Friday, July 29, 2005

More news on the Secretary of State's rejection of Diebold's touchscreen voting system

There is a great deal of media interest in the news about Secretary of State Bruce McPherson's rejection of Diebold's TSx voting machine. The Associated Press story which was published earlier this afternoon, includes more details about the decision and its impact. Other news stories are being produced by KGO TV, KNTV, KQED, KCBS radio, KGO radio, and Capitol Public Radio. I'll be appearing tomorrow evening on KGO radio's Karel program, from 8-9 p.m. on 810 AM in the San Francisco Bay Area to discuss the decision and the future of California's voting technology.

Excerpts from the AP story, by Jennifer Coleman, are below. (One correction to note -- the TSx machines were used in four counties in the March 2004 election, and have been warehoused since they were decertified in April 2004, not 2003 as reported by AP.)


California election officials have rejected an electronic voting machine by Diebold after tests revealed unacceptable levels of screen freezes and paper jams.

Three counties already have purchased the TSX voting machine, which was found to have a failure rate of 10 percent. Secretary of State Bruce McPherson said that was too high a risk and he notified company officials in a letter sent Wednesday.


The state withdrew certification for some of Diebold's e-voting equipment in April 2004 after then-Secretary of State Kevin Shelley found those systems unreliable because they lacked a paper trail.

The state was testing the touch-screen voting machines before re-certifying the system.

North Canton, Ohio-based Diebold Election Systems Inc. plans to fix the problems and will reapply for California approval, said company spokesman David Bear.

"As I understand it, there were 10 paper jams," said David Bear, a spokesman for Diebold Election Systems. "If you have a printer, you have the possibility of this, but you certainly want to lessen that possibility."

He noted that Diebold's system was the first to undergo such extensive testing for the paper trail.

San Joaquin, Kern and San Diego counties already have purchased the TSX system, the secretary of state's office said, spending $40 million on 13,000 machines that have been warehoused since 2003. Other counties were poised to buy the machines if they were approved by McPherson.

Kern County spent $4.1 million on the machines, but officials there were hopeful the system would eventually be certified.

"For this November election, we're going to be all paper," said chief deputy registrar Sandy Brockman, but she added that the county had planned only a limited use of the TSX machines in the special election as a test.


"I'm concerned for the counties (that bought these systems), but I'm very heartened that our new secretary of state has drawn a hard line on voter security and didn't allow the machine to be rushed through the testing," said Kim Alexander, president of the Davis-based California Voter Foundation.

Alexander's organization encourages counties to use an optical scan system, in which the voter fills out a paper ballot that is scanned and digitally counted.

"It's a ballot marked by the voter's own hand and can be used to verify the vote if there's a problem," she said. "It's more secure, more transparent and less expensive" than other e-voting systems.

More on the Diebold TSx rejection

Today's Oakland Tribune features an article by Ian Hoffman about the Secretary of State's decision to reject Diebold's TSx application. Excerpts below:


After possibly the most extensive testing ever on a voting system, California has rejected Diebold's flagship electronic voting machine because of printer jams and screen freezes, sending local elections officials scrambling for other means of voting.

"There was a failure rate of about 10 percent, and that's not good enough for the voters of California and not good enough for me," Secretary of State Bruce McPherson said.

If the machines had been used in an election, the result could have been frustration for poll workers and long lines for thousands of voters, elections officials and voter advocates said Thursday.

"We certainly can't take any kind of risk like that with this kind of device on California voters," McPherson said.

Rejection of the TSx by California, the nation's largest voting-system market, could influence local elections officials from Utah, Mississippi and Ohio, home of Diebold corporate headquarters, where dozens of counties are poised to purchase the latest Diebold touch screens. State elections officials in Ohio say they still have confidence in the machines.

But McPherson's decision did send California counties from San Diego to Alameda to Humboldt hunting for potential alternatives to their plans to use the TSx.

