Legislation to make recounts even less likely than they are now

The Wisconsin legislature is set to amend state elections law pertaining to recounts under s.9.01, Wis.Stats, in a way that makes no sense with respect either to partisan interests or to election integrity.  The only thing that can be motivating the proposed provisions of Senate Bill 96 is a child-like trust in the reliability of the computers inside our voting machines.

BankRecountCartoon.jpgUnder both current law and the proposed amendment, any candidate can request a recount, but they are required to pay the cost of the recount unless the margin of victory is small. Under current law, election officials will recount the preliminary results at no cost if the computers tabulated a victory margin less than one-half of one percent, and candidates must pay $5 per ward if the margin is between 0.5% and 2.0%. If the computer output gave the victor a margin of more than 2%, the loser must pay the full cost of any recount.

Under the proposed legislation, election officials will perform recounts at no cost only if the margin is less than 0.25%. Candidates will have to pay the actual cost for all other recounts, although the cost of the recount will be refunded if the recount overturns the preliminary results.

Although this legislation is being sponsored and promoted by Republicans--Senator Devin LeMahieu of Oostburg and Rep. Joan Ballweg of Markesan--Republican candidates are just as likely to be hurt as any other candidates—perhaps more likely, depending upon who you assume is most willing and able to commit electronic election fraud.  

And the legislation will hurt every citizen who cherishes our freedom to exercise our right to self-government, regardless of party affiliation. Here’s why:

Computer glitches, human programmer errors, and electronic malfunctions have no partisan loyalties. They will hurt Republican candidates just as readily as any other.  As we recently saw in Stoughton, where dust bunnies voted on 1.27% of the ballots cast in one precinct, electronic tabulation can be off by more than 0.25% simply by virtue of random, unpredictable malfunction.  The Medford miscount of 2004--believed to have been an inadvertent programming error but never actually investigated, as miscounts never are--disenfranchised every voter who chose the straight party ticket, about a third of the voters in that presidential election! Errors of this type are not scandalous or surprising; they are occasionally unavoidable and should be anticipated whenever we use computers.

In addition, experts in elections technology will tell you that, depending upon ballot design, as many as 0.5% of the voters’ marks will be unreadable by optical scan machines, although voter intent may be obvious to human eyes. The clearest example of this I ever saw was a would-be Republican voter who drew a circle around each Republican candidate’s name, though never straying into the area where he or she should have recorded the votes. The machine saw nothing but white space, but any human eye could easily discern an intended vote for every Republican on the ballot. Without a recount or an audit, those Republican votes were completely lost. Again, non-scandalous, non-partisan, and an entirely predictable event when using computers.

Finally, we come to the issue of hacking. Dollars to doughnuts, the Republican sponsors of this bill believe that Republican candidates are more likely to be targeted by hackers than other parties’ candidates. Look at 4Chan; look at Anonymous. When and if they target Wisconsin elections, who are they going to go after? There must be hundreds, maybe thousands, of left-wing techies with the ability and willingness to hack into the companies that program Wisconsin’s voting machines.  

On that inevitable day when they find their way into Wisconsin’s vote-counting software, SB 96 will make it more likely they will escape detection.  Under current law, hackers need to flip only 1% of the Republican vote in a toss-up election to create a 2% victory margin that puts the results outside the recount margin. Under the new law, hackers will need to flip only 5 out of every 4,000 Republican votes to prevent anyone from demanding a recount and detecting the theft of a hard-earned, expensive Republican victory.

However, I am not going to put any effort into opposing this legislation. Not because I want to protect Republican candidates or those of any other party, but because I don’t think recounts are very useful for election integrity even under the current law.  

Wisconsin’s self-governing citizens shouldn’t have to demand, election by election, that our government check the output of our voting machines' computers for accuracy, and we certainly shouldn’t have to pay extra for it when we suspect a computer error might be larger than 0.25%. Your bank doesn’t wait for you to demand an audit before it audits its computers’ output, and certainly doesn’t limit its audits to instances when only tiny errors are suspected. And then it gives you a statement so that  you can check, too.

Your grocery store audits the output of its scanners without its customers paying extra for that safeguard. And then it gives you a receipt, so that  you can check, too.

