- Brad Friedman, The BRAD BLOG
After a week of hand-counting paper write-in ballots in Alaska's three-way U.S. Senate race between incumbent Sen. Lisa Murkowski (who ran as an independent write-in candidate), Republican candidate Joe Miller and Democratic candidate Scott McAdams, the Associate Press called the race this afternoon for Murkowski.
Trailing by some 10,000 votes behind Murkowski, however, and with several lawsuits concerning the tabulation of ballots still pending, Miller is suggesting it's likely that his campaign will call for a "hand count" of all of the ballots cast in the race, not just those in contention during the counting of write-in ballots over the last week.
Given Alaska's years-long record of often-inexplicable election results, going back at least as far as the 2004 Presidential Election (and the first election as Senator for Murkowski who had previously been named by her father to replace him in the U.S. Senate when he became Governor in 2002); the repeated failure and insecurity of the state's Diebold election system; and the AK Division of Elections' truly remarkable history of blocking citizen oversight of election results --- much of which has been documented at The BRAD BLOG since late 2005 --- a thorough reconciliation of results by the Miller team would be both appropriate and helpful for all future elections in the state (and even for other states, where similar nearly-impossible-to-oversee optical-scan ballot systems are similarly used.)
We have no particular dog in this race, as our coverage of issues of Election Integrity is, as always, non-partisan. Our only concern is for the voters, that they get to vote if they wish, that their votes are counted accurately if they do, and that the counts are performed transparently so that all citizens can know that the results are, indeed, accurate.
To that end, though we haven't consulted directly with any of the campaigns in the Alaska race, we have been following the tabulation closely since Election Day two weeks ago, and have been speaking with a number of sources in the state who have, we're told, been sharing various thoughts we've offered with both the McAdams and Miller campaigns. The advise we've offered --- as we would to anyone who asked, including Murkowski's campaign --- appears to have been taken to heart by the Miller team, at least if one of their lawsuits, and a number of their public statements given over the last week are any indication.
As mentioned, Alaska's history of election results that seem to defy mathematical explanation, along with (understating the problem here) less than transparent processes and a failure to make recommended changes to their election system and procedures, leads to a case where a full, manual, reconciliation of all ballots cast and counted --- as called for by the Miller camp, or any other --- would provide a valuable service to the state and all of its voters...
On Fox "News" today, Miller said that his team was reviewing the situation to determine whether a full "hand count" of all ballots will be called for by week's end. An election contest cannot be filed until after the race is officially certified by the state. "We'll wait and see when these numbers finally sort out here at the end of the week," he told Fox's Neil Cavuto this afternoon. "The voters in the state of Alaska expect there to be integrity in the process; we are going to pursue that."
"The process that has gone down so far has been a hand count of the write in ballots," he explained. "There's not been any hand count of the other ballots. The other ballots have all gone through a machine count process. The machine count historically has had inaccuracies involved in it."
He is correct, as we'll explain below.
Last week, Miller's team made the mistake of bringing on discredited Republican operative Floyd Brown as a spokesperson. Brown is perhaps best known for producing the infamous and racially-based Willie Horton ads during the 1988 Presidential Election and, more recently, as a proponent in the Obama "birther" movement. As such, his first arguments out of the gate on Miller's behalf were classic, unsupported Republican charges of "voter fraud!" Since then, the campaign has taken a more legitimate tack of demanding accuracy and transparency in the tabulation of results.
The campaign has filed two lawsuits towards that end, to date, and now the possibility of a full election contest looms. There is good reason for such a contest.
Recent History of Impossible Numbers, Lack of Oversight in AK Elections
The Democratic Party in Alaska has, for years, been among the most aggressive in the nation towards seeking transparency following inexplicable and impossible to oversee election results. Beginning in early 2006, The BRAD BLOG covered, sometimes almost exclusively, the years-long roller-coaster ride as the Alaska Democratic Party (ADP) sought access to database files from the state's Diebold voting system and as the state presented increasingly remarkable excuses for denying the party the right to see the data containing the raw numbers of how voters voted as recorded by their e-voting system.
In August of this year, after Murkowski announced her write-in bid following her loss to Miller in the GOP primary, we detailed how the election was likely to test the state's dubious Diebold system. But the history of problems in the state deserve closer scrutiny as the Miller team decides whether the numbers reported by the Division of Elections --- as tallied only by the oft-failed, easily-manipulated optical-scan systems --- accurately reflect the will of the voters.
Alaska blogger and radio host Shannyn Moore highlighted some of these concerns earlier today in her article at Huffington Post (and crossposted at "Mudflats"), but more detail, background and context is likely useful here.
