Pieties and PitfallsBack in 1876 in the language of the day, our state Constitution espoused integrity in elections. This requirement still stands. Article VII, Section 11 states: “Purity of elections. The general assembly shall pass laws to secure the purity of elections, and guard against abuses of the elective franchise.”
(Colorado Revised Statutes Annotated; Constitution of the State of Colorado; Art.VII, Suffrage and Elections; Sect.11, Purity of Elections)
As if to provide a failsafe should the state legislature neglect its assigned duty, Colorado Revised Statutes C.R.S. 1-1-107(5) reiterates the words of the Constitution. After specifying duties of the secretary of state, the law states, “The provisions of this section are enacted…to secure the purity of elections and to guard against the abuses of the elective franchise.”
Voting Integrity ComponentsAs of 1947, to protect the “purity of elections,” our state Constitution specifically requires the “secret ballot” to avoid vote coercion, vote buying or vote stealing.
(See Colorado Revised Statutes Annotated; Constitution of the State of Colorado; Article VII, Suffrage and Elections; Section 8. Elections by Ballot or Voting Machine. “All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots should be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted,,, Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy is preserved.” )
Other components of voting integrity include:
Elections must be fair, with all eligible electors having an equal opportunity to vote.
Elections must be accurate, so that only eligible voted ballots are counted, and counted as their electors intended.
Election processes must be transparent to allow public oversight of the election-related actions of public employees and private contractors.
All election products must be kept secure from illegal tampering, until there is no more possibility of election challenges.
In their 2012 book, Broken Ballots: Will Your Vote Count?, Douglas W. Jones and Barbara Simons, two election integrity experts knowledgeable about computers and election administration, give this list of bottom line characteristics of good elections in their book: auditability, accessibility, accuracy, security, reliability, and usability; they add that these goals are not mutually exclusive, but complement each other. (Douglas W. Jones and Barbara Simons, BROKEN BALLOTS: Will Your Vote Count?, CSLI Publications.,Stanford, CA, 2012, p.353.)
Internet VotingEven though computer experts have tried to get the word out that use of our present Internet for voting endangers the integrity of elections, over thirty states in U.S., including Colorado, allow some use of electronic returns of voted ballots for counting, especially for military and overseas citizens.
“Proposals to conduct voting pilots using real elections continue to reappear both in the U.S. and elsewhere, seemingly independent of warnings from computer security experts. While the appeal of Internet voting is obvious, the risks, unfortunately, are not, at least to many decision makers. While very few votes have ever been cast in American elections directly through a web interface, many states already allow military and overseas ballots to be returned via fax and email. Yet voted ballots sent via [the] Internet simply cannot be made secure and make easy and inviting targets for attackers ranging from lone hackers to foreign governments seeking to undermine US elections.
“Despite that, as states provide electronic delivery of blank ballots, some are using the Internet for return of voted ballots via email attachments. Vendors of online election software, with a vested interest in selling their products, of course downplay the inherent risks and promise the oxymoronic “Internet security[.]” But experts in computer security maintain that nothing sent over the Internet is secure. [A] Voter’s personal computers, from which emails are sent, are easily and constantly attacked by viruses, worms, Trojan Horses and spyware.
“Once a voted ballot is emailed, it moves between many different servers located all over the planet, and is subject to compromise by anyone with access to any of those machines. And the election official on the receiving end has no way to know if the voted ballot she received matches the one the voter originally sent, no matter how well secured their county computer services may be, and no matter how much has been spent licensing software and upgrading their systems.
“There is no way to guarantee that the security, privacy, and transparency requirements for elections can all be met with any practical technology in the foreseeable future. Anyone from a disaffected misfit individual to a national intelligence agency can remotely attack an online election, modifying or filtering ballots in ways that are undetectable and uncorrectable, or just disrupting the election and creating havoc. There are a host of such attacks that can be used singly or in combination. In the cyber security world today almost all of the advantages are with attackers, and any of these attacks can result in the wrong persons being elected, or initiatives wrongly passed or rejected.”
