1
The Electoral System

1.1 THE ELECTORAL PROCESS

To set the stage for understanding electronic voting, it is helpful to review the structure of the electoral process itself. Figure 1.1 represents a generic electoral process, and the rest of this section expands on this depiction in words.1

The first step in the electoral process for the eligible citizen is voter registration. In principle, voter registration establishes a citizen’s eligibility to vote. (Voter registration includes everything that is necessary to register eligible voters and to maintain such lists accurately and completely.) States generally require that a voter be a U.S. citizen, at least 18 years of age, and a resident (in some cases, a resident for some minimum period of time, such as 30 days). Most states also limit voter eligibility on the basis of criminal status (e.g., incarcerated felons may not be permitted to vote), and some on the basis of mental competency, although the specifics of these limitations vary.2 In all states but North Dakota (“states” will be used to denote the 50 states and the District of Columbia, unless

1  

Much of this description is derived from United States Government Accountability Office, Elections: Perspectives on Activities and Challenges Across the Nation, GAO-02-3, October 2001. Available at http://www.gao.gov/new.items/d023.pdf.

2  

A description of the legal restrictions on felons and voting rights in a large number of states can be found in American Civil Liberties Union, Purged! How Flawed and Inconsistent Voting Systems Could Deprive Millions of Americans of the Right to Vote, October 2004. Available at http://www.aclu.org/VotingRights/VotingRights.cfm?ID=16845&c=167.



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Asking the Right Questions About Electronic Voting 1 The Electoral System 1.1 THE ELECTORAL PROCESS To set the stage for understanding electronic voting, it is helpful to review the structure of the electoral process itself. Figure 1.1 represents a generic electoral process, and the rest of this section expands on this depiction in words.1 The first step in the electoral process for the eligible citizen is voter registration. In principle, voter registration establishes a citizen’s eligibility to vote. (Voter registration includes everything that is necessary to register eligible voters and to maintain such lists accurately and completely.) States generally require that a voter be a U.S. citizen, at least 18 years of age, and a resident (in some cases, a resident for some minimum period of time, such as 30 days). Most states also limit voter eligibility on the basis of criminal status (e.g., incarcerated felons may not be permitted to vote), and some on the basis of mental competency, although the specifics of these limitations vary.2 In all states but North Dakota (“states” will be used to denote the 50 states and the District of Columbia, unless 1   Much of this description is derived from United States Government Accountability Office, Elections: Perspectives on Activities and Challenges Across the Nation, GAO-02-3, October 2001. Available at http://www.gao.gov/new.items/d023.pdf. 2   A description of the legal restrictions on felons and voting rights in a large number of states can be found in American Civil Liberties Union, Purged! How Flawed and Inconsistent Voting Systems Could Deprive Millions of Americans of the Right to Vote, October 2004. Available at http://www.aclu.org/VotingRights/VotingRights.cfm?ID=16845&c=167.

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Asking the Right Questions About Electronic Voting FIGURE 1.1 The electoral process.

