The Voting News Weekly: TVN Weekly January 2-8 2012

Computerworld examined the recent report from the Election Assistance Commission that uncovered multiple faults with the ES&S DS200 digital scan voting system. Texas’s redistricting will be addressed by the US Supreme Court. Thanks to the transparency of precinct hand-counting of paper ballots, a Iowa caucus-goer revealed what may be a outcome-changing typo in the tallies from one precinct. The South Carolina GOP is still a $500,000 short of the funds necessary to administer this month’s Presidential primary. The Montana Supreme Court has defied the US Supreme Court decision in FEC vs. Citizens United by upholding the State’s ban on corporate campaign contributions. Edward Foley posted a preview of the election year that has just begun. American Prospect posted a profile of lawyer James Bopp and his career of crusading against limitations on campaign funding. Cuyahoga County’s use of risk-limiting audits and other security measures was praised by the Cleveland Plain Dealer and the Virginia Attorney General has decided not to intervene in the case surrounding ballot access for the State’s primary next month.

National: E-voting machine freezes, misreads votes, U.S. agency says | Computerworld
Texas: Election map fight goes before Supreme Court | Thomson Reuters
Iowa: Could Typo Rewrite Caucus History? | KCCI Des Moines
South Carolina: GOP lacks money to pay for upcoming primary | ScrippsNews
Editorials: Montana Supreme Court, Citizens United: Can Montana get away with defying the Supreme Court? | Slate Magazine
Editorials: Looking Ahead to the End of this New Year | Edward B. Foley/ElectionLaw@Moritz
Editorials: Citizen Bopp | The American Prospect
Ohio: Cuyahoga County elections board leads pack in testing, auditing | cleveland.com
Virginia: Attorney General changes mind, won’t intervene in primary ballot case | The Washington Post

Jan 07, 2012
National: E-voting machine freezes, misreads votes, U.S. agency says | Computerworld

An electronic ballot scanning device slated for use in the upcoming presidential elections, misreads ballots, fails to log critical events and is prone to freezes and sudden lockups, the U.S. Elections Assistance Commission has found. The little noticed EAC report on the DS200 Precinct Count Optical Scanner in the Unity 3.2.0.0 voting system built by Election Systems & Software (ES&S) was released late last month.

The 141-page Formal Investigative Report ( download pdf ) highlights multiple “substantial anomalies” in the DS200: intermittent screen freezes; system lockups and shutdowns; and failure to log all normal and abnormal system event. For example, the DS200 in some cases failed to log events such as a vote being cast, when its touch-screen is calibrated or when the system is powered on or off, the EAC said. In addition, the EAC report said the system failed to read votes correctly when a 17-inch ballot was inserted at an angle. The voter’s intended mark was either registered as a different selection or the vote was not registered at all, the EAC noted.

… Pamela Smith, president of Verified Voting, said that the concerns that prompted the 10-month EAC investigation are serious. ”Any time such concerns are raised, one would hope that the jurisdictions using those systems take additional measures to ensure correct outcomes in the interim while the issues are being examined,” Smith said.

What is significant, she said, is the fact that the DS200 scanner is being used in conjunction with a voter-marked paper ballot. Thus election officials have a hard copy ballot showing the voter’s original intent, and therefore have the capability to do recounts and audits. “Any jurisdiction using the DS200 [or similar technology] should be doing a robust post-election audit routinely after every election,” Smith said.

For the near-term, the system should not be used in any jurisdiction that doesn’t do robust audits or inexpensive and easy to obtain recounts, Smith suggested. ”Even where non-discretionary, mandatory recounts are done when margins are within a certain percentage, I’d want to be able to improve on those mandatory recounts because of the doubt that such a system can cast on the outcome,” she said.

Full Article: E-voting machine freezes, misreads votes, U.S. agency says – security, Regulation, Malware and Vulnerabilities, Gov’t Legislation/Regulation, Gov’t Legislation, government – Computerworld.

The Supreme Court next week will step into a partisan battle over remapping congressional districts in Texas, the court’s first review of political boundary-drawing resulting from the 2010 U.S. census, with elections ahead in November. At issue in Monday’s arguments will be whether Texas uses maps drawn by a U.S. court in San Antonio favoring Democrats and minorities, or maps drawn by the Republican-dominated state legislature, in the 2012 congressional and state elections.

