Do election officials listen to voters?

In brief: During the past nine years as I’ve advocated for better security for voting machines and the vote-tabulation process, I’ve observed a reflexive resistance by election officials to any suggestions for improvement. On matters relating to the voter-registration system, where federal pressure has been greater, they are reasonable. But when it comes to counting votes, they listen only to each other and to voting-machine vendors, and ignore authorities and cybersecurity experts. They seem particularly deaf to any suggestions from voters regarding security safeguards.

I’m testing that observation now, with a safeguard that is, undeniably, a no-brainer. The City of Madison currently puts thousands of early voters’ ballots at risk by neglecting a safeguard that is effective, easy, not controversial, very low cost, has no substitute, and is unanimously recommended by authorities. Madison could largely implement this safeguard with one memo to its poll workers. Will Madison even consider it? Will WEC even consider ordering it? I don’t know yet. This blog post explains the issue and my effort so far. I’ll update it as events unfold.


BMDs (ballot-marking devices) are computers that mark ballots for voters who cannot, or who are not allowed to, mark their ballots with pens.

Using computers to mark the ballots necessarily introduces some risks: Computers can be misprogrammed, and printers can malfunction. So there is always a possibility that votes might be omitted from the printed ballots; the wrong votes recorded; and that ballots could be misprinted in a way that makes the votes illegible to the computers that will count them (the ‘tabulators’).

There is a simple, cheap safeguard: Before each ballot is cast, review it to make sure it was printed correctly. That’s called ‘verification.’ Only the voter can verify because no one else knows what votes were supposed to be printed.

However, voters don’t verify unless they are instructed to do so. And in some cases (when the votes are printed in barcodes), voters need access to a barcode reader, and need to be told how to use it. It sounds complicated, but typically takes less than a minute.

It’s obviously careless to let computers print thousands of votes with no one checking to make sure they are printing them correctly. So I’m sure you won’t be surprised when I tell you that every professional election authority, plus the voting-machine manufacturers themselves, recommend routine voter verification.

But that’s not what Wisconsin does.

(Note: In an earlier post, this blog inventoried the pros and cons of general use of BMDs. This post will focus only on their management once a city has decided to put them into general use, not the overall wisdom of doing away with hand-marked ballots.)

WHY DO WE NEED VOTER VERIFICATION?

The problems we need to watch out for are:

  • votes that aren’t recorded at all;
  • votes that are recorded for the wrong candidate; and
  • votes that are recorded in ways the tabulator cannot understand.

When voters use pens, these problems either don’t exist or are easily corrected. When a pen fails to record a vote, the voter tells the poll worker “This pen is out of ink,” and the problem is fixed before it ruins any ballots. If when a voter touched their pen to one oval, a different oval turned black, that would be magic, not malfunction, and we don’t need to worry about it.

Voters using pens sometimes record votes the tabulators cannot read, for example by circling the candidate’s name instead of filling in the oval. But that problem cannot systemically ruin hundreds of ballots. In fact, only a tiny fraction of ballots are mismarked so badly modern tabulators cannot read them. In addition, the voter’s selection is usually obvious to a human recounter or auditor, and so not a problem even in close contests.

But when voters select their votes from a touchscreen and a computer prints the paper ballot, voters must make an extra effort to notice any problems while they still have an opportunity to fix them.

Wisconsin’s early voters, in particular, need to make this effort because they will not be present to mark a new ballot if their ballot is rejected by the tabulator. And because early ballots are not cast for days or even weeks after they are printed, misprinting BMDs could ruin thousands of ballots before the problem is noticed unless the early voters verify.

When only a small percentage of ballots are printed by BMDs, problems are less likely. BMDs used by only a few voters are not an attractive target for hackers. But heavily used BMDs are at greater risk of both hacking and malfunction, and voter verification becomes essential. If no one notices when a heavily-used BMD starts misprinting ballots, an election could be seriously disrupted or even ruined.

