 election -- and never be able to shake its impact on our enduring perceptions of law, politics, and the intersection of the two. But if you are voting this year for the first time as a teenager -- and I certainly hope you are -- it means that you were in kindergarten or first grade when the U.S. Supreme Court gave the presidential election to George W. Bush by precluding Florida officials from recounting ballots. It means that you were six or seven years old during the Florida recount and likely had no earthly idea what was happening.

In the 1996 Senate race in Nebraska between Chuck Hagel and Ben Nelson, the polls were even days before the election. Yet Hagel won by 15 percent of the vote -- votes counted by a company Hagel had once chaired.

What was happening was one of the most serious political crises of our time, a five-week struggle which ended in the partisan rancor of a 5-4 decision by the justices, a decision that was roundly criticized back then and which has never been cited since by the justices. Al Gore won the national popular vote but lost the election because he lost Florida's electoral votes. And he lost Florida amid great chaos over its ballots and its recount rules. It was a matter of equal protection, the high court's conservatives ruled; it would be unfair to treat recounted ballots differently.

The primary lessons of the Florida recount, at least as far as public officials were concerned, was that our elections were too prone to human error and partisan abuse, our voting machines were antiquated and inconsistent, and our state electoral procedures were chaotic. (For you first-time voters out there, you can go ahead now and look up Katherine Harris.) Many folks, in Florida and elsewhere, were shocked to discover that so many nameless bureaucrats had so much power both to screw up ballots (see, e.g., butterfly) and to futz around with punched-out "chads," trying to interpret the "intent of the voter."

In direct response to the embarrassment of the 2000 election, and even before the next national election in 2002, Congress passed, and the aforementioned Bush signed, the Help America Vote Act (HAVA), federal legislation designed to raise state election standards. It passed 92-2 in the Senate and 357-48 in the House of Representatives. The preamble to the law states its purpose:

To establish a program to provide funds to States to replace punch card voting systems, to establish the Election Assistance Commission to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections, and for other purposes.

In order for the states to improve their voting systems, they needed money. And HAVA authorized nearly $4 billion for the upgrade. The states gobbled up the money. And so did the electronic-voting companies. HAVA, we were told, was an example of bipartisan success, where both the winners and losers of 2000 had come together to protect the rights of all Americans to have their votes counted as accurately and fairly as possible. The only problem with the story, and the law, was that the money found its way into the wrong hands around the same time that the public oversight required by the law was turning out to be a sham.

The Recent Past

Let's now catch up with Collier's piece. The practices she chronicles may be new, but the patterns aren't. There were problems with electronic-voting irregularities before Florida, she contends, and cites as an example the 1996 Senate race in Nebraska, where Chuck Hagel won a surprisingly decisive victory over Ben Nelson. The polls were even days before the election, but Hagel won by 15 percent of the vote -- votes counted by a company Hagel had chaired until shortly before the election. The "surprising scale of his win," Collier writes, "awakened a new fear among voting-rights activists."

The intervening 16 years -- and electronic-voting irregularities in most of the five national elections since 2002 -- have done little to allay those fears. Nor did the Help America Vote Act. Collier writes that the law isn't ensuring voting accuracy or the reliability of election results but instead is "accelerating a deterioration of our electoral system that most Americans have yet to recognize, let alone understand." For example, Collier writes about an appalling lack of online security for electronic voting operations:

As recently as September 2011, a team at the U.S. Department of Energy's Argonne National Laboratory hacked into one of Diebold's old Accuvote touchscreen systems. Their report asserted that anyone with $26 in parts and an eighth-grade science education would be able to manipulate the outcome of an election.

"This is a national security issue," wrote the Argonne team leader, Roger Johnston, using the sort of language that would normally set off alarm bells in our security-obsessed culture. Yet his warning has gone unheeded, and the Accuvote-TSX, now manufactured by ES&S [Hagel's old company], will be used in twenty states by more than 26 million voters in the 2012 general election.

Meanwhile, Collier reminds us, the "Election Assistance Commission" created by the law, the federal oversight office that was supposed to help ensure voting security, was so feckless that one of its chiefs, a Bush appointee, resigned in 2005, calling his office a "charade." That year, not incidentally, the Commission on Federal Election Reform, which was called a bipartisan effort, warned about the potential for great abuse from electronic-voting insiders, but reassured the American people that electronic voting was reliable so long as officials included a "voter-verifiable paper audit trail."

The CFER's 2005 report, led by lions-in-winter James Baker and Jimmy Carter, did more than just that. It also (to great public controversy) placed blame for election inaccuracies on the voters themselves, suggesting in great detail how states could force people to show more identification when they registered and voted. These recommendations paved the way for the current generation of odious new photo-identification laws, passed by Republican lawmakers in dozens of states. At the time, a handful of the commission's most vocal dissenters, the counsel for the Brennan Center for Justice, presciently recorded their opposition:

While our election system is undeniably in need of substantial structural and administrative improvement, the burden of reform must not be borne by voters. The problems with American elections are not caused by American voters. They are caused by inadequate attention to election administration, insufficient resources, and unfair and unreasonable rules and procedures often designed and administered by elected or partisan individuals with an interest in the outcome of elections. Unfortunately, several sections of the Commission's report seem to shift the blame to regular Americans, and as a result, make recommendations that are likely to exclude a significant number of citizens from the political process -- especially those who have traditionally been disadvantaged by restrictions at the polls.

