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NCSL Elections Reform Task Force Meeting Notes The National Press Club Washington, DC
Introductions and Opening Remarks Representative Dan Blue called the meeting to order and thanked members for making the effort to be in Washington for the fourth meeting of the task force. For a list of members and others attending, see APPENDIX A. Voter Registration Colorado Secretary of State Donetta Davidson discussed the difficulties of list maintenance. As an example of the complexity of the task, she showed a flow chart that specifies the procedure used in New York to keep track of qualified voters. She stated that New York's flow chart was the simplest one she could find. Keeping track of voters and their status requires multiple mailings. When a voter doesn't respond to a confirmation mailing, the election official must forward the notice to the voter's new address (if available), and must also keep the voter on the rolls until the third general election that they fail to vote in. At that time, a voter can be removed from the list. The only other time a voter can be removed from the registration rolls is if an election official can confirm the voter has moved out of the state or district. In Colorado, she has to maintain three files - active voters, inactive voters, and a pending file. Voters end up in the pending file if she needs more information, for example, if an incomplete registration form is turned in. She stated that using a driver's license number is helpful for keeping track of voters because it is a unique identifier. Many election officials would like to use social security numbers for this purpose, but they are prevented by law from doing that in most states. Senator Bryan asked which states can use social security numbers to track voters. Secretary Davidson replied that Virginia and about seven other states can. Sometimes voters will voluntarily provide their social security number when they register, but a voluntary system isn't very effective. Voters may register multiple times, and sometimes give their social security number but sometimes not give it. Unless the number is on all records associated with the voter, it doesn't uniquely identify the voter. Gerry Cohen asked if petition signature requirements are based on a percentage of registered voters, and if so, how the state can determine which number to use - the number of total registered voters, or only the active registered voters. Secretary Davidson replied that in Colorado, petitions require signatures from a number equal to 5% of the votes cast in the most recent secretary of state race, so the issue of total vs. active voters isn't relevant when it comes to petitions in Colorado. However, it is important that petitions be trained to get the current address for each signer, so that the secretary of state's office can send a confirmation mailing if there is a new address on the petition but not in the voter registration files. The time when registered vs. active voters becomes problematic in Colorado is when ballots must be printed - it is very difficult for the state to predict how many registered voters will vote, and thus how many ballots to print. The problem is compounded by the fact that almost 40% of Coloradans vote absentee. In odd years, Colorado counties can hold all-mail elections. In those, they only send a ballot to active voters. Inactive voters can vote by going to the county clerk to get a ballot. Representative Blue asked about the process used to remove convicted felons from the voting rolls. Secretary Davidson said that it is not a problem with some people, because the federal courts give information to the state on convicted felons. However, the state courts do not, so it is more difficult to keep those felons off the rolls. Representative Sandoval asked why the department of corrections can't provide a simple notice to the secretary of state of felony convictions. Secretary Davidson replied that the director of prisons is currently trying to develop a list that would keep prisoners from receiving welfare checks, and it is proving difficult to compile. She stated that it would be easier to do if election officials could use a national number like a social security number to uniquely identify individuals. Gerry Cohen pointed out that there are two sides to the issue of voting by convicted felons. On one hand, it may be that felons are voting when they shouldn't, but on the other there is the fact that felon disenfranchisement laws have a disproportionate effect on minorities. Secretary Davidson noted that in Colorado, anyone who registers signs an affidavit that they are qualified to register. They are not asked if they are a convicted felon, so in fact there is little safeguard against voting by felons. Representative Blue asked if there was any evidence of voting fraud. Since there is no tracking between states of who votes, how could someone get caught voting in two states, and how could a convicted felon get caught voting? Secretary Davidson said Colorado happened to catch one person voting in two states, and three or four people voting more than once in Colorado. She said there was no evidence of disenfranchised felons voting in 2000. Gerry Cohen asked if Colorado sent a cancellation notice to a new voter's prior state of residence. Secretary Davidson said they try to, but can't always. In particular, they can't do