If You're Questioning the Election Results, We Need an Audit. Or Even if You're Not...

Graphic from "Want to Know if the Election was Hacked? Look at the Ballots" by J. Alex Halderman published on November 22, 2016.  Caption: "The pink counties predominately use optical scan paper ballots, which can be examined to confirm that the computer voting machines produced an accurate count. Blue counties use paperless voting systems, which require forensic analysis."

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For the second time in sixteen years, the winner of the popular vote in the election will not be inaugurated as president. (Something that happened only three other times in the history of our country--with the other instances all happening in the 19th century.)

Suggestions swirl around the internet.  Write the electoral college to reverse the results!  Maybe Trump didn't even win the electoral college vote!  Call the Justice Department!  Petition the Secretaries of State! 

Among what seems to me to be a spinning of wheels,  this IS interesting

Ron Rivest and Philip Stark explained in USA Today  on November 18 how the presidential vote could be audited before December 13, when the States have to file their results with the Electoral College.

We know that the national results could be tipped by manipulating the vote count in a relatively small number of jurisdictions — a few dozen spread across a few key states. We know that the vast majority of local elections officials have limited resources to detect or defend against cyberattacks. And while pre-election polls have large uncertainties, they were consistently off. And various aspects of the preliminary results, such as a high rate of undervotes for president, have aroused suspicion.

Auditing .5% of the ballots would do the trick

Rivest (Institute Professor at MIT and a member of the U.S. Election Assistance Commission Technical Guidelines Development Committee) and Stark (associate dean of mathematical and physical sciences at the University of California, Berkeley and a one-time appointee to the board of advisers of the U.S. Election Assistance Commission)  say a “risk-limiting” audit--in which a random sample of just 1 percent of the paper ballots cast  is examined--“could give 95% confidence that the results are correct in every state. And it might not even require 1% of the ballots. An audit would first

check the results in the states Trump won. If auditing confirms those results, there’s no need to audit in the states Clinton carried: Trump really won. That means auditing about 700,000 ballots in the 29 states Trump won, about 0.5% of the ballots cast in this election.

On November 18, Rivest and Stark linked to a Verified Voting  petition at Change.Org addressed to the Secretaries of State of Florida, Iowa, North Carolina, Ohio, Pennsylvania, Wisconsin and Michigan, asking for an audit. Author Justin Krebs has a petition at Moveon.Org addressed to Clinton, Trump, Gary Johnson, Jill Stein, Secretaries of State in Michigan , Pennsylvania and Wisconsin. 

Ditch the phone campaign to the Justice Department

Relying on the good will of the Secretaries of State seems a stretch.   Although less of a stretch than calling the Justice Department to demand an audit.  Even if, according to Gabriel Sherman, National Affairs Editor for New York Magazine,  

...some Clinton allies are intent on pushing the issue. This afternoon, Huma Abedin’s sister Heba encouraged her Facebook followers to lobby the Justice Department to audit the 2016 vote.

(Well, actually, his link goes to a Daily Beast writer who posted a screenshot of Heba Abedin's facebook page.  You or I can't even see the facebook posts, even if you follow her and her twitter page no longer exists.)

As Washington Post reporter Matt Zapotosky noted  spokesman David Jacobs has issued a statement:

The Justice Department does not tally the number of callers to determine whether federal action is warranted...Investigatory decisions are based solely on the facts and evidence as they relate to the federal statutes the department enforces.

Ignore New York Magazine's anonymous "scoop" on voting machine fraud

Other media writers, including by CNN's political producer Dan Merica, linked to Gabriel Sherman, not for his coverage of the campaign to phone the Justice Department, but for his "scoop" from a "source briefed on the [conference] call with Clinton campaign chairman John Podesta and campaign general counsel Marc Elias.  The source says a  group including voting-rights attorney John Bonifaz and J. Alex Halderman, the director of the University of Michigan Center for Computer Security and Society, told Podesta and Elias that they had found evidence that in

Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots. Based on this statistical analysis, Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000....complicating matters, a senior Clinton adviser said, is that the White House, focused on a smooth transfer of power, does not want Clinton to challenge the election result.

Does New York Magazine have the rigorous sourcing requirements depicted in All The President's Men of how the Washington Post covered the Watergate scandal? Sherman, in particular, has been criticized by the The New York Times's Janet Maslin as setting "a record for blind items and the untrustworthiness they engender" in his bio of Roger Ailes. Clinton communications director Jennifer Palmieri did not respond to Sherman's request for comment. Neither did Bonifaz or Halderman.  The latter also failed to respond to requests for comment yesterday evening from CNN's Merica.

