Ralph Lopez majored in Economics and Political Science at Yale University. He has been published in the Boston Globe and the Baltimore Sun.
An Alabama Supreme Court decision shocked the nation by handing that state's election departments the authority to destroy the image of each ballot automatically produced by modern paper ballot vote-counting machines, as part of the audit trail, it becomes clear that most election authorities never have, and never will voluntarily give up their prerogatives for vote-counting secrecy, and whatever power that might imply. Not only did Alabama Secretary of State John Merrill, the state's top election official, oppose a simple transparency measure. He fought it tooth and nail.
The morning of December 11, 2017, the day before Alabamians headed to the polls to choose between Republican for US Senate Roy Moore and his Democratic rival, Doug Jones, Alabama voters scored a victory of sorts when Montgomery Circuit Court Judge Roman Shaul ruled in favor of four voters, a Republican, a Democrat, an independent, and a minister, who asked that the ballot images, if not posted online or made available on a DVD, at least not be destroyed.
But this was exactly what Merrill had in mind to do. For what good reason it is hard to fathom.
In the afternoon, after Judge Shaul had ruled in favor of the voters, Merrill had devoted the resources of his office to an appeal asking that something which belonged to the voters is kept secret from them, as taxpayer dollars paid for every last voting machine, every paper ballot, and every memory chip and watt of electricity by which the voters' intentions were stored. Storing digital images costs nearly nothing. Any reason one can think of for being determined to destroy them is not a good one.
Merrill's actions highlight the determination of some election officials to cloak vote-counting in secrecy. Just as telling are the strained and ludicrous arguments they are willing to put their names to, such as that posting the ballot images would violate the all-important privacy of the individual ballot. But this is confusing, in an embarrassingly obvious way for people who passed bar exams, the secrecy of individual voter choices with secrecy in counting those choices. The secret ballot never meant secret counting.
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The digital images of the ballots provide a means of verification of the machine count of votes which does not require immediately accessing the paper ballots. State requirements for paper ballot hand recounts are onerous and expensive, and almost always require a court order.
This was highlighted when Green Party presidential candidate Jill Stein sought a hand recount of paper ballots in three key swing states during the presidential election and was required by state authorities to raise more than $7 million to pay for staff overtime and training in the handling of paper ballots, and even then was blocked in courts from full hand recounts.
The vulnerability of US election systems to external hacking has been demonstrated time and again. In Las Vegas last summer at a hacker's conference, hackers proudly demonstrated the ease with which they could break into vote tabulation systems in under 90 minutes.
State courts have done the right thing before and ordered that ballot images be preserved. In Colorado and Arizona, courts have ruled that ballot images must be preserved as an integral part of the audit trail. And according to Sean Steinberg at WhoWhatWhy.org:
"Plenty of other states — including Florida, Michigan, and Wisconsin — already release their ballot images to the public upon request. Some jurisdictions, like Dane County, WI, go even further and post their ballot images online."
The good news is that, even though at present many, if not most, US precincts use vote-counting machines with this feature, in the future, all of them will. That is the only direction the technology is headed in, as now outdated machines from the Help America Vote Act (HAVA) era are retired. The election integrity organization VerifiedVoting.org publishes a directory of the kinds of vote-counting machines in use in every state and county.
Ultimately, state courts are charged with applying state and federal law. Where that law is not crystal clear, political agendas may thrive, depending on the judge. It is time for state legislatures, arguably the closest houses to the people, to step into the ballot image debate. Courts may not make laws, they can only interpret them. Where wide latitude for interpretation exists, mischief may result. Preserve the ballot images.
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.