Four months ago, on July 7, citizens in Stoughton, Wisconsin presented their city clerk's office with petitions bearing enough signatures to get a Move to Amend referendum on the November ballot. City voters would be asked if they wanted a constitutional amendment overturning Citizens United--that is, putting an end to corporate personhood rights and the notion that money is constitutionally protected speech. This same referendum has been racking up 75-80 percent of the vote in other communities around Wisconsin.
Last Tuesday, nearly 5,350 good citizens of Stoughton went to the polls. If you believe the city's voting machines, exactly 16 of them had an opinion they cared to express on the matter. The rest thought "Whatevs" and left the referendum blank.
Fortunately, no one believes the city's voting machines. The municipal canvass board wisely declined to certify those results and will instead hold a public hand count on Monday, November 10.
What happened--the technical explanation
The Dane County clerk's office sets up ES&S DS200 opscan voting machines for each municipality before every election. To do that, they program ballot-reading instructions onto 'memory sticks,' (also called flash drives or thumb drives.) DS200 ballots are marked along the edges with black index marks. Each of the bubbles where votes are marked is close to one of these index marks. Translated to English from computer-ese, the instructions say, "If the bubble closest to the top index mark on the right edge of the front of the ballot is filled in, count a vote for Candidate Smith. If the bubble closest to the second-from-the-top index mark is filled in, count a vote for Candidate Jones.
When Stoughton's ballots came back from the printers, the referendum was perfectly placed on the ballot right where it was intended to be. However, the person who programmed the sticks wrote instructions that told the machine to look at the areas two index marks below the referendum, in white space. That explains the thousands of apparently blank ballots.
But what explains the 16 votes? Did 16 of Stoughton's voters know they could get their vote counted by making a black mark an inch below the bubbles that everyone else was filling in? Nope. Truth is, Dane County Clerk Scott McDonell explained, they were voting so enthusiastically for someone on the front of the ballot that their votes were bleeding through the paper into the white space below the referendum on the back. (Update: This initial explanation didn't hold up to further investigation. Real answer here.)
What happened--the procedural explanation
When my daughter did a grade-school report on the sinking of the Titanic, I remember her conclusion: It wasn't just one thing that sank the Titanic. The designers could have put lids on the 'watertight' compartments. The captain could have steered around the iceberg field. The lookouts could have had binoculars. Lots of people had to mess up, and if any one of them had not messed up, the Titanic would have made it to New York.
The harm done by the Stoughton miscount cannot be compared to the Titanic, of course, but the moral of the story is the same: It takes several mistakes to sink the boat. Among the factors that probably contributed to the miscount (and there are certainly more than these):
- Stoughton's veteran city clerk had resigned around the same time the referendum petitions were handed in, and the office remained vacant for months. Preparations for the November elections were handled by city officials who normally had other jobs, such as the city finance director and deputy clerks. The current city clerk had been on the job only a few weeks at the time of the November election.
- Although the citizens had submitted the petitions for the referendum to the Stoughton city clerk's office in plenty of time, the turnover and inexperience caused the city clerk's office to fail to provide the necessary information to the county clerk's office until the very last minute--in fact, just a little late. Because there was still time to rush the ballot-printing and programming through, the county clerk decided not to make the citizens wait until next year to see their referendum on the ballot, and he decided to rush the job of getting the referendum on the ballot for which the citizens had petitioned.
- Normally, the county clerk's office voluntarily checks its own work before sending the programmed sticks to the municipalities for the legally required public voting-machine tests, which occur in the 10 days before each election. But they did not do that for the rushed Stoughton machines' sticks this year. McDonell didn't say this, but I was wondering whether all the back-and-forth on voter ID cut into the work they normally do in preparation for elections. I lost track of how many times they had to issue and retract Voter ID procedures and instructions.
- It's still unclear what happened with the required public pre-election voting machine tests in Stoughton. A city official has publicly stated that the tests found no error, but the city clerk will need to make the records available for this to be believed. (See update at the bottom of this post.) McDonell told me he used the sticks from the Stoughton machines yesterday to run the test he had intended to run before the election and figure out what went wrong, and his test precisely replicated the miscount.
- No citizens were present at the public pre-election voting machine test to ensure that it was done properly and that the machines could, in fact, produce an error-free count.
On the positive side, several things went right, considering. No one for a moment believed the voting-machine output and by all accounts I've heard, no one panicked. The city and county clerks both swung quickly into a let's-get-this-fixed mode. A representative from the citizens' group backing the referendum told me today that they have received nothing but respectful cooperation from the city clerk, and I've been pleased with the availability of County Clerk Scott McDonell.
If the hand count goes well on Monday, the municipal referendum results will be final and certified--and more guaranteed-accurate than anything else on the ballot--within the time normally allowed even when they don't have to correct an electronic miscount. Things could have gone a lot worse.
The county clerk's office shouldn't make any more programming mistakes. And having gone through this experience, probably won't--at least until current staff retire and are replaced by others who haven't been burned like this.
