Suggested replacement for ACLU Electronic Voting Systems Policy #322b
The electoral system of the United States is losing the confidence of American citizens. Reasons include irregularities in the conduct of elections; use of equipment, laws, regulations, and procedures that prevent citizen oversight of vote handling and counting; voting machine malfunctions and failure of governmental bodies to respond reasonably to such problems; and refusal by courts to allow gathering of evidence after irregularities and voting machine malfunctions.
The U.S. electoral system is a process that begins with voter registration and ends with final certification of election results. There are many components of this process, voting being one of them. This policy addresses only voting, which is a discrete system within the electoral process.
Civil liberties can be secured only while citizens retain control of their government and while officials are legitimately elected. Therefore, citizens must retain the power to vote and also to exercise oversight of election procedures. No aspect of the election system should be hidden from the public, and all aspects must be observable, understandable, and verifiable by ordinary citizens.
In many U.S. jurisdictions, elections authorities have installed electronic voting systems that are based on Direct Recording Electronic voting machines ("DREs"). Although these systems were sold as the answer to earlier election irregularities and were expected to provide accessibility to voters with disabilities, non-English languages, and illiteracy, these systems have failed to provide the accessibility that was promised and have introduced new risks for undetectable fraud and the disenfranchisement of all voters. Such risks are widely recognized as uncontrollable, undetectable, and capable of enabling "wholesale" fraud by enabling a single person or a small group to control the outcome of all elections in entire states. DREs have also introduced the ability of interests outside of the election community to control the outcome of elections by remote communication. These new risks are not clearly understood by most law makers, courts, and election professionals.
DRE systems have reduced citizen participation in elections as poll workers and eliminated opportunities for appropriate observation -- voters must be able to witness that their own votes are recorded and cast as intended, and election observers must be able to witness the storage, handling, and counting of votes sufficiently to be able to attest to the propriety and honesty of procedures.
In order to maximize electoral participation through increased voter confidence and opportunities to serve as election observers and poll workers, while at the same time eliminating the avoidable and unnecessary risks inherent in the use of computers, jurisdictions that adopted DRE-based voting systems must replace them with software-independent election equipment that is manageable for voters, poll workers, and local election staff; enables ordinary non-technical citizens to understand election procedures; and provides opportunities for appropriate observation. One such system consists of voter-marked paper ballots, accessible ballot marking devices for voters with special needs, and precinct-based optical scanners. Another such system consists of voter-marked paper ballots, accessible ballot marking devices, and election night public hand-counts of votes.
All jurisdictions must adhere to the following principles:
Accuracy and Fairness: Accuracy and fairness in elections can be achieved or evaluated only by appropriate citizen observation of votes, ballots, and procedures. Therefore voting systems must enable voters to witness the recording and casting of their votes that will be counted for election night tallies, and enable observers to understand and observe the storage, handling, and counting of votes from the time they are cast until election results are certified.
Jurisdictions should not use DREs because tallies produced by unobservable counting of unobservable electronic votes undermine voter confidence in the accuracy and fairness of elections.
Accessibility: Most jurisdictions have not provided adequate accessibility for voters with disabilities, non-English languages, and illiteracy. New technologies that can provide access to a secret ballot for such voters should be implemented as soon as possible with solutions that do not prevent citizen oversight and do not introduce risks of disenfranchisement of all voters including those with special needs.
DREs can display ballots in non-English languages in order to assist voters who cannot read English, but this feature also enables DREs to target language minorities for blanked out or changed votes. It is improper for a voting machine to know a voter's language when recording, casting, storing, handling, or counting his or her votes. Paper ballots printed in both English and a non-English language as well as ballot marking devices that can read the ballot in multiple languages should be used to provide assistance to voters who cannot read English in order to avoid an unnecessary risk of language profiling and differential vote handling based on a voter’s language.
Anonymity: The right to cast a secret ballot is a basic civil liberty. The ability to vote anonymously is essential to protect the privacy of the voter and to prevent fraud related to vote buying or coercion. Voting systems must be designed in ways that do not compromise anonymity of voting. Early voting, electronic poll books, and other recent innovations should not be used if they require each voter's identity to be associated with his or her ballot.
Security: No computer system can be secured against tampering by persons who work with it, and no computer system can be designed and operated so as to prevent negligent programming and operational errors or malicious tampering that could lead to fraud. Therefore election equipment should enable citizens to observe and guard the security of votes and ballots, and not require citizens to guard the security of computers that conceal such votes and ballots.
Standards and Oversight: The ACLU calls for truly independent oversight, standards and monitoring of elections, and the elimination of equipment, laws, regulations, and procedures that prevent citizen oversight. Election procedures must be designed to enable meaningful citizen oversight of all procedures from creating ballot definitions to final certification of the winners. We encourage civic groups to participate in developing such procedures and recruiting citizens to learn the procedures and to observe them.
ACLU encourages citizens to participate in their local elections by working at the polls and observing procedures with votes and ballots. This solution is feasible, inexpensive, quickly-implemented, and simple. It would revitalize our elections and create a nation of engaged, knowledgeable citizens.
Courts, election officials, and vendors have successfully rebuffed demands by voters and candidates to routinely examine equipment before and after elections to verify correct setup and to examine equipment after irregularities have occurred. The ACLU advocates such access to equipment and establishment of the right to gather evidence. ACLU opposes limitations and prohibitions against (1) citizen observation of election procedures, (2) recounts, and (3) public access to election records such as ballot definitions, numbers of voters who signed in versus numbers of ballots cast, election night tallies created per machine at the polling place, etc.
Boards of Elections have delegated responsibility for conducting some parts of elections to private vendors of electronic voting systems. The ACLU advocates that public bodies given the authority to act for the public do not hand over their authority to private companies.
Revitalizing a strong democracy with civil liberties that citizens appreciate will require citizens to participate in and oversee the conduct of our elections. Our nation can lose the foundation of all civil liberties - a legitimately elected government – if we do not fight now to eliminate barriers to participation and oversight.
# # #
 A Direct Recording Electronic (DRE) machine interacts with the voter and records votes directly in electronic form. A touchscreen machine is one where the voter indicates her vote to the machine via a touchscreen interface. Today, many DREs are touchscreen machines. However, not all DREs use a touchscreen, and not all touchscreen machines are DREs. For instance, ballot marking devices, where the voter uses a touchscreen to indicate her choice and then a paper ballot is printed, provide one example of a touchscreen system that is not a DRE. These ballots may be counted using optical scan equipment.
 For example, the Palm Beach County Limited Parallel Testing Program of Nov. 7, 2006, found that ballots were handled differently if they were cast via Spanish language display on the DREs http://www.wheresthepaper.org/Limited_Parallel_Testing_Findings.pdf