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

[Steven John Mulroy (smulroy)]

I think what Paul says makes sense.  HMPB jurisdictions have BMDs available for disabled voters who desire it, but state laws also allow a disabled voter to have a trusted person provide assistance (or seek assistance from a  poll worker, for that matter).  FWIW, we are involved here in Memphis in a debate re: BMD v HMPB.  Before I got involved, I was concerned about the effect on disabled voters, and consulted with the local disability rights group.  They said they had no problem with having HMPBs as the default with one BMD per precinct available for those who desired it.  It’s only one data point, of course, and, as Paul says, there are a diversity of views (including those who prefer a more universal approach).

From: Paul Lehto <lehto.paul at gmail.com>
Sent: Monday, January 18, 2021 2:52 PM
To: Steven John Mulroy (smulroy) <smulroy at memphis.edu>
Cc: Steve Kolbert <steve.kolbert at gmail.com>; Levitt, Justin <justin.levitt at lls.edu>; law-election at department-lists.uci.edu
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency


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<mailto: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<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
(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.

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