Incredibly close race was run mostly on 100% unverifiable electronic touch-screen voting systems...
By Brad Friedman on 11/6/2013, 12:33pm PT  

[This article now cross-published by The Progressive...]

As of today, following yesterday's off-off year Election Day 2013, the race for Virginia Attorney General is still uncalled by the media, and for good reason. Out of some 2.2 million votes cast in VA yesterday, the Democratic candidate for AG, Mark Herring and the Republican candidate, Mark Obenshain are now reportedly just a hair's breadth apart.

Depending on whose numbers you look at, as of 2p ET this afternoon, Obenshain is reportedly ahead by either 965 votes, according to the State Board of Elections (SBE), or by 286 votes, according to AP (which was often well ahead of the SBE numbers during reporting of results last night), with all precincts now said to have been accounted for in unofficial results.

The last numbers I had seen before going to bed last night at around 4am ET, showed Herring up over the Republican by 616 votes, but there were still said to be about 4 precincts out at that time, according to AP. The SBE's numbers had several more precincts unreported at that hour, as it looks like they had knocked off for the night several hours earlier.

Given the tightness of these reported numbers, and the fact that Republicans are certainly hoping to deny Democrats of a "clean sweep" win last night (the Ds took both the Governor's and Lt. Governor's race), a Commonwealth-wide "recount" is almost certain in the Attorney General's race. Current AG, and last night's failed Gubernatorial candidate Ken Cuccinelli will likely oversee that "recount," as luck would have it.

But a "recount" in VA, may offer much less than one would think. So, here's why I put the word "recount" in quotes. This is what the map of Virginia looks like, courtesy of Verified Voting's 2012 database, as identified by types of voting systems used across the state...

As you can see, most of the counties and cities in the state vote on 100% unverifiable touch-screen systems. "Recounts" on those systems are largely little more than pressing the computer buttons again to regurgitate the same unverifiable numbers that were reported in the first place. There may be paper-based absentee and/or provisional ballots to be re-tallied (or tallied for the first time) in those jurisdictions, but, by and large, those numbers are unlikely to change too much, short of memory card or tabulator errors being discovered in the process or book-keeping errors on the few paper-based ballots.

So "recounts" in those jurisdictions that use touch-screen systems (officially known as Direct Recording Electronic or DREs) exclusively won't tell us much. It won't even tell us how the voters in those jurisdictions actually intended to vote. (More on that in a second.)

The quotes around the word "recount" are also accurate in regard to the paper ballot optical-scan system jurisdictions as well, since the ballots in most of them were not "counted" in the first place. Rather, they were run through computerized optical-scan systems which either tallied them correctly or not. There is no way to actually know either way until the paper ballots --- presuming the chain of custody is kept secure --- are actually counted publicly by human beings.

"Recounts" on op-scan systems are sometimes a matter of re-scanning the same paper ballots through the same easily-hacked, often-inaccurate optical-scan computers that scanned them in the first place. Other times they actually involve hand-counts. I'm not yet sure how Virginia's "recount" process works in that regard.

[Update: Bad news. Virginia's "recount" of paper ballots includes largely little more than re-scanning the same paper ballots again with the same op-scan systems that tallied them the first time --- either correctly or incorrectly, who knows? --- once again. See final section of this story for details on VA's election code.]

The map above, based on Verified Voting's database, is up to date as of last year. Some jurisdictions in the county have been moving to paper ballots systems, and some voters reported using paper ballots this year for the first time. But, for now, we'll take Verified Voting's stats to be largely accurate.

The largest single jurisdiction in Virginia is Fairfax County and that county, at least,uses optically-scanned paper ballots for the most part --- the easily-hacked ones made by Diebold --- though some voters there may vote on unverifiable DREs. According to AP's latest numbers, there were almost 300,000 votes cast in Fairfax County, with the Democrat Herring trouncing the Republican Obenshain in the county 61% to 39%.

Still, the majority of Virginians cast 100% unverifiable votes yesterday, and no amount of "recounting" will ever either change that fact or allow the citizens to know who actually won or lost this race. That, of course, is just one of the reasons I have railed against the use of these types of voting systems for almost a decade now.

But, for now, here's what I'm interested in. Yesterday, we highlighted some early scattered reports of votes flipping on those 100% unverifiable touch-screens. One voter --- Col. Morris Davis, the former Chief Prosecutor at Gitmo, in fact --- reported that he had to try over and over for the screen to record his vote for the Democratic gubernatorial candidate Terry McAuliffe, as the computer kept repeatedly marking the option for the Republican Ken Cuccinelli instead.

"Took 4 tries to vote for McCauliffe[sic]," Davis tweeted. "I'd touch his name but it would mark Cuccinelli."

Davis said he voted in Prince William County, one of four counties that --- for some reason --- still had one unreported precinct as of 4am ET last night.

A commenter at The BRAD BLOG, David Hutchinson, jumped in quickly after we published our report, to say that he too had similar problems voting in the VA Lt. Governor's race. "I touched Northam [D] for lieutenant governor, but on my summary page the machine indicated I had chosen E.W. Jackson [R]," he wrote, continuing...

To the best of my memory, the first time I went back and changed it, with my choice "Northam" showing clearly, the summary page still showed Jackson. In one of these retries (at least 3) I forgot I had to undo the "X" in front of Jackson. But at least twice I went back and changed it to Northam on the lieutenant governor options page WITH THE "X" UNMISTAKEABLY REPLACED IN FRONT OF NORTHAM; and for sure both times my summary showed I'd chosen Jackson. On my last try I was incredulous. Could not believe it! One poll worker said she wasn't allowed to look at the process. Another one did, and he advised it might not work if you hit the choice box directly, but hitting it a little above the box might. The latter method was how we got Northam for lieutenant governor on my summary page.

Quite frequently in elections, problems with electronic voting systems don't come to light until days, weeks, or even months after elections. So we'll be keeping our eyes on Virginia in the days ahead. For now though, I'd like to ask any of you who may have come across media reports of problems yesterday in Virginia, or, even better, those of you who may have experienced them yourself, to describe the problem in our comments section below. If you include your email address in the field when leaving the comment, I'll be able to follow up with you privately, but your email address won't be visible to others. Alternately, if you prefer, you can drop me an email here.

Finally, just days before yesterday's election, Virginia carried out a purge of some 40,000 voters from the rolls, said to be voters who were also registered in other states. It was Cuccinelli who oversaw and approved that purge, and it's unclear at this time how many legitimate VA voters were knocked off the rolls, kept from voting, or forced to vote by provisional ballots (which may or may not be counted after an election). That too could have an effect here. So if you are a voter who found yourself missing from the rolls yesterday when you went to vote in the Old Dominion, I'd love to hear from you as well...

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