http://www.electionline.org/


I. In Focus This Week

As America heads to the polls, so too does Electionline.org
Staff prepares to observe elections in five 'states to watch'

electionline.org

Last week, electionline.org released its "Election Preview 2006: What's Changed, What Hasn't and Why" to provide a comprehensive look at the state of election reform around the country on the eve of the November 7 mid-term vote.

With just days remaining until polls open - and with early and absentee voting well underway - electionline.org staffers are packing their bags to see the vote firsthand around the country. They'll be posting their observations on the Web site throughout the day on November 7, but before they leave, however, they offer these up-to-the-minute previews of election administration issues in some of the states to watch around the country.

ARIZONA
Ivan Sciupac

From members of the media, to lawyers to civil rights organizations, to electionline.org, hordes of observers are preparing to descend on Arizona to witness what transpires at polling places during the November 7 election.

Although many of the observers will be there to keep track of all aspects of the process, much attention will be focused on the enforcement of Proposition 200.

Approved by 56 percent of voters in 2004, Prop. 200 requires voters to show proof of citizenship when they register to vote and either a photo ID or two forms of non-photo ID on Election Day. If they do not have an ID on Election Day voters may vote provisionally and if they return to the elections office with the proper forms of ID within five days of the election, their vote will be counted.

In March 2006, the U.S. Election Assistance Commission (EAC) wrote Secretary of State Jan Brewer ® a letter saying that Prop. 200's requirements violate the National Voter Registration Act of 1993 (NVRA) because they constitute an additional citizenship requirement for individuals using the National Voter Registration Form. Brewer disputed the EAC's reasoning and conclusions and insisted she would continue to require county registrars to apply the law to all registration forms.

Shortly after the EAC letter, a coalition of advocacy groups filed suit in federal court to stop enforcement of the law. On October 5, the 9th U.S. Circuit Court of Appeals granted an injunction barring the state from enforcing the new law.

However, on October 20, the U.S. Supreme Court overturned the injunction, making clear that it was not a value judgment on the issue but a question of time and data.

"Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules," the court stated in its opinion.

In other legal news, with less than a week to go until the election, a federal judge on Wednesday ruled that opponents of Prop. 200 may not station observers inside polling places, but that election officials must count how many people without identification walk away without voting.

According to the Mohave Daily News, Arizona law permits only certain people in polling places in order to prevent interference, intimidation and harassment. The Inter Tribal Council of Arizona and others had challenged the state law and requested that they be permitted to post observers inside the polls on Election Day.

In her ruling, U.S. District Judge Roslyn Silver said the challengers to Prop. 200 have a legitimate pretrial interest in learning how many people are affected by the requirement, which is why she ordered election officials to count those turned away.

"This will allow the [challengers] access to the information they seek while avoiding the evils the statute seeks to prevent," Silver wrote.

Whether the legal back and forth over the enforcement of Prop. 200 causes confusion at the polls on November 7 for Arizona's 2,568,401 registered voters (an increase of 35,093 from the primary election), remains to be seen, but many county elections officials said they were working to make sure voters were educated about the requirements.

"We want to make sure everybody is aware the voter identification requirements in place for the primary election will be in effect for the general," Yvonne Pearson, Greenlee County elections director, told the Eastern Arizona Courier.

And the number 200 will be popping up again this election cycle in the form of Ballot Measure 200. If approved, it would create an election lottery so that one lucky voter would be awarded $1 million in each general election. If it passes, it will almost certainly face the scrutiny of the courts.

Polls in Arizona are open from 6 a.m. to 7 p.m.

CONNECTICUT
Dan Seligson

As familiar a fixture at election time as a negative campaign ad, the clunky gray metal lever machine will have what is expected to be its final roll-out in a federal election on Tuesday. Gone forever will be the privacy curtain and the reassuring "ker-clunk" of finality as the voter pulls the red lever to cast a ballot.

Change is coming to Connecticut voting - but not before the majority of voters in the state use the machines to, at least potentially, determine the partisan control of Congress with three competitive and nationally significant House races.

While ubiquitous in East Coast elections for decades, lever machines are not without shortcomings, experts say. The Election Assistance Commission stated in a September 2005 advisory opinion that the system "[has] significant barriers which make compliance [with federal law] difficult and unlikely." Namely, lever machines have no paper component allowing an independent audit of vote totals, a requirement of section 301(a) of the Help America Vote Act. Voting system expert Roy Saltman also noted that the number 99 seemed to come up in vote totals more than it should, statistically speaking, indicating "that it takes more force to turn the vote counting wheels in a lever machine from 99 to 100, and therefore, if the counter is going to jam, it is more likely to jam at 99."


Without any means to verify independently a lever machine's vote totals, and with the possibility of close races, lever machine mechanics - as well as the EAC's opinion that they are no longer compliant with federal law during this election cycle - could weigh heavily in potential post-election challenges.

