Category: Elections

Responding to a National Health Emergency: Vote-At-Home

First published on TrustTheVote Blog on March 14, 2020. 

Yesterday the President declared a national emergency in the face of the rampant spread of COVID-19. Voters now face a conundrum as we all shift behaviors and absorb disruptions to daily life in order to slow the spread of COVID-19. Many cities, counties and even states in some cases are closing schools, compelling working from home (for those who can), and governments are discouraging congregating in public places. Meanwhile, as our remaining primary elections arrive, what alternative voting place is there other than a public place where people are in close quarters waiting in line, checking in, and using poll booths, where the risk of contracting COVID-19 is clearly more possible?

In short, if you want to vote, but are also being told to stay at home, how are you supposed to vote? The apparent obvious answer is to vote from home. However, it turns out that there is more to the idea than meets the eye, most importantly due to wide variations in each state’s political culture.

First let’s observe one practical challenge: timing. For next Tuesday’s voting states, it’s too late to conduct an all vote-at-home election. All of those states have weighed the risks. The majority has decided that in-person voting is not (currently) a high public health risk, and that modifications to voting place operations can mitigate public health risks. American Democracy must carry on.

Yet, we also already are seeing that some states may weigh risks differently. If it’s not safe for an employee to work in the office, then they should work from home. If it is not safe for a voter to vote in person, then the voter should vote from home—in other words, additional alternatives must be offered, so that voters are not forced to choose between voting and staying safe and healthy.

That should be obvious, right? Maybe, but different states handle this challenge differently.

To understand why, consider the state of Louisiana, the one of next Tuesday’s voting states that decided that the public health risks are too great, and has postponed its primary election. Many are suggesting that it is obvious that Louisiana should rapidly shift to conducting its primary election using the all-vote-by-mail methods that are common in some other states. But it’s not so obvious.

To understand why, consider the difference between the phrases “absentee voting” and “vote by mail.” If you live in one of the 34 states and District of Columbia that have chosen to make it possible for voters to choose to vote at home, the terms may seem pretty similar. But for the other 16 states, it is a big difference.

“Absentee voting” is what those states provide as an option for voters who are unable to show up on Election Day at a polling place to vote in person. A voter must file a request form asking for an absentee ballot. In some states, this form requires the voter to attest to a reason (or “excuse”) why the voter cannot vote in person. In those states, there is a strong tradition and culture of voting in person, and concern over potential abuses of voting outside of a controlled voting place.

As a result, it’s really not so helpful to tell the leaders of one of these 16 states that they should “simply shift” to “Vote by Mail.” For years (even decades) these states have consciously chosen a different path in exercising their state’s right to determine how elections are conducted in their own state. It’s important to respect that right, and the local decisions that go with it.

But at the same time, we have primary elections left to go, and more importantly, the November general election looming on the COVID-19 horizon, with no assurance that the public health emergency will be over by then. The choices that states make about their primaries will likely be precedent for what states choose to do for the November election—an important election, and one where the disruptions could be enormous—either because voters don’t vote due to illness or risk, or they vote in person and risk their health anyway.

I note here that our Legal Team explains that despite urban myths appearing in social media, there is no practical way that Congress could rewrite 3 USC §7 and gain the necessary 2/3rds approval in time to change the date from this coming November 3rd. And further, the President, despite apparently broad Article 2 powers could never successfully delay the election, though it could be tried. It just is not likely.

What is likely: figuring out how to safely conduct an election in the face of a national disaster or emergency.

So, with some imagination and respect for all states, there may be a reasonable middle path, what we might call “emergency vote at home” given the President’s declaration of this now being a “national emergency.” The key word is “emergency.”

The idea is that people would participate in a form of voting that at least in some states is less typical, and appropriate now only because of a public health emergency. You might also call it “expanded absentee voting,” respecting those states that require absentee voters to have a valid excuse to not go to the polls—but in a situation where everyone has the valid excuse of a declared emergency of public health, with recommendations against unsafe groupings of large numbers of people in close quarters.

