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

[Kogan, Vladimir]

That’s a really good question, I don’t remember them discussing this in the paper (although it’s been a while since I read it).

Vlad Kogan

From: Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Monday, January 18, 2021 3:53 PM
To: Kogan, Vladimir <kogan.18 at osu.edu>
Cc: Steven John Mulroy (smulroy) <smulroy at memphis.edu>; Steve Kolbert <steve.kolbert at gmail.com>; Levitt, Justin <justin.levitt at lls.edu>; Bennie Smith <benniejsmith at gmail.com>; law-election at department-lists.uci.edu
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency

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

Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
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On Mon, Jan 18, 2021 at 12:52 PM Kogan, Vladimir <kogan.18 at osu.edu<mailto: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<mailto:smulroy at memphis.edu>>
Sent: Monday, January 18, 2021 3:50 PM
To: Kogan, Vladimir <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>; Steve Kolbert <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>>; Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>; Bennie Smith <benniejsmith at gmail.com<mailto: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<mailto:kogan.18 at osu.edu>>
Sent: Monday, January 18, 2021 2:32 PM
To: Steven John Mulroy (smulroy) <smulroy at memphis.edu<mailto:smulroy at memphis.edu>>; Steve Kolbert <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>>; Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>
Cc: 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

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<mailto: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<mailto:steve.kolbert at gmail.com>>; Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>
Cc: 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


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<mailto:steve.kolbert at gmail.com>>
Sent: Sunday, January 17, 2021 8:13 PM
To: Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>; Steven John Mulroy (smulroy) <smulroy at memphis.edu<mailto:smulroy at memphis.edu>>
Cc: 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

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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
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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

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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
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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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