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Asking the Right Questions About Electronic Voting otherwise specified), voter registration is only one of several requirements that may be imposed on the right to vote. (North Dakota has no voter registration requirement at all.) Other such requirements include citizenship, age, and residency, though registration itself may be conditional on these factors. As a general rule, a voter registers to vote in a specific geographic jurisdiction that is determined from the residential address that he or she provides for the purpose of voting. (This address may or may not be the same as his or her domicile, address for tax purposes, or driver’s license address.) Citizens can register to vote at election offices. Depending on the state, citizens can also sign up to receive voter registration materials in many places, including motor vehicle authorities and public assistance agencies, or through voter registration drives, or they may download materials from the Internet. These materials arrive, after which the voter fills them out and returns them by mail or in person. The returned materials are accompanied by an original signature that serves as an authentication mechanism when voter registration must be checked in the future. Overseas voters, and members of the U.S. armed forces and their dependents, can sometimes register to vote by fax. The voting address of record determines the precinct from which the voter casts his or her ballot, whether at the polling place, or by absentee ballot, or by an early vote. A precinct is a subdivision of a local election jurisdiction, and all voters in a given precinct vote at one polling place. (Sometimes, a number of small precincts are consolidated at one polling place, and sometimes election officials can require that all voters from certain precincts vote by mail.) A local election jurisdiction is an administrative entity responsible for the conduct and administration of elections within it, and may be a county or a municipality (a city or town). Precinct definition is the process by which the boundaries of a precinct are determined by election authorities, based on factors such as the number of voters that a polling place can be expected to serve on Election Day. Precinct boundaries can change from election to election depending on the migration of voters into and out of the precinct and other factors, although they are generally reasonably stable. Many contests are decided on the basis of the vote in certain geographical regions. Thus, precincts are formed within which all voters vote on the same races and have the same ballots, and so voter registration lists are closely associated with precincts.3 A voter whose address of record is associated with precinct A, for example, may not be eligible to vote on 3   Precincts are sometimes associated with more than one ballot, e.g., when citizens must vote in municipal and school races simultaneously.

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Asking the Right Questions About Electronic Voting certain races in precinct B. And, as a general rule, a voter registered in precinct A is not allowed to cast a ballot in precinct B. (Certain exceptions arise in early voting, in which voters from many precincts vote at a central location but receive the ballot appropriate to their precinct of record.) Ballot definition is the process by which a ballot is created. Ballots indicate the contests (offices and propositions) at stake in an election. In general, these contests are placed on the ballot in an order dictated by state law. Each contest is associated with a specific geographical district; the contests on which a voter is eligible to vote are determined by the collection of districts that contain the voter’s address of record. Ballot definition includes incorporation of precinct boundaries that are defined according to state law; a precinct is assigned a union of districts that lie within its boundaries. It is a complex management issue to assure that a jurisdiction is properly divided into precincts and districts in such a way that that the correct contests are associated with the proper street addresses of prospective voters. The result of the ballot definition process is a set of ballot forms for an election, each ballot form differing by at least one contest. A high priority for election officials is to ensure that a ballot form is clear and usable—voters must be able to navigate the ballot and express their preferences with minimal difficulty or confusion. Accordingly, election officials may print (or display) ballots in many different languages. They concern themselves with displaying or printing the ballot in a way that voters with limited eyesight can read. They put carefully worded instructions on the ballot to guide voters through their choices and try to help them avoid errors. Because voters may be unconsciously biased toward the first or last names on a long list of candidates, some jurisdictions are required to take steps to try to minimize potential biases associated with candidate name placement on the ballot (for example, jurisdictions may randomize the initial ballot position of various candidate names). Another important concern in the ballot definition stage is accuracy—in many elections, the ballot can be long and complicated, and election officials need to make sure that the correct ballot is prepared for each precinct. Before being entitled to cast a ballot, the voter must “prove” his or her identity to the election official responsible for giving out ballots—this step is known as voter authentication. In some locations, voter authentication is as simple as asserting one’s name (hence the term “prove” in quotation marks); in other locations, voter authentication involves showing an identification card of some sort. Then, so that a voter may receive the correct ballot form on which to vote, ballot provisioning is necessary. Because the voter is associated with a specific address of record, he or she must receive the ballot corre-

