Election Day is upon us again and it is one that many of us view as crucial to saving our democracy, as we mobilize to flip control of the U.S. House of Representatives, and possibly the Senate too, so we can thwart the destructive policies of Donald Trump.

The day after last year’s election, I wrote a blog post about the vulnerability of New Jersey’s  voting machines. I am sorry to say that, although some small steps have been taken since then, our votes are still at risk, despite mounting evidence that they are not secure and that Russia hacked some states’ election systems in 2016.

New Jersey remains one of a handful of states where the validity of election results cannot be confirmed because the votes are recorded electronically and lack a verifiable paper trail. 

As I discussed last year, most of New Jersey uses Direct Electronic Recording, or DRE, machines, which record votes directly onto computer memory without any paper record. DRE systems are “especially vulnerable to undetectable and uncorrectable errors in the vote count,” in the words of Verified Voting,  a non-partisan non-profit organization that advocates for more secure elections.

DRE machines were once much more common but increasing evidence of their susceptibility to tampering and their inability to be audited has driven down their use, at least without a paper ballot backup.  Only 13 states continue to use them at all and only five—New Jersey, Delaware, Georgia, Louisiana and South Carolina—currently use them statewide. Warren is the only one of New Jersey’s 21 counties that has shifted to machines that create a paper trail.

The situation is even more troubling in light of the fact that, as I pointed out last year, New Jersey passed a law in 2005 that required voting machines to produce a paper trail by 2008. The requirement was put on hold because the counties did not want to spend the money for new machines.

The same fate befell a 2008 law requiring that vote counts be audited to ensure they are accurate and have not been hacked or otherwise tampered with. Drafted by NJ Appleseed Executive Director Renée Steinhagen with assistance from a political scientist, election integrity advocates, statisticians and other voting rights advocates, it was hailed as model legislation–the first post-election audit law in the nation to require electoral outcomes to be confirmed by a statistical audit independent of software. But without a paper trail, the audits cannot be done. So that law is on hold too.

So here we are again, facing the threat of hacked voting machines, with little if anything done since last year to help protect the integrity of our elections.

If anything, the existing DRE machines are even older and thus even riskier just for that reason alone. As the Brennan Center for Law and Justice has pointed out, with voting machines 10 years old or more, their hardware, such as touch screens, is wearing out and they increasingly rely on obsolete software, such as Microsoft 2000, for which security patches are no longer being written.

So what has New Jersey done about its voting machines over the past year?

It still hasn’t come up with the money to replace those DRE machines, a sum estimated by the Brennan Center to be between $40.4 million and $63.5 million.

It did get an infusion of cash last summer in the form of Help America Vote Act (HAVA) funding. Of the $380 million distributed nationally, in amounts ranging from $3 million for states such as Delaware, North Dakota, Vermont and Wyoming), ro $34,558,874 for California, New Jersey was allotted $9,757,450. Combined with the mandatory 5 percent state match or $487,873, the $10,245,323 total doesn’t go very far toward replacing DREs.

And the state decided to use only 25% of it, roughly $2.5 million, for that purpose, in the form of a pilot program to buy or lease a small number of voting systems that utilize a “voter verified paper audit trail,” with an accompanying $250,000 pilot program that will conduct post-election audits of the results from the those machines. They are apparently using VVPAT machines along with risk-limiting audits, both of which I discuss below.

The other three-quarters of the HAVA money were to be used for a variety of other purposes, including  cybersecurity, voter registration, a mobile app to provide election information and enhanced physical security.

The pilot program is supposed to take place today in Union and Gloucester Counties, the counties that requested pilot funding, according to a state spokesperson.

On May 17, some legislators tried to get things moving again by introducing the Election Security Act, A-3991(along with a companion Senate bill, A-2633, filed on June 4). It  required the use of optical scanner voting machines to be paid for by state appropriations and set forth plans to phase them in, starting with three counties, then six more each year until all voting machines in the state were replaced within a few years.

A-3991 further required that before verifying official election results, each county would have to reconcile the number of ballots with the number of voters who signed in at the polling place and who voted by mail-in, provisional, and military or overseas ballots; and precinct totals with countywide results to ensure that they added up to the correct number. They would also have to review and account for all optical scanner memory cards or flash drives to ensure they were properly loaded into the tally server, and conduct a risk-limiting audit for each election.

In addition, the bill authorized creation of a nine-member New Jersey Election Security Commission, whose role is to issue an annual report within four months after the general election on election security during the preceding year, including recommendations on how to improve it, with the report covering the transition to optical scanners and the results of the risk-limiting audits.

