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

[Mark Scarberry]

Could the ease of straight-ticket voting account for some of the difference?

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Mon, Jan 18, 2021 at 12:52 PM Kogan, Vladimir <kogan.18 at osu.edu> wrote:

> It seems implausible that intentional under-voting is the story here,
> since that should not vary depending on the voting technology used…
>
>
>
>
>
> Vlad
>
>
>
> *From:* Steven John Mulroy (smulroy) <smulroy at memphis.edu>
> *Sent:* Monday, January 18, 2021 3:50 PM
> *To:* Kogan, Vladimir <kogan.18 at osu.edu>; Steve Kolbert <
> steve.kolbert at gmail.com>; Levitt, Justin <justin.levitt at lls.edu>
> *Cc:* law-election at department-lists.uci.edu; Bennie Smith <
> benniejsmith at gmail.com>
> *Subject:* RE: [EL] The Root Cause of Election Unrest is Non-Transparency
>
>
>
> The fact that the research is older may indeed be significant.  The new
> generation of HMPB scanners have become quite good at flagging overvotes so
> that voters can correct their mistakes.  They also are more forgiving in
> terms of counting imperfectly filled in ovals, stray marks near the oval,
> etc., where the intent of the voter is clear. And, this study is not the
> only one to document  that African-Americans intentionally undervote in
> down-ballot races at a greater rate.
>
>
>
> *From:* Kogan, Vladimir <kogan.18 at osu.edu>
> *Sent:* Monday, January 18, 2021 2:32 PM
> *To:* Steven John Mulroy (smulroy) <smulroy at memphis.edu>; Steve Kolbert <
> steve.kolbert at gmail.com>; Levitt, Justin <justin.levitt at lls.edu>
> *Cc:* law-election at department-lists.uci.edu
> *Subject:* RE: [EL] The Root Cause of Election Unrest is Non-Transparency
>
>
>
> Someone may have mentioned this already, but there is some compelling
> (although older) evidence of larger racial disparities with HMPB vs. BMDs:
> https://onlinelibrary.wiley.com/doi/abs/10.1111/1540-5907.00004
> <https://urldefense.com/v3/__https:/onlinelibrary.wiley.com/doi/abs/10.1111/1540-5907.00004__;!!KGKeukY!ii6c_uoG_3CRTCGvPAwOBLx_9AB4Wscq9SbyRa1ad3gLj6ySSaW2FT-oaG3L3W5i$>
>
>
>
> *Abstract: An accumulating body of research suggests that African
> Americans cast invalid ballots at a higher rate than whites. Our analysis
> of a unique precinct‐level dataset from South Carolina and Louisiana shows
> that the black‐white gap in voided ballots depends crucially on the voting
> equipment people use. In areas with punch cards or optically scanned
> ballots, the black‐white gap ranged from four to six percentage points.
> Lever and electronic machines, which prohibit overvoting and make
> undervoting more transparent and correctible, cut the discrepancy by a
> factor of ten. Judging from exit polls and opinion surveys, much of the
> remaining difference could be due to intentional undervoting, which African
> Americans profess to practice at a slightly higher rate than whites. In any
> case, the use of appropriate voting technologies can virtually eliminate
> the black‐white disparity in invalid ballots.*
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Steven John Mulroy (smulroy)
> *Sent:* Monday, January 18, 2021 2:56 PM
> *To:* Steve Kolbert <steve.kolbert at gmail.com>; Levitt, Justin <
> justin.levitt at lls.edu>
> *Cc:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] The Root Cause of Election Unrest is Non-Transparency
>
>
>
>
>
> 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
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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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