The Stoughton Referendum Miscount

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.

Lessons learned

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.










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  • Karen McKim
    commented 2014-12-21 10:19:08 -0600
    (If you visit the blog post I linked in my previous comment, just read the comments, don’t click on ‘Read on…" That ’read on’ link will just bring you back to an earlier post in this blog.)
  • Karen McKim
    commented 2014-12-21 10:12:19 -0600
    Yes, James—“The importance of what we have found”—that’s the thing that feels like a dagger in my gut when someone says “But post-election verification would require extra effort” or “Let’s wait for proof of a miscount before we verify the voting-machine output.” If honest, well-meaning people don’t immediately grasp what’s at stake, can they at least not appreciate that dishonest, power-hungry people do?

    Check out the response thread to this blog post for a head-spinning exercise in “let’s talk about everything else other than the fact that our voting machines are vulnerable.”

    We need to stop allowing unverified computer output to identify the people who will govern us. We need to do prompt, ROUTINE post-election verification of voting-machine output. Routine means “regardless of whether anyone suspects error or fraud.”
  • Karen McKim
    commented 2014-12-20 02:07:58 -0600
    The statistics certainly do qualify as ‘smoke,’ that’s for sure. The fire can be detected, I believe, only by hand-counting the voter-marked paper ballots.

    Are you aware that that publicly observable hand counts WERE conducted of the governor’s race and three other races in nine precincts in City of Milwaukee and in 91 other precincts around the state? Here’s the list: If the GAB ever does respond to your complaint about a possible miscount in the governor’s race, my guess is that they’ll do it by sharing the results of those public hand counts. I’d love to get a statistician’s assessment of whether the results from those precincts (100% hand count in each) are sufficient to rule out a miscount.

    I was present for the publicly-observable random selection of those 100 precincts by GAB staff on November 7, but was out of the country while they were being conducted. We tried very hard to publicize the hand counts and get people to attend and observe them, but it’s like pulling teeth. They are not all performed during working hours; several municipalities I observed in 2012 were done in the evening.

    Six of us observed the hand counts in 2012 and wrote this report
    ( , which helped to change GAB policy on when the hand-counts could be done. In 2012, they required municipalities to wain until after the election results were declared final before verifying the machine output; in 2014, they allowed them to do it as soon as November 10. Still too delayed for the best security, I know, but better than a whole month later.

    The other thing we’ve been trying to tell anyone who will listen is that there is NOTHING preventing any municipal clerk from doing a hand count at any time, if their constituents will only request it. I’ve seen it done, and GAB has acknowledged that it’s within any clerk’s authority to verify voting machine output with a hand count at any time. Just not required, except for those few precincts randomly selected every two years.

    If we could get the volunteers, we could be working with municipal clerks all around the state to verify the results in any race at any time before they destroy the ballots. Nothing is preventing it but citizen inertia.
  • Karen McKim
    commented 2014-12-19 22:11:46 -0600
    Thanks, James Fetzer! I’m guessing you live in Minnesota, since you teach at UM-Duluth? So I won’t ask if you’re working with your local elections officials to get them to preserve voter-marked paper ballots and to do routine post-election audits. (Minnesota has better laws than Wisconsin does, vis-a-vis post-election audits.) Keep us posted on the complaint with GAB. If they respond to the recent LAB audit, they are going to be handling complaints more responsibly in the future than they’ve done in the past.
  • Karen McKim
    commented 2014-12-13 18:34:03 -0600
    Thanks for that quote and link, John. Someday—before I get to the pearly gates, I hope—I am going to understand why people like Fetzer and pretty much everyone who commented on that Cap Times article are content to sit at their keyboards making allegations and musing about the possibility/probability of electronic miscounts instead of working with their municipal and county clerks to verfiy the machine output with a publicly observable hand count. Any ideas why?
  • John Scepanski
    commented 2014-12-13 18:08:34 -0600
    Jim Fetzer: Gambling with democracy: Did Burke beat Walker, after all?
    JIM FETZER | McKnight professor emeritus, University of Minnesota-Duluth 12/13/14