it if a voter doesn't provide his/her previous address. Senator Bryan asked how many specific cases the secretary was aware of where people voted more than once. She replied that she knew of six cases in the last election. Having a master list of registered voters within the state helps a lot in keeping track of that. Senator Bryan then asked if mail elections lead to a lot of fraud. Secretary Davidson said no. Colorado has held all-mail elections eight times in odd-year elections, and has not encountered a single case of fraud. A few years ago, someone went around and got elderly people to apply for absentee ballots. Then they went around asking for the ballots, saying they would get them notarized for the voter and send them in. A voter called to ask the secretary's office if that was OK, so the secretary found out it was happening. Colorado is now in the process of prosecuting the notaries who were involved. She stated that no system is foolproof; if someone wants to commit fraud, they will. Chris Thomas, Director of Elections for the state of Michigan, gave a presentation on Michigan's Qualified Voter File. He said that Michigan has a very decentralized election system, since elections are run on a city/township basis, rather than a county basis. Michigan has the following election jurisdictions: 1,514 city registrars, 580 school districts, and about 200 townships, adding up to about 2,000 election units. Michigan's problem was figuring out how to deal with a decentralized system and still be modern. Former Michigan secretary of state Austin was the father of "Motor Voter." He implemented it in Michigan in 1974 when the rest of the country was moving toward mail and election day registration. It made it easier to keep track of people as they moved, since they had to renew their driver's license each time. In the 1980s they began to realize their list wasn't accurate, as they saw their registration creep up toward 100% of the voting age population. In 1987, they began working on a central file. It's easy to create a central file and make counties send information twice a year, but that's not an effective system because it's immediately out of date. Instead, when NVRA went into effect nationwide, Michigan decided they needed to computerize. That was because the NVRA generated lots of mailings, which cost a lot of money and resulted in inaccurate lists. The NVRA was therefore the catalyst for developing the statewide computer system. Michigan's current system is a distributed database involving 83 county clerks, who serve smaller cities, and 363 larger cities. There is a server in Lansing. The state bought all the hardware and software, which cost about $7.6 million. They decided to avoid compatibility programs, and just have everyone on the same system instead. It's not an online system, because that's not necessary. Every transaction goes automatically to the server in Lansing, and all local unites replicate daily and pull data from the server. The backbone of the system is a statewide street index, which they developed themselves instead of using a zip code + 4 system. The electronic transmission is very reliable and fast, compared to a paper transmission which can take weeks or even get lost. Michigan uses a driver's license number to identify each voter. That is a unique identifier based on each person's name and birth date. They can generate a number on that basis even for voters who don't have a driver's license. When Michigan switched over to the new computerized system, they found more than 600,000 duplicate registrations on the voter rolls. Now they can be sure they have no duplications, and they have eliminated almost all mailings. They have tied the driver and voter files closely so that changing your address in one file automatically changes the other. That means voters automatically end up registered in the new jurisdiction if they move and change their driver's license address. Mr. Thomas said the two greatest benefits of Michigan's statewide database is its uniformity (voters are registered by the same standards in all jurisdictions in the state) and its accuracy. Representative Sandoval asked if voter registration was a privacy issue in Michigan. Who are the lists available to? Mr. Thomas replied that currently, anyone can buy a registered voter list, but there is pending legislation to make it private information. Gerry Cohen asked what Michigan does with the paper form the voter fills out after the information has been added to the database. He pointed out that the paper is still the official document, since it has the voter's signature. Mr. Thomas replied that they have to make sure a piece of paper eventually arrives for each electronic record, and they will mark the electronic file if they never receive the paper so that the voter's signature can be obtained. Senator Bryan asked if the voter registration form includes a sentence telling the voter that his/her signature authorizes the cancellation of all previous registrations. Mr. Thomas replied that, yes Michigan's forms have such a sentence. Mr. Thomas's handouts about Michigan's qualified voter file are attached as APPENDIX B. Equal Protection and Other Constitutional Issues Nate Persily, professor of law at the University of Pennsylvania gave a presentation on the Bush v. Gore decision and its implications for election reform in the states. Mr. Persily stated that prior to the Bush