Does Anybody Care? Will the EAC or DoJ - or Even State Officials - Take Action Before the November General Election?

Error Rates Found to be MORE THAN 40 THOUSAND PERCENT HIGHER Than Allowed by Law...

Ellen Theisen Byon 4/10/2008, 7:04am PT

Guest blogged by Ellen Theisen, VotersUnite.Org

Over two years ago, the U.S. Justice Department filed a lawsuit against New York State to force the state to comply with the federal requirement to equip every polling place with voting systems that are accessible to people with disabilities, as mandated by the Help America Vote Act of 2002 (HAVA).

Meanwhile, the DoJ has taken no action at all to stop any state from using voting equipment that has been proven to violate HAVA’s requirement for accurate vote-counting.

While it's important for every citizen, disabled or not, to be able to vote privately, a private vote is meaningless if that vote is not counted accurately. Despite the equal weight HAVA gave to both important mandates, the federal requirement for accurate vote-counting is being wholly ignored by the states, and even the federal government.

Two recent incidents which have been making headlines --- in New Jersey and Ohio --- illustrate clear, undeniable violations of the federal accuracy requirement. They are impossible to deny or ignore. For the moment, however, federal officials are doing exactly that...

INCIDENT ONE: February 2008

Sequoia E-Voting Machines Miscount in Six New Jersey Counties...

New Jersey election officials discovered discrepancies in the 2008 primary election summary reports of 60 of their Sequoia Advantage touch-screen e-voting machines. Sequoia blamed the discrepancies on poll worker error, but subsequent discoveries disprove the company’s explanation.

One of the Sequoia Advantage vote summary tapes from Englewood Cliffs, District 4, in Bergen County, New Jersey showed 106 votes cast by 105 ballots. In addition, the automatic counter on the machine showed only 105 voters. (At least one other machine reported the same types of discrepancies.) Princeton computer science professor Ed Felten offers more details and photos of the tapes here.

Since the machine counter matches the total number of Republican and Democratic ballots cast, it appears that the machine added one vote to the totals for one of the candidates. In this case, the error rate on the Englewood Cliffs Sequoia Advantage machine was over 60,000 percent higher than the maximum error rate allowed by HAVA.

Section 301(a)(5) of HAVA spells out the mandatory standards for error rates on voting systems. It says:

The error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system and not attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting systems standards issued by the Federal Election Commission which are in effect on the date of the enactment of this Act.

Section 3.2.1 of the 2002 Voluntary Voting System Standards, which were in effect when HAVA was enacted, defined the accuracy requirements for DREs as follows:

...the system shall achieve a target error rate of no more than one in 10,000,000 ballot positions, with a maximum acceptable error rate in the test process of one in 500,000 ballot positions.

The “maximum acceptable error rate” of one in 500,000 ballot positions (choices on a ballot) is an error rate of 0.0002%. But the error rate for the Advantage machine was 0.12%, which is the number of miscounted votes (1) divided by the number of possible choices on all ballots.

That error rate is more than 600 times as high (or 60,000%) as the maximum error rate allowable under by federal law.

INCIDENT TWO: March 2008

Diebold/Premier E-Voting System Miscounts in Butler County, Ohio...

In a letter sent this week from Butler County, OH election officials, it was revealed that on March 4, 2008, the Diebold GEMS central tabulator failed to upload and store 105 ballots recorded on their AccuVote touch-screen voting machines, even though the system reported that all the ballots on the 1,599 memory cards had been uploaded successfully. The elections website of Butler County (which has since corrected the GEMS error) reports that 94,053 ballots were cast in the election.

The 105 ballots missed by the GEMS upload software represent from 0.08% to 0.18% of the ballot positions counted by the system (depending on the proportion of Democratic to Republican ballots stored on the memory card – there were nearly twice as many contests on the Republican ballot). But remember, HAVA allows a maximum error rate of 0.0002%. This means the error rate on the Butler County GEMS server was between 400 and 900 times as high (40,000% to 90,000%) as the rate allowed by federal law.

Now that these facts are known, using New Jersey’s version of the Sequoia Advantage e-voting machines or Butler County’s version of the Diebold AccuVote/GEMS system (v.1-18-24.0) in the November 2008 election would be a violation of federal law.

But the problem may be even more serious. The bugs that caused the miscounts have not yet been found or analyzed. Since software bugs are typically carried forward from one software version to the next unless they are found and fixed, these same bugs may very well be present on all Sequoia Advantage e-voting machines and all versions of Diebold GEMS (which is used to accumulate vote totals from Diebold/Premier's paper-based optical scan systems, as well as from their touch-screen e-voting machines).

So, it is quite possible that any jurisdiction using the Sequoia Advantage or Diebold GEMS could well be in violation of federal law if those same systems are used in November.

These are just two recent examples, from within the last two months, of vote-counting errors on electronic equipment far beyond the the rate allowable by law. Dozens of such incidents, reported all across the country, have occurred in every recent election cycle.

How long will the Justice Department, the U.S. Election Assistance Commission (EAC), and states continue to ignore the mandate of HAVA --- and more importantly, the mandate of democracy --- for accurate vote-counting?

CORRECTION: Due to information discovered after our initial publication of this story, it was necessary to recalculate the error rates reported above. While the initial article had reported error rates as high as "half a million percent," the numbers have now been adjusted to note a somewhat lower error rate, though one which is still far in excess of that allowable by law. Theisen has post a detailed description of how she derived the above numbers in comments below.

UPDATE 4/15/08: The state of NJ declares the numbers aren't what they seem to be --- and what even the counties thought they were --- on the official paper audit trail tapes from the state's Sequoia touch-screen systems, adding what appears to be yet another violation of HAVA to the points already made above. Full details now here...

UPDATE 4/16/08: "Bacchus" at the Guerrilla News Network links up to this article, and adds the following insightful preamble to their coverage:

40,000 percent over the legal limit? That’s a lot, isn’t it? According to my calculations, if I were driving 40,000 percent drunker than the legal limit, my blood would be about 64 proof. Not even Jesus can compete with that! If I were driving 40,000 percent faster than the legal speed limit, I estimate that I’d be driving at about mach 32, or here to the moon in nine hours. But if I were voting on a machine with an error rate 40,000 percent higher than the legal limit? Why, I must be an American!