Therefore, when a city replaces its ballot-marking pens with ballot-marking computers for large numbers of its voters, it needs to add the step of voter verification to its polling-place procedures.

HOW IS VOTER VERIFICATION DONE?

When security-minded election officials use BMDs, they set up a ‘verification station’ near the BMD. As the voters carry their ballots from the printer to the table or machine where they will submit them, a poll worker invites each voter to pause, read the ballot, and tell the poll worker if it accurately recorded their selections.

Some BMDs print ballots on which the votes are encoded so that the voters cannot read them. (See an example below.) When votes are encoded, the verification station must be equipped with a reader, so that the ballot can be quickly inserted and the encoded votes displayed to the voter. (Yes, everyone knows the voter will still be unable to verify that what the barcode reader is telling them is truly what the barcodes say. But using the reader might catch at least printer flaws that could make the encoded votes unreadable. It’s better than no verification at all.)

Polling places with these procedures can successfully get most, or even all, of the voters to review their BMD ballots.

If at the end of their shift, the poll worker then signs an affidavit that they observed the voters verifying the ballots, the computer-generated ballots can be accepted as reliable evidence of the voters’ selections in even the most professionally conducted audits and recounts.

WHAT DO MADISON AND MILWAUKEE DO?

In November 2020, election-security advocates around the nation were worried about Wisconsin. Mark Shipley, an activist from California, came to Wisconsin shortly before the election to help out with any election-security efforts that voters might be doing here.

As early voting started, I told him what I’d been told: that Madison and Milwaukee normally use a barcoding BMD, the ExpressVote, in early voting but were not going to use it in November’s election because of pandemic worries related to touchscreens.

But after one day of observing in Milwaukee, he told me I was wrong. Not only were all the early voters using the barcoding BMDs, not a one had verified their ballot. I quickly called Madison and found they were using the BMDs, too.

So Mark and I met in Milwaukee to observe at two more polling places. It was as he’d reported. We spoke with the person in charge at each location. Not only were the poll workers failing to instruct voters about verification, no one had instructed the poll workers themselves about either the ballots or verification.

The next day, I observed at four polling places in Madison, and saw even worse. In some locations, poll workers were standing beside the BMD, pulling the ballot out of the printer before the voter could, and folding it before handing it to the voter, in a way that assertively prevented the voter from seeing their own ballot.


This is a sample ballot from a Georgia election, generated by the type of machine used in Madison and Milwaukee early voting. When the tabulator counts this ballot, it will look at only the barcodes, where (we hope) votes that match those printed as text are encoded. Notice that one of these barcodes is flawed, and may or may not be readable by the tabulator. The voter will be able to detect this by inserting the ballot into a barcode reader before submitting it.
Also, as an exercise in understanding the challenges of this type of BMD ballot, do you think you would be able to verify each of the last eleven votes if this was your ballot? What were Constitutional Amendments 3 and 4, anyway? Does this ballot record a ‘no selection made’ for the right one?

In Madison, I was able to chat with more poll workers, including those in charge, during lulls in the action. All told me the same thing: They had never been instructed about the need for voter verification and they did not know what the barcodes were for. A few didn’t even know there were barcodes on the ballots. None knew how a voter could check to make sure the barcodes were readable, so if a voter had asked, they wouldn’t have been able to answer. (The ExpressVote has a built-in barcode reader; the voter just re-inserts the printed ballot.)

I saw a few voters who glanced at their ballots before folding them and as they left, I asked what they had been looking for. They told me they were looking to make sure it was the ballot, and for ‘fold here’ instructions. None had checked whether all their votes had been recorded or whether any had been recorded incorrectly.

Failing to tell BMD-using voters about verification is a violation of even elementary safeguards when using the machines. When I described what I’d witnessed to a national Zoom conference shortly after the election, I could see the other participants’ jaws drop. Outside Wisconsin, officials understand the need for voter verification.