v. Gore decision, cases on elections and equal protection law focused on voting as a fundamental right, one-person-one-vote, and several other areas. He pointed out that the right to vote is not explicitly provided for in the Constitution, but that voting has been established as a fundamental right through the equal protection clause. Other cases in which equal protection spills over into the political realm include race and redistricting cases, ballot access and party cases, first amendment right of association cases, and fundamental fairness cases. Mr. Persily believes that the holdings and reasonings of Bush v. Gore are contradictory. Specifically, it is unclear whether the case applies to elections generally, or only to the unique case of the Florida 2000 presidential election. In the Bush v. Gore opinion, the US Supreme Court laid out several reasons why the Florida Supreme Court violated the equal protection clause: 1) They failed to formulate specific, uniform rules. 2) They included complete recounts only from some counties. The counties used different standards, and not all counties were required to complete a full recount. 3) They included a partial recount from Miami-Dade county. Time pressures do not excuse ignoring equal protection guarantees. 4) There were deficiencies in the process of recounting. Judges were appointed on an ad hoc basis and in some cases received no training, and there was no allowance for objections in the procedure. Mr. Persily pointed out that the Article II argument in the Bush v. Gore decision was not a majority opinion. The Article II argument centers on whether the recount procedures used in Florida were mandated by the legislature, whether the Florida court was using the state constitution to override the legislature, and whether the Florida court usurped power from the Florida secretary of state. Mr. Persily listed four principles to guide states in the process of election reform in the wake of Bush v. Gore: 1) Uniformity - avoid intrajurisdiction variation to the extent is possible. Four cases have already been filed protesting the use of punch card machines when optical scan technology is used in other parts of the same jurisdiction (CA, FL, GA, IL). 2) Specificity - unless there is a reason for not enacting specific standards, vague standards may violate equal protection. 3) Comprehensiveness - accomplishing as much as possible in the time available may not be good enough (stems from the Miami-Dade partial recount). 4) Rigidity - you can't change the rules during the election. Senator Darrington asked if the uniqueness of the presidential election, being the only one with electors, and the unique circumstances in Florida, mean that the case won't be important outside of the Florida 2000 election. Mr. Persily replied that that could be true; it is too early to say. Mr. Persily was asked if the Bush v. Gore decision mandates uniform voting technology statewide, and he replied that yes, it does, in his opinion. Gerry Cohen asked if there was any constitutional problem with a legislature setting a general standard and then allowing the statewide election administrator set the specific standards. Mr. Persily said that if the question is, can you delegate authority to a secretary of state for presidential elections? The answer is yes under Article II. A second part of the question is the degree of authority the secretary of state has. There shouldn't be a lot of variation in standards over time. However, provided secretary of state decisions are give the force of law and there is little variation over time, it shouldn't be problematic to approach the problem that way. Gerry Cohen asked why the statute vs. constitution issue is important, since the legislature writes the constitution? Mr. Persily pointed that that in some states, the legislature doesn't have the sole authority to write the constitution. Citizen initiatives and constitution revision commissions can also have a hand in it. Representative Blue asked if voter education is a potential equal protection issue, if some voters are better educated than others. Mr. Persily replied that it could be. Ballot design variations could also have a disparate impact. Gerry Cohen asked if there were other precedents from Bush v. Gore that will apply outside of Florida. Mr. Persily said that the voting machine upgrades are the first wave. Ballot access, campaign finance, and registration are all potential equal protection targets after Bush v. Gore. Other areas outside election law are also new targets, including welfare and education. Representative Sandoval asked if one effect of Bush v. Gore might be an effort to look for simpler ways to do elections. Mr. Persily said yes, that's true, and that is why there are so many bills pending this year in legislatures. Mr. Persily told the task force that a new volume of The University of Chicago Law Review and a new book coming out soon would deal with what would have happened if a state had sent two competing slates of electors to Congress. That would have forced the Supreme Court to step in to prevent chaos. Others say the court would have had to step in before that stage to prevent it from ever happening. The question is, do we want the courts doing that, or a more accountable branch of government, like the legislative branch? An outline of Mr. Persily's presentation, including many cases he referred to, is attached as APPENDIX