There will be some innovation, however, as 25 localities in the state take part in a pilot project to introduce paper-based optical-scan systems to the state. Secretary of State Susan Bysiewicz said optical-scan systems would address "the concerns" of state voters, some of whom urged her to reject direct-recording electronic, or touch-screen, machines.

A new report issued this week by the University of Connecticut found, however, that the optical-scan system could be vulnerable.

The study, commissioned by the state, found that the machines were vulnerable on Election Day to tampering or worse. "Even if the memory card is sealed and pre-election testing is performed, one can carry out a devastating array of attacks against an election using only off-the-shelf equipment and without having ever to access the card physically or opening the AV-OS system box," the report stated. Those attacks could include vote swapping, eliminating all votes for one candidate or the introduction of "conditionally-triggered biases," which could change totals based on a hacker's desired result.

Nonetheless, the university research team said they "strongly support the choice of optical-scan voting technology."

Some voters with disabilities will have their first opportunity to cast independent and secret ballots in a general election as each polling place in the state will have a vote-by-phone system.

Polls in Connecticut are open from 6 a.m. to 8 p.m.

MARYLAND
M. Mindy Moretti

Although not historically known as a hotbed of election administration controversy, all that changed in Maryland with the September 12 primary when a host of problems, from forgotten voter access cards for touch-screen machines to late polling place openings to problems transmitting vote totals at the end of the day, created primary chaos in the Old Line State.

Shortly after the primary, Republican Gov. Robert Ehrlich (running for re-election in a state where Democrats outnumber Republicans 2 to 1), once a strong supporter of the Diebold touch-screen machines, called on Marylanders to vote absentee instead of relying on the electronic machines. As the deadline to apply for absentee voting passed, more than 10 percent (175,500) of Maryland voters had filed an absentee ballot request.

With counting of absentee ballots not scheduled to begin until 10 a.m. Thursday, November 9 and two key races each polling within a 10 point margin as of press time, Marylanders could be waiting longer than they are accustomed to in order to find out who their governor and new U.S. senator will be.

In some instances, absentee ballots didn't turn out to be the panacea some officials touted them as being. In recent media reports, when Republican Lt. Governor candidate Kristen Cox, who is legally blind, went to vote absentee, she was given a ballot that listed her in the incorrect voting district. After encountering a second problem, she was finally able to vote.

"It's a little disappointing that this far into the game that that would happen," Cox told a Baltimore television station.

In addition to concerns about voting machines, after some polls opened late for the primary because the minimum number of election judges were not on hand, Delegates Samuel Rosenberg, D-Baltimore, and Peter Franchot, D-Montgomery County, wrote the state's attorney general's office requesting that polls be permitted to open at 7 a.m. even if the minimum number of judges - two from each party - are not present as required by law.

In an opinion made available two weeks prior to the election, Deputy Attorney General Donna Hill Staton and Chief Counsel Robert McDonald said that the right of voters to cast their ballots outweighs the requirements set forth in the law for providing judges who operate the polls on Election Day. "The failure of some election judges to appear does not justify abridgement of the constitutional vote," the opinion said.

And it's not just counting of absentee ballots that could delay the outcome of the Maryland election - post-election litigation is also a probability in Maryland according to The Baltimore Sun. Both parties are lining up legal teams with the Democrats fielding a 500-person volunteer "legal protection team" on Election Day to guard against what they fear are GOP "voter intimidation" strategies. And the Republicans are enlisting their own legal teams to prepare for possible legal challenges on a variety of fronts including no-show election workers, invalid absentee ballots, and of course, voting machines.

However, despite the problems that occurred in primary and the concerns expressed by officials, as well as a record-high demand for absentee ballots, a recent poll conducted by The Baltimore Sun showed that 42 percent of likely voters said they were very confident that the election system will work accurately and 49 percent said they were somewhat confident.

Polls in Maryland are open from 7 a.m. to 8 p.m.

OHIO
Sean Greene

With a contentious 2004 general election, a troubled primary in some parts of the state in May 2006 and several high-profile and competitive races for Congress, Ohio will once again be in the national spotlight on Election Day this Tuesday.

For the first time in a general election, all Ohio voters are supposed to provide some form of identification before casting a ballot. A lawsuit charged that the rules were not clear about what type of ID was acceptable and noted inconsistent application of the law by counties because of vague guidance from the secretary of state's office.

After several rulings on the issue, (click here for a full summary of the litigation from The Ohio State University's Moritz College of Law) the parties reached a settlement on November 1. All absentee ballots will now be counted whether or not identification was provided. At the polls, voters will still need to show verification before voting, with the state accepting both photo and non-photo forms.

This year marks the first in which Buckeye voters do not need a reason to cast an absentee ballot. Counties have reported a surge in requests for the mail ballots and some are concerned results might be delayed if they don't start counting before Election Day. Several counties were hoping to start scanning these ballots (not tally them) before Election Day, but the Secretary of State's office has said state law will not allow for any part of the counting process including scanning before November 7.