The difference with true absentee voting is that for this “emergency” vote-at-home, the state would provide a temporary blanket excuse to everyone, waiving—for this election only—the requirement to fill out a form in advance requesting an absentee ballot.

Instead, everyone would receive a vote-at-home ballot, and voters could choose to use it or to vote in person if their state or county chooses to make that an option. But the point is that no one would have to choose between democracy and safety. Voters would have options.

That might be a reasonable principle, but even if you like it, it is one thing to say “emergency vote at home” and another thing to do it. In states that typically see high levels of voting in person and relatively few absentee voters, counties and parishes might be overwhelmed by a sudden—albeit temporary—shift to a deluge of voted-at-home ballots that have to be adjudicated for acceptability using the states existing rules (e.g., a hand ink signature match is required), and counted centrally with county facilities that were never intended for all-central-count.

Indeed, there will be real challenges, and some real costs. But fortunately, any state considering emergency expanded vote-at-home has real resources to draw upon in assessing or planning an executing such a sudden, temporary change in election practice. You can learn more about this in a companion article on the vote-by-mail model.

Let’s pause and remember that for the November general election, this is a national policy issue, and it needs to proceed with respect for each state’s history and practices and rights; and we hope would avoid of partisan bickering about whether this should’ve already been in place, or who has it right versus wrong. We need to keep our eye on the ball: preserving the constitutional mandate for operational continuity of our democracy as a matter of national security. That must be the bipartisan approach, because if such an initiative were to be implemented nationwide, the nation would need to look to federal funding and resource assistance for those states needing such.

The most relevant issue is whether states are able to choose to temporarily employ an alternative vote-by-mail option for this November, and then return to the state’s own typical operating procedures.  This national health emergency requires a suspension of touting benefits (i.e., participation, cost, ease, security) or risks (cost, fraud, voter confusion, security). States will continue to weigh these issues in their choices about how to conduct typical elections outside of national emergencies. And to be sure, all reasonable measures to ensure the common concern of security must be taken.

However, the most important issue before us is that the 2020 general election will not occur in a typical public health environment. Even if by a stroke of good fortune we’re seeing reasonable containment by the time we enter a new winter flu-season, the situation will still require minimizing exposure to high-risk infection settings. Thus, this will be an election conducted during a national health emergency. Therefore, temporary use of atypical measures will most likely be required for large numbers of voter to vote safely, without fear for health, and without concern that the COVID-19 pandemic could help create a botched election.

There is good news. States can make their choices of how to adapt, a national emergency vote-at-home solution could clearly make that possible, and our hardworking state and local election officials can gear up to carry out such temporary measures. However, government needs to move quickly, starting with a serious consideration and bipartisan support for an initiative such as what Senator Wyden proposed last week.

My belief is we all can respect each states’ rights, while simultaneously respecting every voters’ health, by focusing and quickly assessing a “Vote at Home” solution as an temporary approach to ensuring that American democracy and its constitutional mandate for operational continuity are sustained for our national election to be conducted under the presence of a national health emergency.

Florida: A Tale of Two Recounts, With Millions Excluded

First published on TrustTheVote Blog on November 14, 2018. 

Florida recounts are excluding millions of voters. At this writing, there are two recounts underway in Florida: not the Senator and Governor contest recounts, but two different recount processes for both; two different types of counties; and two different types of voters. One kind of recount has been covered well in the media: a 0.5% margin and machine re-scans of paper ballots, and a 0.25% margin and hand counts of paper ballots. The other kind of recount is, at worst, a sham, and at best consists of efforts of local election officials doing what they can for voters not fortunate enough to cast a paper ballot.

Let’s start with the two types of counties: those that still use paperless voting machines like Miami-Dade with nearly 3 million of Florida’s 16+ million people; and counties like Escambia, Broward, and Okaloosa where on Election Day voters mark paper ballots that are counted by optical scanners and software.

