Flaws in state balloting loom large
Recount in close vote would be a 'mess' despite reform efforts.

By Tim Darragh
Of The Allentown Morning Call    29 August 2004

Four years after the Florida presidential vote taught the other 49 states that they needed to modernize and improve safeguards in their voting systems, key reforms in Pennsylvania remain incomplete or undone.

Even where Pennsylvania completed reforms, experts fear that new challenges have been created, leaving the state vulnerable to the type of voting and ballot-counting fiascoes that marked the presidential vote in 2000.

Weaknesses in Pennsylvania's system of voting and counting ballots stand out at a time when polls show President Bush and Sen. John Kerry in a virtual dead heat in Pennsylvania. The potential for a recount brouhaha rises as the vote difference between the candidates narrows.

''A statewide recount would be a mess in Pennsylvania,'' said Larry Frankel, executive director of the American Civil Liberties Union of Pennsylvania. ''If we had a situation like Florida, we'd have as big a problem, if not a bigger one.''

The security of Pennsylvania's vote could be jeopardized in at least three ways: a troubled, incomplete statewide voter registration database, a lack of voting recount standards, and archaic voting systems. Also, with elections overseen separately in each of the 67 counties, training for Election Day workers and voter education efforts can vary substantially.

Throughout Pennsylvania and other hotly contested states, the Bush and Kerry campaigns will have squads of lawyers ready to rumble in any district where fraud or voter suppression is suspected.

''There's going to be a lot of crap that comes out after the election,'' predicted Michael Shamos, a lawyer and teacher at Carnegie Mellon University in Pittsburgh.

The potential for a traumatic, divisive post-election vote count is not restricted to Pennsylvania. Despite the passage of a federal law in 2002 designed to modernize elections, the process of voting and counting votes is a state function, and most states sought and received waivers from provisions of the law that would have taken effect before the Nov. 2 election. Voters and poll workers in Florida and some other states also will be tested by new computer voting machines whose reliability is in question.

A close vote, combined with the nation's highly polarized electorate, is a recipe for a repeat of the Florida fiasco, said Doug Lewis, executive director of Election Center, a nonprofit organization that works with election administrators.

He fears the extreme partisanship of the presidential campaign will cause the losing side to blame election workers and lead to lawsuits that sap the public's faith in the process.

''Every election official in America,'' Lewis said, ''has spent months praying, 'Dear lord, please let the winner win big.'''

Not so SURE

Following the headaches of the 2000 election, settled only when a divided U.S. Supreme Court ruled that the recount of the presidential vote in Florida should be stopped, the dirty linen of elections in the United States was exposed for all to see.

It included partisan political officials heading elections, inaccurate registration lists that disenfranchised thousands of legal voters, ill-prepared election workers and improper ballots. It also included a lack of standards determining what constituted a vote — leading to the sight of elections workers gazing into punch card ballots, trying to determine what voters had in mind when they created little paper perforations called chads, whether pregnant, dimpled, hanging or swinging.

In the end, a joint study by the California Institute of Technology and Massachusetts Institute of Technology revealed that up to 6 million votes in 2000 — nearly 6 percent of the vote — were lost because of inadequate systems or human error. By no means were the problems limited to Florida. Illinois, South Carolina and Georgia had higher rates of spoiled or lost votes than Florida, the study found.

As in other states, Pennsylvania election officials knew they had work to do to avoid problems by the time the 2004 presidential election rolled around.

Gov. Tom Ridge established a Voting Modernization Task Force, which made recommendations beginning in 2001. A year later, Congress passed the Help America Vote Act. The new law thrust more demands, and the promise of money to cover upgrades, onto the states.

Some of those reforms are in place. Pennsylvanians can cast provisional ballots if poll workers cannot find their names on voter lists. Security will be enhanced as first-time voters and those going to a polling place for the first time will be required to provide identification.

But other reform efforts either failed or won't be completed by November.

The most glaring example can be found in 56 counties' election bureaus, where county workers struggle with the new voter registration database.