While new touch-screen and optical-scan voting systems debuted in a number of Ohio counties during this year's primary with few reported problems (except Cuyahoga County, see below), there have been concerns about how many and where machines are allocated since the 2004 election.

Franklin County, where voters endured some of the longest lines two years ago, will deploy 4,451 electronic voting machines with paper trails on Election Day, compared with 2,818 used in 2004 according to news reports. The electronic voting system used in 2004 was produced by a different company than the current system manufactured by ES&S.

The most-watched county in the state, however, will likely be Cleveland's Cuyahoga County. A May primary saw problems with electronic voting machines and the people operating them. In a potential recount, there could be problems as well. A report from the Election Science Institute found that nearly one out of every 10 voter-verified paper audit trails (VVPATs) from the primary were uncountable.

In an effort to improve elections generally, the county has revamped poll-worker training and increased pay, purchased an additional 900 Diebold voting machines for use on Election Day and made it easier for voters to view the VVPAT.

Polls in Ohio are open from 6:30 a.m. to 7:30 p.m.

PENNSYLVANIA
Kat Zambon

Several problems in Pennsylvania's May primary have election observers concerned that the state is unprepared for an anticipated high turnout general election that includes the race for U.S. Senate between Sen. Rick Santorum ® and Democrat Bob Casey as well a number of competitive House races.

During the primary, voting machines in 25 of Allegheny Co.'s 1,314 counties malfunctioned early on but were fixed by mid-morning, though an election protection organization expressed concerns that votes might have been lost when poll workers restarted machines after votes had been cast on them, according to the Pittsburgh Tribune-Review. Similar problems plagued other parts of the state.

Fifty-eight counties use paperless touch-screen voting machines while the other nine use optical-scan systems. In August, The Washington Post reported that a lawsuit was filed by voter advocates asked for decertification for paperless e-voting, charging the machines violate the state's election code and constitution.

State Sen. Joe Conti, R-Doylestown, introduced a bill in September to make paper ballots available to voters at the polls on Election Day according to The Intelligencer. The bill remains in committee at press time.

On October 13, the U.S. Department of Justice (DOJ) sued the city of Philadelphia for failure to provide adequate assistance in Spanish to voters. With a hearing scheduled for November 3 in U.S. District Court for the Eastern District, local chairs of both the Democratic and Republican parties are protesting plans by DOJ to have federal observers at the polls according to the Philadelphia Inquirer.

Zach Stalberg of the Committee of Seventy, a nonprofit government watchdog, explained that his group has reason to believe that there may be problems for Spanish-speaking voters at the polls and is not opposed to the presence of federal observers. "We think there are enough indications of problems here to merit federal observers . In our view, it won't do any harm."

Polls in Pennsylvania are open from 7 a.m. to 8 p.m.

II. Election Reform News This Week

• With less than a week to go until the November 7 primary, The Associated Press is reporting that the U.S. Department of Justice does not plan on penalizing states that fail to upgrade their voting systems by next week as required by the Help America Vote Act of 2002. If states "miss a deadline, or if they don't do something by a certain time, then obviously we would first go back to the table and try to figure out why, and how we can fix the problem," Assistant Attorney General Wan J. Kim said in an interview earlier this week. Kim said if a state falls short, the department could seek a contempt order, "but that's something we don't like to do. It means a problem's broken and we can't fix it easily." Officials said it is unclear how many states have not fully updated their voting systems.

• In a week when ghouls and goblins were ringing doorbells nationwide, the Poughkeepsie Journal reported that dead people were still voting in New York. The paper analyzed the state's new voter registration database and found that as many as 77,000 dead people are still on its rolls and as many as 2,600 of them have cast votes from the grave. The analysis matched names, dates of birth and ZIP codes in the state's database against the same information in the Social Security Administration's "Death Master File." According to the paper, the numbers do not indicate how much fraud is the result of dead voters in New York, only the potential for it. George Stanton, chief information officer for the state Board of Elections told the paper that an updated version of the voter list is under development.

• The Tarrant Count (Texas) Democratic Party, along with a group of voters, sued the Texas secretary of state demanding that a voter verified paper trail be added to the county's electronic voting machines in time for the Tuesday primary. Art Brender, chairman of the Tarrant County Democratic Party told the Star-Telegram that the purpose of the suit is to force courts to determine whether federal law already requires a paper trail. He said that it also serves as a way for the local Democratic Party to hedge its bets in case a serious problem emerges with the voting machines on Election Day. Scott Haywood, a spokesman for the secretary of state's office said the suit is without merit.

• Computerworld Magazine has a plethora of voting information on its Web site including a breakdown of what voters in each state can expect at the polls on Election Day. The main article reports on the systems, vendors, controversies and potential pitfalls in each of the 50 states for the 2006 elections. Additional articles in the package include information on laws, lingo and technologies and voter registration databases.