Pols, Don't Count on Recounts 

By Kim Zetter  WiredNews   02:46 PM Nov. 01, 2004 PT

When candidates start demanding recounts in the aftermath of Tuesday's election, many will make an unsettling discovery: In the districts that used electronic voting machines there won't be a way to conduct a meaningful recount.

That's because the paperless machines provide no method for conducting an independent analysis of the votes other than what's in the machine's memory. And collecting the data necessary to prove fraud or irregularities on a touch-screen machine will be uphill battles, since courts and election officials have been unsympathetic to losing candidates making such claims in the past. 
 
  
 As many activists have pointed out over the past year, conducting recounts on e-voting machines means that election officials simply re-run the same electronic data on the same machines. If machines recorded the votes inaccurately the first time or if the counting software contained flaws or malicious code that produced untrustworthy results, a recount using the same software would produce the same untrustworthy results. Garbage in, garbage out, as they say.

The other option is to examine the internal workings of the machines. But since the software used on the machines is proprietary, most courts have been unwilling to grant candidates access to the code.

This hasn't always been the case. In 1984, a court did allow plaintiffs in a disputed election to examine the source code. That year, when Ronald Reagan was re-elected president, lawsuits in Florida, Indiana and West Virginia charged fraud and vote manipulation in local races. Fingers pointed to the company that made the computerized voting machines used in the election the Votomatic punch-card machines, made by Computer Election Systems, or CES, of Berkeley, California. Experts said the company designed the machines so that vote totals could easily be altered without leaving a trace.

Losing candidates in one race charged that when the computer acted up on election night, a CES employee ed control cards into the machine. The plaintiffs sued to retrieve the source code, and the court, for once, consented. When computer experts examined the software, they determined that CES had changed the computer's instructions for tallying votes on election night. But because the program lacked adequate auditing mechanisms to track the nature of those changes, no one could determine if the company had rigged the election. The plaintiffs lost the case because the court ruled that their claims were mere conjecture.

"Mere conjecture" is a phrase likely to be heard a lot this year. That's because election officials and courts so far have not been helpful in providing losing candidates with backup and peripheral data, such as machine audit logs and software source code that might help determine if votes on a machine were recorded inaccurately.

"How can you show fraud or error if you've been denied access to any of the tools that can show you the existence of fraud or error?" said attorney Greg Luke. "We need to get procedures in place long before elections that tell officials what they need to preserve and hand over in a recount. It's a messy thing to try to have courts step in and tell people what they should have been doing from the beginning."

A recent California case highlights how an election dispute with touch-screen machines in this election could play out.

Last March in California's Riverside County, Linda Soubirous, a candidate for board of supervisors, lost her race to an incumbent and missed a chance for a runoff by only 45 votes. California election law allows any citizen the right to request a recount. When Soubirous did so, the county simply ran the same electronic data through the machines to get the same results. Soubirous said this was inadequate and sued the county and former registrar of voters Michelle Townsend to obtain audit logs and the electronic memory cartridges from the machines where the votes were stored.

The recount gave Soubirous even more reason to believe there might have been problems with the original count, because election officials discovered additional absentee ballots that they missed during the first count.

Townsend refused to hand over the audit logs and memory cartridges, saying they were irrelevant to a recount. This was strange because Townsend had been telling e-voting critics for the past year that voters shouldn't worry about the security of touch-screen machines because they stored three redundant versions of votes which could always be examined in a recount. Riverside was the first county in the state to purchase touch-screen machines, spening $14 million in 1999 for machines made by Sequoia Voting Systems.

Townsend didn't give a clear reason why she believed the redundant data and logs were irrelevant to a recount. Nonetheless, California Superior Court Judge James S. Hawkins ruled that Riverside County voting officials did not have to hand over the logs or cartridges and that the county had a right to decide what materials were relevant to a recount.

Luke, who is representing Soubirous in an appeal of the decision, said he thinks it has a good chance of being overturned, since California law specifies that anyone disputing election results has the right to request the relevant data. But even if Luke succeeds in winning access to the data, it's possible that its authenticity has been corrupted with the passage of time and recent moves by election officials to copy the data onto a server.

Luke is lucky that the Riverside data didn't go the way of redundant data that disappeared earlier this year in Florida. After voting activists filed a request to view audit logs for votes cast on touch-screen machines during the 2002 primary election, officials claimed the logs were lost when a computer crashed in 2003. Officials in Miami-Dade County later found the backup data, but the lapse didn't give voters confidence in the voting systems or in the ability of election officials to preserve valuable data for recounts.

On its own, the redundant data can't prove an absence of fraud. For this, Luke and other litigants would need to have access to the source code of the machines' software. But voting companies have succeeded until now in getting courts to agree that parties that contest an election have no right to see the proprietary code.

Election laws across the country need to be revised to keep pace with the new technology, Luke said. As they currently stand, the laws set an impossible bar for anyone to prove fraud. In most states, he said, election law requires that someone contesting an election have some proof of fraud before they can request access to the vote data.

"Contests are expensive and they almost always require someone to show in advance that they think a certain number of votes were wrongly counted," he said. "When you file the contest you have to say, for example, that 501 votes were incorrectly counted. You have to have a reasonable basis. The catch-22 is that unless you have been denied access to all of this secondary material which gives you some information about whether the machines have functioned improperly, it's very difficult to make that allegation."

Some 50 million registered voters live in counties where more than 100,000 touch-screen machines will be used this week. Given the number of machines, it's highly likely that some machines will fail to record votes or fail to record them accurately. Will we know about those problems? No one knows. In close elections there is always more scrutiny on how the machines counted the votes. But in elections with wide margins, no one seems to care if machines miscount votes. That's why election officials are praying for wide margins this year. They're not likely to get them.