There’s good news and there’s … no-worse-than-usual news.
The good news is that today, the Wisconsin Elections Commission did what no Wisconsin elections agency has done since the introduction of computerized vote tabulation: They decertified a voting machine, the Optech Eagle.
And they did it for the best of reasons: It wasn’t counting our votes reliably. Now that so many ballots are marked in voters' homes, in all sorts of ink, the machine is "no longer meeting voters' and officials' expectations."
This is good. Not perfect, but good. The vote was unanimous. The Commissioners didn't debate whether the machine should be decertified, but how quickly. They didn’t vote to decertify immediately, but they soberly considered that possibility. And they did adopt some immediate safeguards.
As of today, all municipalities using the Optech Eagle must either count mailed-in ballots by hand, or re-make (that is, copy over) them using ink that can be detected by the machines. And they must keep doing that until they replace the machines, no later than December 31, 2018. In addition, if any contest tabulated by an Optech Eagle is recounted, it must be by a hand count.
This decision had several good angles to it.
First, the Commissioners’ comments, specifically mentioning Racine County, indicated that they accepted as true the reports of Liz Whitlock and the other observers during that recount, even though Racine County officials have not yet acknowledged any problems.
Granted, it would have taken chutzpah for the Commissioners actively to deny that Racine miscounted both the election and the recount, given all the hard evidence of similar miscounts from other counties and the weirdly high undervote rates that county's canvass signed off on.
But the culture of election officials, in Wisconsin and elsewhere, is to band together against concerned voters and, if not to deny their truth, at least ignore it. But in the discussion today, I did not pick up one whiff of the get-these-troublesome-citizens-out-of-here attitude to which we’re so accustomed. Good work, Liz and the rest of the Racine team! The State hears you, even if your clerk doesn't (yet).
Second, the instruction that any recount be conducted by hand shows more courage and commitment than I’ve seen from any public official in a while. Here’s why: If some county decides to contest that requirement, it’s likely that a court would decide that the WEC has no statutory authority to order a hand-counted recount. The Commissioners were aware of that when they voted, but went ahead anyway. Set aside the fact that recounts are a thing of the past in Wisconsin; I like the kind of leadership that says, “Let’s do the right thing and see if anyone tries to stop us.”
Third, the decision signifies a distinct break from the old Government Accountability Board’s attitude toward elections technology. The old GAB—both board and staff—seemed resistant to even the idea that voting machines could miscount. I remember talking with them about the Medford miscount, when misprogrammed machines ignored all straight-party ticket votes. About a third of that city’s votes in a presidential election were lost. GAB staff told me, with a pained expression, “You can’t blame that on the machines!”, as if I would hurt the machine’s feelings if it heard me say it needed to be audited. I can so easily imagine the old GAB Director Kevin Kennedy defending the Optech Eagle with such an argument.
But WEC Director Michael Haas and the Commissioners are willing to take a stand: A machine that cannot count a valid vote has got to go.
I know I may be giving WEC credit for understanding the obvious, but it is a change from the way they were talking only two years ago. And that's good.
The no-worse-than-usual news is, well, unsurprising.
- The staff analysis of decertification stressed cost and convenience for clerks above all other considerations—to the point where I sat there seriously trying to think of how we could frame the risk of election fraud as a cost issue.
- No one ever has investigated or resolved the causes of the worst Optech Eagle miscount. The WEC is just guessing it was the wrong ink. In Marinette, three voting machines missed 9.6%, 26.5%, and 30.8% of the votes on the ballots they processed. It's almost certain that ink had something to do with it, but if the voters marked their ballots at home, why did voters in one section of town use unreadable ink at more than three times the rate of another part of town? And to add to the mystery, the municipal clerk told me that most of the absentee ballots in all three precincts were in-person early voters who marked their ballots in her office. Why would she provide the wrong pen at all, never mind provide it at different rates to the voters from the different precincts? Finally, in the one municipality where WEC staff did do a serious investigation of the cause of an Optech Eagle miscount, they couldn't pin it entirely on ink. Something else is going on with those machines, and remaking the ballots might not fix it.
- Director Michael Haas, on at least two occasions today, referred respectfully to our testimony, and clearly understood what we were saying. But when he spoke most directly to the prospect of future routine election audits, he called it a ‘legislative issue.’ To me, that revealed his perception that Wisconsin’s local election clerks will not agree to verify election results unless forced by law. He’s probably correct, but that’s pretty darn sad. Thank goodness few other public officials take the same attitude toward their work product.
- In my oral testimony, I cited several instances in which county boards of canvass certified obviously incorrect vote totals. I also spoke of the hard fact that none ever verify the vote totals before they certify. Sure enough, like a patellar reflex, the municipal clerk who spoke next offered indignant testimony: “We do too care about accuracy,” though she offered no facts to back up that claim.
The truth of her statement depends on what she means by ‘care.’ I don’t doubt that she “feels concern or interest.“
But until she routinely verifies the vote totals before certifying them, she does not “exercise serious attention or effort to avoid damage or risk.”
So, WEC's attitude toward election accuracy is improving. But the local election officials still haven't mastered Step 1: Accept that you have a problem.