Paper ballots: Cure or catastrophe?

by Lila Hanft, CJN, 02/08/08

It was only 6 a.m. when attorney Karla Wallach noted the first problem at the polls at Cleveland Heights’s Canterbury School, where she was a Democratic observer for the 2006 primary.

The technician assigned to set up the new Diebold touch-screen voting machines (DREs) couldn’t proceed without the Republican poll worker, who hadn’t shown up.

When the technician called in to see what could be done in the absence of bipartisan supervision, Wallach discovered problem #2: The help line of Cuyahoga County Board of Elections (CCBOE) didn’t open until 6:30 - by which time the polls were already supposed to be up and running.

Problem #3 arose as soon as the DREs were operational: Poll workers found that none of the voter access cards could be encoded. A surprised Wallach then discovered problem #4: “There wasn’t a single line in the poll workers manual” covering the possibility that the DREs wouldn’t work. “The assumption was that the machines would operate perfectly, always,” says Wallach. “Hello? Has no one’s computer ever crashed?”

Wallach’s experience was hardly unique. That March election day, reports streamed in of polls that opened late, machines that couldn’t be set up, long lines, voters who had to leave without voting, and poll workers who gave inaccurate information about provisional ballots.

Democratic party observer Deborah Coleman, an attorney and CJN board member, was struck by how “many poll workers were older adults” who “were completely bewildered by the new rules and procedures … or intimidated by the voting machines.” Voting would not have gone as well as it did, she believes, “if it were not for the fact that each precinct has assigned to it a high school or college-age volunteer to assist in dealing with the electronic voting machines.”

Bad attitudes, bad decisions

When the dust had settled on the 2006 primary election, studies ordered by the county commissioners and the CCBOE uncovered a multitude of problems, including inadequately-trained poll workers, Diebold-written manuals with inaccurate, misleading and contradictory instructions; security breaches at the polls and at the CCBOE; malfunctioning hardware and faulty software.

But in a larger sense, says voter activist Adele Eisner, the failure of the 2006 elections grew out of the previous CCBOE’s sense of superiority and penchant for secrecy. The old CCBOE was a “huge political patronage system” with little sense of public accountability, Eisner said in an interview with Meet the Bloggers last April.

Eisner is not alone in locating the root of Cuyahoga County’s election woes in the attitude of the former CCBOE. There were frequent reports that the board, particularly chair Bob Bennett, spoke disparagingly to citizens who attended CCBOE’s public meetings.

Cleveland State University law professor Candice Hoke is an expert on election administration and compliance with state and federal election law. She is also director of the Center for Election Integrity, which serves as public election monitor to the current CCBOE. Last March, Hoke testified before the House Subcommittee on Elections that the old CCBOE had its share of election officials “who enjoy(ed) the historically unchecked, broad discretionary authority they exercise(d) over election performance and reported electoral results.”

Such officials “tend to disfavor public accountability,” says Hoke. Eisner says that was evident in 2005, when Bob Bennett, former head of the CCBOE and Michael Vu, former director of the CCBOE, pushed through the $21 million purchase of Diebold election systems without benefit of competing bids, serious public debate, or factoring in all the ancillary costs.

Purchase in haste, repent in leisure

The purchase of Diebold voting equipment cost far more than estimated, The 2006 elections ran $7 million over budget, due in large part to the cost of contracts for Diebold’s ongoing technical support and services, says Eisner.

“We should not ever again rush into a voting technology without looking carefully at product, vendor, costs, and contractual protections,” says Hoke, who prepared a memo for the CCBOE and county commissioners on what factors to consider when transitioning to a new voting system and vendor.

Yet a dismayed CCBOE is seeing history repeat itself since Secretary of State Jennifer Brunner mandated that the county switch from DREs to paper ballots and central scanning. The CCBOE has been forced into a mad scramble to procure a new equipment and new contracts with voting system vendor Election Systems & Software (ES&S), the manufacturer of the only optical scanning equipment Brunner has approved, in time for the March primary election. (See sidebar 1.)

Too much to do

In Hoke’s experience, the federal primary in an even year (2006, 2008) is “the single most complex election to administer” and a terrible time to try out a brand-new voting system. The primary requires separate ballots for each party, plus a third ballot of issues for voters with no party affiliations. And there can be a lot of names on primary ballots, since anyone who can qualify through petitions can request a place on the ballot.

In addition, each precinct’s ballot is different because some local party precinct elections take place at this time. There is also a version of all ballots for 17-year-olds, who can vote on certain items in the primary if they will turn 18 before the general election. The CCBOE must also prepare and mail out absentee ballots. And they’re not off the hook for electronic voting; Brunner has said that there must be at least one DRE per polling place to accommodate users with disabilities that prevent them from using paper ballots.

In addition to the sheer number and complexity of the ballots, says Hoke, the board of elections must make sure each ballot is properly set-up with all the technical conditions the optical scanners need to read it.

Open-minded humility

With the primary four weeks away, CCBOE director Jane Platten was not available to answer the CJN’s questions, despite repeated promises by CCBOE communications staff members that she would return calls and e-mail. Platten has already warned the board that the new central optical scanning system will likely delay the final vote count.

One thing Platten has going for her, observers agree, is what Candice Hoke calls “open-minded humility”: the willingness to admit she may not have all the answers. Platten’s predecessor, Michael Vu, was criticized for ignoring crucial input from his own staff during the transition to DREs in 2006.

In Hoke’s field of regulatory law, the term “unintended consequences” refers to the unexpected effects that occur when complex systems are changed. By switching to paper ballots and central scanning, Brunner has solved one problem (with DREs) but has created others, says Hoke. Using central scanning instead of precinct scanning sacrifices the opportunity for “second-chance voting.” Most election law experts and the American Civil Liberties Union (ACLU) believe that is a big step backwards in terms of protecting minority voting rights.

On January 17, the ACLU sued the state and county to stop the switch to paper ballots, arguing that Cuyahoga County's plan to use central counting of ballots would violate voters' right to equal protection.

On Feb. 5, U.S. District Court Judge Kathleen O'Malley denied the ACLU's request for a preliminary injunction which could have forced Cuyahoga County to go back to DREs or postpone the election. ACLU of Ohio executive director Christine Link told The Columbus Dispatch that the judge ruled that the ACLU request for a preliminary injunction came too late and would be too disruptive for the primary, which is less than a month away.

Safety and chain-of-custody concerns

The plan to transport paper ballots to a central location before they are counted also presents security problems, says Hoke. The CCBOE will have to establish security procedures for storing and transporting the ballots and chain-of-custody protocol to ensure that ballot gets from the precinct to the optical scanner without being tampered with, torn, folded, spindled, mutilated, soiled or lost.

Hoke is also concerned that a sudden change in voting technology takes the focus off other longstanding problems in Cuyahoga County elections, on which “our board of elections was making steady progress.” In the last election, voter registration rolls still suffered from software glitches and data input errors, and poll workers still gave voters the wrong information about provisional ballots and voter ID. Hoke thinks that work on these issues will "probably have to be pushed back" so that the CCBOE can deal with the new voting system.

For right now, Hoke predicts, “it’s all hands on deck for the storm” at the CCBOE.

See also:
•Sidebar 1: ES&S v. Diebold: The devil you know, or the devil you don't know (02/08/08)
•Sidebar 2: County voting woes, by the numbers (02/08/08)
•Sidebar 3: Voter ID laws affect nursing home residents (02/08/08)
•Previously: Paper ballots before March: Cure or cause for more grief? (01/25/08)