Internet Voting in Colorado: The UMOVA BillC
olorado’s General Assembly has a year round committee called the “Colorado Commission on Uniform State Laws (CCUSL), “charged with working with the Uniform Law Commission (ULC) to promote uniformity in state laws where uniformity may be deemed desirable and practical. This is achieved by developing proposed uniform legislation through the ULC that can be adopted by the various state legislatures.”
Colorado participated in the drafting of a model bill initiated by the Uniform Law Commission (www.uniformlaws.org/aboutulc/overview) that was intended for adoption by all states; it would be called the “Military Services and Overseas Civilian Absentee Voting Act.” Colorado’s Secretary of State Buescher sent State Representative Clair Levy (practicing lawyer, as required of all ULC Members) to serve as a Committee Member to work on this bill.
ULC model bills allow “observers,” to attend and participate in meetings alongside Committee members. One observer of note was a representative of Scytl, one of the main vendors of Internet voting systems. Another was Bob Carey, who once told a CfVI Board Member at a conference that he initiated this ULC bill. During the writing of the bill, he was made Director of the Federal Voting Assistance Bill (FVAP).
Was the final language of the model bill known as “UMOVA” influenced by attending observers such as a representative from the FVAP and the Internet voting vendor Scytl? It is hard to tell, as no word-for-word transcriptions of meetings are available.
Over the course of the UMOVA bill’s creation, there were changes apparently related to the issue of internet voting. We were told by a member of the American Bar Association that the ABA approved the bill, as was typically required, only after a great deal of pressure, no security assessments, and much disinformation.
The March 17, 2009 report of the American Bar Association (ABA) Advisors to the Drafting Committee discussed provisions of the federal MOVE Act, saying, “It does not authorize, for security reasons, electronic transmission over the Internet of voted ballots from the voter.” (Italics added.)
The Prefatory Note of the approved and recommended Uniform Military and Overseas Voters Act of July, 2010 has a different emphasis regarding internet voting, saying, “The act… does not require the use of electronic means for transmitting voted ballots. This is because no consensus yet exists on the question of whether and how electronic voting can occur securely and privately.”
When the state bill HB 11-1219 for approval of a state UOCAVA law came before a Colorado legislative committee working for its approval , two out-of-town lobbyists showed up to testify: one was from the FVAP and the other from the Uniform Law Commission. They stressed the point that states that already allowed electronic return of voted ballots could continue to do so in their legislative version of the UMOVA ACT.
Colorado was one of those states. So since 2011, in our COLORADO REVISED STATUES, ARTICLE 8.3, the Uniform Military and Overseas Voters Act, C.R.S.1-8.3-113, we allow return of voted ballots electronically in certain circumstances.
Then and NowMail ballots, once an option only for voters who were absent from their home county on Election Day, have become widely used in some states. A gradual increase in the general use of mail ballots in Colorado has finally resulted in all-mail ballot elections, but with an option for electors to vote their ballots in person at one of the new Voter Service and Polling Centers (as opposed to the traditional precinct polling locations).
A few years ago, a lobbyist for the Vote By Mail Project frequented the halls of the state Capitol, urging general use of mail ballots. In 2008, the director of the advocacy arm of the Vote By Mail Project told a CFVI member that the organization was a program of the League of Rural Voters, and that its support came mainly from the union SEIU, the postal unions NALC and APWU, and the Gill Action Fund based in Colorado.
The Vote By Mail Project is apparently defunct; its goal seems to have been incorporated into America Votes, which has a broader mission. American Votes calls itself “progressive,” includes a wide group of supporting organizations, and is Democratic in leaning. Although it no longer reveals its funding sources, it gets considerable funds from unions.
Purities and ImpuritiesBack in 1876 in the language of the day, our state Constitution made integrity in elections the duty of the legislature. This requirement still stands. Article VII, Section 11 states: “Purity of elections. The general assembly shall pass laws to secure the purity of elections, and guard against abuses of the elective franchise.”
