Elections A Go-Go; Every Vote Counts, Right?

Here we go again, another election cycle brings the political rock stars to the fore. Will Arnold, the Governator, be reelected in California? Obama has come out swinging, and may steal the start of Hillary's Presidential campaign thunder. But such political-celebrity hype begs the real question - do we have the mechanisms in place to ensure accurate election results?

Prior to the the 2000 W v. Al election for the highest office in the land, who would have foreseen that in a country of many millions of voters, a Presidential election potentially could turn on just a few hundred votes? Not moi. Back in those innocent times, any potential inaccuracies or irregularities in vote counting did not capture any real attention in our first world nation.

Fast-forward: we now know that every singe vote in that election truly mattered and election accuracy was imperative but likely not achieved.

Here, in the United States, we experienced weeks of uncertainty as to our next President while election officials poured over ballots and considered (or not) hanging and dimpled chads. All the while, there were multiple lawsuits all the way up to the United States Supreme Court.

And then, the very United States Supreme Court that had supported states rights, took away the Florida Supreme Court result in favor of Al, and effectively resolved the election in favor of W, even though history tells us that Al nationally received over 500,000 votes more than did W.

This truly is the stuff of history. Had vote counting been more accurate, perhaps Al would have been elected President. Instead of making a movie about the environment and global warming, perhaps as President he could have led the nation and the world politically in this arena, instead of devoting countless resources to the quagmire in Iraq.

Ensuring that Vote Counting is Accurate

Coming more current, we need to explore what is being done to ensure that vote counting is more accurate and effective. A study by Election Data Services, Inc. earlier this year concluded that at least 69.5 million registered voters will cast optical scan ballots in elections next week, while at least 66.6 million voters will use electronic equipment. Jurisdictions with about 22.5 million voters are still reporting the use of punch cards and lever machines, but voting equipment procurements are underway in those areas as well.

The study shows that more than a third of counties have changed voting equipment since the days of W v. Al in 2000. In fact, at least 1,395 counties will have changed or are planning to change voting equipment by the time of the November, 2006 general elections.

Accordingly, almost 82 million registered voters will have seen voting systems changes over the past six years. Therefore, the number of counties using hand-counted paper ballots by the time of the elections next week will be only about half as many as there were in the days of W v. Al.

The Election Data Services study informs us is that the methods for vote counting are changing significantly. Does this mean that all previously experienced problems with vote counting are solved? Unfortunately, the answer is "no." As most of us know from daily experience, there can be difficulties encountered when dealing with various forms of electronic technology. On top of that, there have been all sorts of reports about specific problems with new "high-technology" voting methods.

For example, The Brennan Center released a recent report earlier this year analyzing the security vulnerabilities of three of the most commonly use electronic voting systems, and the results are sobering indeed. Long story short, all three voting systems have significant security and reliability vulnerabilities which "pose a real danger to the integrity of national, state, and local elections."

The three electronic voting systems that were analyzed are Direct Recording Electronic (DRE) which directly records a voter's selections in each contest using a ballot that appears on a display screen, DRE with Voter Verified Paper Trail (DRE w/VVPT) which is a DRE that captures a voter's choice both internally in electronic form and contemporaneously on paper, and Precinct Count Optical Scan (PCOS) which allows a voter to mark a paper ballot with a pen or pencil with the voter then carrying the ballot to a scanner.

The good news is that the most troubling of these vulnerabilities can be "substantially remedied" if adequate countermeasures are put in place at the state and local level. And few jurisdictions have initiated the countermeasures that could "make the least difficult attacks against voting systems much more difficult to execute successfully."

The bad news is that for all three voting systems, when there is a goal to change the result of a close statewide election, software attack programs are not difficult. Furthermore, voting machines that have wireless components are much more open to various attacks. At this point, only New York and Minnesota ban wireless components on all voting machines.

The Brennan Center does make certain security recommendations in its report. For instance, there should be automatic routine audits comparing voter verified papers records to electronic records following every election. There also should be "parallel testing" on election day of randomly selected machines to seek to detect software attacks and software bugs. In addition, more states should ban wireless components.

Steps like these should make electronic voting systems more likely to be relied upon, according to The Brennan Center. Plainly, reliability and accuracy are essential in our elections to ensure a fair democracy.

So, go out there and vote, and let's just hope that your vote ultimately gets counted. Even if every single vote is not counted accurately, let's cross our fingers that the upcoming elections trigger sufficient turnout and consensus such that any counting irregularities are not outcome determinative and that truly elected officials take public office.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.