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Asking the Right Questions About Electronic Voting sponding to all races, from local to national, in which he or she is eligible to vote. In addition, the ballot must be appropriately accessible (e.g., presented in an appropriate language or in an alternative form such as audio or Braille). In casting a ballot, the voter’s task is to mark the ballot in accordance with his or her wishes. The marked ballot is the manifestation or expression of the voter’s intent for that election. (The expression “marked ballot” originally derives from the idea of marking a paper ballot with a pen. But more generally, the term “marking a ballot” means to record one’s voting preferences in some form that can later be tabulated with the ballots of other voters.) The actual balloting takes place through one of three types of voting. Precinct voting refers to voters casting ballots on Election Day in person in the precinct where they are registered to vote. Absentee voting refers to voters obtaining absentee ballots before Election Day, filling them out, and returning them to the local jurisdiction (usually by mail) in which they are registered to vote. In some states, absentee voting is allowed only upon presentation of an acceptable reason, such as being absent from the local election jurisdiction on Election Day; being a member of the U.S. armed forces or a dependent; being permanently or totally disabled or ill or temporarily disabled; being over a certain age, such as 65; being an observer of a religious holiday that falls on Election Day; being a student at a school, college, or university; being employed on Election Day in a job whose nature or hours prevent the individual from voting in his or her precinct. In other states, voters can choose absentee voting without presenting any reason at all. In addition, some states allow absentee voters to vote on Election Day as well, on the presumption that the Election Day vote will override the absentee ballot. This approach allows the “last vote cast” to be the one that counts, though it may well entail a greater likelihood of error. Early voting refers to voters casting ballots in person before Election Day at some designated location (e.g., the town hall). Absentee voting in particular is a cumbersome process for election officials because of the requirement that only registered voters should obtain absentee ballots, and it is time-consuming because returned ballots must be authenticated manually. The fact that the mail system is the usual vehicle for transporting ballots and requests for ballots adds another delay to the process. It is sometimes asserted that absentee voting is more subject to fraud and coercion than is precinct voting or early voting. The reason often given is that the in-person nature of voting acts as something of a deterrent, because an absentee voter may improperly vote a second time on Election Day or may have been coerced, or because someone other than the actual registered voter may vote in the stead of the regis-

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Asking the Right Questions About Electronic Voting tered voter, or—much more commonly—because fictitious voters have been invented and registered for the sole purpose of a person intent on committing election fraud obtaining absentee ballots. It is not yet clear whether vote-by-mail or early voting systems in general increase the rate of voter participation (they may simply shift precinct-based voters to absentee voting, for example), but Oregon state officials report that their state’s switch to 100 percent absentee voting (that is, the entire election is conducted by mail) did increase voter participation significantly.4 Initial tabulation refers to the first round of vote counting. Results from the initial tabulation are the basis for challenges, such as recounts or auditing. The first step in tabulation is sealing the voting machines (or the logical equivalent thereof) to prevent any more votes from being cast after the polls close. Then, totals for the polling location are ascertained and produced for the individual precincts if the polling location supports more than one precinct. The process used varies from jurisdiction to jurisdiction and depends on the particulars of the voting technologies involved. The votes from each precinct may be counted at the precinct or in a central location. Most states require a polling place total to be generated and in some states, the totals are required to be posted. For both central count and precinct count systems, the polling location information is transferred to a central location for tabulation or aggregation of the precinct subtotals. Also, votes cast through absentee or early voting must be counted as well, and these are mostly typically counted at the central location. Final tabulation (also known as the canvass) usually takes place some days after Election Day and refers to vote totals that have been obtained from a careful canvass of all votes by precinct, resolving problem votes, and counting all valid votes (votes cast through absentee and other pre-Election Day processes, votes cast on the regular Election Day, and valid votes cast provisionally during Election Day). In practice, unless the election outcome is contested, the canvass also includes a reconciliation of the poll books (noting who showed up to vote) against the total number of ballots counted. In addition, some states require a certain percentage of paper ballots be hand counted to validate the tabulation program for paper systems as part of the canvass. The results of the manual hand count are compared with the tabulated results for a precinct and must agree with those tabulated results within a specific margin of error. In other instances, a recount is mandatory under state law if the margins are sufficiently low. 4   See, for example, Priscilla Southwell, “Five Years Later: A Re-assessment of Oregon’s Vote by Mail Electoral Process,” Political Science and Politics 98(1): 89-93, 2004.