Alex Halderman, the subject of the scoop, says Sherman got it wrong

In his own post on post on Medium, Halderman writes that Sherman,

includes somebody else’s description of my views, incorrectly describes the reasons manually checking ballots is an essential security safeguard (and includes some incorrect numbers, to boot).

Let me set the record straight about what I and other leading election security experts have actually been saying to the campaign and everyone else who’s willing to listen....Were this year’s deviations from pre-election polls the results of a cyberattack? Probably not. I believe the most likely explanation is that the polls were systematically wrong, rather than that the election was hacked. But I don’t believe that either one of these seemingly unlikely explanations is overwhelmingly more likely than the other. The only way to know whether a cyberattack changed the result is to closely examine the available physical evidence — paper ballots and voting equipment in critical states like Wisconsin, Michigan, and Pennsylvania. Unfortunately, nobody is ever going to examine that evidence unless candidates in those states act now, in the next several days, to petition for recounts...

Support Jill Stein's recount as the most practical short-term action

State laws call for recounts at a candidate’s request as long as he or she can pay for it. Green Party candidate Jill Stein announced a fundraising campaign on her website to ask for a recount in Wisconsin by the Friday deadline. She is also raising funds for a recount in Pennsylvania by November 28 and Michigan by November 30.

According to Ballotpedia, Wisconsin machines have a paper trail. Michigan uses paper ballots. Pennsylvania (as is the case in Virginia) has no statewide paper trail. A pattern, if found, would have to hold true for all three states in order for the electoral college vote to favor Clinton.

We must do a lot more before 2018

Current post-election verification is inadequate, Halderman explains:

After the election, human beings can examine the paper to make sure the results from the voting machines accurately determined who won. Just as you want the brakes in your car to keep working even if the car’s computer goes haywire, accurate vote counts must remain available even if the machines are malfunctioning or attacked. In both cases, common sense tells us we need some kind of physical backup system. I and other election security experts have been advocating for paper ballots for years, and today, about 70% of American voters live in jurisdictions that keep a paper record of every vote.

There’s just one problem, and it might come as a surprise even to many security experts: no state is planning to actually check the paper in a way that would reliably detect that the computer-based outcome was wrong. About half the states have no laws that require a manual examination of paper ballots, and most other states perform only superficial spot checks. If nobody looks at the paper, it might as well not be there.

And superficial spot checks are not enough, as Black Box Voting points out.

Sad how long I've been writing about  problems with electronic voting machines

Following the 2000 election, billions were spent on new voting machines. My first post about the problems was in 2005.  Halderman has suggestions for how to fix the mess:

States still using paperless voting machines should replace them with optical scan systems, and all states should update their audit and recount procedures. There are fast and inexpensive ways to verify (or correct) computer voting results using a risk-limiting audit, a statistical method that involves manually inspecting randomly selected paper ballots. Officials need to begin preparing soon to make sure all of these improvements are ready before the next big election.

Deeds loses by 360 votes out almost 2 million and yet no real recount

The above illustration is from The May 19 2004 Onion . The Help America Vote Act of 2002 was supposed to clear up everything that plagued the 2000 presidential election. In particular, it provided funds for new voting machines to eliminate the punch card hanging chad problem. It didn't fix things in time for the 2004 federal elections and it sure didn't fix things fix things in time for the 2005 Virginia state races. The final vote in the Virginia Attorney General's race, certified December 21 by the three-judge panel of the Richmond Circuit Court, highlighted how HAVA probably has exacerbated problems by promoting a move to touchscreen voting machines, which to date have no paper trail.

Republican Bob McDonnell ended up with just 360 more votes than Democrat Creigh Deeds. The tally was 970,981 for McDonnell and 970,621 for Deeds. The State Board of Elections had certified Republican McDonnell the winner of the Nov. 8 election by a margin of 0.0166 of a percentage point. Virginia law allows a court-supervised recount when results fall within 1 percentage point, with taxpayers picking up the tab for results within one-half of 1 percentage point. Both campaigns had to pay their lawyers and others helping with the recount.

The "recount" should raise questions for the Virginia Joint Subcommittee Studying the Cetification, Deployment and Performance of Election Equipment when it meets January 5. Individual ballots on touch-screen and lever machines could not be recounted, only checked against printouts. As Duke computer graduate student Justin Moore critiqued the verification of these results by officials in a comment in Charlottesville pundit Rick Sincere's blog,

There's a big difference between "secure and unchanging" and "lacking contradictory or confirmational evidence". I could claim that I untied and re-tied my shoes four times while alone in my office today, but without any
witnesses or detailed examination of my shoes or shoelaces, you have to take me
on my word.

