Paper Trail or Paper Ballots?

During the last session day of the Legislature for 2008, the Senate surprisingly rejected a bill (S2380) that would, once again, extend the deadline for retrofitting the State's Direct Recording Electronic (DRE) voting machines with printers that would produce a verified paper trail by January 1, 2009.

This legislation would have only launched a pilot program to examine whether the retrofitted DRE machines operated properly during the June 2, 2009 primary election. If successful, the Secretary of State would then establish a statewide implementation schedule to retrofit all machines with verified paper trails by the general election to be held on November 2, 2010.

The paper trail legislation, originally predicated by a lawsuit filed by Assemblyman Reed Guisciora in 2004, required the mechanisms to be in place by January 1, 2008. This, of course, did not happen as two extensions were granted moving the deadline to January 1, 2009.

Testimony by the Plaintiff's expert Princeton Professor Andrew W. Appel, who garnered significant attention after purchasing some of the DRE machines on the Internet to demonstrate how they could be reasonably easily compromised, believes that even with the paper trail the DRE machines are problematic. Specifically, Mr. Appel recently testified before the Senate State Government Committee that the technology in the machines is already dated and that the printers are subject to jams and other issues that could cause significant problems on election day. Appel also doubted that a new version of software to be uploaded on the DRE machines would be helpful to resolving any of the problems, particularly since the printers being considered are designed to operate with the older version of the software on most of the State's DRE machines.

The County Clerks support the continued use of the DRE machines as there have not yet been any widespread problems after a number of elections cycles, including this year's high turnout presidential election. Most of the problems with the DRE machines relate to either user or poll worker errors, such as, failing to push the "cast vote" button.

Now, there is a movement underway to completely scrap the DRE machines by reverting to optically scanned paper ballots that are currently used for absentee and provisional voting in New Jersey. Such ballots are currently at issue in the recount for the U.S. Senate seat in the State of Minnesota. Advocates of reverting to optically scanned ballots claim that even while the machines scanning them may not produce a perfect count every time, they may always revert to a hand recount in a close election to ascertain the intent of the voter.

Despite Professor Appel's testimony and experiments with the DRE machines, I believe it is highly unlikely that someone, outside of the controlled environment in which he compromised the programming on the DRE machines, would be able to accomplish the same task as easily as he did without being detected. The DRE machines in New Jersey do have seals that are easily checked to see whether the machines have been compromised. I would suggest it is much more likely that problems are more likely to result after a close election headed to a recount, rather than before the conduct of the election.

For example, in Monmouth County this year, the candidates for freeholder were separated by 18 votes on election night. After being uploaded on election night, the vote counting cartridges were placed in an unsecured publicly accessible hallway for more than two weeks. While there may be some paper printouts retained from election night of the tallies, these cartridges could have easily been compromised by walking past them with a magnet or simply taking a few out of the building. Further, the recheck and recount statutes under Title 19 fail to address processes and procedures for the preservation, rechecking or recounting of such electronic machines and/or cartridges.

No vote casting or counting system is perfect under all circumstances. While votes may be lost when someone fails to press a "cast vote" button or a machine malfunctions without a paper trail, paper ballots are highly susceptible to marking, over voting and under voting. Also, the optical scan machines that count paper ballots are far from perfect. In Minnesota, for example, some 130 optical scan ballots were either scanned twice or lost in an election recount where the candidates are separated by about 200 votes. With so many people participating in the process, there will always be a certain degree of human and/or technical error. In the end of the day, the most important question is not related to the process by which votes are cast or counted--that will never be perfect--but which will instill the most confidence in the results so that the voters and candidates abide by them.