In brief: Jill Stein’s post-recount organization, Voting Justice, won a victory over voting machines companies ES&S and Dominion in Wisconsin. Stein will be allowed to bring in experts to examine the software for several models of voting machines, and those experts will be able to report their findings publicly. These machines are used not just in Wisconsin, but around the nation. That is all very good.
But this victory is only a breach in the wall of secrecy, not a demolition. Several factors will limit the benefits that will flow from this victory. If we're going to secure future elections, we will need to thank Jill Stein and the Wisconsin Elections Commission--and keep on fighting.
An otherwise well-informed voter could be forgiven for not realizing that the 2016 Presidential recount effort, led by the Green Party’s Jill Stein, is still producing valuable results.
Corporate news media see elections as horse races. Once a winner is declared and the bets paid out, journalistic curiosity dies. Editors see no story in the poor overall quality of American election administration.
So the 2016 Presidential Recount—completed in Wisconsin, aborted in Michigan and Pennsylvania, not even attempted elsewhere—got a big media yawn when it did not change in the outcome.
Here’s some news you may have missed as a result:
Since 2016, the products of the recounts have supported organizers’ efforts to improve elections administration—with impressive success. In Pennsylvania, Stein’s organizers used a recount-related lawsuit to force that state to prohibit paperless voting machines and require routine election audits after future elections.
In Wisconsin, the recount produced a mountain of before-and-after data, from every polling place, for every candidate. Academics from MIT, Harvard, and the University of Wisconsin analyzed it. Although the recount increased neither Trump’s nor Clinton’s ultimate total by more than a few hundred votes, the researchers discovered that more than 17,600 votes had originally been miscounted—or 1 in every 170.
Those stunning findings were universally ignored by Wisconsin media, but the Wisconsin Elections Commission (WEC) took note. I believe that study contributed to their 2018 decision to encourage county clerks to improve embarrassingly weak canvass practices. (The ‘canvass’ is the weeks-long process after Election Day, during which local election officials should review the results to make sure they are correct.)
Wisconsin organizers also used the recount results successfully to encourage the WEC to prohibit further use of one particularly unreliable model of voting machine, after the recount caught it ignoring votes marked on as many as one-third of the ballots.
And now, Stein’s organization, Voting Justice, has achieved victory in a recount-related lawsuit that will throw some much-needed light on voting-machine software.
A unique Wisconsin law requires voting machine companies to place a copy of the actual vote-tabulating software in escrow after every election. Separate from the process of approving voting machines for sale, this requirement was originally intended to protect local governments’ voting-equipment investment. In case a company went out of business, the State would have a working copy of the most recently updated software as backup to keep the machines counting.
The law also requires the State to allow candidates to inspect the escrowed software if the candidates agree “to exercise the highest degree of reasonable care to maintain the confidentiality of all proprietary information.” The software in Wisconsin voting machines is the same as that used in other states, and any inspection could have national implications.
So the Stein campaign asked to inspect the software. They and WEC reached agreement on how Stein’s experts can examine the software without having the opportunity to steal the voting machine companies’ trade secrets. (I can hear the computer-security academics scoffing: “As if anyone would want to!”)
But when the voting-machine companies saw the agreement, ES&S and Dominion didn’t want to play by those rules. The two major players in Wisconsin's voting-machine market wanted WEC to impose a gag order on Stein's inspectors.
WEC said "No gag order." The companies sued.
Their demand of the court was basically: “If you’re going to let Jill Stein’s experts examine our software, prohibit them from ever telling anyone their conclusions.” In other words, the voting machine companies wanted the judge to declare that the experts’ opinions were the companies’ proprietary trade secrets.
Dane County Circuit Court Judge Stephen Elke backed the WEC and turned the voting machine companies down. Likely sensing the main reason why any company would seek such a gag order, the judge wrote:
By way of example, a nutritionist might be given access to the secret formula for Coca-cola, which is undeniably a trade secret. It would not be a disclosure of that trade secret for the nutritionist to say, “After seeing the secret formula, I can tell you that Coca-cola is unhealthy and I would never let my own children drink it.”
This is a breakthrough. To my knowledge, independent experts have never before been able to examine “the software components that were used to record and tally the votes in an election” with the approval and support of the state elections agency. That software is defined as "the vote-counting source code, the table structures, modules, program narratives, and other human-readable instructions used to count votes."
Whatever the inspectors find, the voting-machine companies will not be able to say “But the software you saw was only for review purposes. We had fixed that problem in the operational software.” If they make that claim, they’re admitting they violated the Wisconsin law that required them to provide the State with the software that was used in the election.
And what will their inspection find? Smart money would lay odds on serious problems. You need to know only the basics about profit-seeking corporations and low-bid procurement to predict flaws and holes in a product that the manufacturers believed was eternally protected from scrutiny.
