Suffragium Ex Machina

Released November 12, 2009

A FairVote Innovative Analysis by Rob Richie

In a Nutshell:

FairVote is well known for our advocacy of better electoral methods and improvements to the way people vote when they go into the polling place that foster equality and choice. But what happens before and after a ballot is filled out can be critically important as well-if votes aren't counted, using a fair voting method won't make a difference. Today the machinery of American democracy (literally) is increasingly dependent on one large corporation with little interest in transparency, competition or innovations that might affect its bottom line. For years FairVote has proposed publicly controlled voting processes, ideally with transparent administration and clear lines of accountability grounded in publicly owned voting equipment. As FairVote called for in a November 8 letter in the New York Times, at the very least the concept of a "public option" needs to be transposed to the often-murky debate over voting equipment, ensuring that our local and state governments always have a public interest alternative. We also should revamp certification processes to improve equipment, encourage transparency and reward innovation.

Our Analysis:

In September, the United States' largest voting equipment vendor Election Systems & Software (ES&S) announced the purchase of Premier Election Solutions, our nation's second largest vendor-and a product of the Diebold Corporation's North American operations. If this sale goes forward, ES&S will control a huge majority of the voting equipment market in the United States. According to Verified Voting, more than 120 million registered voters live in American jurisdictions using one of these two companies' systems. In contrast, the nation's third largest elections vendor, Sequoia Voting Systems, provides equipment in jurisdictions with only some 26 million registered voters (and seems to be on shaky ground, having been sold several times in recent years and still waiting to have its latest optical scan system certified by the federal Election Assistance Commission). ES&S-then called American Information Systems-previously attempted to consolidate the voting industry in 1997 with a purchase of Business Records Corporation (BRC), but the U.S. Department of Justice on anti-trust grounds required that acquisition of BRC be split between ES&S and Sequoia. Some groups like Voter Action are seeking to hold vendors legally accountable for past failures to uphold election integrity, and Sen. Chuck Schumer, chair of the Senate Rules committee, has announced his intention to conduct a review of this latest merger through his Senate Rules and Administration Committee.

 An October 29 New York Times editorial rightly sounded the alarm on this dubious bit of conglomeration, calling upon the Justice Department and state attorneys general to take action to block the sale, writing, "We fear that if any one voting machine maker is allowed to dominate the market, there will be even greater reasons to worry about the nation's flawed voting system."  In a response, ES&S president Aldo Tesi wrote, "Citizens should be confident that local officials administer fair and honest elections. As our customers, we know they are." This is a misdirection, because it's not the local officials that monopolize the very mechanisms by which our democracy runs, and it is not they who are being criticized by the Times-it's companies like Tesi's ES&S.

The Times' description of our voting apparatus as "flawed" is accurate mainly because we run democracy on the cheap at the national level, and pay for it with lost votes, untrustworthy software and exorbitant costs for public interest improvements, mainly due to companies recouping expenses by abusing their local monopolies. FairVote has long suggested a full public ownership model, similar to that of Oklahoma and those of other nations. Along these lines, we should at least pursue a "public option" to compete with private vendors. We can also consider additional ways to gain control of the election process and foster better, more reliable equipment.

Looking forward, one interim step would address a glaring problem: the process of certifying equipment. To open up the market to more competitors and secure certain basic rights of transparency and quality control, the public should pay for at least some of the costs of certification in exchange for more control over the product. Better certification processes for voting equipment of course are absolutely essential, as underscored by more rigorous certification processes in recent years that have exposed major problems with proposed equipment. Election results also continue to demonstrate how systems already certified for our most important elections can have serious flaws. For example, the Humboldt County (CA) Election Transparency Project discovered that a Premier/Diebold optical scan paper ballot system dropped 197 ballots in 2008, while a FairVote analysis earlier this year found that the same system dropped 0.4% of ballots in an election in Aspen (CO).

But companies have to scramble to keep up with each new revelation and each new good idea for updating certification standards at the federal and state level, which can stretch out the timeline for certification and greatly increase costs. Paying for companies' certification expenses would cost taxpayer dollars, of course, and should have reasonable limits that avoid frivolous costs and vendors using the certification process to allow onto the market equipment and software they know is flawed. But any upfront costs promise to pay big dividends for our democracy in the long term. It would allow new companies to get a competitive product on the market before they know for sure they will be able to sell it-resolving the catch-22 that today makes it so difficult for any new company to compete with the dominant, entrenched companies. It also would make it easier to justify ongoing updates to the voting standards, rather than essentially adding new "unfunded mandates" on the vendors who either go out of business or, more typically, give up after barely getting started. The quality of voting equipment and software should also rise as companies would be required to do more than just "get by," and county and state governments would pay less for better equipment and upgrades-right now they typically face excessive fees for equipment, ongoing services and upgrades from vendors trying to recoup their certification costs and able to take advantage of their near monopoly of the industry.

In exchange for paying for the certification process, the public would need to secure greater rights of transparency and general ownership of the process. For example, New York State's latest contracts for new equipment include a sensible provision that any additional contracts for services and new features involving the equipment will be open to competitive bidding, rather than the jurisdiction simply having to accept the vendor's monopoly power. Taxpayers also should require much greater access to the software code, if not full open source software, as well as a requirement for "modular" components that would make it easier to piece together separately certified systems for an election, rather than relying on just one company for all election services.

Exclusive focus on pre-election certification will never be sufficient, as we must also focus on post-election verification and audits. By verifying all election counts, the certification process would become part of a "belt and suspenders" approach. With the latest optical scan paper ballot systems having the capacity to create redundant records of every ballot, these records can be made publicly available, as they are in cities from San Francisco (CA) to Burlington (VT). When coupled with manual audits and appropriate privacy safeguards, they will allow the public to verify vote tallies and immediately identify errors.

The bottom line is that the existing regime is broken. Let's stop outsourcing democracy and make sure that citizens are in control.

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Previous editions of Innovative Analysis can be found here.
Contact: Paul Fidalgo, communications director: paul(at), (301) 270-4616
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