Despite minor flaws, such as the lack of cybersecurity experts on the state Commission, it  looked like a good bill, one that would not get us to safer elections right away but put us on track in a few years after being stalled for more than a decade.

Optical scanners are a good choice. Voters step into small booths to mark paper ballots which are then inserted into electronic scanners for tabulation. Those paper ballots, which are not altered or destroyed by the scanning, comprise the essential paper trail, which enables hacking to be uncovered and audits and recounts to be conducted.

Optical scanning also seems to be cheaper than touchscreen machines. Fewer are needed because voters don’t tie them up while they are standing there making their selections. And without the need for either a separate or built-in printer to create a verifiable paper trail of the votes cast, as  on a touch screen computer, they are presumably less difficult and expensive to maintain. A 2005 study comparing the experience of two Florida counties with different  types of machines backed that up, as did one in Connecticut.

By the time A-3991 got a committee hearing, however, on October 18, it was a very different bill.

Gone were the phase-in of optical scanners and any deadline or even timeline for upgrading our voting system. Instead, the bill now says that whenever counties get around to replacing their existing machines, they must do so with a “paper ballot voting system.” It does not specify what type, merely that it must be a paper ballot that is marked by hand or with a ballot marking device certified by the state, or both,  then tabulated using also-certified “voting equipment.” That could be an optical scanner but also several other types of machine such as VVPATs (Voter Verified Paper Audit Trail) and all-in-one machines.

The amendments also expanded the Election Security Commission by three members (though still no cybersecurity experts) and expressly repeal the 2008 audit law, while keeping the requirement for the less through risk-limiting audits.

At the October 18 hearing before the Assembly State and Local Government Committee, a string of knowledgeable witnesses testified against the amended bill.

Leading off was Andrew Appel, the Eugene Higgins Professor of Computer Science at Princeton University, who has been in the forefront of demonstrating the risks of electronic voting machines and has shown that they can be easily and quickly hacked, whether or not connected to the Internet.

Appel preferred the original optical scanner requirement because the revised language allows the use of less secure VVPATs, which are essentially DREs with printers that produce a paper record of the vote and display it in a window for review before it goes into a sealed ballot compartment.

Such machines used to be considered secure and Appel once recommended them, he said. It is now known, however, that cheating software can be installed that can mis-record voters’ selections, leaving it up to the voter to catch the differences, though voters are not very good at doing so, Appel testified. Many are not aware of how VVPATs work and even if they are,  might not catch changes to down-ballot choices. If that happens the altered ballots then become the paper ballot of record making it impossible to ascertain the voters’ intention, said Appel, who added that ballots marked with a pen are “not subject to that kind of manipulation.”

He saw the same danger with the all-in-one voting machines, which are presently being considered in several counties, including Union. Voters insert  a blank paper ballot into the slot and make their choices via a touchscreen machine, which then spits out a bar-coded record of the vote which the voter feeds back into the machine. Appel fears such machines could be programmed to print the wrong selections and the voter might not notice. Or they could be programmed to omit votes in a particular race and then add a vote for that office after the voter has reviewed the ballot and fed it back into the machine.

Appel was followed by Penny Venetis, a lawyer at Rutgers Constitutional Litigation clinic, who sued New Jersey on behalf of voting rights advocates in 2004 seeking to block use of DREs. The case was filed as Gusciora v. McGreevey but by the time of a 2013 Appellate Division ruling, after several changes in Governor, it was captioned Gusciora v. Christie. Appel was an expert witness for the plaintiffs on the vulnerability of DRE machines.

In 2010, the trial judge ordered a review of the state’s voting machines and their disconnection from the Internet, among other required and recommended actions. On appeal, the Appellate Divsion remanded for a hearing on “whether the State has devised and implemented mandatory statewide pre-election testing procedures to provide reasonable assurance that programming errors will not go undetected.”

Of course by that point, the state law requiring machines with a paper trail, the one that has yet to be implemented, had been in place for years.

At the committee hearing, Venetis noted that the state relies on a company named Dominion Voting Systems  (formerly Sequoia) to both program the ballots into the system and count the votes. “There is no way to check if they are doing it accurately,” she lamented, asking  “why do we trust this company with our most fundamental rights?”

Venetis referred to Zirkle v. Henry, a 2011 case, where a Cumberland County judge ordered a new election for a local office after finding 40 flipped votes had altered the outcome, either deliberately or through human error, though the judge said the latter possibility “somewhat stretches my belief of common sense and reality, but it’s possible.”