By January 2006, every polling place nationwide must offer at least one handicapped-accessible voting machine — touch screens are one example — and all California touch screens must offer a countable paper record so voters and election officials can verify the accuracy of electronic votes. So far, no voting system has been state approved that meets both requirements.


McPherson denied approval of the TSx after a series of failed tests, culminating in a massive, mock election conducted on 96 of the machines in a San Joaquin County warehouse. San Joaquin is one of three California counties that purchased a total of 13,000 TSx machines in 2003 for more than $40 million and have paid to warehouse them ever since.

For eight hours July 20, four dozen local elections officials and contractors stood at tables and tapped votes into the machines to replicate a California primary, one of the most complex elections in the nation. State officials watched as paper jams cropped up 10 times, and several machines froze up, requiring a full reboot for voting to continue.

Diebold Election Systems Inc. plans to fix the problems and reapply for California's approval within 30 days, company spokesman David Bear said.

"They had 10,000 ballots and 10 paper jams. Obviously that needs to be looked at and addressed, and it will be," he said. "But it needs to be put into perspective."

Elections officials and voting activists said they had never heard of more extensive testing for a single voting system, outside of an actual election. Kim Alexander, president of the Davis-based California Voter Foundation, said McPherson deserves credit for ordering rigorous testing.

"It's the first ever conducted in the state and, to my knowledge, in the country that simulated a real-world experience with these machines in a voting booth," she said.

Ordinarily, states and the National Association of State Elections Directors approve voting systems after labs hired by the manufacturers perform tests on a handful of machines. The Diebold TSx managed to get through those tests — twice. But none of the testing standards addresses printers on electronic voting machines, even though more than 20 states either require a so-called paper trail or are debating such a requirement.

For years, voters have reported frozen screens and other glitches in the polling place.

"It's always been the voters' word against election officials' and the vendors'," Alexander said. "Now we have real proof right before the eyes of state elections officials."

Reliable voting equipment has been a problem before for Diebold in California. In the weeks before the March 2004 presidential primary, the firm rushed a new device called a voter-card encoder through assembly, testing and temporary state approval. Hundreds of the devices broke down on election day. Without the devices, thousands of voters in two of California's largest counties, San Diego and Alameda, could not vote on Diebold's touch screens. Lines developed, and hundreds walked away without voting.

Thursday, July 28, 2005

California Secretary of State rejects Diebold's application for certification of the TSx voting system

California Secretary of State Bruce McPherson yesterday sent a letter to Diebold Election Systems, Inc., informing the company that its application for certification of its TSx voting system, with the voter verified paper trail printer attachment, has been rejected.

The Secretary of State's office has tested TSx machines several times since May. The most recent test was held last week in Stockton, where nearly one hundred TSx machines with printer attachments were set up and voted on by dozens of people over the course of the day. It was the first "real world" test of electronic voting machines that has been held in California, or anywhere else in the country to my knowledge. The testing also consisted of using a "real world" ballot, the complex California primary ballot, rather than a simple, mock ballot featuring historic names as is often used during testing.

The Stockton testing session was held after earlier tests of the TSx machines by the Secretary of State's office went poorly. During testing in May, the TSx's printer had jams, which were explained by Diebold as resulting from the company supplying a prototype, rather than a production unit.

Below is an excerpt from Secretary McPherson's July 27th letter to Diebold:


The Secretary of State, under Election Code Division 19, Chapter 3, Article 1 is entrusted with the responsibility to evaluate and certify voting systems for use in California. Specifically, EC 19205 stipulates:

The Secretary of State shall establish the specifications for and the regulations governing voting machines, voting devices, vote tabulating devices and any software used for each, including the programs and procedures for vote tabulating and testing. The criteria for establishing the specifications and regulations shall include, but not be limited to, the following:

(a) The machine or device and its software shall be suitable for the purpose for which it is intended.

(b) The system shall preserve the secrecy of the ballot.

(c) The system shall be safe from fraud or manipulation.

