Law and Data: Voting
Technology and the Law
Henry E. Brady
Class of 1941 Monroe Deutsch Professor
of Political Science and Public Policy,
University of California, Berkeley
Goals of the Voting Process:
Protection of legal voting;
prevention of illegal voting,
 Accuracy in recording
people’s voting intentions,
 Security in counting people’s
votes

Legal Concerns


Fourteenth Amendment equal
protection for all voters (Bush v.
Gore)
Voting Rights Act of 1973 and
non-discrimination against
minorities
Points of Vulnerability

Marking the Ballot
• Mistakes: Errors by people, Voting
equipment failures or poor programming
• Fraud: Malicious programming

Counting the Ballots
• Mistakes: Poor counting; ballots read
twice, poor programming
• Fraud: False counts, ballots read twice,
malicious programming
Is Paper Trail the Answer?
Is Paper Trail Necessarily Verified?


Does it improve accuracy:
making sure that voter intent is
captured?
Does it improve security:
making sure that votes cannot
be miscounted?
Getting Intent Wrong: Miscounted
& Lost Votes From:



Imperfect marks on ballots due to
hanging chads, stray marks, etc.
Ballot format mistakes (“butterfly
ballot”)
Voting systems Problems:
• Failing to record or to sense intended
mark for a race (“unintentional
undervotes”)
• Causing or sensing unintended multiple
marks for a race (“unintentional
overvotes”)
Persistent Question: Are Lost or
Miscounted Votes…


The Voter’s Fault or Intention?
The Voting System’s Fault or
Intention?
Voter Errors
System Errors: The Butterfly Ballot
Enron Energy Traders
on Voting Errors:
KEVIN: So the rumor’s true? They’re
[expletive] takin’ all the money back
…you guys stole from those poor
grandmothers in California?
BOB: Yeah, Grandma Millie, man. But
she’s the one who couldn’t figure out
how to [expletive] vote on the
butterfly ballot.
Types of Residual Votes



Residual votes are sum of
undervotes and overvotes:
Undervotes–no mark on a ballot for a
race
Overvotes–marks for more than one
race
Presidential Residual Vote Rates
for Major Voting Systems in 2000

Punchcards (435 counties) 2.6%

Lever (323 counties)
1.7%

Electronic (266 counties)
1.7%

Optical (1018 counties)
1.4%
Are Residual Votes due to the
Voter or to the Voting System?

The Voter:
• Voters intentionally overvote or
undervote
• Voters make mistakes that cannot be
avoided

The Voting System:
• Voting systems fail to provide adequate
feedback to check the intent of voters
• Voting systems are badly designed and
avoidable mistakes occur
Reducing Residual Vote Rate By
Changing Systems—An Example



Compare two adjacent counties in
Illinois
One (St. Clair) stayed with Votomatic
style punch-cards from 1996 to 2000
The other (Madison) changed from
Votomatic style punch-cards in 1996
to Optical Scan with precinct count
and with notice of overvotes in 2000
Adjacent Illinois Counties—1996-2000
Madison
County
Stayed with
Votomatic
Punch
1996-2000
Votomatic
Punch in
1996
Optical
Scan
2000
St. Clair
County
Adjacent Black Precincts in the Two Counties
Madison
County
St. Clair
County
Residual Vote Rate in Black Precincts
Worse with Votomatic Style Punch But
Same with Optical Scan
Residual Votes in Fresno County
with Votomatic Punch in 1996
Residual Votes in Fresno County
with Optical Scan Precinct in 2000
1996 and 2000 Side by Side
Why do Votomatic Style PunchCards Fail to Record Voter
Intentions Accurately?





No easy feedback
Hard to align punchcard
Hard to calibrate to work right
No check of voter intention
Note: Other systems have some
of these problems as well.
Whose Votes are Lost?



Anyone using error prone voting systems
Anyone using voting systems that fail to
provide feedback to check voter intent
Anyone whose personal characteristics
makes it especially hard to use error
prone systems that fail to provide
feedback (the disabled, the elderly, those
with low levels of education, etc.)
Does a Paper Trail Solve the
Accuracy and Security Problems?

Not with Votomatic style punchcards

Is optical scan a voter verified ballot?

Is a paper trail for a DRE a voter
verified ballot?