Law and Data: Voting Law and Data: Voting Technology and the LawTechnology and the Law

Henry E. Brady Henry E. Brady Class of 1941 Monroe Deutsch Professor Class of 1941 Monroe Deutsch Professor

of Political Science and Public Policy, of Political Science and Public Policy, University of California, Berkeley University of California, Berkeley

Goals of the Voting Process:Goals of the Voting Process:

ProtectionProtection of legal voting; of legal voting; prevention of illegal voting, prevention of illegal voting,

AccuracyAccuracy in recording in recording people’s voting intentions,people’s voting intentions,

SecuritySecurity in counting people’s in counting people’s votes votes

Legal ConcernsLegal Concerns

Fourteenth Amendment Fourteenth Amendment equal equal protectionprotection for all voters (Bush v. for all voters (Bush v. Gore)Gore)

Voting Rights Act of 1973 and Voting Rights Act of 1973 and non-discrimination against non-discrimination against minoritiesminorities

Points of Vulnerability Points of Vulnerability

Marking the BallotMarking the Ballot• Mistakes: Errors by people, Voting Mistakes: Errors by people, Voting

equipment failures or poor programming equipment failures or poor programming • Fraud: Malicious programmingFraud: Malicious programming

Counting the BallotsCounting the Ballots• Mistakes: Poor counting; ballots read Mistakes: Poor counting; ballots read

twice, poor programmingtwice, poor programming• Fraud: False counts, ballots read twice, Fraud: False counts, ballots read twice,

malicious programmingmalicious programming

Is Paper Trail the Answer? Is Paper Trail the Answer? Is Paper Trail Necessarily Verified?Is Paper Trail Necessarily Verified? Does it improve Does it improve accuracyaccuracy: :

making sure that voter intent is making sure that voter intent is captured?captured?

Does it improve Does it improve securitysecurity: : making sure that votes cannot making sure that votes cannot be miscounted? be miscounted?

Getting Intent Wrong: Miscounted Getting Intent Wrong: Miscounted & Lost Votes From:& Lost Votes From:

Imperfect marks on ballots due to Imperfect marks on ballots due to hanging chads, stray marks, etc.hanging chads, stray marks, etc.

Ballot format mistakes (“butterfly Ballot format mistakes (“butterfly ballot”)ballot”)

Voting systems Problems: Voting systems Problems: • Failing to record or to sense intended Failing to record or to sense intended

mark for a race (“unintentional mark for a race (“unintentional undervotes”) undervotes”)

• Causing or sensing unintended multiple Causing or sensing unintended multiple marks for a race (“unintentional marks for a race (“unintentional overvotes”) overvotes”)

Persistent Question: Are Lost or Persistent Question: Are Lost or Miscounted Votes…Miscounted Votes…

The Voter’s Fault or Intention?The Voter’s Fault or Intention?

The Voting System’s Fault or The Voting System’s Fault or Intention? Intention?

Voter ErrorsVoter Errors

System Errors: The Butterfly Ballot System Errors: The Butterfly Ballot

Enron Energy Traders Enron Energy Traders on Voting Errors:on Voting Errors:

KEVIN: So the rumor’s true? They’re KEVIN: So the rumor’s true? They’re [expletive] takin’ all the money back [expletive] takin’ all the money back …you guys stole from those poor …you guys stole from those poor grandmothers in California?grandmothers in California?

BOB: Yeah, Grandma Millie, man. But BOB: Yeah, Grandma Millie, man. But she’s the one who couldn’t figure out she’s the one who couldn’t figure out how to [expletive] vote on the how to [expletive] vote on the butterfly ballot. butterfly ballot.

Types of Residual VotesTypes of Residual Votes

Residual votes are sum of Residual votes are sum of undervotes and overvotes:undervotes and overvotes:

UndervotesUndervotes–no mark on a ballot for a –no mark on a ballot for a racerace

OvervotesOvervotes–marks for more than one –marks for more than one racerace

Presidential Residual Vote Rates Presidential Residual Vote Rates for Major Voting Systems in 2000for Major Voting Systems in 2000

Punchcards (435 counties)Punchcards (435 counties) 2.6% 2.6%

Lever (323 counties) Lever (323 counties) 1.7%1.7%

Electronic (266 counties) Electronic (266 counties) 1.7% 1.7%

Optical (1018 counties) Optical (1018 counties) 1.4%1.4%

Are Residual Votes due to the Are Residual Votes due to the Voter or to the Voting System?Voter or to the Voting System?

The Voter:The Voter:• Voters Voters intentionallyintentionally overvote or overvote or

undervoteundervote• Voters Voters make mistakesmake mistakes that cannot be that cannot be

avoidedavoided The Voting System:The Voting System:

• Voting systems Voting systems fail to provide adequate fail to provide adequate feedbackfeedback to check the intent of voters to check the intent of voters

• Voting systems are Voting systems are badly designedbadly designed and and avoidable mistakes occuravoidable mistakes occur

Reducing Residual Vote Rate By Reducing Residual Vote Rate By Changing Systems—An ExampleChanging Systems—An Example Compare two adjacent counties in Compare two adjacent counties in

IllinoisIllinois One (St. Clair) stayed with Votomatic One (St. Clair) stayed with Votomatic

style punch-cards from 1996 to 2000style punch-cards from 1996 to 2000 The other (Madison) changed from The other (Madison) changed from

Votomatic style punch-cards in 1996 Votomatic style punch-cards in 1996 to Optical Scan with precinct count to Optical Scan with precinct count and with notice of overvotes in 2000and with notice of overvotes in 2000

Madison County

St. Clair County

Adjacent Illinois Counties—1996-2000

Stayed with Votomatic Punch 1996-2000

Votomatic Punch in 1996Optical Scan 2000

Madison County

St. Clair County

Adjacent Black Precincts in the Two Counties

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

Same with Optical ScanSame with Optical Scan

Residual Votes in Fresno County Residual Votes in Fresno County with Votomatic Punch in 1996 with Votomatic Punch in 1996

Residual Votes in Fresno County Residual Votes in Fresno County with Optical Scan Precinct in 2000with Optical Scan Precinct in 2000

1996 and 2000 Side by Side1996 and 2000 Side by Side

Why do Votomatic Style Punch-Why do Votomatic Style Punch-Cards Fail to Record Voter Cards Fail to Record Voter

Intentions Accurately?Intentions Accurately?

No easy feedbackNo easy feedback Hard to align punchcardHard to align punchcard Hard to calibrate to work rightHard to calibrate to work right No check of voter intentionNo check of voter intention Note: Other systems have some Note: Other systems have some

of these problems as well. of these problems as well.

Whose Votes are Lost?Whose Votes are Lost?

Anyone using error prone voting systemsAnyone using error prone voting systems

Anyone using voting systems that fail to Anyone using voting systems that fail to provide feedback to check voter intentprovide feedback to check voter intent

Anyone whose personal characteristics Anyone whose personal characteristics makes it especially hard to use error prone makes it especially hard to use error prone systems that fail to provide feedback (the systems that fail to provide feedback (the disabled, the elderly, those with low levels disabled, the elderly, those with low levels of education, etc.) of education, etc.)

Does a Paper Trail Solve the Does a Paper Trail Solve the Accuracy and Security Problems? Accuracy and Security Problems?

Not with Votomatic style punchcardsNot 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 Is a paper trail for a DRE a voter

verified ballot? verified ballot?