In the course of testing your system, my staff has noted problems with paper jamming on the AccuView printer module. Additionally, my staff has noted an additional recurring problem with the AccuVote-TSX that freezes the ballot station and requires it to be rebooted. After extensive testing, these problems remain unresolved.

Therefore, I have determined that the AccuVote-TSX ballot station with AccuView Printer Module, as currently presented for certification, is not suitable for the purpose for which it is intended. Because of this, I must reject the application for approval of this voting system that was submitted last March.


Secretary of State McPherson deserves kudos for holding Diebold to a high standard, and subjecting the company's voting equipment to rigorous, real-world testing. It's unfortunate that Diebold's printer unit is so unreliable, given that many California counties are planning to purchase this unit in time for the June 2006 primary in order to comply with federal voting accessibilty and state security requirements.

But it wasn't only the printing device that was a problem during testing. What's very troubling about the test results is that the California test showed that some of TSx screens froze up and had to be rebooted. For years we've heard stories about these kinds of problems when touchscreens are used in polling places. When these problems occur they are typically explained away by vendors and election officials as "glitches", followed by assurances that no votes were lost due to these problems. It's unknown at this time whether votes were lost in the California testing process when these screen freezes occurred. What is known is that California's new Secretary of State has drawn a bright line on voting security, which will certainly help boost California voters' confidence in our voting systems.

The Secretary of State's letter informs Diebold that he will consider "any subsequent application you may wish to make," and it's likely that Diebold will do some work on the TSx and printer unit and bring the system back before the state for certification sometime in the near future. I'm hoping the Diebold, Inc. is paying attention to this, and can give its election division a hand here. Diebold makes and installs thousands of ATM machines all over the world that produce a paper record without problem. It seems reasonable to expect the company could do the same for the voting equipment that bears its name.

Wednesday, July 27, 2005

Governor signs voter data bill

According to this story from the Sacramento Bee, Governor Arnold Schwarzenegger signed AB 1741, a bill that brings new protections to voter data privacy. The bill, according to the Bee story, will "ban foreign workers from handling personal information from California voter lists or petition drives" and "was sparked by claims that a committee supporting Schwarzenegger's ballot initiatives had hired an Indian firm to verify voter signatures on its petitions."

The bill was prompted by a story by David Lazarus of the San Francisco Chronicle, and was authored by the Assembly Judiciary Committee, which is chaired by Sacramento Assemblyman Dave Jones. The committee held a contentious hearing on the matter back in March, at which I testified and provided findings from the California Voter Foundation's "Voter Privacy in the Digital Age" report.

There is much more the Legislature could do to protect voter privacy, and this bill is a good start. It's especially encouraging that Governor Schwarzenegger signed the bill even though it did not enjoy bipartisan support in the Legislature. Recommendations on ways to protect voter data privacy are featured in CVF's report.

Monday, July 25, 2005

Proposition 80 removed from ballot

A second measure has been ordered off the statewide special election ballot. On Friday, a state appeals court ruled that Proposition 80, an energy regulation measure, must be removed from the ballot because its aim would require a constitutional amendment and the measure was qualified only as an initiative statute. Another measure, Proposition 77, which would take the authority to draw political district lines away from the Legislature, was also recently removed from the ballot, bringing the total number of measures to appear before voters from eight to six.

That is, at least for the time being. There is still talk of the Legislature and Governor striking compromises that could result in more measures being placed on the ballot. There is also talk of of cancelling the special election altogether. See Saturday's Sacramento Bee story and San Francisco Chronicle story for more details about those discussions.

Both initiative rulings are being appealed. More information about the statewide special election is available from CVF. Below are excerpts from Bob Egelko's story from Saturday's San Francisco Chronicle about the removal of Prop. 80.


A consumer-backed energy initiative that would partly re-regulate California's electric utilities was removed from the Nov. 8 ballot Friday by a state appeals court ruling on a lawsuit by the energy industry.

The Court of Appeal in Sacramento agreed with industry arguments that a 94-year-old provision of the California Constitution allows only the Legislature, not the voters, to expand the state Public Utilities Commission's regulatory authority. A legislative attempt to enact a law with some of the same provisions was vetoed last year by Gov. Arnold Schwarzenegger.

