In this modern age, the Committee to Modernize apparently isn’t too interested in using technology to verify citizenship, instead choosing to have these noncitizens deselect themselves from the process by not showing up to vote.

The Committee certainly has supporters at the United States Department of Justice. The DOJ has been in an ongoing battle with the State of Georgia. Georgia is attempting to use  the Georgia driver’s database as well as the Social Security database to verify citizenship.  DOJ says that because of its disproportionate impact on minorities, the Georgia plan is illegal.

We  have actual evidence of the Department of Justice stepping in and denying the State of Georgia a very reasonable modernization of their own system.  I wonder if those advocates of modernization will come to the defense of the State of Georgia and whether they’ll modify their own proposal to add a citizenship check?

The Georgia case is now going to the court system.  How they fare will certainly be of interest to anyone who is looking for accuracy and integrity in our voter rolls.

It also begs the question as to what other states are doing to take advantage of databases that track citizenship.  What we know is that the advocates of “modernization” have little interest in this aspect of modernization.

Here are a variety of the documents laying out the Georgia citizenship  verification battle.

April 23, 2007 DOJ Letter

October 8, 2008 DOJ Letter

October 14, 2008 Georgia SOS Letter

December 10, 2008 Georgia SOS Letter

December 15, 2008 DOJ Letter

February 2, 2009 Georgia SOS Letter

March 24, 2009 Georgia SOS Letter

May 29, 2009 DOJ Letter

June 16, 2009 DOJ Letter

No one has responded.

It’s very simple.  If you’re going to suggest that we automatically add people to the voter rolls from government databases, shouldn’t you at least be able to tell the public and policy makers about the ability of those databases to tell  us who is a citizen or not?

There’s a lack of seriousness on the part of these reformers.  Lots of noise.  Lots of anecdotes about what they perceive to be wrong.  But little in the way of facts.  Heather Gerken’s Democracy Index used a couple hundred pages telling us how important data is.  But in reality, there is little evidence that reformers are interested in data.  And if they are interested, they’re not sharing any information they’ve found.

They’re aren’t too many good spins that can be put on the silence of the proponents of modernization regarding the issue of citizenship.  Perhaps the most charitable reason is that they just don’t know the answers to these questions and don’t want to admit it.  Less charitably, maybe they’re willing to put millions of noncitizens on the rolls if it means more eligible voters are added as well.  Most cynically, any number of the “reformers” might be hoping that noncitizens are put on the rolls and end up voting.

You’d think that the one thing we could agree upon is that noncitizens should not be added to the voter registration rolls.  But it appears that isn’t the case and it’s hard to imagine a consensus on reform that wouldn’t include that important element.

For a decade we’ve heard about the deficiencies of various voting products. We’ve seen headlines about mistakes and legitimate and illegitimate questions raised about the validity of some election outcomes. The public may be wondering why these questions continue to be raised instead of solved. Enter certification.

Virtually every state requires the election equipment used in their state to be certified by the federal authority, the Election Assistance Commission. The EAC relies in part on the reports of organizations such as NASED. In Illinois what that means is that any given piece of election equipment will have gone through three costly certification processes.

What it also means is that after the certification no election equipment company is likely to reenter the process to make minor changes to their equipment or the software that drives it. That means that election officials and voters are often stuck with equipment with known glitches that could be removed but aren’t. Each of these glitches can be overcome and prevented through best practices and testing. But none of them can be eliminated from the system.

Here is an analogy. Imagine that you have a cardiac doctor who went through medical school, interned and assisted in some surgeries, and since being licensed has performed a hundred open heart surgeries. Now imagine that some company has produced a new clamp or scalpel that better suits the needs of cardiac surgeons. Your surgeon wants to use the new device, but is prohibited by state and federal law unless he goes back through medical school and goes back through the internship process.

That’s where we are in the election equipment and software field. Election equipment manufacturers and election officials are prevented from implementing even common sense changes to the software and hardware running elections because of the costly and lengthy certification process.

So what is the solution? Ease up on the certification process, open the source code, increase the preelection testing, and mandate post election auditing.

If you’d like some excellent reading material about this I’d suggest that you read some of the comments from the State of California’s Future of Voting page. The Open Source Digital Voting Foundation also has a sound vision for the future of election equipment. Finally, through the California site I’ve run across Mitch Trachtenberg whose two page summary from the California page is excellent. Trachtenberg also has a number of other items he’s written that are worth a read. I generally wouldn’t go as far as some advocates when it comes to redundancy and I certainly think that doing it on election night is impractical. But I really like the idea of a copy of each ballot being made for post election examination.

It’s an unfortunate irony that the costly certification process has actually resulted in less confidence in our electoral system rather than more. If we want a system that earns the trust of every voter we need to institute post election audits, more extensive testing, and a certification process that is more open and flexible.

Bill Brady picked up 12 votes and Kirk Dillard 6 for a net plus 6 for Brady.

