[EL] On the intersection of election law reform and right-to-know laws

[J.H. Snider]

For readers interested in government provided election data, especially at a local level (where the vast majority of such data is collected), you might be interested in my observations below.  I am essentially arguing that publicizing raw data and final vote tallies online is not enough.  The public should also have online access to certain intermediate steps, including the actual inputs and outputs of election databases.  Such data, if it hasn't generated a physical report (e.g., is simply read onscreen or is printed out for one's personal use) is usually not covered by state right-to-know laws.  And even if it is covered, it may be practically inaccessible, as the case study below illustrates.  Tallying votes from raw data may in certain circumstances, such as when extraordinary majority denominators must be calculated, may be far more subtle than even most election administrators recognize.



The case study involves Maryland's administration of the extraordinary majority denominator requirement for approving a referendum to convene a state constitutional convention referendum.  In Maryland, such a referendum is placed on the ballot every twenty years.  I wrote an op-ed about this abuse in the Maryland Reporter last fall (see Maryland manipulates 'majority' vote<http://marylandreporter.com/2012/11/05/guest-commentary-maryland-manipulates-majority-vote/>).   The basic problem is that the Maryland State Board of Elections changed the basis of calculating the denominator after the election without any change in law, including statute, regulation, meeting minutes, public notice, or even written guidance.  The change was also made after the election (so much for the essential democratic principle of the "veil of ignorance").  The difference in method for calculating the denominator only changed 7,404 votes, not enough to change the outcome of the election but enough to materially alter the perceived victory margin.



Here<http://marylandconcon.files.wordpress.com/2013/02/13-02-08-marylandstateboardofelections-publicinformationactrequest.pdf> is a link to the correspondence regarding my Public Information Act request to the Maryland State Board of Elections to document exactly how the change of denominator was made.  The evidence indicates that the election administrators quietly changed the denominator formula by administrative fiat after the election.



One way an election administrator can avoid fulfilling an unwanted Public Information Act request is by pretending to fulfill a request but not in fact doing so.  I believe this was the strategy employed in this case.  It may have been an especially smart strategy because I'm not an injured party and don't have the motivation or resources to sue.



The solution to such problems is simple: most of the relevant election documents should, by law, be proactively placed online so the public does not have to submit a Public Information Act request to access them.  One document I was successful in getting was the manual for entering vote tallying parameters into the election database.  The manual was written by the election databases vendor.  I was originally told that this was a proprietary manual I couldn't access.  After I protested that such secrecy was outrageous, I was eventually given a copy of it.  I shouldn't have had to make such a request.  The manual itself was surprisingly poor and didn't cover unusual situations such as setting parameters for an extraordinary majority.



Similarly, both the parameters entered into the database program to tally results and the resulting output should be public records that are posted online.  Note that this is very different from having access to the transcription of such data sent to the Board of Canvassers and published on the relevant state website.  Without public access to the input parameters, it may be surprisingly easy for mistakes to be made that go undetected.  This may be especially true of extraordinary majority denominators, where the normal checks & balances designed for ordinary majority denominators break down.



All this is admittedly pretty obscure stuff.  But with today's information technology, there is simply no excuse for allowing election administrators to get away with the type of games revealed in this case study.



Sincerely,

--J.H. ("Jim") Snider, Ph.D.
President of iSolon.org<http://isolon.net/> and Non-residential Lab Fellow at Harvard University's Edmond J. Safra Center for Ethics<http://www.ethics.harvard.edu/the-center/mission>






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