As if to provide a failsafe should the state legislature neglect its assigned responsibility, C.R.S. 1-1-107(5) reiterates the words of the Constitution. After specifying duties of the secretary of state, the law states, “The provisions of this section are enacted…to secure the purity of elections and to guard against the abuses of the elective franchise.”
As of 1947, to protect the “purity of elections,” our state Constitution specifically requires the “secret ballot” to avoid vote coercion, vote buying or vote stealing.
(See Colorado Revised Statutes Annotated; Constitution of the State of Colorado; Article VII, Suffrage and Elections; Section 8. Elections by Ballot or Voting Machine.)
Mail ballots are undoubtedly more vulnerable to violations of this Constitutional requirement of a secret ballot than paper ballots cast at a polling place. When an elector votes in a polling place, his or her identity is determined at a physical distance from where he or she marks a ballot and drops it into a ballot box. In Colorado, regulations for voting in person are supposed to afford voters privacy in marking a ballot unless a voter requests assistance.
Mail ballots do not afford this level of privacy. In Colorado, assuming a mail ballot arrives intact at a clerk’s office to be counted, it returns in an envelope with a voter’s name, address and signature. Inside, the paper pocket known as a “secrecy sleeve” contains the voted ballot. This is the only physical separation of a ballot and its voter’s identity. For a valuable discussion of mail ballot violations of the secret ballot relative to precinct polling place elections, as well as a broader discussion of mail ballots, see a 2013 newsletter titled “Mail Ballots and Elections — What We Have Lost” by Charles Corry, PhD, noted expert on both electronic voting and mail ballots.
Third Party Delivery of BallotsRegrettably, Colorado law allows a practice encouraging violation of the state Constitutional requirement of a secret ballot, and any semblance of “purity of elections.” This is because Colorado voters are specifically permitted to give their ballots to individuals (in addition to those employed by the US Postal Service, or election officials retrieving ballots from institutional settings) for delivery to a voter service and polling center (VSPC). Without the relative protection of polling place in-person voting, electors can be coerced into handing over their ballots by employers or unions. It is easy to see how third party ballot collectors can violate ballot secrecy or worse; such collecting could result in non-delivery, ballot tampering, and vote buying.
For several years, Colorado has allowed one person to deliver up to ten ballots for others per election, up from a previous limit of five ballots (C.R.S. 1-7.5-107(4)(b)(B)). However, at least at the county level, no enforcement mechanisms limit the number a person can deliver. One person can get away with delivering any number of ballots for others with impunity.
In the video, MAIL BALLOTS AND DIRTY TRICKS: Citizens vs Monied Interests in a Colorado Town, lawyer Alison Maynard is interviewed about her pro-bono representation of citizens in two municipal elections in Castle Rock, Colorado in 1998 and 1999. The video shows how absentee ballots and third party deliveries were used by unscrupulous operatives hired by real estate developers to help defeat two citizen initiatives, the first to put a six-month moratorium on building permits, and the second to replace the six of seven town council members who were pro-development.
ConvenienceVoting by mail has often been touted as a “convenience.” But is it equally convenient for all citizens? Project Vote’s report of June, 2010 would say not: “What some groups may overlook in their enthusiasm about voting by mail is that it does not always serve underrepresented or vulnerable populations as well as traditional polls.…studies show that voting by mail has not been a magnificent success among low-income communities of color (in inner cities and rural areas), because of higher mobility rates and poorer mail service among these populations, among other factors.” The report concludes: “The most challenging or mobile populations have always been the hardest to serve, but it is government’s job to reach them, not to sweep them aside in a rush for ‘progress’.”
The recent re-vamping of polling locations in Colorado, which are now called “Voter Service and Polling Centers, (VSPCs) coincided with all-mail ballot elections. For those wishing to vote in person, the number of polling places has been drastically reduced. There were 288 VSPCs statewide for the 2014 election, as opposed to 2192 precincts, formerly used for in-person voting. Surely, this further inconveniences those without a car or convenient public transportation, in addition to less reliable access to mail ballots.
