Tuesday, April 1, 2008

Conclusion: Wait and See

Based on the above analysis of the benefits and concerns surrounding electronic voting methods, and the results they have had in the US, the best course of action for Canadian election officials is to wait and see how things sort themselves out in the US and how the technology develops in the coming years. It is inadvisable to implement such an electoral system in light of not only the problems encountered in the US, but also the recent move away from current DRE systems in some jurisdictions. It will also be useful to see how the technology is used in Canadian municipalities as this practice becomes more common.

In an interview on Conservative Roundtable, computer scientist Rebecca Mercuri recommends that US election officials, too, should wait until the paper trail is fully available before using money allotted under the Help America Vote Act (HAVA) [HTML|PDF] to purchase new machines.

Like voting machines, online voting, while useful for smaller scale elections of less overall importance, also still presents many security questions. Reports by the California Secretary of State (1999), US National Science Foundation, and others have concluded that additional innovation and problem-solving are necessary before Internet voting should be used in public elections, mainly due to security risks which threaten the integrity of the voting process. The same can be said for voting and counting machines. While the Internet is vulnerable to “denial of service attacks”,1 so too are the machines used throughout the USA.2

In the Meantime

While maintaining paper ballots, Elections Canada has developed a number of accommodations for voters with disabilities. For example, visually impaired voters can be provided with a large print ballot or a cardboard template allowing them to feel where to mark for a particular candidate. “Special ballots” can also be cast through the mail and those who require assistance to vote can bring a friend to the polling station. This, of course, does not address all disabled voters' right to vote in secret, which is the most compelling reason it would be worthwhile to have an electronic method available at some if not all polling stations.

The Electronic Frontier Foundation rightly points out that DRE systems are not the only accessible methods of voting and point out that tactile ballot templates (like those used by Elections Canada) and electronic ballot markers are available alternatives to DRE systems.3

Is a mixed system advisable?

A further possibility that finds some common ground between no technology and a total reliance on technology is to have a mixed system in which a DRE with VVPAT is available at polling stations for those who require it for accessibility reasons (limiting the number of people who vote via machine is advisable assuming there is a correlation between the number of machines and potential for fraud; limited machine-based votes also make an audit of the ballots cast by machine faster and easier), and perhaps also have online voting available for absentee voters (if this is really easier/more secure than the mail, which is certainly open for debate).

In 1997, Florida allowed the option to vote online to overseas military and civilian voters “as a means of alleviating the time constraints of the current mail-based, absentee voting system and in doing so allow for greater participation.”4 This option is appealing because it applies to only a small part of the franchise, so it is arguably less likely to be the subject of fraud. The system of authorization should function such that only as many people can vote as have received authorizations. When dealing only with absentee voters, this number is much smaller than if online voting were made an option for the entire franchise, so some of the problems highlighted by Mike Smit can be alleviated, at least to some degree.

When the Time Comes

Should a jurisdiction grow impatient and decide to go ahead with implementing new voting technology, the best options seem to be precinct-count optical scan equipment (as opposed to central-count equipment) and DRE systems with a voter-verified paper audit trail (VVPAT) (this is the option recommended in the Rubin Report).5 Both of these systems allow for voter verification as they produce a paper record contemporaneous to the ballot being cast and both work to prevent errors in casting votes as they can detect overvotes and undervotes, which the elector can then correct before verifying their ballot. Where the DRE system proves more beneficial is in terms of accessibility for electors with disabilities.

If, and likely when, the time comes that federal and provincial chief electoral officers decide to introduce electronic voting technologies, it will be important to set technical specifications, norms and standards, as highlighted by the Chief Electoral Officer of Quebec in his report following the November 2005 municipal elections.

Unlike the situation in the United States, Canada has not been faced with a flurry of calls for recounts and litigation stemming out of the electoral process, so there is not as great a need for reform at the present time. As we have seen, Canada’s situation is more like that of the United Kingdom. Election officials should take advantage of this lack of pressure and take the time to fully explore the possibilities for e-voting in Canada and develop acceptable standards, since unlike in the US where counties tend to dictate their own voting methods, those standards will apply to the entire country or province. In light of the s. 3 jurisprudence from the Supreme Court of Canada, the legislature must take steps to ensure that any electronic voting methods introduced can be as legitimate as our current paper ballot system is in the eyes of the electorate.