Sponsors of the initiative, Proposition 80, said they would appeal to the state Supreme Court. The ruling came a day after another Nov. 8 ballot measure -- Prop. 77, Schwarzenegger's initiative to transfer legislative authority over reapportionment to a panel of retired judges -- was stripped from the ballot by a Sacramento judge. The governor plans to appeal that ruling.

Prop. 80 would repeal some of the provisions of the state's 1996 electricity deregulation law, widely blamed for the blackouts and price spikes that Californians endured in 2000-01.


In Friday's ruling, the court said the initiative conflicted with a provision added to the state Constitution in 1911 -- the same year lawmaking by initiative was authorized -- that gave the Legislature "plenary power'' to increase the PUC's authority over utilities. Citing dictionary definitions, the court said plenary power meant "total power, to the exclusion of all others.''

"We would impermissibly rewrite the constitutional provision if we were to construe it to give the people the power by initiative to expand the PUC's authority and jurisdiction,'' said Presiding Justice Arthur Scotland in the 3- 0 ruling.

If such measures are to be adopted by the voters, Scotland said, they must be in the form of a state constitutional amendment, which requires 598, 105 signatures of registered voters to qualify for the ballot. A statutory initiative like Prop. 80 needs 373,816 signatures to qualify.

Friday, July 22, 2005

Political donations from a Diebold consultant in Ohio stirs controversy

Last week it was reported that a Diebold consultant in Ohio sought the advice of Franklin County's director of elections in making a $10,000 donation at the time bids were being taken for new voter registration software. Franklin County, where Columbus is located, is one of the jurisdictions listed in my Top 25 E-Voting Places To Watch list, which I compiled for the November 2004 election.

More revelations about other questionable donations made to support Secretary of State Kenneth Blackwell, now a candidate for Governor, have come out this week. Today's editorial from the Akron Beacon Journal provides a good summary of what's known so far. Here it is below.


A nasty scandal has been brewing at the Franklin County Board of Elections. It involves a stunningly blatant encounter between a paid consultant for the Green-based Diebold Corp., a supplier of electronic voting machines, and the director of the county elections board, Matt Damschroder.

The day bids were opened for voter-registration software, Diebold representative Pasquale ''Pat'' Gallina showed up in Damschroder's office. According to Damschroder, Gallina said he wanted to deliver a $10,000 check. To whom? The director, in violation of board policy and state law, told Gallina to make the check out to the Franklin County Republican Party. Damschroder will rightly lose 30 days' pay.

Gallina says he just wanted to make a donation to the party. Such an experienced operative goes to the elections board? Damschroder notes Diebold didn't get the contract. He adds that he should have booted Gallina. Diebold says it had nothing to do with the Gallina donation, citing a policy against political giving adopted after a boneheaded pledge by the company chairman to ''deliver'' Ohio for Bush in 2004.

The hugely complicating issue is that Diebold is the only vendor certified by J. Kenneth Blackwell, the secretary of state and Republican candidate for governor, to provide electronic voting machines in Ohio. A competitor, Election Systems & Software, has taken Blackwell to court.

When county prosecutors arrived, Damschroder related Gallina's description of a deal between himself and Norm Cummings, a Blackwell campaign consultant, in which Gallina wrote a $50,000 check to Blackwell's ''political interests.'' In exchange, Diebold would lower the price of its machines, if it got all the Ohio business. Blackwell, Cummings and Diebold all deny this. Gallina says he has long been a Republican supporter. A $10,000 contribution from another of Gallina's firms, to Blackwell's anti-tax group, was made after the Diebold certification. That smell of pay-to-play hangs very heavy in the air.

Thursday, July 21, 2005

Judge orders Prop. 77 off the ballot

Today a superior court judge ruled that Proposition 77, an initiative supported by Governor Arnold Schwarzegegger, must be removed from the ballot because the signatures obtained to qualify it were collected illegally. Excerpts from John Wildurmuth's story are below.