Each time we do this, we find a few ballots that have been irregularly marked by a voter and which don’t count correctly, either on election day or on the day of the retabulation.  For example, if you go back to the retabulation we conducted for the April 2009 election, you’ll see that we found 8 irregularly marked ballots that explain the discrepancy between the two counts.

Today, out of 1178 ballots containing 18,227 votes we found ONE ballot with ONE mark that didn’t read accurately.  That’s a voter error rate of .005%.

The full results of our retabulation are available here.

Most of these complaints about the under-vote process centered on how election judges administered this aspect of voting and the misinformation judges provided. For example, some judges instructed voters to vote for each office or their ballot wouldn’t be counted. In other instances, judges verbally announced which office the voter didn’t cast a vote for, thus violating the voter’s ability to secretly cast their ballot. Some complained the news media (newspaper and TV) misinformed voters and instilled fear in some voters that if they didn’t vote for each constitutional office their ballot wouldn’t be counted. A few voters that called complained this law is a violation of their constitutional rights and interferes with their most basic and fundamental right in a democratic society to east their ballot in secret. I have received a few hostile calls from voters since Election Day complaining that their constitutional rights are being violated by this law and they will no longer continue to participate in elections when statewide constitutional offices are on the ballot.

Of course, voters who think they have a constitutional right to a secret ballot won’t find much comfort from the State Board of Elections.

Currently in Illinois, by my count, there are 4 different voting systems in use, plus a hybrid system that makes 5.  The M-100 system used in Champaign County is the only completely optical scan system.   The Sequoia system in Cook County and the AccuVote systems in counties like DuPage and McHenry use paper ballots for most voters, but for voters using early voting centers and for those who need accommodations, they use a touch screen DRE system where votes are directly cast into  a computer.  Kane and Peoria counties use touch screens for every vote cast.

Where this gets interesting is with judge’s initials which are a mandatory provision of the election code for paper ballots but which are obviously not possible with DRE machines.  What that means is that if you cast a vote on paper in the state of Illinois, your ballot being counted is based in large part on whether the judge remembers to initial the ballot.  In almost every instance, the judges do their job correctly.  But there is little doubt that somewhere in the state there will be some unitialed ballots.  These are a legendary part of election contests.

If you voted in Kane County you have no worry though.  No initialing means that when you cast your vote you know it counted.

This situation of different voting systems with different error possibilities existed in the past when the notorious lever machines were being used at the same time as hand counted paper ballots and punch card ballots.  The main difference today is Bush v. Gore.

That famous decision had a big impact on the Minnesota Senate race and could also have a big impact in Illinois.   Here is one important sentence from the opinion.

Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.

I haven’t had a chance to review the Minnesota case to see how these issues of different voting systems were applied there, but you can bet that in a full blown election contest this question is going to be raised.

An additional angle on this might be found in a case that came out of Champaign County.  In Reynolds v. McGinty, the Appellate Court ruled that the page numbering provisions of the election code were  mandatory, but that the finding of the electoral board that no fraud was perpetrated meant that substantial compliance had been met.  The decision was a little odd to me at the time, because it suggested that the Electoral Board had done more fact finding than in fact we had.  Here is a critical point in the opinion.

However, given the limited number of pages involved, the fact that the two pages at issue are easily identified by the name of the individuals who circulated them, and the lack of any claim of possible voter confusion, tampering, or fraud by the plaintiff lead to the conclusion that the evidence before the Board was sufficient to sustain its finding that the defendant substantially complied with the requirements of the statute.

This opinion may have raised the bar for  objectors and,  in this case, election contestors.  What the Reynolds case says is that while a provision of the election code is crafted to prevent fraud and is thus mandatory, at the same time, in the absence of any demonstration of fraud, the provision becomes a mere technicality.

The number of uninitialed ballots is likely be under a hundred, and perhaps irrelevant.  But if it does become relevant, we could see a whole new way of looking at the issue.

A petitioner for a discovery recount can ask to examine up to 29 precincts in Champaign County at a cost of $290.  In a Republican contest, that would allow them to examine up to 7,602 ballots cast for Governor.  If the only thing they do is look at each ballot cast, we’d about break even.

But they’re entitled to do much more.  If they want us to test each vote tabulator, add about $300.  If they want us to run each of those ballots through the machines again, add about $500.  If they want to just look at the applications for those 7,602 voters, add another $300.  Then looking at other miscellaneous items, maybe another $100.

So my guess it costs anywhere from $300 (break even for our county) to $1500 ($1200 for our county).  That is based on a single staff person assisting me and me working for “free”.  If you actually counted my salary in there, those costs would about triple.   Under that scenario, Champaign County’s costs would be anywhere from $600 to $4200.

Champaign County had about 2% of the vote in this primary election.  Extrapolating that over the entire state gives a VERY rough estimate of the statewide costs.

Important note!  This is just discovery, not the costs for an election contest.  I don’t even want to go there yet.