1 POSTnote, supra. at p. 3.
2 CNN. "Scattered computer glitches slow voting." 08 November 2006.
3 Electronic Frontier Foundation. "Accessibility and Auditability in Electronic Voting." May 2004.
4 Elections Canada Report, supra. at p. 29.
5 Rubin Report, supra. at p. 21.

The UK Context: A Useful Comparator

In May 2001, the United Kingdom’s Parliamentary Office of Science and Technology (POST) published an edition of POSTnote [PDF] about online voting. The UK is a useful comparator in that, like Canada, British electors still cast their votes on paper ballots which are hand-counted.

One of the factors POST takes into account in their assessment of online voting is “respecting political culture.” This, in particular, makes the UK a useful comparator to Canada:
People have confidence in elections at present: they know what is likely to happen when and expect a stable outcome. The current system is visible, easily understood and followed. Some of the elements of online voting could be disruptive to voting customs, such as going to the polling station or watching the votes being counted. If online voting is introduced the public must feel full confidence in the new arrangements, and be convinced that a vote sent online is as secure as on marked on paper1.

POST cited three factors for considering changes to the way votes are cast in the UK (in spite of high public confidence in the integrity of the voting process): declining turnout (especially in local elections), constitutional innovations (allowing local authorities to experiment with new ways of voting, not all of which are electronic) and new technologies (specifically, the “dramatic impact of the internet”)2. The report goes on to list the advantages of and concerns about online voting explored above.

Unlike the US, the UK possesses much the same motivation as Canada for exploring the potential for electronic voting. It will be interesting to see how closely the two jurisdictions mirror one another as things progress.

Other International Experience

Elections Canada’s report on e-voting includes discussion of the reasons e-voting has been implemented in other countries. In many of these cases, the motivating factor for moving toward electronic voting is not present in Canada. For example, in Bosnia online voting was used “in an effort to alleviate the tension that would result from voters returning to land occupied by former enemies on election day,” and in Brazil, electronic voting was introduced “as a means of reducing fraud and increasing the speed of the vote count (from 30 days to approximately six hours)”3.

1Parliamentary Office of Science and Technology. POSTnote. May 2001, Number 155 [POSTnote] at p. 4.
2Ibid. at p. 1.
3Elections Canada Report, supra. at pp. 26-9.

Monday, March 31, 2008

The Right to Vote in Canada: Potential Constitutional Challenges to E-Voting

Source: Elections Canada

As guaranteed by s. 3 of the Charter, every Canadian citizen has the right to vote. This right, which is integral to a legitimate democracy, encompasses not just the physical act of voting. McLachlin, CJBCSC, as she then was, held, “More is intended [in the right to vote] than the bare right to place a ballot in a box”.1 The language of s. 3 and its exemption from the s. 33 override has resulted in the Supreme Court of Canada holding that the right is to be given a broad an purposive interpretation.2 Surely, included in the s. 3 right to vote is the right to have that vote counted accurately.

The experience in the US has quite clearly shown that there is a great deal of scepticism surrounding how accurately machines are able to count votes, and even if they are able to count properly, questions have been raised about the security of the machines from a malicious outside source that could program the machine to count incorrectly. As mentioned above, given the current electoral system in Canada, any new system will likely be held to a very high standard. One area where electronic voting methods are lacking is the ability to effectively scrutinize the count. When poll workers manually count paper ballots, scrutineers can quite easily observe how the workers are counting and provide a degree of transparency that is not possible in an e-voting system unless scrutineers are trained to analyze the source code of the machines.

In Figueroa, the Supreme Court held that the purpose of the right to vote is to “promote and protect the right of each citizen to play a meaningful role in the political life of the country”.3 Based on the citations above, it is reasonable to believe that it is important that citizens also perceive that they are playing a meaningful role. Electronic voting raises many concerns among the electorate in spite of its benefits and present the risk that voters will lose confidence in the electoral process if they do not believe they are able to play a meaningful role.

It is the participation of the electorate that gives the government its legitimacy. “In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies. This delegation from voters to legislators gives the law its legitimacy or force.”4 This legitimacy can only be conveyed if the electorate is truly participating in a democratic election and believe they are doing so. “In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives."5 If the electorate does not believe their role is meaningful, they will not be inclined to participate in the electoral system, and the legitimacy of the government may be called into question. The legitimacy of our democracy depends on the power residing in the electorate. This power is lost if voters have the perception that the power rests not with them, but rather with a machine, its developers, or hackers.