Superior Court Judge Gail Ohanesian said backers of Proposition 77 improperly gave one version of the measure to the state attorney general for preparation of the official title and summary and then used a slightly different version to collect signatures around the state.

The judge dismissed arguments by the initiative's backers, who said that despite the unintentional miscue, they still "substantially complied" with the initiative rules set out in the state Constitution.

Prop. 77's supporters have no one to blame but themselves for the problem, Ohanesian said, since the rules "are clear and well known and easily followed.

"There is no good reason to put the courts in the position of having to decide what is good enough for qualifying an initiative measure for the ballot when actual compliance is easily attainable,'' she said.


With deadlines for the Nov. 8 ballot looming, Prop. 77's backers plan to go to the state Court of Appeal in Sacramento today or Monday in an attempt to get the initiative reinstated.

"This is just one round,'' said Daniel Kolkey, attorney for the Prop. 77 forces. "The appellate courts will make the final decision.''


Schwarzenegger, appearing at a transportation-related event in suburban Sacramento Thursday morning before the ruling, characterized the court fight over the redistricting issue as just another attempt to block his reform plan for the state.

"Ever since we announced our reforms, there have been a lot of forces that believe in the status quo and want to hold things the way they are,'' he said. "They have tried to derail us.''


During more than two hours of courtroom argument Thursday, Kolkey complained that the proposed punishment for a clerical error did not fit the crime.

"That clerical error is being turned into a constitutional confrontation that would disenfranchise more than half a million people who signed the petitions,'' he said.

The differences between the two versions includes about a half dozen word changes, a heavily rewritten "findings and purposes" section and two sections where the deadlines were changed for putting together the panel of retired judges that would do the redistricting.

"The differences are immaterial," Kolkey said, and aren't enough take away the people's right to put an initiative on the ballot.

But Deputy Attorney General Vicki Whitney argued that the dispute "is not a matter of wordsmithing" but instead deals with the constitutional requirement that the attorney general receive an exact copy of any initiative before it can be approved for circulation.

"Should the court create an exception to this requirement, where does the line get drawn after today?" she asked.

The fact that the attorney general, by law, provides a copy of every initiative to the state Department of Finance, the legislative analyst and the Legislature and then posts it on his department's Web site for public view is an important reason that he should have the one official version, the judge said.

"The public and the government officials are entitled to rely on that official version,'' Ohanesian said.

Wednesday, July 20, 2005

Secretary of State's Voting Systems Panel meeting cancelled

The Secretary of State's office has posted an updated schedule for its Voting Systems Panel meetings. This week's meeting, which was scheduled to take place tomorrow, July 21, has been cancelled. The next scheduled meeting is Thursday, August 18. No agenda for this meeting has been posted yet, and there has been no news so far about whether Diebold's TSx machine has been certified.

Thursday, July 14, 2005

AP story: California Election Cycle Burns Out Voters

Michael R. Blood's Associated Press story on California's upcoming statewide special election made big news. News organizations all over the country picked up this story, focused on the question of whether there is such a thing as too much democracy?

Excerpt below:


Is there such a thing as too much democracy? California voters are in the midst of what might seem like a never-ending election cycle - soon to decide their fourth statewide election in two years - and some of them are starting to get burned out.

The cavalcade of candidates and ballot propositions - dating to the October 2003 election that put Arnold Schwarzenegger in office - has left many weary of the baggage that goes along with the elections: the high cost, the finger-pointing and the barrage of television commercials.

``I'm not looking forward to another special election,'' said 61-year-old retiree Mike Wells. ``I'm not too happy.''

Schwarzenegger's determination to get a tighter grip on the state budget and retool a Legislature known for its political extremes has led to the November special election. Eight initiatives have qualified for the November ballot, and the number could grow even larger by Election Day.