Texas Republican officials appealed to the Supreme Court, arguing that a lower court had overstepped its authority in coming up with its own redistricting plan and that it should have deferred to the state legislature’s plan. The Obama administration for the most part has supported the state Democratic Party and groups representing Hispanics and blacks before the Supreme Court, saying that parts of the state’s plan violated the federal voting rights law.

Redrawing the Texas districts has become a major political and legal issue. The state’s population went up by more than 20 percent, or 4.2 million people, over the past decade, with Hispanics accounting for 2.8 million of the increase.

After the 2010 census, Texas got four new congressional seats, giving it a total of 36. The state legislature’s plan, signed by Texas Governor Rick Perry, a Republican presidential candidate, created only one new heavily Hispanic district.

Voting rights experts, such as Sidney Rosdeitcher at the Brennan Center for Justice at the New York University School of Law, said the Texas case was extremely important.

It “will not only have significant political consequences for the four Texas congressional seats that are at the heart of the controversy, but will affect the voting rights of millions of Latino and other minority voters,” he said.

Full Article: Texas election map fight goes before Supreme Court.

Caucus night was chaotic in many places, with hundreds of voters, candidates showing up and the throngs of media who followed. The world’s eyes were on Iowa. But in the quiet town of Moulton, Appanoose County, a caucus of 53 people may just blow up the results.

Edward True, 28, of Moulton, said he helped count the votes and jotted the results down on a piece of paper to post to his Facebook page. He said when he checked to make sure the Republican Party of Iowa got the count right, he said he was shocked to find they hadn’t.

“When Mitt Romney won Iowa by eight votes and I’ve got a 20-vote discrepancy here, that right there says Rick Santorum won Iowa,” True said. “Not Mitt Romney.” True said at his 53-person caucus at the Garrett Memorial Library, Romney received two votes. According to the Iowa Republican Party’s website, True’s precinct cast 22 votes for Romney. ”This is huge,” True said. “It essentially changes who won.”

A spokeswoman with the Iowa Republican Party said True is not a precinct captain and he’s not a county chairperson so he has no business talking about election results. She also said the party would not be giving interviews about possible discrepancies until the caucus vote is certified. KCCI political analyst Dennis Goldford said even if the caucus results are wrong, it’s not the end of the world.

This will make Iowa look a little foolish in the eyes of the rest of the country, which already questions the seriousness of the caucuses,” Goldford said. But in terms of Santorum’s results here, the Caucuses have made him a player in presidential politics and if he should nudge ahead of Gov. Romney for the final certified result that’s really not going to make any significant difference at this point.”

True — who said he’s a Ron Paul supporter — hopes it was a simple mistake. ”I imagine it’s a good possibility that somebody instead of hitting 2 might have hit 22 by accident,” True said. “I hope so.” But he said he won’t stop talking about it until the state — by his count — gets the numbers right. “Numbers that I personally witnessed being counted and assisted in counting and am certain are right,” he said.

Iowa Republican Party Chairman Matt Strawn said late Thursday that the party headquarters spoke with Appanoose County Republican officials and they do not have any reason to believe the final, certified results of the county will change the outcome of Tuesday’s vote.

Reached a short time later, True said he is absolutely certain his numbers are correct and he stands by his statement. True said he confirmed his numbers with his precinct captain and his county party chairman. KCCI left a message for the Appanoose Republican party chairman on Thursday afternoon. The call has yet to be returned.

True reiterated Thursday night that he is 100-percent certain that his figures from that night were correct. He said he has checked with his precinct chairman and the GOP county chairman and they confirmed his numbers. KCCI has not had a chance to confirm his statement with those county party officials.

Full Article: Could Typo Rewrite Caucus History? – Des Moines News Story – KCCI Des Moines.

With less than three weeks until South Carolina’s GOP presidential preference primary, state elections officials say they lack the cash to pay for it. But they say they are not letting that deficit prevent them from preparing for the vote. The cost of ballots, poll workers, data processing and other expenses related to the Jan. 21 Republican primary is expected to total about $1.5 million, state election commission spokesman Chris Whitmire said Tuesday.