We’ll have to wait to see how well the inspectors can describe those problems without violating their pledge to maintain secrecy about the details of the coding. However, this is the best opportunity so far.
A final benefit is, I believe, this decision’s effect on efforts in other states to compel independent examination of vote-tabulating software. With this precedent, those efforts will be more likely to go forward and more likely to succeed. Wisconsin has shown that states can require voting machine companies to allow inspection of the software that will count our votes.
The wall of secrecy surrounding the “black box” voting-machine programs has been breached. But it has not been torn down. The Stein team grabbed the opportunity that presented itself and made the most of it, but the benefits have limitations.
The first limitation is that this is a one-time event. If no other candidate ever demands to inspect the software, it will never again be inspected. We don’t yet have routine quality assurance.
Second, this decision does nothing, in itself, to banish proprietary software from public elections. If we want to get any closer to open-source software and routine quality assurance inspections, we’re going to have to force this review’s eventual findings into the public’s and legislators’ awareness. We’re going to have to do that ourselves. Count on the news media to maintain their willful blindness to any news, however shocking, that lacks a Republican vs. Democrat partisan angle.
Third, while this review will be able to identify any defects or vulnerabilities in the master copy of each systems software, the inspectors won’t be able to tell whether the election was hacked.
- Computer programs can be manipulated in ways that are undetectable to even expert forensic analysts. In Brave New Ballot, Johns Hopkins University computer-science professor Aviel Rubin recounted how he annually provides his graduate computer-forensics students with programming he has hacked at the level of the binary code (that is, the ones and zeroes that underlie the human-readable source code). Years go by between the times when a grad student detects the hacked code, and grad students have been able to stump him, too.
- Neither voting-machine companies nor election officials will be able to provide Stein’s inspectors with the software that actually counted votes on Election Day. In a “precinct-count” state like Wisconsin, computer tabulation takes place in thousands of separate computers—at least one at every polling place. Before each election, those machines’ software is copied, recopied, and modified for the many different sets of races and candidates that appear on the jurisdictions’ different ballots.
In counties that use the Dominion ImageCast Evolution system (with the exception of Fond du Lac County), the software has even been transmitted over the internet from the Colorado manufacturer to the county clerk.
Therefore, to confirm with certainty that the software in every machine was compliant in even one election, inspectors would have to obtain access to the thousands of copies. No one is in a position to collect all that software in a single place, and Stein’s experts wouldn’t have time to review it even if it could be collected.
- Voting machines can be made to mis-tabulate without altering the source code that Stein’s experts will review. For example, a corrupt or lazy service technician could have installed unauthorized remote-access capability in the county elections computer (as Pennsylvania clerks discovered, to their dismay, in 2014) or in individual voting machines. Later, someone could have taken control of the machines’ output (that is, our election results) simply bypassing or overriding the authorized software.
The best possible outcome of these reviews would be that the experts will find the weaknesses, report them out, and motivate legislatures nationwide to adopt laws requiring open-source software and routine independent software inspection in every local jurisdiction in every election.
But even if that happens, it will not close and lock the door against outcome-altering mis-tabulation of our votes.
The only effective protection against hacked elections remains what it has always been: Routine, manual verification of the correct winners, using paper ballots, completed before the results are declared final.
Routine detection-and-correction is the only security measure strong enough to deter hacking while also protecting final election results against undetected error and malfunction.
It is the only way surely to protect the true voice of the people.
"As the secret ballot transformed elections in the last century," said Joseph Hall, Chief Technologist for the Center for Democracy and Technology, "risk-limiting audits are going to transform elections in this century."
In a few years, Americans will look back, aghast, at our current election management. We will be amazed that we ever trusted vote-tabulating computers so much that we routinely declared winners without checking results for evidence of fraud, glitches, or human error. We will consider routine verification to be an indispensable part of managing elections, just as cash-register reconciliation is now for managing the corner convenience store.
In preparation for that day, it's time to understand: What is a "risk-limiting audit"?Read more
Most local government officials don’t resist taking responsibility for the accuracy of their own department’s work product.
No city treasurer would refuse to check accuracy of property-tax bills.
No county executive would release a report on annual expenditures without double-checking accuracy.
These managers don't need state laws specifically requiring accuracy. It’s just part of being a responsible manager.
But the Wisconsin County Clerks Association is officially on record: They don’t want to check accuracy of their work product. Their work product is our election results.
The WCCA statement came in response to the Wisconsin Elections Commission’s September announcement that they were considering two measures to improve election security.
The first measure involved once-every-two-years voting-machine audits. Municipal clerks perform these audits of individual voting machines. They are the only accuracy checks that the Commission has authority to order, but they have limited value. Not only are these audits limited to November elections in even-numbered years, they check only a few random voting machines, without confirming the right winners in any race.