Known as SURE, for Statewide Uniform Registry of Electors, the database is the center of a $20 million plan to centralize the list of voters in Pennsylvania.

In theory, a statewide database of eligible voters should improve accuracy by making it easier to identify duplicate registrations; help comply with the federal ''motor voter'' law; and cut costs by reducing paperwork.

Since it was rolled out in 2002, however, SURE has had problems.

Workers in election bureaus across Pennsylvania have complained that SURE at times runs slowly or freezes, hampering the processing of voter registration applications. As the election heats up, they fear they won't be able to get all registrations properly listed by the deadline.

If that happens, counties would be forced to print supplemental books of registered voters, creating another checkpoint that at a minimum would slow voting.

For election workers, that's ''a nightmare scenario,'' said V. Kurt Bellman, Berks County director of elections.

The acronym for the system should be ''ILGP,'' for ''It Looks Good on Paper,'' said Gina Taylor, Monroe County's acting director for Voter Registration and Elections.

''There are some issues that I have found to be very, very mountainous to deal with,'' Taylor said. ''It is slow, it's cumbersome to get around.''

Stacey J. Sterner, Lehigh County's deputy chief clerk for Voter Registration, said that before the SURE system was put in place, an average of 60 applications might take 60 to 90 minutes to process. ''Now, it would take nearly all day,'' she said.

Counties using SURE are expecting that their overtime accounts will be depleted to get all the work done on time. Lehigh County already has had workers in on Saturdays.

Frozen computer screens, which occasionally happen with SURE, are another sight election workers fear on Election Day.

''I would have more confidence'' without SURE on Election Day, Taylor said.

Six counties, including Bucks, operated live with SURE in November's municipal election, prompting Commonwealth Secretary Pedro A. Cortes to say he was ''ecstatic that the SURE system passed this crucial test with flying colors.''

But voters in those counties accounted for less than a quarter of the state's registered voters in an off-year election, when turnout is much lower. And deadlines for bringing all 67 counties online have come and gone.

Northampton, Schuylkill and Montgomery counties are not on the SURE system and will not be by Election Day. Officials last month decided they had too much to do before the election for the 56 counties online, so the remaining 11 — including Philadelphia, with around 1 million registered voters — would have to wait before they are fully online.

That suited the 11 counties fine.

''I breathed a very large sigh of relief that the county will not be on SURE'' for this election, said Charles Dertinger, chairman of Northampton County's Election Commission. ''That's because it simply didn't work right.''

Tim Ruppert, SURE's project manager, said software and hardware s issued this month should speed up the system, and he pledged that workers would continue to research upgrades.

But the system remains slow and balky. Election workers remain skeptical.

M. Glenn Newkirk, president of Infosentry Services, a North Carolina computer consulting firm brought in by state officials to assess SURE's progress this year, said election officials naturally are doubtful because they were told the system would be running statewide by September 2003.

Infosentry's report criticized the main contractor, Accenture, an international consulting and technology firm in Bermuda, for creating ''a very high level of risk'' with an overly optimistic and aggressive roll-out. The report also pointed out planning and technological failures and said larger counties would notice that SURE performed worse than the systems it would replace.

In addition, Newkirk said it is likely SURE would not meet the state's contractual Jan. 1 deadline for covering 67 counties.

Newkirk, whose firm has assessed other states' systems, said that because election laws differ from state to state, it is impossible to compare SURE's capabilities against other state voter databases.

But this is not Accenture's first problem with such a program.

After its vote debacle in 2000, Florida gave a $2 million contract to Accenture to create a centralized database, which was delivered and used on time for the 2002 elections, spokesman Jim McAvoy said.

The state then asked Accenture to build a system matching lists of convicted felons and those given clemency, because Florida law bars convicts from voting unless granted clemency.

But Secretary of State Glenda Hood last month pulled the plug on the project after newspapers revealed that the database did not purge Hispanic Floridians — who tend to vote Republican — and it improperly purged many black Floridians, who tend to vote Democratic.

McAvoy said the flaw was not Accenture's fault. He said the company was not responsible for the data the state put into the system.