But the commission currently has only about $1 million earmarked to cover these costs, Whitmire said. That amount includes more than $800,000 set aside by the South Carolina legislature and $180,000 in filing fees from the nine GOP candidates whose names will appear on the ballot. Where will the rest of the money come from? “We don’t know at this point,” Whitmire acknowledged.

One thing is certain — it won’t be coming from Comedy Central host Steven Colbert, who had pledged $400,000 if the state GOP would name the primary “The Colbert Super PAC South Carolina Republican Primary.” He also wanted a non-binding referendum for the people of South Carolina to decide if corporations are people. His offer was turned down.

Election officials are hoping that a state budget panel or South Carolina legislators will solve the cash crunch before bills from the primary start stacking up later this month. But in the meantime, they say, the critically important “First in the South” primary must go on.

Full Article: S.C. GOP lacks money to pay for upcoming primary | ScrippsNews.

On the rare occasions when the world talks to you in stereo, it’s a good idea to set aside your knitting and listen. This week, Americans got their first good look at what super PACs—political organizations that can receive unlimited corporate contributions and make unlimited expenditures for federal candidates—have wrought in Iowa. At the same time, the Montana Supreme Court issued a stunning opinion last Friday, upholding the state’s law limiting corporate election spending. Think of the two as a sort of woofer and tweeter for life in a post-Citizens United world.

The impact of the so-called super PAC on the Iowa election has been profound. Just ask Newt Gingrich, who was clobbered by almost a third of the more than $14 million in super-PAC ad money spent in the weeks before the caucus. When the court handed down that decision in 2010, it assumed both that these expenditures would be independent of the candidate’s official campaigns (they’re not; one is financed by Jon Huntsman’s dad) and that disclosure rules would ensure that Americans knew who was buying and selling their elections (we don’t).

Ruth Marcus has a great piece explaining all the ways in which the super PACs are both coordinating with campaigns and evading federal disclosure requirements. She notes that this was the inevitable consequence of both the Citizens United decision and subsequent lower-court rulings. Whether he meant to or not, she writes, Justice Anthony Kennedy, with his majority opinion in that case, managed to “clear the path for independent expenditure committees backing a particular candidate—and bankrolled by the candidate’s father or run by his former top aides.”

Democracy 21 issued a report today questioning whether these candidate-specific super PACs can possibly meet the legal requirements of “total independence” from the campaigns, as required by the language of Citizens United. That’s the problem when you give corporations the same First Amendment rights as citizens. It’s not just that the resulting citizens are louder and meaner than regular people. They also refuse to tell you who they are and how much a gently worn candidate is selling for these days.

Prof. Richard L. Hasen explained all this back in October, pointing out that the fundamental flaw in Justice Kennedy’s majority opinion in Citizens United lay in his assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That sentence opened the door to super PACS and ignored the reality of everything we all know about the corrupting influence of unlimited money on a political campaign.

Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” After the Supreme Court handed down theCitizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”

Full Article: Montana Supreme Court, Citizens United: Can Montana get away with defying the Supreme Court? – Slate Magazine.

Will the rules, particularly recent changes in the rules, governing elections make a difference in the outcomes next November? Possibilities include the effect of changes in campaign finance laws or the laws governing voter identification and other aspects of the vote-casting process. But something entirely unexpected may upend the best efforts to predict what will happen in this potentially momentous presidential election year.

At this season’s holiday parties friends would say, referring to the upcoming presidential election, “2012 is going to be a big year.” I would agree politely, as undoubtedly 2012 will be an interesting and important year politically. It cannot help but be, given the pressing economic issues facing the nation, and stalemate in Washington, with each side hoping that the electoral verdict in November will somehow break the deadlock in its favor.

But will 2012 be a big year legally, meaning will election law feature prominently in assessments of the significance of political developments at the end of 2012? In other words, next New Year’s Eve will we look back and say that this or that aspect of the legal regime for conducting our elections affected which candidate or party won an important electoral victory?