The flipping of votes in Zirkle was only discovered because the district was small enough that it was possible to obtain affidavits from those who voted. Had it happened some place with many more voters, it would gone undetected, Venetis pointed out.

She agreed with Appel that A-3991, as amended, would not fix the problem, because it allows machines that can still mark ballots after voters review their selections, meaning that voters do not have the final say in casting their votes.

Venetis pointed out that several counties are about to spend millions of dollars to buy deficient equipment of the type allowed by A-3991 as amended, and urged rejection of the bill. “Let’s do this right,” she said. She also wanted cybersecurity experts added to the Election Security Commission because the officials might be well-meaning but “they really don’t know what they don’t know.”

Committee member Michael Patrick Carroll, R-Morris, wanted Appel to address what he had been told by a county clerk–that the voting machines have seals on them that are tamper-proof and unique.

They are tamper-resistant at best, responded Appel. He described for the committee, as he has testified in court, how you can pick the lock on the door, unscrew the panel, remove the computer chip and replace the panel, without leaving any evidence of tampering.

It can be done in 20 minutes and there is plenty of opportunity given that voting machines sit in polling places for as long as 10 days, said Venetis, who also mentioned testimony from a scientist  about how ridiculous the seals are as a security measure, given how cheap and easy it is to fake them.

When Carroll suggested that the need to “Jason Bourne all the machines” would pose an obstacle, Appel responded that you could switch 5% of the votes by hacking 25% of the machines to each steal 20%. He quipped that he hoped the legislators had won their elections by 55% or more.

The seals have to be removed every two years to replace the batteries in voting machines and they are also vulnerable  at those times, said Appel.

Also testifying were Irene Goldman, chair of Coalition for Peace Action, one of the plaintiffs in Gusciora, and Flavio Komuves, an election lawyer with Zazzali Fagella Nowak KLeinbaum & Friedman, as well as a New Jersey Appleseed board member.

Like Appel and Venetis, Goldman saw the amendments as weakening the original bill and objected to doing something so inadequate almost 15 years after bringing the lawsuit against electronic voting.  She reminded the legislators that after Hurricane Sandy hit in late October of 2012, the loss of electrical power in many areas meant that voting machines did not work while optical scanners would not be similiary affected because they do not require electricity for marking of ballots.

Komuves, who was Deputy Public Advocate of voting rights during the administration of Governor Jon Corzine, testified that part of that job was reviewing the contracts between counties and voting machine companies, which he found to contain terms “inimical to the public interest.” There were no warranty provisions or damage exclusions, there were unlimited increases in license fees and if you wanted to sue Sequoia, it had to be in Colorado. As a result, his office generated a report recommending state oversight of voting machine contracts, in contrast to the amended A-3991.

He supported the bill but “with qualifications.” His chief objection was the repeal of the audit law which he termed “cutting edge legislation” that should not be placed on the “ash heap.” Furtherm instead of the proposed Commission, he suggested an advisory board in the Division of Elections, and that the board include both election security experts and experts on the human factor in use of technology.

He believed the state rather than the county should pay for new machines but whichever it is, “it’s still public dollars and we have to get it right.”

Committee chair Vincent Mazzeo, D-Atlantic, who is one of the lead sponsors of the bill, said the state didn’t have the $60 to $80 million needed to pay for new machines under the bill as first written. If the counties are going to have to bear the cost, they should have more flexibility on what they buy. His own opinion was that optical machines are best for the voters but even the all-in-ones are an improvement on what we have now and constitute a “stride forward.”

Calling the bill a “work in progress” and promising that “we will continue to work on it,” Mazzeo put the measure to a vote and it cleared the committee by a 5-0 vote.

I disagree with those who think that A-3991 in its amended form is better than nothing, a step in the right direction. Thirteen years after passing a law that mandates a paper trail we are still waiting for one because replacing machines it so expensive. If the state and counties could not find the motivation to come up with the money when our machines are among the worst vulnerable in the country, why go ahead with a half measure that will not bring maximum protection but will almost certainly lock us into that lower level of protection for at least another 13 years.

As Venetis said to the panel, “why make things a little better rather than doing it right?”

Let us work to restore the original protections contained in A-3991 and to get that version of it passed and do so in time to have secure voting machines before the next presidential election in 2020.

And let us keep an eye on the counties in the meantime to keep them from purchasing  machines that won’t fully fix the problem so we can be certain that our votes are counted and counted as cast.

I will keep you posted of future developments.






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