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

[Paul Lehto]

To be concerned about disabled voters is a good thing, but to presume to
know what disabled voters - a very diverse bunch - want in terms of machine
assistance (if any) both misrepresents the diversity of their voices as
well as the diversity of their disabilities.

Some disabled people want hand-counted paper ballots with human-assistance,
some accept machine assistance, some will not be served by a touch screen
or other particular device,  and some are worried that their disability
would in any way cause a decrease in the overall transparency of the
process. Ironically, when every voter in a precinct votes by machine, from
a counting transparency perspective it has the effect of rendering us all
blind. That sure seems backwards.

If a single machine like a DRE is set up as "the" assistive device for
disabled.voters, it creates ballot secrecy issues because of the small
"precinct" size in the results printout or output. In such conditions may
be readily determinable how one person voted if only 3 used that device in
a given situation, for example.

If is far preferable to use the devices that assist in the completion of
paper ballots which are then deposited along with other ballots, in order
to preserve ballot secrecy. Luckily there are low tech devices for paper
ballots that work well with a high percentage of disabled voters, but no
assistive device can work for all because of the diversity in disabilities.

Numerous disabled voters I know who have become aware of transparency
issues in the process overall prefer the idea of choosing a trusted friend
or family member to help them fill out their ballot. This way they can
fully participate not just in democracy but in a transparent counting
process, realizing that if they can't know their ballot is counted
properly, the value of assistance in voting is diminished or destroyed.

My state of Washington is vote by mail. Thus, the most common assistive
device is assistance by a trusted friend, though election officials provide
alternatives at centralized locations as required by HAVA. There is the
inconvenience of potentially distant travel but the larger "precinct" size
at a centralized location can solve the ballot secrecy issue and, judging
by numbers, the a large number of the disabled prefer no tech at all in
order to complete their ballot.

Human assistance seems quite popular in my VBM state, and is the only
method that can potentially work for all.  But as admitted all along, there
is diversity at all levels, so there will also be those who either don't
have a trusted friend or prefer the ballot secrecy afforded by an assistive
device.

Paul Lehto, J.D.

On Mon, Jan 18, 2021, 11:57 AM Steven John Mulroy (smulroy) <
smulroy at memphis.edu> wrote:

>
>
> 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
>
>
>
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>
>
> 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
>
> @Pronounce_the_T
>
>
>
> On Sun, Jan 17, 2021 at 7:42 PM Levitt, Justin <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> On
> Behalf Of Steven John Mulroy (smulroy)
> Sent: Sunday, January 17, 2021 2:57 PM
> To: 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.
>
>
>
>
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