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Asking the Right Questions About Electronic Voting A contested election occurs when the outcome of an election is challenged and someone alleges fraud or misconduct on the part of a candidate, voters, or election officials or systems/process failures. The basis for the challenge is analyzed and the responsible election or judicial official must determine what actions are required to resolve the allegations. A contested election usually includes a more complete audit, which seeks to validate and verify as many aspects of the election cycle as possible without violating state privacy laws, and in particular an audit cannot use data that might associate a specific voter with a specific ballot. The most well-known action to result from a contested election is a recount of the votes, but this is only one of the actions that an audit may entail. Procedures for determining whether a recount is necessary vary by state. In some instances, losing candidates in an election generally have some opportunity to contest an election and demand a recount if the margin of loss is less than a certain percentage of the vote. Recounts can involve machine retabulation of the ballots for one race, or all races, verifying the totals for each candidate or choice and/or hand counts of additional individual precinct totals in sufficient number so as to narrow the statistical margins of error. Note also that recounts (i.e., retabulations) per se do not usually change the outcome of elections—when outcomes change, it is usually for other reasons (e.g., in the 2000 presidential election in Florida, the count changed because of the way voter intent was interpreted on cards, not because of a difference in the machine count). The primary challenges for election officials in audits arise when vote tabulation systems or human vote counters are unable to infer voter intent from the marks that are recorded on ballots, resulting in uncertain counts. For example, a voter may circle a candidate’s name on an optical scan ballot rather than filling in the box beside the candidate’s name. From the voter’s perspective, this may be a perfectly reasonable way to indicate a preference, but most optical scanning devices are not able to record the circling of a candidate’s name as a vote cast for that candidate. In some states, elections officials are required by law to resolve ballots according to a determination of the voter’s intent in casting a ballot. In other states, voter intent is irrelevant, and an ambiguous ballot is resolved (or discarded) on the basis of the marks that actually appear on the ballot. In addition to the above (recounting ballots, determining voter intent on ambiguous ballots), an election audit may also include challenging voter registration rolls, which includes the number of voters disqualified at the polls, those disqualified during registration, and those denied absentee ballot requests; reviewing the disposition of provisional ballots; and determining whether voters received the correct ballots. Note also that the specifics of what is actually involved in dealing with a contested election depend on the allegations made in contesting it.

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Asking the Right Questions About Electronic Voting In many states, voters are not by themselves effectively able to request recounts. In addition, there are significant hurdles and barriers in many states for candidates to request recounts, such as raising sufficient funds to cover the high costs that may be required by a recount. Certification refers to the process through which a designated official certifies the final vote totals for each candidate and each issue on the ballot, within a specific time frame. Upon completion of final tabulation and certification, the process of election administration returns to voter registration. Based on activity in the just-completed election, voter history files are updated, and voter registration lists may themselves be updated based on voter inactivity or on other information about changes in voter status learned in the previous election. Election administration is thus a dynamic process, with the updated voter registration database constituting the foundation on which the next and future elections will be based. 1.2 SCALE OF THE ELECTORAL SYSTEM In the United States, there were 206 million Americans of voting age in 2002,5 of which 156 million were registered to vote. In the 2002 election, 80 million cast ballots, in approximately 9,500 voting jurisdictions. These 9,500 voting jurisdictions were divided into approximately 185,000 precincts; a total of about 800,000 voting machines were deployed in these precincts.6 To assist these voters, about 1.4 million poll workers provided Election Day assistance and supervision of the polls. Collectively, the election enterprise costs the states an estimated $1 billion per year. The federal legal context for elections has three components. The first component is the basic framework for elections contained in the Constitution of the United States, which gives responsibility for elections primarily to the states. The second component is the result of three pieces of legislation—the Voting Rights Act of 1965, the Uniformed and Overseas Citizen Absentee Voting Act of 1986 (UOCAVA), and the National Voter Registration Act of 1994 (NVRA)—which collectively set additional parameters on the federal oversight of election administration. The third component is the Help America Vote Act of 2002 (HAVA). Although the implications and mandates of HAVA are still evolving, HAVA in some ways marks a new federal role, empowers the states to 5   This figure includes many who are of voting age but ineligible to vote for a variety of reasons, including felony convictions, noncitizenship, and mental incapacity. 6   Statistics regarding voter turnout and related information are taken from the Election Assistance Commission Web site, http://www.eac.gov/election_resources/02to.htm.