[Brad Friedman discusses the AK Senate race on Shannyn Moore's radio show on KUDO in Alaska. Listen here.]
As The BRAD BLOG reported in February of 2006, after Democrats had noticed seemingly inexplicable numbers in the state's 2004 election results, including far fewer votes reported in final results, as compared to district-by-district tallies, and a reported 200% voter turnout in a number of areas, then party spokesperson Kay Brown told the Anchorage Daily News: "At this point, it's impossible to say whether the correct candidates were declared the winner in all Alaska races from 2004."
It was more than a year after the election, and one of the two major parties in the state were unable to even know if the results of a Presidential and U.S. Senate election were accurate. No matter how one feels about Alaska's election system, that point highlights an out-and-out failure of it.
The ADP, as part of their attempt to see the Diebold databases released for public record review, noted some of the rather remarkable anomalies of the 2004 results in a press release issued in April of 2006 along with a lawsuit [PDF] they were forced to file after the state refused to turn over the databases for inspection, claiming they were the proprietary property of Diebold, not the voters of the state:
In 20 of the 40 State House Districts, more ballots were cast than there are registered voters in the district, according to information on the state's web site. In 16 election districts, the voter turnout percentage shown is over 200%.
"Alaskans must have an accurate accounting of the 2004 election results. "The accountability of our election system is at stake. Confidence in the integrity of our elections is fundamental to our democracy," [Alaska Democratic Party Chair Jake] Metcalfe said.
The history of the battle over those databases was not a pretty one, and included some astonishing claims by the state (notably, under then Governor Frank Murkowski, Lisa's father). Here's how we summarized the insane back and forth in one of our articles detailing the roller coaster as it played out over several months in 2006:
After complaints to the state, and the state's consultation with Diebold, the state agreed to release the information, but only after informing the Dems they'd have to cover the cost of (and this is a direct quote from their letter), "manipulating the data" before releasing it!
Finally, before the data could be released --- "manipulated" or otherwise --- the state's top security official [ed note: working for then Gov. Murkowski] announced they would not release the information after all because it was a "security risk."
Oh, how I wish I was making this shit up. But I'm not.
So, now the Dems up there are showing a rare bit of spine and going to court to get at that highly secret and super dangerous information otherwise known as "how American citizens voted in an election two years ago."
That was then. Later that same year, the Democrats were stymied by the Division of Elections again when they'd requested to review the 2006 election result databases, only to be denied despite a court order.
That fight detailed election procedures in which no citizen ought to have confidence.
Diebold Op-Scan System Failure
Diebold's optical-scan systems, used across the entire state, have a storied history of failure, from simple scanning errors, to demonstrated vulnerabilities allowing manipulation of results via both the hardware and software. To summarize some of the most notable points in that history which are likely be of interest to the Miller campaign:
Leon County, FL Hack
In late 2005, Finnish computer security expert Harri Hursti demonstrated how Diebold's optical-scan systems could be manipulated in such a way that results reported by the system could be reversed. The only way to detect the manipulation would be to hand-count the actual paper ballots. That hack, demonstrated in a mock election in Leon County, FL, was video taped as it happened and served as the pivotal climactic scene from HBO's Emmy-nominated 2006 documentary Hacking Democracy. (You can watch that remarkable scene right here.) The system that allowed for that hack is still in use in Alaska, and much of the rest of the country today.
Routinely Mistallied Ballots
Following the reported upset victory of Hillary Clinton over Barack Obama in New Hampshire's "first-in-the-nation" primary election in January 2008, questions about the results --- which were in contradiction to all pre-election polls as well as exit polls taken the day of the contest --- Democratic candidate Dennis Kucinich filed for a hand tally of ballots that were counted by the same type of Diebold op-scan systems as used in Alaska's elections --- and in the Leon County, FL hack. That, after a number of anomalies were noted in the results, including the fact that Obama had beaten Clinton in the 40% of NH towns where hand-counts are performed, by an almost identically reversed percentage to the one he lost to Clinton in the rest of the state where Diebold op-scanners are used to tally ballots.
Kucinich's partial hand-count revealed, as he detailed at the time, miscounts from 4.9% to 10.6% at various precincts when hand-counts were compared to the original Diebold op-scan results. The miscount rates were all far in excess of the accuracy rate required for voting systems by the federal Help America Vote Act (HAVA). Here, for example, are the results from the Kucinich-requested hand-count of Nashua's Ward 5 precinct:
NASHUA, WARD 5 Diebold
CLINTON 1,030 959 -71 7.40 EDWARDS 405 377 -28 7.42 OBAMA 673 678 +5 0.73
The latest tallies in the Alaska Senate race show less than a 1% difference between Miller and Murkowski's totals.