But municipal voting-machine audits are better than nothing. The Commission said it was considering ordering the municipal clerks to audit more machines than in previous years and would require the audits to be completed before election results are declared final.
The second measure would move Wisconsin slightly toward compliance with national standards for election security. The Commission said it was considering encouraging county clerks to perform election audits of the type recommended by election-security authorities.
Response from the WCCA was swift, naïve, and irresponsible. The county clerks let the Commission know they were okay with ordering the municipal clerks to do more voting-machine audits, but they didn’t want the Commission requiring, or even encouraging, the county clerks to perform genuine election audits.
Perhaps sensing they are on the losing end of a national trend (they are), the WCCA also described how it wants audits restricted:
- These managers don't wanna check accuracy until after they have certified the election results.
- These managers don't wanna check accuracy for any but the top race on the ballot.
- And they want the State to pay extra if it even suggests they check accuracy.
I’m not making that up. The organization’s memo to the Wisconsin Elections Commission is reproduced, verbatim, below.
In their rush to deny normal managerial responsibility, the WCCA got confused about the purpose of “evidence.” They wrote that our paper ballots “should be treated like evidence and remain undisturbed” until after the clerks have reached their verdict and know whether anyone demands a recount. Let’s hope the Trial Judges Association doesn’t follow suit and claim that they don’t need to look at the evidence until after they’ve reached their verdict and know whether anyone demands an appeal.
The WCCA’s message that only the top race on the ballot should be verified could be restated: “If you want us to protect the US Senate election, forget about protecting the Governor’s election.” And hackers are delighted to know ahead of time which race is off limits to manipulation, and which races are still on an honor system.
Because they do not consider checking accuracy a routine managerial responsibility, the county clerks demand the state pay them to verify election results. Again, putting this demand in the mouth of any other local government manager is revealing. Imagine a parks manager telling the county budget manager: “I signed off on this accounting of the user fees we collected this quarter. If you want me to ensure accuracy, you'll need to pay extra.”
For their final, Trumpian flourish, the clerks denied their ability to conduct accurate hand counts and blatantly misrepresented the findings of a study conducted by researchers from MIT, Harvard, and the UW Madison (Learning from Recounts, 2017).
The WCCA memo claimed the researchers had declared that “hand counts of election results are inherently inaccurate.” Now read the researchers’ actual words:
“...careful hand counting in a recount is the gold standard for assessing the true vote totals — in large part because of the greater focus on a single contest, more deliberate processing of ballots, and careful observation by campaign officials and other interested parties....”
The researchers ultimately expressed no preference for either method of counting, concluding: "ballots originally counted by computer ... appear to be at least as accurate as ballots originally counted by hand."
* * *
Wisconsin statutes give county clerks the buck-stops-here responsibility for election results’ accuracy. Municipal clerks cannot verify results in federal, state, and county races; they have access to the ballots from only their own city, village, or town. And the WEC is the legal custodian of no ballots at all; has only a few days after county certification before they must certify; and has no statutory authority to question results the county has certified.
We must insist the county clerks fulfill their responsibility. They have the paper ballots. They have the time. Modern election-audit practices would allow them to verify a few races on the ballot in just two or three days, at most, out of the two weeks that statutes allow them before they must certify the election. The only cost would be the hand-counters’ time at $10 or $12 an hour—a tiny fraction of the county’s elections-administration budget. They could randomly select just a few races for verification—just enough to deter election thieves in the races most liable to attract their interest.
And yet, collectively, they refuse.
Now, the bright notes: As the WCCA memo states, a few county clerks have begun voluntarily to incorporate hand-counted audits into their routine canvass procedures. Better yet, the Commission ignored the WCCA's whining and voted unanimously to encourage county clerks to start auditing during their canvass.
As a result, every county clerk in Wisconsin received a memo on October 4 explaining the current nationwide move to election auditing and providing the clerks with instructions on how to get started.
Only voters, though, can make it happen. Voters who care about election security should contact their county clerk to find out whether their votes in future elections will be protected with hand-counted audits during the county canvass.
If not, the next election on February 19 will provide an excellent opportunity for your clerk to begin developing routine election-audit practices, since it will likely be a low-turnout election. Your county clerk has plenty of time before February to learn about the various methods of checking accuracy and work out his or her local procedures.
Insist on it.
We need to talk about how we can defend election officials from partisan allegations of corruption, when they are guilty only of poor, careless, and ineffective elections management.
I hope you perceived that sentence to be as goofy as I intended it. What I really want to know is when we voters are going to demand high-quality election administration. When poorly operated polling places make voting difficult, when ballots are mishandled or when votes are miscounted, I don’t care which party it hurts or whether it was fraud or incompetence.