In some sense, we must hope that election law never determines which side of the electoral contest will win. Ideally, the rules that run the electoral process should favor no candidate or party, but rather simply let the citizenry make whatever authentically democratic choice it wishes. But experts in election law know that this ideal, although undoubtedly compelling in terms of democratic values, is frustratingly elusive in terms of operational reality. Any set of election laws, including the current ones, is likely to give a real or perceived advantage to one side or the other. For example, the constitutional requirement that each state elect the same number of U.S. Senators regardless of population is sometimes thought to give the Republican Party an advantage in its competition with the Democratic Party to win majority control of the Senate, since some of the less populous states in the West (for example, Wyoming and Alaska) are viewed as leaning Republican. (Whether the perception of this structural “bias” toward Republicans is in fact accurate is another matter. One might look at the less populous states in the Northeast, like Vermont, and think that the structural advantage either runs the other way or is at least neutralized.)

For this reason, it makes sense to focus on how any change in election laws might favor one party or another. Whatever the status quo in election law may be, if it is stable the parties can tailor their campaign practices to compete according to those rules. To use a sports analogy, some baseball teams excel more at hitting than pitching, while for other teams it is just the opposite. The particular rules of baseball, like the height of the pitcher’s mound, can affect the balance of competitive power between hitters and pitchers. If the height of the pitcher’s mound remains fixed year after year, teams can decide the degree to which they wish to emphasize hitting or pitching in their effort to win. But if the height of the pitcher’s mound unexpectedly changes—for example, is raised to make it harder for hitters—then teams that have relatively deemphasized pitching compared to hitting are at a sudden disadvantage for the current season (and maybe several more).

Full Article: Election Law @ Moritz (Commentary: Looking Ahead to the End of this New Year).

Wedged up against the Illinois border on the banks of the Wabash River, Terre Haute, Indiana, has seen better days. Many factories have closed, and downtown has too many vacant storefronts. But there are signs of activity: Indiana State University has grown, the federal prison still provides reliable jobs—and the ten-lawyer litigation machine that occupies the offices of attorney James Bopp Jr. at the corner of 6th and Wabash is going full tilt.

Bopp is best known as the lawyer behind a case involving a 90-minute film made in 2008 attacking then–presidential candidate Hillary Clinton. Bopp’s suit ultimately resulted in the landmark 2010 Citizens United v. Federal Election Commission decision, in which the Supreme Court held that corporate funding of independent political broadcasts such as the movie and its promotional ads were legitimate expressions of free speech and couldn’t be limited by campaign-finance laws. The ruling overturned key restrictions on the use of corporate and union money in politics. Bopp is already well into the next phase of his crusade to topple as many of the state and federal limits on the role of money in politics as can be done in one man’s lifetime.

Over the past 30 years, Bopp has been at the forefront of litigation strategies that have reshaped campaign-finance law inexorably. Having helped pave the way for spending in the 2012 elections that’s likely to exceed the 2008 level by several billions, Bopp is already well into the next phase of his crusade to topple as many of the state and federal limits on the role of money in politics as can be done in one man’s lifetime. His targets include two of the few remaining bedrock principles of money-and-politics law: disclosure mandates and the prohibition against unions and corporations giving directly to candidates and parties. He’s also juggling cases that go after dollar limits on contributions, attack elements of public-financing programs, and chisel away at other facets of the regulatory regime.

Though he’s socially conservative and highly partisan, Bopp nonetheless is willing, whenever possible, to find common ground with liberals if it furthers his primary, driving goal: to make the words “Congress shall make no law … abridging the freedom of speech” an insurmountable barrier to regulating money in politics.

Tall, with blue eyes, ruddy cheeks, and, at 63, a full head of longish silver-white hair, Bopp is a third-generation native of Terre Haute; his wife Christine moved there at the age of two. He returned to town after attending law school at the University of Florida and a few years working in Indianapolis. Eager to be active in the conservative movement (he headed Indiana University’s Young Americans for Freedom chapter), he soon became general counsel of the National Right to Life Committee. It was a natural evolution: He says he remembers his father, a physician, calling abortion an “unethical” practice. His dad’s medical books lined a top shelf in the younger Bopp’s room, and the boy would often pull down the one that intrigued him most, on fetology.

Bopp’s early work for National Right to Life included filing an amicus brief that urged the Supreme Court to deny a hearing for a man who claimed that, because he’d offered to pay for an abortion for his girlfriend, he wasn’t obligated to pay child support. Bopp was also active in two major cases in the early 1980s—defending Akron, Ohio’s stringent abortion regulations, which the Supreme Court struck down, and challenging the right of a couple to reject potentially lifesaving medical treatment for their Down syndrome infant, known as Baby Doe, which led Congress to pass the so-called Baby Doe amendment that defined such conduct as child abuse.

