[EL] The Root Cause of Election Unrest is Non-Transparency

[Steven John Mulroy (smulroy)]

Justin and Stephanie are right to be concerned about disabled voters.  HMPB jurisdictions have one BMD per precinct for disabled voters, which they absolutely should do (to be ADA compliant, for one thing).  The problem in Bush v Gore was with punchcard ballots, which all sides agree are problematic and which thankfully no longer used.  I can’t discuss Coleman v Franken in the weeds, but I think you can argue it as ultimately a success of paper ballots in an extraordinarily close election.

HMPB is about more than  “giving conspiracy-mongers less fuel”—I only mentioned that given the topic of this thread. It’s the best way to ensure election integrity, as well as public confidence.
From: Steve Kolbert <steve.kolbert at gmail.com>
Sent: Sunday, January 17, 2021 8:13 PM
To: Levitt, Justin <justin.levitt at lls.edu>; Steven John Mulroy (smulroy) <smulroy at memphis.edu>
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and trust the content is safe.

Justin and Steven (and others) have touched on a really important point, and I think we should be explicit about this point as we move forward.

The discussion on this thread (and elsewhere) has been conflating two related but distinct inquiries.
The first is, how do we increase confidence in the election process and its results among reasonably informed people operating in good faith?
The second is, how do we increase confidence in the election process and its results among folks prone to conspiracy theories whose concerns bear little relation to reality?

Matters relevant to one inquiry may or may not have any relevance to the other.  For instance, this thread has focused on (among other things) hand-marked paper ballots.  That seems like a reasonable discussion point for the first inquiry, but I doubt it has much relevance to the second inquiry.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>
@Pronounce_the_T

On Sun, Jan 17, 2021 at 7:42 PM Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>> wrote:
I believe that Stephanie made the point a few weeks ago that some individuals with disabilities are not able to mark and review paper ballots without assistance - which means that if you don't introduce technological assistive devices, they no longer have a secret ballot.  Technology is also able to accommodate a great deal of language flexibility that is quite difficult (and quite expensive) to replicate at scale with paper.

And hand-marked paper ballots also gave us both Bush v. Gore and Coleman v. Franken, and all of the ambiguities of humans marking papers.

I'm not suggesting there's a right answer here (though I have preferences).  And I do think it's important to foster transparency and security where there aren't meaningful tradeoffs to doing so.  But here, there are a bunch of tradeoffs.  And where the tradeoffs impose burdens on eligible voters who are already underrepresented, or introduce other downsides of their own, and where the claims of process breakdown aren't really caused by the administrative process and may be unlikely to be fixed by the administrative process, I've got significant second thoughts about reforms undertaken in the name of "giving conspiracy-mongers less fuel."

Justin

-----Original Message-----
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Steven John Mulroy (smulroy)
Sent: Sunday, January 17, 2021 2:57 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency


I'm coming late to this debate, so apologies if I'm repeating what someone has said. I just wanted to emphasize that  some of the disagreement is unnecessary.  Of course it's the case that the voter fraud myth is being deliberately stirred up by those who know better, and of course no election admin reform will be able to completely take away public suspicion and conspiracy theories among some part of society.  But it's also true that more effective transparency will somewhat alleviate the problem, and is better on the merits anyway.

Most experts agree that the gold standard is Hand Marked Paper Ballots (HMPB) with in-precinct scanners and Risk Limiting Audits (RLA). You don't have to do a manual count of all ballots on election night; you do a RLA of a statistically significant sample as a matter of course, and then a full manual count if the RLA suggests it, or there are credible indications of fraud or irregularities, or if the election is super-close.

By this standard, there is real room for improvement.  About 2/3 of US voters use HMPBs, which is great, but it should be 100%.  And even HMPB jurisdictions don't all routinely do RLAs. Some do not do audits routinely. Others do what they call 'audits,' but don't meet RLA standards.  And, some jurisdictions use paper ballots, but not Hand-Marked paper ballots. Georgia, for example, uses computerized Ballot Marking Devices (BMDs) to mark the paper receipt which the voter is supposed to review for accuracy and then feed into the scanner.  Because all computerized BMDs are subject to glitches and hacking, and because  the BMD scanners almost always scan  a barcode rather than the human-readable portion of the paper ballot, the voter really can't serve as a check here.  At any rate, studies show that most voters don't really carefully check the paper ballot anyway.

Federal law should require universal HMPB w/ RLAs.  That won't shut up all the conspiracy theorists, but it will help make the system less vulnerable to their accusations.


[https://ipmcdn.avast.com/images/icons/icon-envelope-tick-round-orange-animated-no-repeat-v1.gif]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=webmail&utm_term=icon>
Virus-free. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=webmail&utm_term=link>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210118/62bc7e85/attachment.html>