The "Deck Zero" bug
Following the Presidential Election in 2008, Humboldt County, CA carried out a a first-of-its-kind "Transparency Project" in which an open source ballot-scanning program and an off-the-shelf scanner were used to count paper ballots previously counted by Diebold's scanners. That experiment revealed that hundreds of ballots had been dropped, without notice to system operators, by the Diebold scanner.
The bug, as Diebold would later admit in a state investigation of the problem, was known as the "Deck Zero" bug and existed in many versions of Diebold's op-scan system. Given the disparity between the reported number of votes in the 2004 Presidential and Senate races summarized above by the ADP, as compared to the District-by-District numbers detailed in their lawsuit, a check to determine if the "Deck Zero" bug came into play this year in the Senate race (or in any other races, or in any previous elections!) is certainly reasonable.
That same California investigation would also find that Diebold's audit log system similarly allowed for audit logs to be modified and/or deleted by operators of the system, in violation of federal certification requirements. In other words, unless Alaska is using a more updated version of the Diebold software, it's relatively simple to modify results in the central tabulator and delete virtually all evidence that one has done so. Incredibly, some versions of the software even include a "Clear" button which, when pressed, will delete audit logs entirely, and without notice.
Did any of those things affect the results of Alaska's Senate race? It's impossible to determine that one way or another without a complete hand count and reconciliation of all ballots cast and uncast in the race.
Following the 2004 and 2006 disputes in Alaska, as well as a number of state studies finding serious deficiencies in the Diebold system, Alaska's Division of Elections commissioned a "Security Project" with the University of Alaska Anchorage in order to audit the state's election system.
The project, as detailed by the University and the DoE in October of 2007, was to be implemented in four phases, with completion in January of 2009. Based on the preliminary recommendations from the project, the state determined that a planned "upgrade" of the state's Diebold systems to the newer Assure 1.2 platform (also made by Diebold, then renamed as Premier Election Solutions), would take place in 2009 following the 2008 Presidential Election.
This afternoon the DoE's Executive Director, Gail Fenumiai confirmed to The BRAD BLOG that that system was not implemented. "We did not upgrade and do not know at this moment what our plans are," she wrote via email in response to our query.
That may actually be a good thing. As The BRAD BLOG reported in July of 2008, despite 79 violations of federal certification standards, the U.S. Elections Assistance Commission (EAC) approved the new Assure 1.2 system anyway. In 2009, one of the computer scientists who worked on California's landmark "Top-to-Bottom Review" of all e-voting systems used in the state (whose findings were cited in Alaska still-unimplemented "Security Project") objected to the EAC's misuse of security data from that study in their federal testing and blasted the commission for having inappropriately certified the Assure 1.2 system at the federal level in the bargain.
Anomalies, Reconciliation and Transparency in AK's Senate Race
As the Anchorage Daily News points out today, even if every one of the write-in ballots that the Miller team is currently challenging for misspellings and other problems were decided in his favor, the results as they current exist --- hand-counted in the case of write-ins, machine-counted in the case of all the other ballots --- would still favor a Murkowski win:
Miller has filed a lawsuit charging that state law was violated when ballots that included misspellings of Murkowski's name were counted for her nonetheless. Alaska's state law for counting ballots (AS 15.15.360) requires that at least the last name of write-in candidates be written "as it appears on the write-in declaration of candidacy" on the ballot. The rules as spelled out in the statutes are "mandatory and there are no exceptions to them". They further specify that "A ballot may not be counted unless marked in compliance with these rules." Case law, however, as interpreted by the courts going back as far as 1998 has reportedly allowed a more liberal "voter intent" basis for determining the validity of write-in ballots. Miller's suit, charging the DoE violated the rule of law is still pending.
[UPDATE 11/20/10: Federal judge rules for Miller, temporarily halts certification of race as question of ballot misspellings is remanded to state court. Details now here...]
But even if Miller were victorious in that case, as the Anchorage Daily News describes, he'd still have to find other votes miscounted against him, or votes for him that were not counted at all. On that latter point, his legal team has filed a second suit seeking review of poll rosters to determine if the number of votes cast, as reflected by those who signed into polling places to vote, is the same as the number of ballots actually tabulated, unlike, apparently, the cases in 2004 that Democrats tried for so long to reconcile.
The Division of Elections nixed Miller's initial public records request to review the poll books, but has since agreed to allow them to review some of those poll rosters. (We haven't had time yet to determine how the DoE will determine which poll books the campaign will be allowed to review and which ones they won't --- though it certainly seems they ought to be allowed to review every one of them, if they are to be able to reconcile the results of the election to determine if it has been accurately tabulated.)
