Suffragium Ex Machina: Voting Machine Monopolies and a Different Kind of Public Option

FairVote is well known for our advocacy of better electoral
methods and improvements to the way people vote when they go into the
polling place that foster equality and choice. But what happens before
and after a ballot is filled out can be critically important as well—if
votes aren’t counted, using a fair voting method won’t make a
difference. Today the machinery of American democracy (literally) is
increasingly dependent on one large corporation with little interest in
transparency, competition or innovations that might affect its bottom
line. For years FairVote has proposed publicly controlled voting
processes, ideally with transparent administration and clear lines of
accountability grounded in publicly owned voting equipment. As FairVote
called for in a November 8 letter in the New York Times,
at the very least the concept of a “public option” needs to be
transposed to the often-murky debate over voting equipment, ensuring
that our local and state governments always have a public interest
alternative. We also should revamp certification processes to improve
equipment, encourage transparency and reward innovation.

Our Analysis:

In September, the United States’ largest voting equipment vendor Election Systems & Software (ES&S) announced the purchase
of Premier Election Solutions, our nation’s second largest vendor—and a
product of the Diebold Corporation’s North American operations. If this
sale goes forward, ES&S will control a huge majority of the voting
equipment market in the United States. According to Verified Voting,
more than 120 million registered voters live in American jurisdictions
using one of these two companies’ systems. In contrast, the nation’s
third largest elections vendor, Sequoia Voting Systems, provides
equipment in jurisdictions with only some 26 million registered voters
(and seems to be on shaky ground, having been sold several times in
recent years and still waiting to have its latest optical scan system
certified by the federal Election Assistance Commission). ES&S—then
called American Information Systems—previously attempted to consolidate
the voting industry in 1997 with a purchase of Business Records
Corporation (BRC), but the U.S. Department of Justice on anti-trust grounds required that acquisition of BRC be split between ES&S and Sequoia. Some groups like Voter Action
are seeking to hold vendors legally accountable for past failures to
uphold election integrity, and Sen. Chuck Schumer, chair of the Senate
Rules committee, has announced his intention to conduct a review of this
latest merger through his Senate Rules and Administration Committee.

 An October 29 New York Times editorial
rightly sounded the alarm on this dubious bit of conglomeration,
calling upon the Justice Department and state attorneys general to take
action to block the sale, writing, “We fear that if any one voting
machine maker is allowed to dominate the market, there will be even
greater reasons to worry about the nation’s flawed voting system.”  In a
response,
ES&S president Aldo Tesi wrote, “Citizens should be confident that
local officials administer fair and honest elections. As our customers,
we know they are.” This is a misdirection, because it’s not the local
officials that monopolize the very mechanisms by which our democracy
runs, and it is not they who are being criticized by the Times—it’s companies like Tesi’s ES&S.

The Times’ description of our voting apparatus as
“flawed” is accurate mainly because we run democracy on the cheap at the
national level, and pay for it with lost votes, untrustworthy software
and exorbitant costs for public interest improvements, mainly due to
companies recouping expenses by abusing their local monopolies. FairVote
has long suggested a full public ownership model,
similar to that of Oklahoma and those of other nations. Along these
lines, we should at least pursue a “public option” to compete with
private vendors. We can also consider additional ways to gain control of
the election process and foster better, more reliable equipment.

Looking forward, one interim step would address a glaring
problem: the process of certifying equipment. To open up the market to
more competitors and secure certain basic rights of transparency and
quality control, the public should pay for at least some of the costs of
certification in exchange for more control over the product. Better
certification processes for voting equipment of course are absolutely
essential, as underscored by more rigorous certification processes in
recent years that have exposed major problems with proposed equipment.
Election results also continue to demonstrate how systems already
certified for our most important elections can have serious flaws. For
example, the Humboldt County (CA) Election Transparency Project discovered that a Premier/Diebold optical scan paper ballot system dropped 197 ballots in 2008, while a FairVote analysis earlier this year found that the same system dropped 0.4% of ballots in an election in Aspen (CO).

But companies have to scramble to keep up with each new
revelation and each new good idea for updating certification standards
at the federal and state level, which can stretch out the timeline for
certification and greatly increase costs. Paying for companies’
certification expenses would cost taxpayer dollars, of course, and
should have reasonable limits that avoid frivolous costs and vendors
using the certification process to allow onto the market equipment and
software they know is flawed. But any upfront costs promise to pay big
dividends for our democracy in the long term. It would allow new
companies to get a competitive product on the market before they know
for sure they will be able to sell it—resolving the catch-22 that today
makes it so difficult for any new company to compete with the dominant,
entrenched companies. It also would make it easier to justify ongoing
updates to the voting standards, rather than essentially adding new
“unfunded mandates” on the vendors who either go out of business or,
more typically, give up after barely getting started. The quality of
voting equipment and software should also rise as companies would be
required to do more than just “get by,” and county and state governments
would pay less for better equipment and upgrades—right now they
typically face excessive fees for equipment, ongoing services and
upgrades from vendors trying to recoup their certification costs and
able to take advantage of their near monopoly of the industry.

In exchange for paying for the certification process, the public
would need to secure greater rights of transparency and general
ownership of the process. For example, New York State’s latest contracts
for new equipment include a sensible provision that any additional
contracts for services and new features involving the equipment will be
open to competitive bidding, rather than the jurisdiction simply having
to accept the vendor’s monopoly power. Taxpayers also should require
much greater access to the software code, if not full open source
software, as well as a requirement for “modular” components that would
make it easier to piece together separately certified systems for an
election, rather than relying on just one company for all election
services.

Exclusive focus on pre-election certification will never be
sufficient, as we must also focus on post-election verification and
audits. By verifying all election counts, the certification process
would become part of a “belt and suspenders” approach. With the latest
optical scan paper ballot systems having the capacity to create
redundant records of every ballot, these records can be made publicly
available, as they are in cities from San Francisco (CA) to Burlington
(VT). When coupled with manual audits and appropriate privacy
safeguards, they will allow the public to verify vote tallies and
immediately identify errors.

The bottom line is that the existing regime is broken. Let’s
stop outsourcing democracy and make sure that citizens are in control.

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Other notable links:

• Press Release: Report: Widely Used Voting Machine Missed 0.4% of Ballots
• Former FairVote intern Andrew Price blogs: Clogging the Feedback Loop: Voting Systems Regulation Dysfunction
• FairVote Position on Voting Equipment, Election Integrity & Auditability