In Figueroa, Iacobucci highlights the importance of s. 3 as a participatory right:
the rights of s. 3 are participatory in nature. […] This signifies that the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures that this right of participation embraces a content commensurate with the importance of individual participation in the selection of elected representatives in a free and democratic society.6
A democracy that is not truly participatory (or is, at least, not perceived as truly participatory) will surely have its legitimacy called into question. This is foreseeable in Canada given that any change to the electoral system will be a change to a system that is attained a high level of legitimacy and is not frequently challenged.

1 Dixon v. British Columbia (Attorney General), [1989] 4 WWR 393 per McLachlin CJBCSC at p. 403.
2 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 SCR 519 [Sauvé] per McLachlin CJ at para. 11.
3 Figueroa v. Canada (Attorney General), [2003] 1 SCR 912 [Figueroa] per Iacobucci J. para. 30.
4 Sauvé, supra. at para. 31.
5 Figueroa, supra. at para. 30.
6 Figueroa, supra. at para. 25-26.

The Situation South of the Border: Recounts, Litigation, and Reconsiderations

Recent challenges to electronic voting machines in the US have taken the form of recounts, re-votes, and litigation. As a result of these challenges and likely the unease of the public discussed previously, some states are taking action.

Recounts and Re-votes

Recounts have been attracting a lot of attention, especially following the 2000 Presidential race between President George W. Bush and former Vice President Al Gore. It was this recount and the difficulties it posed as a result of the infamous “hanging chads” that appears to have spurred an increase in the popularity of DRE systems among election officials. However, the problem has not been solved, and recounts remain very common.

For example, a suit has been filed for a re-vote in Sarasota, Florida after an anomalous number of ballots (18,000) cast on voting machines registered no vote in what was a very tight race (decided by 363 votes)1. This is particularly notable given that one of the perceived benefits of voting machines is that they have the ability to detect undervotes and overvotes.

In 2004, electors in Alameda County, California voted on a question regarding medical marijuana. In September 2007, a judge ordered a re-vote on the issue after county election officials failed to provide backup data from the voting machines used, logs of activities on the machines, and other records requested by the court. Instead, officials returned the machines to Diebold, and the information required was lost.2

Where different voting systems are used, different recount procedures are often employed. For example, while optical scan ballots that registered an overvote or undervote are assessed manually, voting machines do not generate overvotes or undervotes. In Wexler v. Anderson, the Court of Appeal in Florida held:
Florida's manual recount procedures for those counties employing paperless touchscreen voting machines did not deprive voters of due process; whatever burden, if any, Florida's manual recount procedures placed on voters, that burden was justified by the state's important regulatory interests, as Florida had important reasons for employing different manual recount procedures according to the type of voting system that was used by a particular county, given the differences in the technologies themselves and the types of errors voters were likely to make in utilizing those technologies.3
The challenge was grounded in the fact that unlike the optical scan machines, the DRE machines used in the county did not produce a verifiable paper ballot that could be counted manually.

Litigation

Litigation has arisen in contexts other than recounts. Groups such as the Verified Voting Foundation and Electronic Frontier Foundation (EFF) have intervened in much litigation surrounding e-voting.

In Diebold v. North Carolina Board of Elections, “Diebold Election Systems filed suit against the North Carolina Board of Elections to avoid a law requiring vendors to let state officials examine machines' source code for security vulnerabilities. EFF intervened in the case, getting the complaint dismissed. When election officials later agreed to certify Diebold anyway in violation of the law, EFF filed a legal challenge [McCloy v. North Carolina Board of Elections]. Diebold subsequently withdrew its e-voting machines from North Carolina elections.”4

