Can the VVPAT Laws Hold?

This week we have been treated to an array of articles about potential problems in the 2006 elections, from ID issues at the polls, machine problems on election day, and provisional ballot counting slowing the results. (Personally, I think that the most likely problem is long lines because of high turnout and voters using new voting systems with which they are not accustomed).

However, the most damaging problem may be associated with the Voter Verified Paper Audit Trails and the atrocious laws that many states have passed related to them. (Laws that state and local election officials will have to figure out after the election). I have had a graduate student who is also a lawyer look at the VVPAT laws for a project we are doing with a law professor at the University of Utah related to the evidentiary status of VVPATs and the results are depressing.

The VVPAT is not a bad idea in principle; it creates a contemporaneous audit trail and creates a duplicate record. The problem is that many state laws related to VVPATs fail on their face to address fundamental questions about the status of the VVPAT should an election dispute arise. Let me give a very simple scenario to make a series of points about many state VVPAT laws and their deficiencies.

Imagine a race that is decided by 3 votes on the electronic results.

Problem 1: The Recount.
The losing candidate demands a recount. Many state laws do not specify if the VVPAT should be counted in this scenario or if the electronic results should be run again. This brings us to….

Problem 2: Legal Status.
Several states have VVPATs laws that fail to state what is the legal status of the VVPAT. These state statutes require a VVPAT but they do not specify any reason why they require a VVPAT. Even in states where the legal status of the VVPAT is specified, some states give both the VVPAT and the electronic results equal status throughout the process. This leads to the question: what happens if there is a dispute between the two?

Problem 3: The Printer Problem
The answer to the question what to do is almost always answered that one would look to the paper, which has been voter verified. However, the problem could look like this:

Candidate A has 1,000 votes in the electronic total and 1,000 votes in a VVPAT count.
Candidate B has 1,002 votes in the electronic total but only 998 in the VVPAT count.

The discrepency? It is clear that the VVPAT contains 4 ballots where the printer jammed and printed over 2 ballots before the jam was noticed and addressed. In Cuyahoga County, the incident reports from the precincts identified printer jams. Now some might argue that, in such a case with an obvious printer jam problem, the electronic results should hold. However, the law in several states is clear that the VVPAT results would in fact hold, even though it is clear that the electronic results are more accurate.

Problem 4: The Chain of Custody
Most–but not all–states have clear chain of custody rules for handling ballots. However, the rules that govern VVPATs are not always so clear. The sealing of the canisters, the checking for being at zero (that no ballots are in the canister at the start of voting), and the post-election handling of these canisters and tapes are not as clear as the rules for ballots and voting machines themselves.

Problem 5: The Courts Decide
What will likely occur if there is a problem is that the Courts will decide. And we all know how exciting that can be!