Voter Rights

UCP Submits Comments to US Election Assistance Commission on Computerized Voting (5/5/04)

Comments of the Rights Task Force of the
Consortium for Citizens with Disabilities on the
Use, Security and Reliability of
Computerized Voting Systems
The Election Assistance Commission
May 5, 2004

We thank the Election Assistance Commission for the opportunity to submit comments on electronic voting. The undersigned organizations are submitting the following comments on behalf of the Rights Task Force of the Consortium for Citizens with Disabilities (CCD). CCD is a coalition of more than 100 national disability organizations working together to advocate for national public policy that ensures the self determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. The Rights Task Force of CCD focuses on civil rights and protections for people with disabilities, and for enforcement of rights provisions by federal agencies.

As the country approaches the 2004 election, Americans remain concerned about the specter of widespread voter disenfranchisement due to our voting systems. The advent of new and promising technologies has brought election officials face-to-face with many disparate interests, including the concurrent needs for accessibility for people with disabilities and for sufficient security and accountability to prevent elections from being affected by equipment malfunction or tampering.

We understand that the logistics facing state and local election officials in implementing the Help America Vote Act are daunting and that they are compounded by limited resources and a lack of effective guidance from the federal government. While it is clear that many of the improvements that will result from the Help America Vote Act will not be in place for this year’s November elections, it is also clear that in order to avoid an election day debacle this year, election officials at all levels of government must not only be committed, but willing, to put in place ASAP resources, equipment and procedures that will advance and protect the voting rights of all Americans.

The Voting Situation for People with Disabilities

The US Constitution guarantees citizens of our country the right to vote. Historically, many people with disabilities have been forced to give up their right to vote in an independent and private manner in order to vote at all. This cannot continue. Public policy must encourage the continued development of voting system technologies that will accommodate the needs of all Americans, including those with disabilities.

The Help America Vote Act of 2002 (HAVA) highlighted the importance of making voting systems nondiscriminatory and accessible to all communities, especially those that have traditionally been disenfranchised. We know for a fact that neither the federal election process nor current voting technologies are perfect, and that the financial realities facing most states make it difficult to implement the best technologies quickly and accountably. Nonetheless, the task must begin.

Providing people with disabilities with the opportunity to vote in an independent and private matter is not an optional activity under HAVA. It is essential, not only to comply with HAVA, but to uphold the moral and legal imperative of equality.

On October 29, 2002, President George W. Bush signed the Help America Vote Act, HAVA, (P.L. 107-252), and America finally saw the chance for solutions to the problems our electoral process incurred during the presidential election of 2000, when States and local jurisdictions found that many citizens’ votes did not count due to faulty ballot style, hanging chads from punch cards, improper recounts, and being turned away from the polls due to registration snafus.

If you were a citizen with a disability, your vote may have been additionally compromised due to barriers of attitude, outright discrimination, physical access, equipment, and the inability to vote in a private and independent manner. HAVA recognized these problems and is providing states and local jurisdictions funds to purchase new accessible machines and remove physical barriers at the polls so that all citizens can vote.

Specifically, Section 301 of HAVA ensures accessibility to voters with disabilities by setting minimum accessibility standards for voting systems, and timelines for those standards to be in place. In particular, HAVA requires that voting systems be accessible to individuals "in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters." Requirements include non-visual accessibility for people who are blind or visually impaired and that at least one accessible voting machine be in each polling place by January 1, 2006, and that all voting systems purchased with Election Assistance Commission (EAC) funds on or after January 1, 2007 be accessible.

It is extremely important that a voter is able to verify and correct his/her vote, and HAVA requires, for the first time, that a voter must be able to review his or her ballot before it is officially cast and counted, and must be given the opportunity to change the ballot or receive a new one.

Electronic Voting Machines

In order to achieve the goal of accessible, private and secure voting for all Americans, all polling places must have the best possible voting systems.

Direct Recording Electronic voting systems (DRE’s) are the most versatile and user-friendly of any available voting system. Each machine can easily be programmed to display ballots in different languages and can be made fully accessible for persons with disabilities. Optical scan, punch card and lever machines cannot easily accommodate different languages, and because punch card and optical scan machines are paper systems, they are not fully accessible for people who are blind or visually impaired. Similarly, the mechanical nature of lever machines impedes accessibility for voters with limited mobility and strength.