I want it fixed.
Following every election, my Facebook news feed fills with reports of sloppy election-management practices. If partisans can find a way to use an incident to their advantage (and they always can), that’s all they want to talk about.
I spent last Saturday morning in New Berlin at a meeting of grassroots conservative voters who are loudly disgusted with Milwaukee’s election administration. They freely alleged corruption and fraud, which I think unlikely, but I appreciate their anger and distrust.
Their candidate for governor lost by 30,849 votes on a night when the City of Milwaukee took hours longer than expected to process 47,000 absentee ballots. City officials explained that they needed to copy more than 2,000 of those ballots by hand because the original ballots were too damaged for the machines to read.
How can anyone expect emotionally invested partisans to refrain from yelling "Corruption!" when something like that happens?
So election officials promptly apologized. They admitted they knew ahead of time exactly how many absentee ballots they would need to process. They accepted full responsibility and started an immediate investigation. They made a public commitment that in future elections, absentee ballots will be processed as smoothly in Milwaukee as elsewhere.
I’m being goofy again. They did no such thing. That’s the kind of response we’d expect from a city treasurer who had sluggishly processed 47,000 property tax payments because 2,000 had been mangled.
In reality, the first response from election officials was that the incident was “routine,” hardly a confidence-building defense. Then, Milwaukee Elections Director Neil Albrecht reframed concerns about management as insults to the workers, and blamed Republicans for not passing legislation that would allow municipal clerks to run the voting machines continuously for weeks before each election. (He did not, however, offer a solution to the as-yet-unresolved details of how security and accuracy safeguards can be maintained when voting machines are in active operation for a six-week period instead of just one day.)
No sensible observer of politics will be surprised when I report that the Republicans in the meeting I attended spoke of using this incident to restrict all early and absentee voting around the entire state. They further mused about reviewing all Milwaukee absentee ballots to make sure the envelope signatures match those on file. They spoke of demanding a randomly selected ballot be thrown out for every ballot disqualified by a non-matching signature. (That’s called a ‘drawdown’ and is legal under current Wisconsin law.) Going after mismatched signatures has been used in other states to get votes thrown out or to make voters jump through hoops to preserve their votes.
Of course, such a process, if done only in Milwaukee County, would throw out many more Democratic votes than Republican votes. That’s why throwing out the ballots of randomly selected innocent voters while creating no consequences for the responsible managers looks like a ‘solution’ through their eyes.
So we’ve got a situation in which the Democrats are using this incident to push for running the voting machines continuously for six weeks, damn the security issues. The Republicans are using it to push for measures that would suppress legitimate Milwaukee votes.
Who is talking about better election administration? Who is asking why Milwaukee officials were prepared to count fewer ballots than they knew they had on hand? Did they not hire enough workers? Did they not assign enough equipment? Were their procedures less efficient than they could have been? Who is demanding to know why Milwaukee had, proportionately, more spoiled ballots than other counties, or what can be done to fix that?
No one. We don't hold our election managers to the same standards we hold other local government managers. Can you imagine what would happen to a city treasurer who defended comparable news about processing property-tax payments by calling it ‘routine’? When transactions are conducted in votes rather than dollars, our expectations of the managers plummet.
When we tolerate--even excuse—elections mismanagement, partisans will always take advantage. To use this case as an example, it is easy to see that people who want to expand early voting should aggressively work to make it as well-managed as possible, not to defend its mismanagement as unavoidable or routine.
Partisanship will never go away; tribalism is what humans do. But our election officials could stop insisting that voters accept poor planning and accidents as routine. If we want to hush the partisan complaints, we must hold our election managers to higher standards of care and competence.
Have any Wisconsin elections been hacked? A few elections were recounted, but no one knows about the others. Until this year, Wisconsin's election officials merely added up the machines' vote totals and declared the results final. Audits were something that they did later, if ever.
But Wisconsin's clerks are waking up to the fact that if they choose to, they can detect miscounts in time to correct them.
So this month, for the first time in Wisconsin's history, voters can be present as clerks hand-count paper ballots. These audits will verify at least some computer-tabulated results before they declare election results final.
At least one audit will be conducted in every county. The day after the election, Wisconsin Elections Commission staff randomly selected 5% of the voting machines and ordered those municipal clerks to conduct hand counts. Those audits are now underway, and will be completed before November 28. Click here to see if a municipality near you is conducting one.
Do not expect the audits to detect problems.
Finding problems in this election is not the audits' main value.
Routine audits are valuable for the fraud they deter.
Our election officials need public support and recognition for starting down the road to secure, audited elections. Here's what you can do:
- At a minimum, call your local municipal clerk and your county clerk to thank them for this year's audits and encourage them to do more in future elections