After years of runaway spending and increasing public debt, the governor has argued his ``Year of Reform'' initiatives are critical to changing the way state government operates. His supporters are equally eager to push for the ballot measures this year, rather than waiting until the state's June 2006 primary.

``I have no patience for folks who say, 'I have voter-fatigue,''' Fresno Mayor Alan Autry, a fellow Republican, said after Schwarzenegger called the special election last month. ``The governor's trying to solve problems. I fully support him.''

The governor's proposals would give him a stronger hand in state spending, redraw congressional and legislative districts and raise the bar for teachers to obtain tenure.

Other measures would require minors seeking abortions to get parental approval, reregulate the state's energy market and lower prescription drug prices.

But that could be just the start. The ballot could become more crowded - and confusing - if Schwarzenegger and legislators reach compromises that could place other measures before voters in November.

If that were to happen, the governor would have to persuade voters to reject his initial offerings in favor of the compromises.

``Confusion about issues on the ballot is a considerable barrier for voters in the state,'' said Kim Alexander of the California Voter Foundation, an advocacy group. ``My fear is people who are burned out may choose to sit home.''

If recent polls are any indication, Schwarzenegger may face an uphill battle. A May survey by the Public Policy Institute of California showed that California voters view Schwarzenegger's special election an unnecessary imposition.

``People scratch their heads and say, 'Why are we doing this?''' said Democratic consultant Kam Kuwata.

Californians have long prized their system of direct democracy, in which any group that collects enough signatures can place a proposal on the ballot. At least 86 initiatives were proposed this year - a record - although most never qualify for the ballot.

But at times it can seem like too much.

Schwarzenegger barely finished the oath of office in November 2003 before the presidential election kicked into gear. There was a spring 2004 primary, followed by the November election, in which voters had to wade through a list of candidates for president, U.S. Senate, the state Legislature and 16 ballot questions that touched on issues from slot machines to DNA databases.

Then there were local elections. Los Angeles residents, for example, had a primary and runoff election for mayor this year. That means a voter could have been to the polls five times since October 2003, or an average of about once every four months.

Beyond possible voter fatigue, the state's perpetual election cycle has led to resentment about the expense - the November special election is projected to cost taxpayers more than $50 million.

Thursday, July 7, 2005

Redistricting measure could drop off ballot

Today's San Francisco Chronicle features an article by John Wildermuth regarding the potential for Proposition 77, Governor Schwarzenegger's redistricting measure, to be removed from the ballot. More information about this and the other seven measures slated to appear on the November 8 statewide ballot is available from CVF. Excerpts from the Chronicle article are below.


A mistake involving an initiative that would change the way California draws its lines for politicians' districts could force the high- profile measure off November's special election ballot.

The problem arose when backers of the reapportionment initiative, now listed for the special election ballot as Proposition 77, turned in one version of the proposed measure to the state attorney general's office for review but circulated an earlier, slightly different version when collecting the signatures needed to qualify the initiative for the ballot.

Backers of the initiative noticed the problem last month and informed Secretary of State Bruce McPherson. Last week, McPherson turned the problem over to state Attorney General Bill Lockyer, who is now reviewing the documents.

No one is sure what will happen to the initiative.

"This is uncharted territory,'' said Nathan Barankin, a spokesman for Lockyer. "No one in this office has any recollection of proponents for an initiative submitting one version (to the attorney general) for title and summary and then choosing to circulate a different version.''

If Lockyer decides the only official version of the initiative is the one turned into his office, then the 900,000 signatures collected for the measure could be ruled invalid.

Ted Costa, who led the effort for the redistricting initiative, expects the issue to go to court, although he said the differences between the two documents were little more than word changes for style purposes.


The initiative would take the power to draw the district lines for the state Senate, Assembly, House of Representatives and Board of Equalization away from the Legislature and give it to a panel of retired judges. Schwarzenegger said the change was needed to make elections more competitive and make officeholders more responsible to the voters.


Schwarzenegger is trying to keep the redistricting initiative on the ballot, with aides arguing that differences between the two versions of the measure are so minor that they have no real effect.