There are a number of advantages to DRE systems. They can easily be adapted with earphones and other devices so that people with disabilities can cast ballots independently and in private, and they are easily adapted for multiple languages. They directly record votes, so they provide accurate counts, and they provide for "second chance" voting in private, so that a person who makes a mistake in voting can automatically be notified and make a correction to the ballot before it is cast. In the case of an "over vote," where a person mistakenly votes for more than one candidate in a category, the machine can automatically prevent the error in the first place.

Studies indicate a high degree of acceptance of DRE’s by voters, of all ages, abilities and ethnic and racial backgrounds, who have used them. DRE’s, in fact, can reduce many of the operational problems in handling paper ballots that have often led to election irregularities.

DRE’s store information in multiple formats and locations within the system’s program. In order to tamper with an electronic voting machine an individual would first have to know the machine’s program and storage components, and then would have to infiltrate those numerous components of the machine undetected. Procedures for securing the machines can ensure the integrity of the voting system. If these procedures are implemented, there is no reason to believe that a well-run election system based on DRE’s will not work properly. In fact, modern voting systems like DRE’s can be much better than the punch card voting machines and lever machines that they are replacing.

The history of elections in this country has demonstrated that paper ballots can be easily tampered with or even lost. Additionally, it cannot be assumed that just because a voter verifies their vote on a piece of paper, the machine is recording the same result. If, in fact, a machine can be hacked into and reprogrammed to give a certain result, it can also be reprogrammed to produce a paper record of one result, but record a different vote. The key to security is to maintain a well-designed election protocol to ensure the integrity of every machine’s security.

Addressing Security Concerns and Ensuring DRE Security

Remembering the 2000 presidential election, marred by voter disenfranchisement and difficulty verifying voters’ intentions, it is also necessary to address security concerns over electronic voting systems.

The concern about electronic voting machines taps into deep reservoirs of distrust: distrust of the election systems that were so flawed in 2000, distrust of new technologies; and basic distrust of the political system. Many Americans became deeply concerned after the 2000 election revealed the problems that plague our election systems. From, hanging chads to voting machines that didn’t work well, to poor ballot design, to people being turned away from the polls because of poor administration of voter rolls, including erroneous purging, the problems were many, and, for the first time in recent history, they were very public.

Many have called for a voter-verified paper trail to address the security issues regarding DRE’s. We do not believe, however, that the security concerns regarding DRE’s are answered by a paper audit trail. In many cases, computer specialists with limited experience with election systems have focused narrowly on the DRE machines themselves and made such recommendations without taking into account the management systems and safeguards that can protect against tampering, and without acknowledging the problems associated with other voting systems such as punch card machines. While a paper trail might alleviate some of the security concerns, it would also disadvantage those with limited English proficiency and most assuredly disadvantage those with disabilities.

Nonetheless, just last week, California's secretary of state decertified all touch screen voting systems in the state and said that counties that want to use such machines in the November election must implement a voter-verified paper record system or meet 23 other security measures designed to minimize fraud or error, conditions that will be virtually impossible for any county to meet this year.

The use of Voter Verified Paper Ballots (VVPB) to recount and authenticate voting systems may, in fact, have the opposite effect. In order to safeguard against malfunctioning voting machines, there are a number of procedures that should be scrupulously followed. First, voting machines must be scrutinized by state officials and computer specialists before a machine is certified for use in their states. Voting machines should then be tested to guard against malfunctions, and management systems tested to guard against error and ensure that unauthorized personnel do not have access to the machines. Testing and monitoring typically occurs many times in well-run systems.

Machines must also meet nationally certified design standards in most states, and individual machines must be tested when they are delivered by the manufacturer to election officials. The machines must also be tested just before Election Day, and especially important, the machines must be monitored during Election Day. Finally, the machines should be tested after Election Day. Security measures can prevent tampering after each stage of the process. Each of these tests helps guard against the use of a malfunctioning machine, and, taken together, suggest a high degree of reliability. There has not, in fact, been a single documented incident or evidence of a security breach in any election in which electronic voting equipment has been used in the nation. As with any system, if the safeguards are not followed, problems can result. Current Voting System Standards (VSS) in federal election law do not include standards for a VVPB. The last revision of the VSS took 5 years. In most states, it is a violation of law to use a voting device that has not been certified by the VSS. Therefore, requiring a VVPB will delay modernization of the nation’s voting system and, in fact, will result in Americans continuing to vote for a long, long time on the same antiquated punch card and voting systems they used in 2000. For individuals who are blind or visually impaired, there is currently no certified paper verification system to provide them access to independently verify their vote.

HAVA charges the Election Assistance Commission (EAC) and the National Institute for Standards and Technology (NIST) with studying our nation’s election system and recommending improvements to Congress.