C. Voting Systems for the Disabled Mr. Jim Dickson, vice president and director of the National Organization on Disability, gave a presentation on the importance of making voting systems accessible to the disabled. A written copy of his testimony and two handouts are attached as APPENDIX D. Report from Congress Roman Buhler and Chet Kahlis, majority staff for the House Administration Committee (which has primary jurisdiction on election reform issues) gave a presentation on congressional activity. They said that members of Congress see the issue not as a crisis of election management, but of public confidence. The first observation of the committee is that statements like "2 million voters were denied the right to vote" don't hold up - they haven't seen any evidence. People deliberately undervote, and sometimes they deliberately overvote too. They said that committee members believe that state solutions are necessary, and that a one-size-fits-all federal mandate is not the way to go. There is some consensus on the committee about useful reforms, which include the establishment of uniform procedures and systems in each state, and the creation of provisional voting procedures in every state. Mr. Buhler said that Congress hopes the states will adopt such measures, because the federal government is not eager to do it. Mr. Buhler said that in determining the appropriate federal role, members of Congress will consider the following: 1) Funding - there is significant pressure for this from state and local officials. 2) Control - how much federal control should there be, and what kind. The chairman is not eager to impose federal control and favors block grants. 3) Timing - the chairman would like funding to begin with the next fiscal year, October 1. Mr. Buhler summed up the chairman's view on federal electoral reform by saying his goal is to strengthen the state role in the election process. Mr. Kahlis said that he works exclusively on election reform, and was hired because the chairman of the House Administration Committee wants to draft an election reform bill. He spent 25 years administering elections at the state and local level before becoming a congressional staffer, so he wants to make sure any federal bill works for states and localities. He said that May 15-17, there would be congressional hearings on voting technology, and eleven vendors would be doing a demonstration. They hope to educate members and staff about technology that's available. Also, vendors will testify about what Congress can do, the capacity of vendors, and what can be done to reduce the cost of machines. Speaker Stephens asked about bills proposing study commissions, and if there has been any discussion about making NCSL a member of any commission. Mr. Buhler replied that they had not yet started talking about the specific members of a commission. He said that legislators are an extremely important part of the solution, and their voices should be heard. Speaker Stephens asked which bills and which committees the task force should be watching. Mr. Buhler said that House Administration was the primary committee, but that Commerce, Science, and Rules also might play a rule. He said any bills carried by McCain, McConnell, Schumer, Hoyer, Conyers, and Ney would be important. He said that the House Admin Committee would develop a product that will combine the elements of many pending proposals, and that Hoyer and Ney could do a joint bill. Gerry Cohen asked if Congress was working with vendors to increase capacity or bring new ones into the market. Mr. Buhler said that they were exploring ways to lower prices and talking to vendors about how to do that. He said the market is like the computer market was in its early stages, with high prices and margins, and that as volume increases, that will improve. Mr. Cohen pointed out that multi-year funding from Congress might encourage new vendors to enter the market. Senator Bryan said he was concerned that Congress could pass something with unintended consequences. He also expressed the importance of protecting the integrity of the military vote. Steve MacNett asked if the NVRA was a concern, especially the issue of improving flexibility with purging. Mr. Buhler said that yes, it was a concern. The problem is that anything the committee does will have to be bipartisan, and some interest groups reflexively oppose any changes to NVRA. They are looking for ideas for improvements that won't have a negative effect on any group's access and right to vote. Presentation of Innovative Voting Systems Meg McLaughlin of Accenture and Mark Strama with election.com presented a product their companies have developed jointly. Their software is designed to manage and streamline election administration processes. It handles voter registration and administrative issues like ballot design, candidate qualification, poll worker data on training and payroll, and precinct definition. Some of the features of their system include:
The Accenture/election.com system has been installed statewide in Arkansas and Kansas. Click here to go to the election.com web site. EDS and Identix have jointly developed a product called Online Secure Voting (OSV) which targets military voters, although it could also be used for the general public. The system utilizes existing technology (fingerprints, mil.net) and current state law to allow overseas military personnel to vote via the Internet. OSV uses biometrics to positively identify and authenticate voters for remote registration and voting. The military already requires all soldiers to submit to fingerprinting, and OSV utilizes the existing fingerprint information and Department of Defense Common Access Cards to uniquely identify soldiers. The military server will have the registration form and absentee ballot application for each state, allowing soldiers to register to vote and apply for an absentee ballot, and even cast their absentee ballot via the Internet. The registration and ballot information is transmitted electronically or by paper (in the form that is required by state law) to the election officials in the soldier's state with the proper verification. The system also tracks registration so that a person cannot be registered in more than one state. EDS and Identix are working with the Department of Defense on a pilot program to test this system with military overseas voters. Five states currently require barcoded fingerprints on drivers' licenses, and thus could utilize this system. Link to the EDS web page or the Identix web page. Barbara Mosby with Election Systems and Software gave a demonstration of their iVotronic voting machine. ESS is the world's largest elections-only company, and has products for registration, mail ballots, and in-precinct voting. They also conducted the Internet voting pilot project in San Mateo County, California in 2000. iVotronic includes an audio ballot with Braille buttons, which meets ADA requirements. Other features include:
All programming of the machines is done on a cartridge, not on the machines themselves. The cartridge is inserted into each machine at the beginning and end of election day to open and close the machines. Election results can be printed or sent by modem to a central location. Fifteen counties in North Carolina currently use the iVotronic technology, and Dallas County, Texas uses it for early voting. The first time Dallas used the system, they printed and hand-counted 12,000 ballots to double-check the accuracy of the system. It costs $3,600 per machine; the cost is $300 less without the ADA-compatible features. Click here to go to the ESS web site. Jennifer Curley demonstrated VoteHere's PC-based voting system. VoteHere produces a software program for elections and has a partnership with Compaq. Their system has been submitted to NASED for certification, and was used in trials in Cumberland County, Pennsylvania in their May 15 primary. Features of the VoteHere software include:
Behind the scenes, a poll site server collects the votes. They can be tabulated on-site, or transmitted to a central site. A paper copy of each ballot can be printed, or a CD with tabulations can be created. Click here to go to VoteHere's web site. Gerry Cohen asked the vendors about their capacity. ESS produced 10,000 optical scan tabulators for Venezuela in cooperation with a local company. VoteHere is already in partnership with Compaq, and their hardware is already widely available. Ms. McLaughlin of Accenture pointed out that larger companies are getting into the industry since last November, which will help with capacity. Representative Blue asked what vendors thought about states leasing equipment. Ms. McLaughlin replied that the Florida task force's proposal to lease optical scan equipment for two years might not be a good solution from a business standpoint because it's not easy to sell used equipment. The vendor will therefore probably have to charge a lot for the two-year lease. Update on State Activity Jennie Drage presented a summary of recent state legislative activity in the area of election reform. Her summary is attached as APPENDIX E. P.K. Jameson presented a summary of Florida's election reform bill. It was the product of a conference committee and combined more than a dozen proposals. There will be no more punch card machines, lever machines, paper ballots, or central counting of ballots in Florida. Only precinct-count optical scan and electronic technology will now be permitted in Florida. The secretary of state has not yet certified an electronic system, but several counties have applied for certification. Other provisions of the Florida bill include:
Representative Blue asked why Florida eliminated the run-off primary. Ms. Jameson replied that it was only eliminated for 2002, which will help free up money for purchasing voting equipment. The run-off will come back after 2002 unless the Legislature decides to eliminate it permanently. Rep. Blue then asked what the recount and voter intent standards were. Ms. Jameson said that the Department of State will have to come up with rules for judging voter intent. The bill created specific triggers for machine recounts, and options for hand recounts if there is evidence of fraud. Gerry Cohen asked if the counties will purchase voting equipment on their own, using their own purchasing process. Ms. Jameson said yes, that there is no mandate on counties except that the system the purchase must be certified by the Department of State. Right now only optical scan is certified, but DRE machines could be in the future. A summary of the Florida bill is attached as APPENDIX F.
Next Meeting The next meeting of the task force will be June 8-9 in Denver, Colorado. Contact Tim Storey or Jennie Drage at 303-364-7700 for more information. Members Present: Others: |
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