''We built the tool for them to use, built to their specs,'' he said. ''They created the list using our tool.''

Florida officials would not say how much responsibility, if any, belonged to Accenture for the failure of the project because it is the subject of an ongoing state audit.

Accenture, a multibillion-dollar firm that has provided information technology services for other states and countries — and at times come under fire for cost overruns — will be working on building voter databases for five other states for the 2006 election cycle, McAvoy said.

A legislative leader of voting reform, state Sen. Jeff Piccola, R-Dauphin County, acknowledged that some lawmakers now are questioning the hiring of Accenture and the effectiveness of SURE.

Joe Passarella, Montgomery County's Voter Services director, said the state's counties have a suggestion. ''We've told the Department of State … they have to consider scrapping it.''

No standard exists

When the U.S. Supreme Court ended the 2000 presidential election in George W. Bush's favor, the court reasoned that different standards for recounting votes among Florida's counties violated constitutional guarantees to equal protection.

A year later, a Voting Standards Board appointed by Gov. Ridge to investigate Pennsylvania's voting processes concluded that it was ''imperative'' for the state to develop uniform recount standards. State election laws provide little instruction, and the secretary of the Department of State lacks the authority to develop standards, the board said.

''As a result, a statewide recount in Pennsylvania may not fare much better than what the nation witnessed last year in Florida,'' it wrote in a final report.

A little more than two months before the next presidential election, little about Pennsylvania's voting standards has changed.

Pennsylvania counties use a variety of methods to vote: computerized systems called DREs or Direct Recording Electronic devices, lever machines, paper ballots, punch cards and optical scanners. Putting aside the systems' reliability, questions can arise over a voter's intent, particularly on the latter three systems. When close votes and recounts occur, the Supreme Court said that where voter intent is the standard for counting votes — as it is in Florida and Pennsylvania — counties must use a single definition for determining whether a vote is valid.

In the first test of Pennsylvania's voting standards, a state court this year ruled that no single standard exists.

A neck-and-neck race for Snyder County commissioner in November went to court after Gregory Shambach challenged the validity of write-in votes for his opponent, Richard W. Bickhart. A county court determined that, according to one of the optical scan standards developed by the board, the votes should not stand.

Bickhart appealed to Commonwealth Court, which overturned the county court. The state Supreme Court in March upheld Commonwealth Court's decision.

To Bruce Ledewitz of Duquesne University Law School, the ruling brings into question all of the board's effort.

''If we actually have a dispute like Florida, what's going to be the effect of work?'' he said. ''A law professor at Duquesne says nothing.''

''When those voting standards were put into place we were hoping they would be binding and the counties … should be required to follow those,'' said Brian McDonald, a spokesman for the Department of State. ''It kind of leaves us in a gray area.''

The Commonwealth Court that overturned the Bickhart vote saw no gray area. Because the Department of State was authorized to publish the standard as a ''notice'' and not a part of the Election Code, the standard amounted to ''merely a statement of policy, and, as such, it does not establish a binding norm,'' the court said.

No trigger for automatic vote recounts exists, either. Recounts have to be requested in Pennsylvania, the ACLU's Frankel said, and that requires fees — again threatening complaints about a lack of equal protection.

Legislators would have to amend the state election law for the standards to pass legal muster. But Piccola acknowledged that even after the board examined the issue, ''there's some discussion as to what voting standards should be.''

He said lawmakers may try to rush through a bill while they are in session in the fall. But he was doubtful. ''The question is, can we do something that complex and sensitive right before the election?''

Commission work delayed

Included in the Help America Vote Act, passed in 2002, is a little known new federal agency called the Election Assistance Commission. The commission is mandated to provide money, information, guidelines and standards for election administration throughout the country.

But in writing a law to help America vote, Congress forgot to provide help to one group: the commission.

The agency, which was to have begun operations by February 2003, didn't have a full complement of commissioners until December. Congress further hamstrung it by providing only $1.2 million for start-up, forcing it to begin operations in temporary offices in Washington, D.C., and only partially funding its programs. The money also was insufficient to pay commission salaries.