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Asking the Right Questions About Electronic Voting take a stronger role vis-à-vis local election officials, and also updates or changes some aspects of the UOCAVA and NVRA legislation. The philosophy underlying HAVA, though not HAVA’s detailed requirements, was inspired by issues that came to light in the Florida recount in 2000 and the decision, which effectively decided the 2000 presidential election. Bush v. Gore held that equal protection requirements under the 14th Amendment meant that voters in one local election jurisdiction of a state could not be treated differently than voters in another jurisdiction of that state, and, in particular, that similar methods of counting votes had to be used for all local election jurisdictions across the entire state, thereby minimizing the discretion that could be exercised by individual jurisdictions. Together, HAVA and the Bush v. Gore decision suggest that a greater degree of uniformity within individual states may be forthcoming in the future. These four pieces of federal legislation are described in Box 1.1. 1.3 OBSERVATIONS Conny McCormack, the chief election official in Los Angeles County (which is the nation’s largest and most complex election jurisdiction) often compares conducting an election in her jurisdiction to a major military mobilization. Akin to a major military deployment, the logistics of administering a statewide election in Los Angeles County is without equal. We have secured more than 3,000 polling locations, recruited and trained 23,000 poll workers, registered and updated records for many thousands of voters who are eager to participate in the General Election, and mailed sample ballot booklets to 3.7 million registered voters. On election night we will count 2+ million ballots.7 This commentary provides a quick introduction to the logistical challenges associated with running a modern election in a large, urban election jurisdiction. But there is little general realization that modern elections are difficult to administer effectively, regardless of the specific problems in any particular election jurisdiction. The administrative difficulties are rooted in a number of dilemmas that election officials face; four of the most important are time, resources, complexity, and the law. Time pressures are acute in the business of election administration. Unlike many areas of governmental activities, there are many time-sensi- 7   Conny McCormack, Elections: FYI 2004, Presidential General Election, November 2, 2004, An Informational Manual to the 2004 Presidential General Election for Media, Community Organizations and Interested Citizens, Office of the Los Angeles Register-Recorder/County Clerk.

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Asking the Right Questions About Electronic Voting Box 1.1 Federal Legislation Relevant to Elections The Voting Rights Act of 1965 prohibits voting practices and procedures, including redistricting plans and at-large election systems, poll worker hiring, and voter registration procedures, that discriminate on the basis of race, color, or membership in a language minority group or that have a racially discriminatory impact. In addition, it enables the federal courts and the attorney general to assign federal examiners and federal observers to voting jurisdictions alleged to engage in discriminatory practices, and allows the provision of voting assistance to voters who are blind or illiterate or who have disabilities. The Uniformed and Overseas Citizen Absentee Voting Act of 1986 (UOCAVA) requires that the states and territories allow certain groups of citizens to register and vote absentee in elections for federal offices. In addition, most states and territories have their own laws allowing citizens covered by UOCAVA to register and vote absentee in state and local elections as well. The National Voter Registration Act of 1994 (NVRA—the so-called Motor Voter Act) requires states to provide individuals with the opportunity to register to vote at the same time that they apply for a driver’s license or seek to renew a driver’s license, at all offices that provide public assistance or services to persons with disabilities, and by mail using mail-in forms developed by each state and the Election Assistance Commission. The NVRA also creates requirements for how states maintain voter registration lists for federal elections. States must notify voter registration applicants of whether their applications were accepted or rejected, keep voter registration lists accurate and current, and apply specific safeguards intended to keep voters from being improperly purged from voter registration lists (e.g., a voter should be purged only upon conviction for a disqualifying crime or being adjudged mentally incapacitated and only when state law provides for such removals). The Help America Vote Act of 2002 authorizes funds to be appropriated to states to replace old voting systems and to purchase additional voting systems for persons with disabilities. It establishes the Election Assistance Commission, mechanisms to define voluntary standards for voting systems, and mechanisms to certify voting systems that conform to these standards; directs the states to establish statewide voter registration databases; and imposes specific requirements on the purging of these databases. SOURCE: These thumbnail descriptions are derived from the Web sites of the Department of Justice (http://www.usdoj.gov/crt/voting/) and the Election Assistance Commission (http://www.eac.gov).