As a result of the regression away from DRE systems and their unavailability in some jurisdictions, groups that advocate on behalf of disabled voters have brought litigation seeking a that voting machines be required for accessibility reasons. As a result, US courts must to balance the needs and rights of disabled voters with the rights of all citizens to a secure electoral system. Decisions of election officials to decertify voting machines have been challenged in court by those who advocate on behalf of this disabled. For example, in American Ass’n of People with Disabilities v. Shelley, the Court held that the Secretary of State’s interest in fulfilling his statutory duties outweighed voters’ interest in an unassisted, private vote, and his decision had a rational basis and thus did not deprive voters of their fundamental right to vote.5 EFF is in favour of implementing accessible voting technologies so long as it does not sacrifice election integrity. They have intervened in litigation that would have seen paperless machines purchased by election officials rather than machines which produce an auditable paper trail.6

The Ohio results in the 2004 election have been highly contested since problems were observed on Election Day. Litigants there are working to make Ohio’s election procedures and the technology used more secure, transparent and auditable.7

Reconsidering the Machines

In recent months, a number of states have started to move away from DRE systems.

New Jersey officials this month have requested a review of the systems used in Union County. The company which manufactures the county’s machines, Sequoia Voting Systems, has responded with their intention to vigorously protect their product from any activities that violate its licensing agreements.8

Voters in most parts of Colorado will have the option of voting by paper ballot in the next election. State officials there are acting in response to questions about the security of voting machines.9

On January 2, 2008, Ohio Secretary of State Jennifer Brunner, issued a directive ordering that all boards of elections using DRE voting machines “provide an optical scan ballot to any voter who requests it as an alternative method to casting a ballot on a DRE voting machine.” Secretary Brunner broke a deadlock at the Board of Elections, thus implementing the directive. Parrott challenged Brunner’s authority to make this decision in State ex rel. Parrott v. Brunner,10 but the Court held that she was not exercising judicial or quasi-judicial authority in making the decision and thus let Brunner’s order stand. Thus, Ohio voters will have the option of a paper ballot that is mechanically counted in the next election.

It appears things have reached a point now where competing manufacturers of voting technology are challenging the validity of each other’s products. In March, the US District Court heard a case brought by Avante Intern. Technology Corp. against Premier Election Solutions (the recently renamed subsidiary of Diebold) and Sequoia Voting Systems, which alleged that Premier and Sequoia misrepresented their products to Illinois customers which lead them to believe their products complied with Illinois DRE requirements. The case was dismissed for failure to state a cause of action.11

The need for recounts and revotes, and the exceptional amount of litigation that has arisen, it would seem, as a result of innovations in electronic voting, demonstrate a perception among the American electorate that the integrity of their electoral system and thus their election results lack a satisfactory degree of legitimacy. Perhaps the one good thing that has arisen out of the situation is the potential for enjoyable satire.


1 Electronic Frontier Foundation. Sarasota County Re-vote Filing
2 Lee, Henry K. "Judge voids results of Berkeley measure on medical pot." San Francisco Chronicle. 28 September 2007.
3 Wexler v. Anderson 452 F.3d 1226 C.A.11 (Fla.), 2006.
4 Electronic Frontier Foundation. Diebold v. North Carolina Board of Elections
5 American Ass’n of People with Disabilities v. Shelley, 324 F.Supp.2d 1120 C.D.Cal.,2004.
6 Electronic Frontier Foundation. National Federation of the Blind v. Volusia County.
7 Electronic Frontier Foundation. White v. Blackwell: Creating True Verifiability in a Battleground State.
8 Jones, K.C."Sequoia Threatens Lawsuit Over E-Voting Machine Review." Yahoo! News. 21 March 2008.
9 Kim, Myung Oak "Paper ballot edges back into voting process." Rocky Mountain News. 29 March 2008.
10 State ex rel. Parrott v. Brunner 117 Ohio St.3d 175, 2008 WL 622935 Ohio,2008.
11 Avante Intern. Technology Corp. v. Premier Election Solutions Inc. Slip Copy, 2008 WL 686324.

Sunday, March 30, 2008

Perception of the Electorate and the Integrity of the System


Political cartoons such as the one above suggest that there is a degree of unease with and lack of confidence in the integrity of the electronic voting machines being used in districts across the US.

The franchise must have confidence in the electoral system, as was emphasized by Bastarache J. in Harper v. Canada (Attorney General),1 where he writes:
“Perception is of the utmost importance in preserving and promoting the electoral regime in Canada. Professor Aucoin emphasized that “[p]ublic perceptions are critical precisely because the legitimacy of the election regime depends upon how citizens assess the extent to which the regime advances the values of their electoral democracy.”