The video “Mail Ballots and Dirty Tricks…” suggests that mail ballots may prove the greatest convenience to deep-pocketed special interests that can hire operatives to collect voters’ ballots and employ dirty tricks. But the video documented elections in 1998 and 1999. What about today? Do monied special interests have an advantage in use of mail ballots over the less fortunate now as well?
To consider this question, we read media reports about the special municipal election of June, 2014 held in Loveland, CO, where an initiative supported by the citizen group Protect Our Loveland (POL) placed a two-year moratorium on hydraulic fracturing within the city limits. Just as in Castle Rock, there was an opposition group operating locally, known as Loveland Energy Action Project (LEAP). It was financed by natural gas proponents.
There was at least one similarity between the use of mail ballots in the Castle Rock elections and the Loveland election. In both elections, there were third party efforts to collect voted ballots. But more striking were the multiple reports of ballot collection efforts by persons falsely claiming to be city officials; one report said they wore badges. They knocked on residential doors and asked to collect voted ballots to return for counting. The identical scam was used in Castle Rock sixteen years earlier. In Castle Rock it was clearer that the sham officials were working for the special interest (developers), not the citizens. In the case of the Loveland election, both sides denied that the men were associated with their organization. To assign blame to one side or another would take research beyond media reports.
Possible parallels in the behavior of the opposition in both the Castle Rock and Loveland elections include:
- The opposition challenged legitimate petition signatures already approved by the town clerk, which helped stall finalization of an election date.
- The election date was moved because of opposition pressure, to a special election run by the town clerk.
- The majority of the city council members were against the initiative.
- The citizens were vastly outspent by the special interest.
- The initiative was defeated.
Even just the media-published evidence of impersonation of city employees to collect voted ballots for the Loveland election, whether the phony employees were sent out by monied special interests or citizens, suggests that unregulated numbers of 3rd party voted ballot collection comes with dirty tricks and illegal behavior.
Third-party delivery of others’ voted ballots should be limited by statute to one or two ballots given by relatives or close friends, with some proof of the voter’s consent.
Electronic Voting MachinesAfter the 2000 Presidential election, in 2002 Congress passed the Help America Vote Act (HAVA), which included an allocation of funds for states to buy electronic voting machines to replace punchcard and lever machines.
One of the options which HAVA allowed was direct-recording electronic (DRE) voting machines — a very bad choice in terms of election integrity.
Alarmed by the serious inadequacies of DREs for voting, Stanford professor David Dill initiated a Resolution on Electronic Voting which was circulated among fellow computer scientists and others.
The Resolution articulated the need for voting machines to produce a voter-verified paper ballot suitable for audit. It also mentioned that there were safer options than unauditable DREs available for purchase, including “Touch screen machines that print paper ballots” that, like the DREs, have the advantage of “potentially improved accessibility for voters with disabilities.”
Here are excerpts from the Resolution:
“Computerized voting equipment is inherently subject to programming error, equipment malfunction, and malicious tampering. It is therefore crucial that voting equipment provide a voter-verifiable audit trail, by which we mean a permanent record of each vote that can be checked for accuracy by the voter before the vote is submitted, and is difficult or impossible to alter after it has been checked…
“In response to the need to upgrade outdated election systems, many states and communities are considering acquiring “Direct Recording Electronic” (DRE) voting machines (such as “touch-screen voting machines” mentioned frequently in the press). Some have already acquired them. Unfortunately, there is insufficient awareness that these machines pose an unacceptable risk that errors or deliberate election-rigging will go undetected, since they do not provide a way for the voters to verify independently that the machine correctly records and counts the votes they have cast. Moreover, if problems are detected after an election, there is no way to determine the correct outcome of the election short of a revote. Deployment of new voting machines that do not provide a voter-verifiable audit trail should be halted, and existing machines should be replaced or modified to produce ballots that can be checked independently by the voter before being submitted, and cannot be altered after submission. These ballots would count as the actual votes, taking precedence over any electronic counts…
Available Alternatives to DRE Machines
“…At this time, the only tried-and-true technology for providing a voter-verified audit trail is a paper ballot, where the votes recorded can be easily read and checked by the voter. With appropriate election administration policies (for example, ensuring the physical security of ballots), voters can be reasonably confident of the integrity of election results. Two specific alternatives that are available now are:
- Precinct-based optical scan ballots. The CalTech/MIT Voting Technology Project found them to be the most accurate at recording the voter’s intent and not significantly more expensive per vote than touch-screen machines.