Did you examine the audit logs from the voting machines? Did you compare the software currently installed on the machines with any sort of reference version of the software? Did you check if the software had been altered or if the media on which the DRE stores its software had any errors? Did you see if any errors had occurred? Did you check the calibration of the screens to make sure they had recorded the votes correctly in the first place?

Or did you just re-copy the numbers you got the first time around onto a
piece of paper the second time around? Do the numbers match only because you
wrote the same number down twice?

Moore has a running debate with Sincere, who has extolled the touch screen machines. On November 21, Moore had filed an analysis of with the Virginia Joint Subcommittee.<

It is likely that, due to subtle problems in paperless machines, there were 12,000 votes for Lieutenant Governor missing from paperless systems statewide, and over 9,000 votes for Attorney General missing from paperless systems; this is over 25x the margin of victory for Attorney General. This is not to say that the result would have been different, merely that votes that -- statistically speaking -- should have been there just aren't there.

The Association for Computer Marchinery's member poll on paperless evoting problems also prompted that group to file a letter with the joint subcommittee.Virginia Verified Voting also has a list of recommendations filed that date, calling for a voter verified permanent record of every ballot cast.

Optical scan machines often miss votes that are indicated by light pencil or pen marks, or whose marks are partly outside the lines. Deed had asked to rerun more than 500,000 optical scan ballots. His attorney, Joseph Kearfott, argued that thousands of votes would not be recounted if all the ballots were not scanned again. In court papers, During a rescan of ballots with not vote for Attorney General, the machine might pick up votes that it failed to recognize the first time, Kearfott said. Kearfott also argued that some votes were not counted at all. He presented the judges with an affidavit from a member of the Gloucester County Electoral Board, who said printouts from the county's voting machines indicated 78 ballots were never counted.

Here there is a meaningful chance that a full recount ... could result in the difference in the election. You owe it to the candidates and to the state of Virginia.

Jean Jensen, secretary of the elections board, said under Deeds' proposal, 135,000 ballots would need to be examined by hand, because of technical limitations in some of the voting machines.

McDonnell's attorney, Bill Hurd, argued that could lead to human error and would

would create an awful, awful mess.

December 10, Chief Judge Theodore J. Markow, Judge Larry Kirksey and Judge Wilford Taylor rejected Kearfott's argument, finding he had failed to provide enough proof that there were substantial missed or miscounted votes that likely would alter the result of the election. While Deeds had requested recounds in 156 precincts, the court only ordered more rigorous hand counts of 7,915 ballots from nine precincts in Gloucester County and one in Lynchburg. Machines did not process 79 votes in Gloucester. Machines could not tabulate 244 ballots in Lynchburg because voters had used the wrong kind of pen. A few thousand old-fashioned paper ballots statewide also had to be recounted manually, and punch-card ballots in one Virginia Beach precinct were rerun through a tabulator because a printout of the original results could not be read.

Deeds' spokesman, Mark Bergman said at the time,

This ruling and this order just leaves more questions than answers, and
leaves many important questions unanswered .

One wonders what happened to the Supreme Court doctrine established in Bush v. Gore - that statewide recounts should be conducted with uniform procedures and rules in every voting jurisdiction.

But the deeper question is how to secure a fair election in the face of paperless evoting. On February 2, 2005, Representative Rush D. Holt (D-NJ) introduced H. R. 550 to amend the Help America Vote Act of 2002 to require a voter-verified permanent paper record or hard copy under title III of such Act.

Anything of value should be auditable,” said Holt. “Votes are valuable, and each voter should have the knowledge—and the confidence—that his or her vote was recorded and counted as intended. Passage of this bill will be a big step in restoring that confidence, which is the very foundation of our democratic republic.

There are 159 co-sponsors. Representive Boucher added his name April 5. the measure remains stalled in the House Committee on Administration. Holt's webpage on verified voting is here.

What action can you take to secure fairer elections? You can sign Holt's petition in support of H.R. 550 You can email the members of the Joint Subcommittee with your concerns care of Mary Spain. You can email Virginia Verified Voting for information on how to get better voting equipment in Virginia.

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In other legal news, in the the "stranger than fiction category" the most read story on Yahoo today is about how the Paul Clement, the Sollicitor General for the Bush Administration, filed an amicus brief in the Anna Niclole Smith Case before the Supreme Court. It must have been a slow news day, because Clement filed his request November 21 and his motion to participate in oral arguments December 1, as the docket for the case shows. It seems the Bush Administration wants to protect the federal role in probate issues. Another interesting footnote to the gang that wanted to shrink federal government.