    In the new era of electronic voting machines, polls have assumed an increasingly important role in attempting to understand political developments. But when the final poll from Marquette before the Nov. 4 election showed a surge for Gov. Scott Walker, I was taken aback. Had the Marquette poll shown a surge for challenger Mary Burke, that would have made sense — and even the margin of 50-43 percent seems about right. The final tabulated election result of 53-46 percent also sounds about right — provided the outcome had favored Burke.
    The race had been neck and neck prior to that final poll. What in the world could have happened to “fire up” Walker’s base? I can’t think of anything. His debate performances were perfunctory at best; he frequently dodged questions — when the panelists tried to pin him down it was to no avail. His second performance was notable for implying he would serve out his term, when everyone knows he is running for president in 2016 and that he is making his bones to pacify the most right-wing elements of the GOP.
    When Burke ran against the governor, I was impressed by her ability to manage the complexities of a campaign. She did better than Walker in the debates and was supported by visits from some of the most popular figures in the Democratic Party, including Michelle Obama (twice), Bill Clinton and even the president of the United States. The best Walker could do was bring in another scandal-tainted governor, Chris Christie, whose presence was unlikely to make a difference.
    Burke ran a very strong campaign, where the efforts of her opponents to attack her on grounds of plagiarism — when recycling position statements is common practice in politics — was a nice example of grasping at straws. Walker had nothing better to use against her. And the stories appearing in the Wisconsin State Journal were uniformly unfavorable to Walker, including new releases about the “John Doe” investigation and snubbing pre-school program funding.
    Voting machine “malfunctions”
    If Walker was not making the sale, what could possibly explain his victory? In Wisconsin, about 90 percent of ballots are cast on paper and counted by optical scanners, 5 percent are cast on paper and counted by hand, and 5 percent are cast and tabulated on touch-screen equipment.
    We tend to assume that optical scanners are reliable, but that turns out to be more a wish than a reality, as “a glitch” discovered in Stoughton during the Nov. 4 election revealed. Brad Friedman, a well-known critic of electronic voting, headlines his “Brad Blog” story “Wisconsin paper ballot scanners failed to count 1,000s of votes in ‘Citizens United’ ballot referendum.”
    “Popular, oft-malfunctioning computer tabulator used in Wisconsin, many other states, tallied just 16 votes out of 5,350 cast in Stoughton, Wisconsin,” Friedman writes.
    “Though some 5,350 voters are known to have voted in the city of Stoughton in Dane County, Wisconsin, on Tuesday, just 16 of those voters were interested in voting in a local ballot referendum calling for an amendment to the U.S. Constitution to help overturn the infamous Citizens United decision — at least according to the results reported by paper ballot optical-scan computer tabulators there.”
    In addition to frequent malfunctioning, both touch-screen machines and optical scanners are easy to manipulate. A 2008 study at Princeton showed that, using simple tools, a different program could be installed in voting machines “that steals votes from one party’s candidates, and gives them to another.” The specific machine they were testing, the Sequoia Advantage, is still being used in at least six states by some 9 million voters. And whether or not it was used in Stoughton, the principles for manipulating vote counts are the same for touch-screen machines and optical scanners alike.
    The Stoughton case could be corrected, because there were paper ballots for a recount. But with touch-screen machines, recounts are impossible because there are no paper ballots to compare with the tabulated totals. That makes recounts impossible, no matter how strong the indications that something is not right — making them unconstitutional on their face.
    Could it happen here?
    Are there any good reasons to think election theft has happened in Wisconsin? Brad Friedman, Robert Fitrakis and Bev Harris are well known for their research on election theft. The most extensive studies specific to Wisconsin have been by statistician Richard Charnin, as he reports online in “The exit poll smoking gun: ‘How did you vote in the last election?‘"
    In Europe, exit polls are used to determine who won, and the tabulated vote merely serves to confirm it. But the opposite is the practice in the U.S., where the exit polls are revised to conform to the tabulated vote. That means we have no way to verify whether our elections are being stolen using touch-screen or optical-scanning machines, which is all the more worrisome since their owners have strong ties to the GOP, which research by Bev Harris, Victoria Collier and others has confirmed.
    As Charnin explains, the unadjusted exit polls have been forced to match the recorded vote in every presidential election since 1988. The Democrats won state and national exit polls by 52-42 percent, but won the recorded vote by just 48-46 percent. The probability of a discrepancy on this order of magnitude is around one time in trillions. “The exit polls were right. The vote counts were wrong,” Charnin writes. “It’s as simple as that.”
    The recall election
    Consider Charnin’s assessment of the Walker recall election. In 2008, Obama won Wisconsin with 56.2 percent as his recorded vote. But Obama had 63.3 percent in the unadjusted exit poll, which is far beyond the 2.5 percent margin of error. The exit poll data are therefore strong evidence that election fraud sharply reduced Obama’s true vote.
    Thus, Charnin observes, “In 2010, Walker won by 124,638 votes with a 52.3 percent share. In 2012, he won the recall by 171,105 votes with 53.1 percent. But the True Vote Model (TVM) showed that he needed 23 percent of Obama returning voters to match the recorded vote. That is extremely implausible — and a red flag. It’s further evidence that Barrett won the election.”
    The governor’s race
    In 2014, Charnin reports, Walker won with a 52.9 percent share. The exit poll was forced to match the bogus recorded vote by cutting returning Barrett voters to just 35 percent of 2014 voters, compared to Walker’s 50 percent. The 15 percent differential is much higher than the 7 percent Walker-recorded margin (8 percent discrepancy) and the 6 percent Barrett True Vote margin (a 21 percent discrepancy).
    “When the returning voter mix is changed to a feasible Barrett 45/Walker 41 percent outcome,” Charnin concludes, “Burke is the winner by 52.3-47.3 percent. The ‘How Voted in 2012’ crosstab vote shares are missing for Other (3 percent) and New Voters (DNV 11 percent). This is highly anomalous and another ‘tell’ that Walker stole the election.” Charmin’s spreadsheet can be found here.
    We have three methods of counting votes with vastly different levels of confidence:
    1. Cast on paper and counted by hand: the highest — even complete — confidence as well as least expensive with no technology to go wrong.
    2. Cast on paper but counted by optical scanners: quasi-confidence, since counts can be, but seldom are, verified by ballot comparisons.
    3. Cast by touch screen with no paper ballots: lowest — even zero — confidence, since it is not even possible to compare counts with nonexistent ballots.
    Those who have been elected using electronic tabulators are not going to be disposed to abandon them for more reliable methods. But the people should insist on the use of paper ballots and hand counts. A referendum to abolish the use of those machines be an appropriate measure. This would not be the first time that elections have been stolen in America. Why gamble with democracy?
    Jim Fetzer is a former Marine Corps officer and McKnight Professor Emeritus at the University of Minnesota-Duluth.
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