I'll go out on an limb and say without having seen the evidence that Stoughton's pre-election machine test was botched, that the city clerk's office needs to learn how to do those tests effectively. I don't see any way that test could have been conducted properly and not discovered the faulty programming. As I write this, it bothers me that the pre-election test is the one mistake that has not yet been admitted. I hope the city clerk will correct that next week. You cannot fix problems you won't admit. (See update at the end of this post.) Judging by what the citizen observers saw at pre-election voting-machine tests we observed in other municipalities this year, many of them--not just Stoughton-- could use remedial work. During 2015, we will be advocating with GAB and the clerks for serious additional training and better instructions.
And citizens have got to do our bit. We cannot relentlessly demand transparency in government while we relentlessly fail to show up for things like public demonstrations of the voting machines' ability to produce--or in this case, not produce--an error-free count.
But the biggest thing:
Humans will always make mistakes, and procedures followed well one year can be expected to deteriorate the next. That's just the way it is until the day when we can hand our elections over to some impartial, infallible authority (Benevolent space aliens? The Election Fairy Godmother?) Self-government means we do it ourselves, and we're going to have to figure out how to conduct elections using only the regular flawed humans we have on hand.
Which brings me back--always brings me back--to the need for routine post-election verification of voting-machine output.
Had this programming error been a simple flip--telling the machine to count 'yes' votes from 'no' bubbles and vice-versa--and not the blatantly obvious error it was, the municipal canvass would almost certainly have certified the results without examining even one actual ballot; the Stoughton newspaper would be coming up with perfectly believable reasons why theirs was the first city ever to vote 75% no instead of 75% yes, and a few referendum backers and election-integrity activists would be saying "That's got to be a miscount" to anyone who would listen--which would not be many.
And you can bet that even the most dedicated county clerk would not be working overtime during his own county canvass to investigate an unexpected result in a municipal advisory referendum.
And had this miscount occurred in a high-stakes partisan contest rather than a wildly popular advisory referendum, there would be hell to pay. The voting machines' 9-7 verdict (56%-44%) is well outside the recount margin provided by Wisconsin statutes section 9.01. Had this been a battle between two PAC-funded, party-backed candidates, does anyone imagine the 'loser' would not be in court demanding a recount despite the statutory requirement than anyone losing by that big a margin pay the full cost, and the 'winner' arguing--as GAB staff were doing as recently as two weeks ago when testifying to their board on a related topic (wisely, the Board itself rejected their argument)--that there is no specific statutory provision for handling electronically counted ballots for any reason other than a recount under s.9.01?
And under those circumstances, which of our municipal or county clerks would be willing to do what Dane County and Stoughton clerks are doing this week and say, "I'm using my own statutory authority to correct those flawed results, even without a demand for a recount."
Finally, where would circumstances like that leave the voters and the taxpayers? "Oh, don't worry about us. We'll just keep paying the bills while you guys fight it out about who will govern us based on the verdict of some black box while the truth of the election outcome lies, undetected, on our marked ballots gathering dust in the courthouse store room."
On the other hand, imagine this miscount had occurred in a jurisdiction that had a routine practice of verifying voting-machine output before certifying final election results. If people commented on it at all they'd be calmly saying, "Those preliminary results sure do look funny. I wonder what they'll find out in the verification step."
State laws requiring routine post-election verification of voting-machine output would certainly help, but we cannot hold back on making any possible improvements until that day. Right now, under current law, we need our local elections officials to adopt policies and practices that routinely verify voting-machine output after every election. They're the ones who sign their names to statements attesting to the fact that the election results are "true and accurate."
With the backing and support of regular citizens, they can--as they are doing now with the Stoughton referendum--use their common sense, courage, and what authority current statutes give them to make sure they certify only accurate election results. Ever.
Update, Dec. 19, 2014:
The hand count was conducted without problem on Monday, November 10. The results reversed the electronic result and Yes prevailed with 4,440 (81.7%) to No's 992 (18.3%).
Stoughton City Clerk Lana Kropf admitted error in the pre-testing procedure shortly after the blog post above was written, without excuse or trying to shift the blame. Like many municipal clerks, she was alone when she conducted the voting-machine tests--no other city staff, no citizens, no newspaper reporters, no one. She knew she was to conduct a pre-election test, but her predecessor had instructed her only to test for many other things--that the machine could read different color inks, that the date and time was set correctly; that the machine was reading ballots inserted in all different orientations--but not that the machine was counting the votes correctly. Kropf was diligent in testing the things she'd been trained to test for, and a few other things she thought of on her own. Our observations have found that about half of Wisconsin's municipal clerks are similarly unaware of the need to verify accurate vote totals.
Kropf said the Stoughton staff have revised their procedures, and will ensure that witnesses are present at every future voting-machine test. She readily agreed to meet with us in January to examine the ballots and determine what happened to create the 16 phantom votes. The findings from our January review of ballots is here.