- Touch screen machines that print paper ballots. Such systems would have many of the advantages of DRE machines, including potentially improved accessibility for voters with disabilities. There is at least one such machine that is certified in several states.”
It was an uphill battle for computer scientists to be heard on the unacceptability of DREs, as DRE vendors exerted their influence on a number of fronts.
Colorado was one of many states that spent HAVA money on DRE voting machines. HAVA required that accessibility for the disabled could be met by having at least one DRE “or other voting system equipped for individuals with disabilities” per polling place. Yet those of us working for verifiable elections in Colorado remember Secretary of State Davidson and multiple county clerks publically mentioning only the DRE option for purchase with HAVA funds, and not the AutoMark, a touch screen machine printing paper ballots. DREs were vigorously promoted over more a more secure alternative.
One major effort to exclusively promote DREs was the disinformation campaign waged by part of the disabled community. Funded by vendors of DREs, the National Federation of the Blind, and the American Association of People with Disabilities specifically touted DRE machines as a solution to allow the disabled to vote without assistance. (If truth be told, according to computer experts Doug Jones and Barbara Simons, DREs are not actually accessible for severely deaf-blind voters!) In chapter 9 of their excellent book, Jones and Simons give a compelling account of the role these disabled organizations played in steering election officials to purchase DREs rather than the ballot-marking AutoMark, which could be made accessible to disabled voters and which produced a paper ballot suitable for auditing.
On the third page of chapter 9, the authors describe how preeminent apologist for DREs Jim Dickson, accompanied by a group of disabled persons in wheelchairs, stormed a meeting of verified voting election activists and experts in Denver. The meeting was ably run by Al Kolwicz, a Coloradan long concerned with election integrity. Also in attendance were both of the authors, as well as a current CFVI member.
Despite his disruptive arrival, Dickson was treated so cordially that at the meeting’s end, he promised to look into the experts’ criticisms of DREs. However, witnessing Dickson speak at several subsequent gatherings of election experts, the CFVI attendee noticed no modifying of his public crusade for DREs. The focus on the quest for disabled independence in voting was just one strategy to sell the DRE Trojan horse.
For a while, computer scientists concerned about the unauditability of DREs campaigned for the attachment of a printer to the DREs so that voters could check their machine vote for accuracy. Unfortunately, many voters never bothered to look at the paper copy to either confirm or correct their vote. The resulting incomplete paper records could not be used to accurately audit the machine votes.
Election activists in Boulder County succeeded in convincing their clerk and recorder to purchase scanners to count votes entered on paper ballots, but this informed lobbying did not occur often. And since the Colorado Department of State never pursued certification of the AutoMark, there was still the HAVA requirement of one “accessible” DRE voting machine per polling place.
This HAVA requirement is still operative in Colorado, although machines purchased with HAVA funds are now over a decade old and wearing out. Colorado, having recently gone to all-mail ballot elections, has also severely cut the number of polling places in a county.
The state is currently considering the selection of machines for new voting systems. We shall lobby that the new voting systems serve democratic elections better than the last.
It is discouraging to note that after elections with equipment funded by HAVA, the insecurities of our unverifiable voting methods go unmentioned in post-election analyses. It seems that pundits and media do not know or care to mention the extent to which our elections can potentially be hijacked surreptitiously. We election integrity advocates have hard work ahead of us.