OUT OF TOUCH

Touchscreen voting machines were a disaster in California’s last two elections, and state officials may now require a paper trail

By ANDREW GUMBEL

ome time before last October’s recall election, Los Angeles County’s top elections official, Registrar-Recorder Conny McCormack, decided she had a problem with her brand-new crop of touchscreen computer voting machines.

In contrast to other counties, which have invested heavily in touchscreens and are now beginning to regret it as furor grows over their insecurity and inaccuracy, L.A. deploys only a smattering of the machines, principally for early voting. (Most of its $100 million investment in new voting machines has gone into a more reliable optical scan system called InkaVote.) Still, McCormack prides herself on being meticulous, and she saw a looming problem with the arrangement of candidates’ names on the computer screens, which did not match the layout on the sample ballot.

Rather than risk confusing voters or poll workers, she contacted the touchscreen manufacturer, Diebold Election Systems, and asked them to reconfigure their software. And that’s where a much bigger problem arose. Diebold did what was asked of them, and McCormack had no problem with the machines’ performance in the election, where they recorded some 42,000 votes. The snag, though, was that the reconfigured software was never resubmitted for federal or state certification. That, in turn, meant that its use in the recall election was illegal.

On the surface, the oversight may not seem a big deal – certainly not when compared with the mass failure of San Diego’s touchscreen voting machines on primary day on March 2, or the inability of voter tabulation software in several counties to deal with heavy data loads. But it was, in its way, just as significant a failure.

“McCormack gave her vendor [Diebold] the ability to modify software without oversight, which means she has no idea what they put into that software,” said Kim Alexander of the California Voter Foundation, one of the state’s most prominent critics of touchscreen machines. “She put 40,000 votes at risk. That is a huge violation of the law.”

When she was first called to account for her behavior last November, McCormack insisted she was doing nothing different from any other country registrar. “All of us have made changes to our software – even major changes – and none of us have gone back to the secretary of state [for certification],” she told the Los Angeles Times. Her words were clearly meant to be reassuring – don’t worry, this is how the system works – but in retrospect they gave a hair-raising insight into just how wild and uncontrolled the transition to digital voting technology has been. If Los Angeles, with its relatively good reputation on voting machine decisions, is flouting the rules so brazenly, what about the rest of the state?

The answer to that question, we now know, is anything but reassuring. Last week, the secretary of state’s office issued a sobering report into the failings of the March primary election, detailing how in the 60 days leading up to the vote all the major electronic election machine manufacturers were rejigging and patching their software without heed to the lengthy certification processes prescribed by law. Diebold was singled out for particular criticism, because the batteries on a key piece of equipment that had not been adequately tested managed to drain the night before the election in both San Diego and Alameda counties, leaving poll workers bereft of machinery on which to conduct a vote and, in San Diego, clueless as to what they should do about it.

In the immediate wake of the release of the report, a special panel convened by the secretary of state unanimously recommended the immediate decertification of one Diebold touchscreen model, the TSx, which had been purchased by four counties last summer even though it had not yet gone through the federal certification process. Some 15,000 TSx machines were used in March in San Diego, Solano, Kern, and San Joaquin counties.

As early as today, the same panel is expected to make a recommendation on the rest of California’s touchscreen machines. Secretary of State Kevin Shelley will then make a final ruling sometime before Tuesday, which will be six months to the day before November’s presidential election – the minimum time period deemed necessary for counties to find alternative technologies.

All indications are that Shelley will come down hard on the touchscreens. Already last November, he became the first secretary of state in the nation to insist on the introduction of a voter-verified paper trail to act as a backup in case the touchscreen machines malfunction or are suspected of being hacked. (Without a paper trail, there is simply no way of telling whether the machines have performed accurately or not.) Last week’s report stated bluntly that the touchscreen’s Direct Record Entry, or DRE, technology “may not yet be stable, reliable, and secure enough to use in the absence of an accessible, voter-verified, paper audit trail” – which is not due to be adopted statewide until 2006.

And it is not just the machines that have provoked the secretary of state’s displeasure. A torrent of paperwork now coming to light makes clear that the behavior of the vendor companies, and Diebold in particular, has so angered the authorities that they are considering criminal prosecution as well as the cancellation of their business.

Assistant secretary of state Marc Carrel told a hearing in Sacramento last week he was “disgusted” by Diebold, which has “been jerking us around.” Memos from Diebold’s lawyers obtained and published by the Oakland Tribune show that the company realized last November it risked criminal charges and losing its share of the California market – representing one in every eight U.S. voters. More recently, in February, the head of the secretary of state’s elections division, Mark Kyle, wrote a furious letter to Diebold accusing the company of flying by the seat of its pants. “In view of the chaos your company has caused, we expected that your company would ‘step up to the plate’ with an aggressive backup plan,” he wrote in response to concerns about the TSx system. “Your failure to do so raises grave questions about your suitability as a voting systems vendor.”

What we are witnessing is the first significant backlash against touchscreens anywhere in the nation, one that is likely to have a significant domino effect on the rest of the country. Because California is so large, and because Californians are more computer-savvy than the rest of the country, this is a crucial market for Diebold and its chief competitors, Sequoia and ES&S. Without the Golden State, the companies will lose roughly half of the touchscreen voting population they were aiming for in November, and may yet lose more if other states follow suit. Nevada is talking about introducing a voter-verified paper trail for its touchscreen machines before the presidential election. State officials in Missouri and Washington have expressed alarm and are weighing their options. In New York, a bill proposing a paper trail has been passed in both houses of the legislature. In Ohio, a crucial swing state as well as Diebold’s corporate headquarters, there is some doubt whether touchscreen technology will now be introduced this year, as planned.

That still leaves plenty of the country to worry about – particularly the South. Computer voting expert and Harvard research fellow Rebecca Mercuri remarked recently that the national distribution of touchscreen machines evoked the geographical divisions of the Civil War because almost all the DREs this November will be concentrated below the Mason-Dixon line, including Florda. It may just take another electoral fiasco there – not impossible, given the disastrous performance of the state’s new voting machines thus far – to bring the rest of the country to its senses.

04-29-04