SO WHAT’S TO BE DONE?

Mark and I compared notes over the next few days, and I filed a formal complaint with the Wisconsin Elections Commission. Only I signed the complaint because Mark lives in California. The complaint focuses only on Madison’s practices, for two reasons:

  • Our notes were more detailed from the second day of our observation and therefore, in my opinion, a better foundation for a formal complaint, and
  • I had corresponded with Madison election officials several times in the past few years regarding their use of BMDs, but had never written to Milwaukee. Therefore, I knew Madison officials were knowingly ignoring the dangers because I myself had informed them. In contrast, I realized Milwaukee officials might still be naive, and a formal complaint didn’t seem to me to be the right way to start to educate them.

I didn’t want to file the complaint so close to Election Day, knowing the problem couldn’t be fixed in time to protect any of the early ballots and that the officials were busy. But I went ahead and filed it promptly anyway, because I hate it when people wait until after they know who won to complain about election practices. So, apparently, do the courts.

My complaint requested that in future elections Madison implement these common-sense and expert-recommended safeguards:

  • Give voters the option of hand-marking their own paper ballots, which could most easily be done by purchasing a blank-ballot printer for each early voting location. These machines can print ballots appropriate for any ward in the city, but allow the voters to record their own votes, AND
  • For those voters who choose to use the BMD, have poll workers inform them about the barcodes, instruct them to read the human-readable text after their ballot is printed to make sure it’s correct, and encourage each voter to use the barcode reader to verify as much as they can.

The City’s response was written by City Attorney Michael Haas (formerly administrator at the WEC) on behalf of City Clerk Maribeth Witzel-Behl. They did not deny anything we had observed, and did not offer any reason why they believe it’s a good practice to keep poll workers and voters in the dark about verification and barcodes.

Instead, the response can be summarized: “You’re right. We don’t train our poll workers about the ExpressVote ballots or to answer questions about them. The State approved the ExpressVote for use in Wisconsin, so we can use it any way we want. We do other safeguards that statutes require of us, but because the State doesn’t explicitly require us to enable voter verification, we don’t.”

The next step for me was to submit my comment on Madison’s response, which I did. I addressed my remarks to the Commissioners because I’ve heard them have a sensible discussion about the issue, while the Madison officials don’t seem to understand either the problem or the solution. For example, they seem to believe that telling voters about a barcode reader supplied by the manufacturer specifically for the voters’ use requires “in-depth familiarity with the inner workings of the equipment.”

I’m not sure what’s next. I haven’t been notified of any specific timeline for resolution. But there’s no urgency. The next election is about a month away (February 16), and Madison could mostly correct the problem with a memo to its poll workers. The memo would tell them about the barcodes and tell them to instruct each BMD-using voter to read the human-readable votes printed on their ballot and to re-insert the ballot so that the machine can confirm the barcodes are readable. Other steps, such as giving voters the option of hand-marked paper ballots, will take longer.

I don’t know if the whole Commission will discuss the issue in an open meeting, or when that would be scheduled if they did. I’ve never seen them discuss complaints in open meetings, and judging by the number they assigned to my complaint, 20-24, I’m guessing there were 23 other complaints filed before mine last year.

I’ll update this blog as I learn more and as events unfold.

Milwaukee and Madison voters: It will help if you contact your city election clerks and tell them you want them, at a minimum, to educate their poll workers and voters about the barcoding BMDs and to introduce polling-place procedures that enable BMD-using voters to verify their ballots. Madison: 608-266-4601; Milwaukee: 414-286-3491.

Voters who live in other cities should call their municipal clerk to ask about local use of BMDs (the two most common are called ‘ExpressVote’ and “ImageCast Evolution”, or ICE) and about whether or how they instruct voters to verify their computer-generated ballots.

If any Wisconsin voters want to organize any stronger actions, I can consult with you. Email me at kmk@wisconsinelectionintegrity.org.

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