Wisconsin citizens don’t have to demand and pay for verification of the DOC computer output that keeps track of criminals on probation and parole--DOC employees do that as part of their job. Wisconsin school boards don’t have to demand and pay for double-checking of the output of the computers that calculate school aids--DPI employees and legislative employees do that routinely.

Responsible public managers, like responsible business owners, check their computers’ output for errors—both tiny and large—as routine, prudent IT management. When the computers are deciding who will govern us, there is no sensible reason why the burden is on voters and candidates to demand and pay for checks of the computers’ accuracy.

What Wisconsin needs is what 20 other states already have, and what every national elections-administration and information-technology expert has recommended from very inception of electronically counted election results: Routine (that is, after every election) post-election verification of electronically tabulated voting-machine output before those preliminary results are certified as final.


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  • Karen McKim
    commented 2015-05-18 12:31:55 -0500
    Adam, I might print your question out, frame it, and offer a copy to any legislator or clerk who thinks that verifying voting-machine output will cause people to doubt the machines’ reliability. I have no idea why they are so blind to the fact that NOT verifying the output is even worse for their reputations.

    Yes, ‘fraud’ is the first thing that comes to mind when we see public officials doing something that makes no sense. But I see two more mundane motives.

    Sponsors LeMahieu and Ballweg say they were approached by municipal clerks who reported that losing candidates were ‘abusing’ the current recount law. What form ‘abuse’ might take, I cannot guess. That statute has such clear criteria that deciding whether a race is eligible for recount is an exercise in fourth-grade arithmetic.

    So why would a municipal clerk claim ‘abuse’ and why would a legislator believe them? Two reasons:

    1) Deep, unquestioning faith in voting machines. Adam, when you really really really want to believe something, you know how you have a hard time thinking rationally about even the possibility it might not be true? Most elections officials are like that with voting machines.

    Imagine what your life would be like if you could turn your #1 most important responsibility over to a machine that would produce guaranteed-accurate results with the push of a button. Imagine that you’ve convinced yourself that there is such a machine, and in fact you’ve already signed multiple notarized statements publicly confirming its results as accurate, without checking whether they were or not. Now imagine someone comes up to you and asks you to check to make sure the machine counted correctly. It would seem like ‘abuse’ to you.

    Candidates and legislators share the clerks’ naive trust. Green County Clerk Michael Doyle, who has a realistic appreciation of the reliability of voting machines, told me once about a candidate who lost by a few votes and demanded a recount. Doyle was set to do a transparent hand count—the gold standard for accuracy, since multiple human eyes discern and confirm voter intent on every ballot where it can be discerned. The losing candidate, though, INSISTED on having the ballots run back through the same machine that produced the first count! The candidate’s powerful desire to believe in the existence of an impartial, objective machine trumped his common sense. (My bet: if the candidate’s bank statement is missing a deposit he thinks he made, he doesn’t demand the bank push ‘calculate’ again and print out another statement.)

    2) Legitimate dislike for recounts. Recounts are hell for municipal clerks. They don’t do them often so they are nervous about making mistakes. They’ve got news media interrupting them with questions morning to night. They’ve got rabid partisans on both sides—all of them hyped up emotionally and itching for a fight—watching and criticizing their every move. They know from experience and instinct that some of the poll workers probably botched a detail here and there in the chain of custody and are on edge about how many errors they will find and how bad they will be.

    Clerks DO NOT WANT TO DO RECOUNTS and I don’t blame them.

    So, no, changing the recount law is not motivated by a desire to hide fraud. It’s motivated by two even more recognizably human desires: the desire to hang on to a genuine but childlike faith in something that can do ‘magic’ for you (in this case, a voting machine), and by a desire to avoid highly aversive work.

    Finally, to repeat a point I might not have made well enough in my original post: Recounts are useless for detecting electronic fraud. Making the margin smaller or larger doesn’t change that.

    When a hacker finds his or her way into Wisconsin’s vote-counting software, you can bet the farm that the ‘winning’ candidate’s total will have a margin larger than the recount margin, whether it’s 0.5%, 2%, 5% or 25%. That’s how a hacker can make sure the county clerk will obligingly declare the hacked voting machine output final while our ballots, which say otherwise, collect dust in sealed bags in the courthouse basement until they are destroyed. Until Wisconsin, like 20 other states, adopts the practice of routine verification of voting-machine output, hackers can sleep easy regardless of what our recount statutes say.