A statement released by the Miller campaign today also notes that they've asked to review poll tapes, the summary count of all ballots scanned, as printed by the precinct-based op-scan machines at the end of Election Night. "So far the Division of Elections has failed to respond to the Miller request for these tapes," the statement reads.
Another potential red-flag suggesting the necessity of full reconciliation was noted by Shannyn Moore in her blog item today. She says that the turnout for this year's race was lower than might have otherwise been expected given the unusually high attention the three-way Senate race, featuring two Republicans in a year with large GOP turnout, received:
Moore further notes the anomaly of Election Night result averages remaining almost exactly the same all evening as returns were coming in from across the diverse state:
Indeed a review of results, as posted contemporaneously that night by Alaskan blogger Jeanne "AKMuckraker" Devon who was live blogging them from Election Central in Anchorage as they were being updated on November 2nd, show a curiously small change in average results in the Senate race throughout the night. Here are the specific numbers as she reported them on her blog "Mudflats" that evening:
27% reporting (first results posted)
Miller (R): 34%
McAdams (D): 25%
34% reporting (9:31pm)
"Those numbers are holding across the board...Southeast Alaska and rural areas have not reported in yet."
40% reporting (9:49pm)
"And still they hold at 40% returns."
68% reporting (10:52pm)
Miller (R): 35.32%
McAdams (D): 24.36%
78% reporting (12:00am)
Miller (R): 34.89%
McAdams (D): 24.15%
It's possible that the vote count could legitimately remain as consistent as that all night, though it's certainly another reason that a full reconciliation of ballots, by hand, would be appropriate, if only to put such questions to rest.
In Miller's press release today, spokesman Randy DeSoto says: "Our campaign has sworn affidavits identifying unsecured ballot boxes, other precincts where numerous ballots appear to be in the same handwriting, others where there is 100% voter turnout and still other precincts where the ballots were sent to the Division of Elections presorted by U.S. Senate candidate. These and other irregularities give our campaign pause. Alaskans must be able to trust the results of its elections."
The statement goes on to note: "Additionally, the Murkowski write-in ballots have undergone a hand count review where spoiled ballots are being counted for her, whereas the Miller ballots have all been counted by machine with many valid ballots not being included."
On that point, the Miller team is correct. Murkowski's ballots have been reviewed, appropriately so, by hand, by human beings. Miller's (and McAdams') have not. They should be. If a manual review of ballots is "Democracy's Gold Standard" when it comes to reviewing the closest of elections, surely such a review is appropriate for any election in which the results are in question. To that end, Miller would certainly be performing a service to all voters in Alaska --- and elsewhere, where similar computer tabulators are used, rather than the more accurate examination of ballots by human beings --- in calling for a full reconciliation of the election results.
In that effort, Miller's camp should also make immediate public records requests for receipts from the ballot printing houses to determine how many ballots were printed. For each precinct, a full reconciliation of voted ballots, spoiled ballots and unvoted ballots should be performed, as each ballot printed should be fully accounted for, and accurately tallied.
Every step of the process should be 100% transparent to all candidates, all voters and every citizen who has a stake in the outcome of the election. Nonetheless, over the years, whenever The BRAD BLOG has pointed out such concerns about various elections, we've been accused of forwarding some "conspiracy theory" or another about some candidate or voting machine company having "stolen the election!" We have never done so, nor are we doing so now. We are merely pointing out the necessity of the checks and balances required for real citizen oversight in order to assure true self-governance. We are alleging no conspiracies of any kind --- just in case that's unclear to some of you.
When the AK Division of Elections announced the steps they were taking to meet the recommendations of the University of Alaska's "Security Project" in 2008, Election Systems Manager Shelly Growden was quoted [PDF] as saying: "The Division and our staff are dedicated to conducting impartial, secure and accurate elections."
While "impartial, secure and accurate elections" are clearly key goals for every election, there is one word left out of that phrase which is required to assure that elections are indeed "impartial, secure and accurate". That word is "transparency". Without transparency, none of us can know if any election was conducted impartially, securely or accurately. In a democracy, nobody should ever be asked to simply trust in election officials that it was. Indeed, one of the items called for in AK's "Security Project" was a review of "methods to protect [the] system from malicious insiders seeking to affect [the] election outcome."
Alaska itself recognized that election officials are not to be merely trusted. We've had quite enough of "faith-based elections" in this country.
Alaska's track record on the election transparency front is very poor. Such that the Joe Miller campaign can help attain the much-needed transparency through a full reconciliation of all ballots cast in his state's U.S. Senate race, he'll be doing a service for his voters, and all voters alike, as well as for the cause of democracy in these United States.