Bopp’s attention turned to campaign-finance law when the Federal Election Commission (FEC) began investigating the distribution of voter guides by the right-to-life group and others in the 1980 election. According to the commission’s rules, such materials weren’t supposed to “suggest or favor any position on the issues covered,” because this would be tacit support of or opposition to a candidate. In fact, the voter guides were immensely helpful to Ronald Reagan.

Bopp persuaded a federal appellate court to overrule the FEC regulations on First Amendment grounds. Anti-abortion activists, he successfully argued, had a constitutional right to support whatever and whomever they wanted; he also got subsequent versions of the FEC rules overturned. Afterward, Bopp helped two conservative groups fight a Virginia injunction against their voter guides because they hadn’t followed state requirements concerning registration and disclaimers. He got the injunction lifted, but just a day before the election.

Full Article: Citizen Bopp.

To cope with ballot scanners a federal agency has deemed faulty, Cuyahoga County’s elections board has mandated four tests during each election — plus an audit afterward — to guarantee results are right. The county even received a grant from the federal agency, the U.S. Election Assistance Commission, to produce a how-to guide on testing and auditing, to give voters throughout the country greater confidence in elections.

“The board has become a nationwide leader in assuring accurate elections and understanding that technology can fail, and it’s their job to test carefully, not just occasionally, but persistently,” said Candice Hoke, an elections professor at Cleveland-Marshall College of Law. “That is very good news.”

Rigorous testing matters in part because the election commission last week ruled the county’s ballot scanners were out of the compliance, the first such decision in the agency’s nine-year history. The machines, made by Omaha-Neb.-based Elections Systems & Software Inc. inexplicably freeze up, miss some votes and fail to log problems.

The elections commission released its findings after a 20-month investigation spurred by an April 2010 Plain Dealer story. And if ES&S can’t correct the flaws, the agency could decertify the machines and leave Ohio’s largest county with no way to conduct elections in a presidential year. Taxpayers spent more than $12 million on the scanners in 2008, to replace a $21 million touch-screen system that crashed twice on the night of the 2007 general election. Still, the voter-marked ballots are the most reliable option because they leave a paper trail, said Philip Stark, a University of California at Berkeley statistics professor. And that paper trail is auditable.

The county has hand-counted a small percentage of votes in elections since March 2008, said elections chief Jane Platten. But in November, the county began using a new procedure called a risk-limiting audit, in which workers count enough votes to ensure the outcomes are correct. The move made Ohio the third state to use the calculated method, said Stark, who devised it. ”It’s really cutting edge on Jane Platten’s part to be doing this on a voluntary basis,” he said. “She’s leading the pack in Ohio.”

Full Article: Cuyahoga County elections board leads pack in testing, auditing | cleveland.com….

Virginia Attorney General Ken Cuccinelli (R) announced Sunday that he has reconsidered his decision from Saturday and will not seek to get several GOP presidential candidates added to the state’s primary ballot. Every candidate except Mitt Romney and Ron Paul failed to meet the stringent requirements to get on the ballot for the state’s March 6 primary, and Cuccinelli said Saturday that he would seek to get them added to the ballot.

But in a statement Sunday, he reversed course and said he would seek a change in the requirements for future elections only. In the end, Cuccinelli said trying to make immediate changes wouldn’t be fair to the Romney and Paul campaigns.

“I obviously feel very strongly that Virginia needs to change its ballot access requirements for our statewide elections,” Cuccinelli said. “However, after working through different scenarios with Republican and Democratic leaders to attempt to make changes in time for the 2012 presidential election, my concern grows that we cannot find a way to make such changes fair to the Romney and Paul campaigns that qualified even with Virginia’s burdensome system. A further critical factor that I must consider is that changing the rules midstream is inconsistent with respecting and preserving the rule of law — something I am particularly sensitive to as Virginia’s attorney general.

The state requires 10,000 signatures to get on the ballot, and requires that those circulating petitions be eligible or registered Virginia voters.

Full Article: Virginia attorney general changes mind, won’t intervene in primary ballot case – The Washington Post.

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The Voting News Weekly: TVN Weekly January 2-8 2012

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