Hand-Marked, Hand-Counted Paper Ballots, Publicly Tabulated at Every Polling Place in America...
By Brad Friedman on 9/16/2009, 10:30am PT  

-- Brad Friedman

[While I was off the grid for a brief vacation for a week in August, a short Op-Ed version of a piece I wrote for Commonweal Institute, where I am a Fellow, was published at CommonDreams.org. Unfortunately, I was off the grid, so couldn't respond to some of the off-base coments left on the piece over there. In any case, here now is the full-length version of that Op-Ed. -BF]

Last March, the country's highest court found that secret, computerized vote counting was unconstitutional. Unfortunately, the country was Germany, and the Constitution violated by e-voting systems was the one that the U.S. wrote and insisted Germans ratify as part of their terms of surrender following WWII.

Paul Lehto, a U.S. election attorney and Constitutional rights expert, summarized the German court's unambiguous, landmark finding:

  • "No 'specialized technical knowledge' can be required of citizens to vote or to monitor vote counts."
  • There is a "constitutional requirement of a publicly observed count."
  • "[T]he government substitution of its own check or what we’d probably call an 'audit' is no substitute at all for public observation."
  • "A paper trail simply does not suffice to meet the above standards.
  • "As a result of these principles,...'all independent observers' conclude that 'electronic voting machines are totally banned in Germany' because no conceivable computerized voting system can cast and count votes that meet the twin requirements of...being both 'observable' and also not requiring specialized technical knowledge.

After the verdict in the case --- filed by a computer expert and his political scientist son --- Lehto wondered how it could be that open, observable democracy is seemingly an inviolable right for "conquered Nazis," but not, apparently, for citizens of the United States...

Particularly since the debacle of Florida's 2000 Presidential Election --- when Republicans went all the way to the U.S. Supreme Court to argue that paper ballots should not be counted at all --- the notion of publicly overseen paper ballot tabulation has been widely and unfairly discredited. The discreditors are often media who are too lazy to understand either Constitutional rights or the demands of self-governing democracy; election officials who are either too lazy or too frightened to stand up for those rights for the people they serve; politicians who are quite satisfied with the government's direct control over election results; or the e-voting industry profiteers who have made billions in the wake of democracy's 2000 disaster.

The citizen owners of American elections, however, are the ones who are ultimately left entirely out of the equation.

The argument is made that paper ballots can be easily manipulated; that voters are often sloppy in filling them out, and therefore "voter intent" may be difficult to discern; that human counters are prone to error; and, after all, in this age of computer commerce, entertainment, and everything else, technology surely provides the best answer to the "problem" of reliably counting election results. Technology, after all, is progress – so the argument goes.

Try telling that to Christine Jennings, the 2006 Democratic candidate for Florida's 13th U.S. Congressional District. She was found to have "lost" her election by just 369 votes, even though some 18,000 votes completely "disappeared" on the electronic voting system on Election Day in Sarasota County, her strongest district.

Though Jennings' race was counted on electronic touch-screen systems, even had voter-marked paper ballots existed, they ultimately wouldn't have meant much unless they were publicly hand-counted in front of the citizenry as New Hampshire still reliably and accurately does in some 40% of its precincts at the close of the polls on Election Night.

Technology does not always offer the most progressive solution to a problem, certainly not when citizen oversight and, thus, the constitutional right of self-governance, is scrapped in the bargain.

While hand-counted paper ballots are routinely discredited by those who stand to gain from secret vote counting, you'll note the odd paradox that in the closest of elections, those same individuals are often the first to demand a fully public hand-count of paper ballots (in jurisdictions where they still exist) to determine who actually won and who actually lost.

In short, hand-counting paper ballots is no good at all, according to the oxymoronic logic of its critics, unless you really want to know who the actual winner of the election was.

It was the fully public counting of hand-marked paper ballots that gave evidence that the unofficial, electronically-scanned election night results in Minnesota's recent U.S. Senate race were wrong. A hand-count settled the results of Washington State's Gubernatorial contest in 2004. And in the 2006 Republican Primary election in Pottawatomie County, Iowa, a hand-count found that seven races had been tallied incorrectly by the county's optical-scan system. Unfortunately, that sort of publicly observable counting has become the exception rather than the rule in this country, and it happens only rarely, in elections where the candidates can afford the extraordinarily high legal costs of a contest, or when the results are so obviously twisted that officials are left with little choice but to count the ballots by hand.

"Hand-counting paper ballots is recognized as the gold standard in state laws across the country," Ellen Theisen of the non-partisan election watchdog organization VotersUnite.org told me. "Why settle for anything less?"

Theisen's thoughts echoed Lehto's interpretation of the findings of the High Court in Germany. "By letting software count our votes," she said, "we give software control over our government."

She's right. Theisen, like myself, has spent years observing, reporting, and documenting election failure after election failure as democracy's corners were cut and voters rights stolen with proprietary, unaccountable, secret electronic vote-counting systems. She once thought, as I did, that hand-marked paper ballots, counted by optical-scan systems, coupled with post-election "audits" (really, "spot-checks" of a tiny percentage) would be reliable.