Voter Protection: Humans Fill Software Gaps

For those all-paper-ballot counties, the recount process sounds like a good way to protect voters from machine errors. All the paper ballots are counted normally, but if the margin in a contest is less than 0.25%, it is time to bring in the people to do the fine tuning, and find votes that the software might have missed. Let’s use the Senate contest of Scott vs. Nelson to illustrate.

One kind of missed vote is an over-vote. For one paper ballot, the software may have noticed an emphatic and clear mark for Scott, but also some ink that appears to be a mark for Nelson. In that case, the software will record an over-vote, a case where more than one mark was detected, and as a result, no vote is recorded for any candidate. But in a human review, the ballot counter may consult Florida election law, scrutinize the ballot, and decide that the ink near Nelson’s name doesn’t rise to the level of a legal mark. The result: a vote for Scott where the software recorded no vote.

Another kind of missed vote is an under-vote. The software looked for a mark next to Scott and next to Nelson, but found none. A human review might agree that there is no indication of a vote for Scott, but a wobbly circle about the bubble for Nelson does match what state election law says is a mark that qualifies as a vote. The result: a vote for Nelson where the software recorded no vote.

This sounds great! We use software to do a first-approximation of what human counters would do, applied to a large number of ballots, but if the count is close, we bring in people to apply their brain-power to every ballot, to make sure that every voter’s every vote was properly recorded. Voters are protected from software misinterpretation of ballot marks that, in aggregate, could award a contest to the wrong candidate.

Unequal Protection: Digital “Re-Count”

But in the counties with election-day paperless voting, the story is not so encouraging. In Miami-Dade for example, a voter stands in front of a 12-year old machine, manufactured from 16-year old parts, quaintly called an “iVotronic”. They look at a screen version of the same things that a paper ballot voter saw, indicate their choices, confirm their choices, and — poof! Their ballot disappears in a puff of logic, and their votes are added to vote totals stored as data in this antique computer.

The same misfortune happens to other voters using that same machine, and eventually all those vote tallies are copied from the iVotronic to a central system, combined with other iVotronic votes, and also the votes recorded by scanning paper absentee ballots.

At recount-time, the absentee paper ballots go through the same process of re-scan and hand-count. But those paperless voters? What protection do they get? None. The iVotronic may have incorrectly recorded a voter’s choices, but we’ll never know. For these voters, there is no human correction of software errors.

Digital Re-Count: Anything Learned?

But more than unequal protection, the paperless voting machine “recount” process is even more weird. Humans re-do the process of getting the vote tally data off of the machines, and adding up all the tallies. We’d expect the totals to be the same. But what if they are different? Would that mean that some votes were erased or some added? Or perhaps the initial data off-loading process had some human error or technical glitch, and the new, different totals are the correct ones. How could we know which is the case?

The answer is: we can’t. Too many paperless voting machines, too many people with access to them, no way for a county election official to swear in Court that every single one was completely controlled with no chance for any tampering, not even the completely invisible kind with a person carrying one of the machines, while having a good sized magnet in a pocket to scramble some of the data.

The End Result: Faith-Based Paperless Recounts

When the recounts are done, our hats off to the hard-working local election officials who will have dutifully ground through the process, and refined the vote totals to correct for perhaps a few thousand cases of software misinterpretations that might have affected the election result. And off to the side, millions of paperless votes with no way knowing if the software recorded the votes correctly, or if the digitally stored votes were protected from modification.

As a result, at the beginning of recount process, our confidence in the election results was only as good as our confidence in antique paperless voting machines’ correct operation for millions of voters. After the recount, and after the human correction of hundreds or perhaps thousands of votes, we still have the same millions of paperless votes, and the same confidence that the election results are only as good as our confidence in the paperless voting machines.

From there, we will still have to take the election results on faith, and add some additional faith that Florida will finally jettison all the paperless voting machines, and use a simpler, more cost-effective, easier-to-protect method of counting paper ballots and routinely having humans cross-check the totals in case of computer error.