We support giving the EAC and NIST time to gather the facts, conduct tests, and develop voting systems standards that, if implemented, would properly secure all voting systems. Additionally, Section 231 of HAVA requires the EAC to provide for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories.

Other Accessibility Issues for People with Disabilities

People with all types of disabilities have historically faced many different types of barriers that interfere with their fundamental right to vote. Some of these barriers are physical, some technical and some attitudinal. For people with mental, developmental or cognitive disabilities, the problems are often not remedied by the removal of physical barriers or the use of new technologies. The use of a new, unfamiliar computerized system, in fact, may make it even more likely that many people with mental, developmental or cognitive disabilities will need assistance from the poll workers to use the machines; and they may need computer screens with simplified language that is accessible. Nonetheless, the best technology in the world cannot prevent human error, or human attitudes, that prohibit voters from entering a poll site or exercising their right to vote.

The primary difficulties faced by individuals with mental, developmental or cognitive disabilities in voting involve improper denials of the right to register or vote. Such denials are often based on incorrect assumptions that an individual is incompetent to vote, based on the way the individual looks or acts. States can, of course, exclude individuals from voting if they are incompetent to vote. However, even when such voting is precluded, a person should not be prohibited from voting unless that person is adjudicated incompetent by a court of law. Registration or poll workers who are not qualified to make mental competency determinations cannot and must not make a determination about an individual’s competence to vote. An individual’s ballot may be challenged after it has been cast, based on the individual’s competence, but the individual should never be prevented from voting before a determination is made.

Due to biases or lack of knowledge among poll workers and others, individuals with mental, developmental or cognitive disabilities have frequently met with resistance when they show up at a polling place and attempt to cast a ballot, or when they attempt to register to vote. Many are improperly prohibited from registering, and others are unnecessarily subjected to harassment and humiliation before being able to exercise their right to vote.

We also know from experience, particularly in the 2000 and 2002 elections, that misinformation from poll workers regarding such things as identification requirements, provisional ballot options, and even poll site closing times can result in the disenfranchisement of millions of voters across the country.

It is, therefore, imperative that measures are in place that would reduce this type of strife at polling and registration places. Training concerning the voting rights of individuals with mental, developmental or cognitive disabilities would prevent many of the difficulties that occur.

Individuals responsible for providing voting access need to understand: (a) that people cannot be prohibited from voting if they have not been determined to be incompetent by a court of law; (b) that if there is a reason to believe that a person may be incompetent, provisional balloting may be used to ensure that the need to exclude votes is properly balanced with the need to ensure that individuals are not improperly excluded; and (c) how to make informed judgments concerning whether behaviors may or may not be relevant to competency. In addition, individuals with mental, developmental or cognitive disabilities sometimes require simple accommodations in voting and registration – for example, explaining instructions in simpler language or permitting a peer to provide limited assistance.

Conclusion

In summary, the overall effectiveness of the voting process in meeting the needs of voters with disabilities is dependent upon many things, including reliable and fully accessible electronic voting machines—and including the proper training of poll workers and election officials as well as the education of voters about registration and voting requirements and opportunities. The proper administration of elections by state and local election officials is of paramount importance.

Thank you for the opportunity to offer these comments. We wish the Commission the best and offer our assistance in any way possible as you undertake the monumental tasks before you.

Respectfully submitted,

American Association of People with Disabilities
American Association on Mental Retardation
American Council of the Blind
American Foundation for the Blind
Bazelon Center on Mental Health Law
Brain Injury Association of America
Epilepsy Foundation
National Association of Protection & Advocacy Systems
Paralyzed Veterans of America
TASH (formerly The Association for the Severely Handicapped)
The Arc of the United States
United Cerebral Palsy
United Spinal Association
Western Law Center for Disability Rights

Consortium for Citizens with Disabilities Rights Task Force:

American Association of People with Disabilities (AAPD)
American Association on Mental Retardation (AAMR)
American Council of the Blind (ACB)
American Foundation for the Blind (AFB)
American Diabetes Association (ADA)
Association for Persons in Supported Employment
Bazelon Center on Mental Health Law
Brain Injury Association of America
Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD)
Easter Seals
Epilepsy Foundation
National Association of Protection & Advocacy Systems
National Association of Councils on Developmental Disabilities
National Multiple Sclerosis Society (NMSS)
NISH
Paralyzed Veterans of America
TASH (formerly The Association for the Severely Handicapped)
The Arc of the United States
United Cerebral Palsy (UCP)
United Spinal Association
US Access Board
Western Law Center for Disability Rights

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