But then, for me at least, came the final straw: Iran. Yes, they had hand-marked paper ballots in the country's contested Presidential election. The hard evidence of who actually won and who actually lost certainly existed at some point. But, as those ballots were never counted publicly, in front of the citizenry, all interested parties, and video cameras, we're all left with the guessing game of who won and who lost, as based on our cleverest best assessments taken from selected pre-election polls, analysis of historical voting patterns, and the declarations of disbelief from passionate partisans.

Sound familiar? Unfortunately, it's not just Iran. Post-election second-guessing and charges of foul play have become more and more the norm, rather than the exception, with each passing election cycle in the U.S.· --- from Florida to Ohio to New Hampshire and to virtually every state and county in the country – and for good reason. 'Democracy,' as it's practiced in our 'shining city on the hill,' has become Russian Roulette without the certainty.

Enough. The time to demand confidence in the accuracy of our elections is now. Not in the weeks just prior to an election, when the corporate media suddenly find "a story" in problems at the polls – and there are more and more each and every year, as more and more voters experience just how terrible our system of e-democracy has become.

Congressman Rush Holt currently has a bill (H.R. 2894) quietly moving through the U.S. House, co-sponsored at this time by 87 lawmakers. The bill would require a voter-marked paper ballot for every vote cast. That's fine. But unfortunately, that requirement would not kick in until 2014, two federal election cycles from now, including one of them the 2012 Presidential Election.

More disturbing, however, are the provisions in Holt's bill which give a federal stamp of approval to proprietary "trade secret" software vote-counting on unobservable computerized devices, the same type found unconstitutional under Germany's U.S.-written constitution. Holt's legislation, if passed as currently written, could be the golden ticket for decades of more and more secret vote-counting, more and more (small "d') undemocratic elections. In short, his well-intentioned legislation takes several small steps in the right direction, and a couple of giant leaps towards all the wrong ends.

·"Hand counted paper ballots are the best available technology for conducting accurate, transparent, and observable elections," John Washburn, a Republican/Libertarian-leaning election integrity expert from Milwaukee says. He has testified before the U.S. Election Assistance Commission on computer voting system requirements and he is no "Luddite," as opponents to computerized democracy have long been derisively characterized by those who stand to profit in the e-voting industry. Washburn happens to be a long-time computer expert and programmer.

"I love technology and am not adverse to using technology to aid in the administration of elections." But, he cautions, any "new technical solution should be no worse than hand-counted paper ballots when measured along the dimensions of security, observability, transparency, and accuracy."

"I know of no electronic or Internet system which meets this simple axiom; i.e., 'First, Do no Harm,'" he added. "I fear many of us technophiles are so blinded by the possible that we overlook the actual."

For those who don't understand how fully observable, precinct-based, Election Night hand-counting of hand-marked paper ballots works, one need look no further than those polling places in New Hampshire where the entire process is a matter of civic pride and community participation. We are not speaking about the centralized, behind-closed-doors, party-boss-counted paper ballots of the days of Boss Daley in Chicago or Landslide Lyndon in Texas.

In short, after polls close, a new, bi-partisan counting crew is typically brought in to relieve tired poll workers at each precinct. Each precinct’s crew counts its own ballots in carefully overseen, publicly observed groups of four – two calling out every vote, two marking each one down – as the citizenry watches, video tapes, and otherwise assures the process is on the up and up. The results are posted publicly before ballots are moved anywhere. They are never out of public oversight until the counting has been completed, which is usually done by enough counting groups to be completed before midnight on Election Night (often before some machine-counted precincts have finished!) It's a very difficult system to game – at least without being easily caught.

It was, in fact, the public posting of precinct-counted paper ballots which tipped off the world to Kenya's recently contested Presidential election, when the results announced by the central government didn't match up to those posted at the polling places on Election Night.

I still remain open to other, equally transparent, equally accurate, equally observable, equally democratic methods for tabulating elections. But after more than five years of research, study, observations, and reporting, I've yet to come across any. To paraphrase Churchill, it may be the worst method for counting elections, except for all of the others.

Yes, if hand-marked, hand-counted paper ballots are good enough for "conquered Nazis," Kenya, many citizens of New Hampshire (the site of our 'First-in-the Nation' Presidential Primary Election), and for elections when you absolutely, positively have to know the correct results, aren't they good enough for every election, every time?

It's time to demand that we begin moving forward, toward Democracy's Gold Standard for all elections. Now. Not after computers have made voters completely irrelevant. It's time for us to insist on pilot projects --- not of new, even higher-tech vote-counting computers --- but of publicly-overseen, hand-counted paper ballots at every precinct in our own localities, with the ultimate goal of extending that Gold Standard to all of America.

Now that would be progress.

Originally published by CommonwealInstitute.org...

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For more information and a step-by-step guide to transparently and publicly hand-counting paper ballots in your community, see Hands-On Elections: An Informational Handbook for Running Real Elections, Using Real Paper Ballots, Counted by Real People by Nancy Tobi of NH Fair Elections Committee and the Election Defense Alliance.

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Brad Friedman is a Commonweal Institute Fellow, the creator and publisher of The BRAD BLOG and co-founder of VelvetRevolution.us.

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Article Categories: Election Reform, Rights And Freedoms