The commission's late start and under-funding trickled down to the states. The voting law, known by the acronym HAVA, requires the replacement of obsolete voting machines, a goal shared by the Pennsylvania Voting Standards Board and ratified in the Cal-MIT voting study.

But because of the late start, the commission has not declared the standards for the new machines, which are to be in place by Jan. 1, 2006. In turn, states haven't delivered standards to the counties, which have to buy the machines.

''It's my biggest problem,'' said Carbon County Elections Supervisor Ken Leffler, who will have to replace the county's lever voting machines. ''The problem is at this point there is nothing certified out there in the state of Pennsylvania that is certified for the HAVA laws.''

The commission's first annual report, in April, said other key elements of its mission, including developing voting system guidelines and providing grants for voting technology improvements, also likely would be delayed. Federal cutbacks to the National Institute of Standards and Technology slowed progress even more.

Concerns over standards for machines extend to existing voting technology as well. Shamos, the Carnegie Mellon professor, testified to Congress in June the system for testing voting machines is ''not only broken, but is virtually nonexistent. … We are less safe in 2004 than we were 20 years ago.''

Since standards have not been kept up-to-date, Shamos said, both older and newer voting machines can pass tests and still perform poorly. That, he said, is partly because the few testing firms are funded by voting machine manufacturers.

HAVA calls for government testing laboratories, but they have not been established.

Where new technology and laws meet, human error likely is not far behind.

Although voting seems simple enough — a voter goes to his polling place, casts a ballot and it is counted — in truth, it's a massive effort that requires training and close coordination from voting precincts to counties to states.

Election officials and observers agree increased training for workers at polls and in county election offices is critical. Voters also need to be educated about where they should go to vote, how to vote, and the alternate steps they can take.

''The administration of elections is potentially a far bigger problem than the technology,'' said Nate Persily, an assistant law professor at the University of Pennsylvania in Philadelphia.

He cited the experience of Chicago, where election workers frequently gave voters who went to the wrong poll a provisional ballot instead of sending them to the correct place. In Illinois, if a registered voter casts a provisional vote in a place other than his home precinct, the vote will not count.

Other votes were canceled because voters improperly filled out affidavits — another problem that could have been eliminated with better training.

Tom Leach of the Chicago Board of Election Commissioners said the board is working on retraining election workers and educating the public.

Chicago's example shows how the good intentions of provisional balloting, mandated by HAVA, can cause more problems than they solve: In the spring primary, 416 provisional ballots were counted. The number disqualified: 5,498.

Legal uncertainty about the standards for counting provisional ballots also could create a nationwide battleground for squads of Bush and Kerry lawyers, Persily said.

''The law now says you have the right to cast a provisional ballot but you don't really have a right to have it counted,'' he said. ''So the question is, under what circumstances will provisional ballots be counted?''

With a possible 1 million provisional votes to be cast nationwide in November, the best defense is increased education for voters and election workers.

But getting the poll workers trained in new technologies and nuances of the law is a challenge, even according to their staunchest backers. Many precincts across the country still are recruiting poll workers on Election Day, said the Election Center's Lewis.

''We understand that we need to do more to prepare poll workers,'' he said. ''There was this utopian idea that we would train them for 12-14 hours. Well you can't do that. They won't come.''

Pennsylvania's plan for meeting HAVA's requirements says it will have a training program in place for poll workers and election officers by 2006. In the meantime, the responsibility remains in the 67 counties' hands.

''Some counties do make more of an effort to educate both poll workers and potential voters and others, that's more work and they don't want to do it,'' Frankel said.

Fortunately, elections generally work out, thanks to the efforts of those workers, Lewis said.

It's just not realistic, Lewis said, to expect that with up to 156 million registered voters, 200,000 polling sites, 1.4 million poll workers, 800,000 voting machines and nearly 8,000 election jurisdictions nationwide, everything will go off without a hitch.

''You've got lots of places for things to go wrong.''