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Asking the Right Questions About Electronic Voting tive activities that election officials must engage in that make for administrative headaches. Elections are held on certain mandated dates, and election officials are strongly pressured to produce preliminary tabulations of vote totals quickly after polls close and final tabulations within just a few weeks of holding a major election. An example of such time pressures was recently seen in the City of Los Angeles, when the final returns for a mayoral primary election were held up until the early morning hours owing to logistical difficulties in getting ballots to the central tabulation location. The candidates competing in this election and the media covering the race all complained loudly about the delayed vote count (which was nearly complete by 4:00 a.m., hardly a long wait!). But there are also significant time constraints before the election is held. There are filing deadlines for candidates who want their names on the ballot, and once the basic parameters of the content of the ballot are clear (in some cases just weeks before the election is held), ballots must be defined (that is, laid out), tested, and prepared for the election. Absentee ballot applications must be received, requests processed, and ballots sent to qualified voters so they have time to vote and return their ballots. Final lists of registered and eligible voters must be prepared, a difficult task in many places with the close of registration now only a few weeks before the election. And in-person early voting must be conducted before the election. Obviously, all of these tasks occur under significant time pressure. Resources are a major source of election complications. Many of the tasks associated with election administration are undertaken by entities over which the election official has little control. For example, much of the task of registering voters and providing absentee ballot applications is done by political parties or organized interest groups. Also, election officials must rely upon scores of volunteers or nominally paid workers on Election Day, for tasks from facilitating precinct voting to assisting with tabulation activities once the polls close. Thus, election officials need to be concerned about having enough people to staff poll sites, and they also have to be very concerned about the quality of the work that that these volunteers or poorly paid employees conduct. Because election officials are forced to rely upon the work of individuals or entities over which they have no or only loose control, the task of election administration is greatly complicated. Election administration is also quite complex. The complexity of the election process is largely invisible to most of the public; tasks that on the surface would seem to be simple to undertake, like checking the validity of a voter registration request, can become quite complicated, and can result in legal challenges and court proceedings. Election officials must maintain an accurate voter registration list, a list that needs frequent updating and revision. Addresses must be standardized throughout the

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Asking the Right Questions About Electronic Voting state, and responsibility for making updates must be assigned and carried out. They must use this registration list to determine voting precincts and to ensure that the ballots used in each precinct include only the races that those voters are eligible to vote in. They must allow for early and/or absentee voting before Election Day, and ensure that no eligible voters are allowed to cast more than one ballot. They must have mechanisms to allow voters to cast provisional ballots, and to have these ballots authenticated before they are tabulated. And this basic task is in many places repeated two or three times a year (sometimes even more frequently). The last layer of difficulties facing election administrators comes from the vast and growing body of election law. Election officials need to comply with a web of federal, state, and local laws and regulations. They must ensure that basic federal laws, such as the Voting Rights Act of 1965, are followed. They need to follow state law, regulations, court rulings, and state and federal administrative actions, and they must ensure that local rules are obeyed. And they need to stay abreast of new legal and regulatory developments, such as the passage of new federal and state rules to accommodate new voting systems.