In other words, while Baker and Carter and company were focused on rules designed to stymie the efforts of a few illegal in-person voters, the wise men largely ignored the direct and obvious threat to millions of legitimate votes, the accurate and complete counting of which depends, then and now, on the good faith of unregulated companies and their employees, who operate with scarcely any government or public oversight. Add Collier's report to Tova Andrea Wang's excellent recent book The Politics of Voter Suppression, which shines the light on the long history of voter suppression in America, and it portends truly bad things for election night.**

The Present

Collier's work is chilling, too, for what it says about the politics of voting rights this election season. It's been a huge topic over the past few months -- sound and fury signifying less than nothing. Some of the loudest mouths in politics this year have come from local Republican officials in state like Ohio and Pennsylvania, battleground states, where a few thousand votes may again determine the outcome of the presidency. These politicians have made what they call "voting rights" their battle cry, arguing to anyone who will listen that they have proudly passed new registration and identification measures to ensure that "voter fraud" is laid low.

But the registration and identification measures aren't aimed at the individuals who control the electronic-voting companies that control the fate of millions of our votes. The strict new laws aren't designed to create greater oversight over the security of electronic voting machines or the people who program and run them. They don't bring Americans together in a common purpose of a fair vote. Instead, these brave politicians have chosen instead to pick upon those already-registered voters of their own state who are too old, or too poor, or too ill, to have updated state photo-identification cards.

Loudmouthed bullies like Pennsylvania state representative Darryl Metcalfe, a Republican from Butler County, have made clear what they think is the current threat to American democracy. It isn't private corporations being held largely unaccountable for the accuracy (or inaccuracy) of electronic voting. It isn't the cozy interactions between politicians and those companies. It doesn't come from the recent history of electronic voting irregularities in Ohio and elsewhere. It's not Congress' fault. Instead, it's the fault of "lazy" people who don't care enough to vote. Here is Metcalfe, dog-whistling, just a few months ago:

I don't believe any legitimate voter that actually wants to exercise that right and takes on the according responsibility that goes with that right to secure their photo ID will be disenfranchised. As Mitt Romney said, 47 percent of the people that are living off the public dole, living off their neighbors' hard work, and we have a lot of people out there that are too lazy to get up and get out there and get the ID they need. If individuals are too lazy, the state can't fix that.

The state can't fix that. Someday, someone somewhere will write a book about voting rights and the election of 2012 focusing on the bigotry and ignorance of that remark. Today, it's enough to note that neither Congress nor the state of Pennsylvania has done anything recently to make electronic voting safer from fraud. According to VerifiedVoting.org, there are more than 45 million registered voters in America whose electronic votes will not be backed up with a paper record. In Pennsylvania, the vast majority of counties fall into this category. Speaking of which, how much do you trust the folks running your own state's electronic voting?

Let's stop and be clear now about what's happened here and why. When it comes to curbing "voter fraud," Republican lawmakers have had a choice this past decade. They could have protected the accuracy of electronic voting in combination with their voter-identification push. Or they could have done what they have done, which is to ignore the larger problem and focus on the smaller problem, a problem so small that, when Pennsylvania came to court this summer to defend its restrictive new voter suppression law, its lawyers didn't even try to prove in-person "voter fraud."

The Future

Maybe it won't matter. Maybe the election will break in the next two weeks in a direction that makes these concerns seem paranoid. Maybe the gaps in our election security won't be abused by dark political forces. There is no way to tell in advance, but there is little reason to be confident. We know that the presidential race has tightened in the wake of the first debate; we know that unabashed partisans like Ohio Secretary of State Jon Husted still exert a tremendous amount of control over voting protocols; and we know that voting-rights advocates and election observers will be fending off conservative "poll watchers" all around the nation.

Our electronic voting machines should have at least the same protection from hackers that our national security apparatus has.

But whether we get lucky on November 6 or not, this surely is no way for a country like ours to run its elections, and no way for a nation that prides itself on its democratic processes to leave the essence of that process in the hands of un-elected, unregulated, un-monitored private corporations. What's scariest, today, is that even the 2000 recount didn't shame enough pols into fixing the problem. Tell me, exactly, what level of catastrophe will have to occur in 2012 for those same politicians to rise up and secure our electronic ballots? And what message does it send to the world?

Collier doesn't just take her shots without suggesting an answer. "A privatized, secret ballot count must be viewed as a violation of our civil rights," she writes, suggesting that America ought to look to Ireland and Germany for answers. Both countries dabbled with electronic-voting regimes, blanched at the inherent security concerns and susceptibility toward partisan abuse, and have chosen to do away with the use of such voting machines. Imagine that. We live still in the shadow of World War II, and most Germans today have a freer, more accurate vote than most Americans.

My suggestion for reform is somewhat less dramatic. Electronic voting is here to stay. There is no going back. But because the potential for electronic voter fraud is so great, the need for more government oversight is essential. Our electronic voting machines should have at least the same protection from hackers that our national-security apparatus has. Congress should amend the HAVA so that its oversight provisions are given teeth. Corporations which run our elections must be held more accountable. And our elections can no longer be trusted to craven officials like Husted.

Twelve years ago, in Volusia and Palm Beach and all those other Florida counties, we all were shocked to learn how shoddily our elections were run. Our national solution to the problem -- alas, a familiar trifecta -- was to blindly throw a lot of money at it, to naively trust dubious corporations to take care of it, and to shamelessly blame the poor and the dispossessed for it. Fool us once, shame on you. Fool us twice, shame on us. If the 2012 election explodes into chaos, if electronic votes disappear from close races, if democracy is thus subverted, Americans will have no one to blame but themselves.

__

* It is a shame that Harper's hasn't yet made this piece freely available online -- it would be a public duty to do so -- and I certainly hope it happens before Election Day.

** Along these lines, you may also want to read Craig Unger's new book Boss Rove: Inside Karl Rove's Secret Kingdom of Power, in which he writes that the Republican operative has played "a leading role in drumming up a campaign against voter fraud by immigrants -- a phenomenon which is negligible at best -- in order to institute Jim Crow-like laws requiring government-issued photo IDs in more than thirty states...."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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