It is difficult to have confidence in something that is not easily understood by the average elector. Manually counting paper ballots is easy to understand, not just because it is what voters are used to but because it is a method easily performed by most people. In contrast, most people cannot read computer source code even if it were to be publicly available (and even if the system were completely fraud- and error-proof). That being said, Tokaji states:
“This does not mean that [voters] must understand the inner workings of the machine. If that were the standard, then no system ever developed would be satisfactory, since voters often do not know precisely how the system operates. […] What it does mean is that the voting system should be reasonably open to public scrutiny, so that the process through which votes are cast and counted remains accountable to the citizenry”2.
From an American perspective, where voting technologies have been more common over the past number of decades, it makes sense that Tokaji would make this note. However, the current Canadian electoral system is rather uncomplicated. Presumably, most voters understand that their ballot will be hand-counted by poll workers under the supervision of scrutineers. There is no complicated machinery to understand. Coming from a system that is so easily understood by the electorate will likely mean any new system will be held to a higher standard than in the US where some districts would be moving from a system that is already not easily understood.

With their amendments to the Canada Elections Act, the current Conservative government has attempted to ensure the integrity of the electoral system through increased confidence. Justice Minister Rob Nicholson has stated, “[Electoral fraud] can erode public confidence in the democratic process, affect the results of a close election and create real harm to the integrity of our system. […] Protecting the integrity of the electoral process of course means more than just reducing the opportunity for defrauding the system. It also means improving how the system operates. A well functioning electoral system will go a long way toward reinforcing public confidence in the electoral process"3.

Public confidence in the electoral system is, in large part, what gives an elected government legitimacy. In Harper, Bastarache J. went on to state:
“If Canadians lack confidence in the electoral system, they will be discouraged from participating in a meaningful way in the electoral process. More importantly, they will lack faith in their elected representatives. Confidence in the electoral process is, therefore, a pressing and substantial objective”4.


The problems encountered with electronic voting as outlined above have the potential to make voters perceive that they no longer play a meaningful role in the electoral system, the very purpose of the s. 3 right to vote.

1 Harper v. Canada (Attorney General) [2003] 3 S.C.R. 519 [Harper], para. 82.
2 Tokaji, supra. at p. 68-9.
3 "Speaking notes for the Hon. Rob Nicholson", An Act to amend the Canada Elections Act and the Public Service Employment Act (C-31) – Second Reading, House of Commons, 7 November 2006.
4Harper, supra. at para. 103.

Initial Concerns: The Paranoia Set In

“It’s not the voting that’s democracy, it’s the counting.” –Tom Stoppard (Jumpers, Act I)

It is impossible to deny that there are benefits to many of the electronic voting methods that have been used in the past or are being used currently. Accessibility to the electoral system and the ability to vote secretly and independently are essential to maintaining the satisfaction of the franchise with the electoral system. Efforts should be made to ensure that disabled voters, for example, can vote independently if the option becomes available. The difficulty arises when attempting to balance the risks associated with new technologies (and the perception voters have about the security of their vote) with a desire to encourage participation in the electoral process by making voting easy and accessible to as many people as possible.

Commentators cite many concerns with e-voting. Two of the most pressing appear to be a lack of both security and transparency. Some concerns are system-specific. The HBO documentary Hacking Democracy explores how votes are counted in the US. Their focus is on the machines manufactured by Diebold and the procedure for saving their results in case of a recount, spurred on by the 2000 Presidential results in Volusia County Florida where the voting machines counted Al Gore’s votes backward so that he received a negative total.

Regardless of whether any of these concerns ever come to fruition, the perception of the electorate is crucial to the viability of the electoral system. If the franchise does not believe in the integrity of the electoral system, voters will not want to participate and will call the legitimacy of the government into question.

Security Risks and Counting Irregularities

“The problem is that you can’t see a computer adding up the votes, so how do you know if it’s counted correctly?” –Hacking Democracy

Many “first-generation” DRE systems do not generate a paper verification of a voter’s ballot. The only confirmation is what appears on the screen. There is no way to verify that what the voter has selected and what appears on the screen is what is recorded in the computer’s memory and later counted.

A Diebold electronic voting machine A Diebold Voting Machine
Source: angelino.usc.ca

In 2004, a group of computer scientists, including Dr. Avi Rubin of Johns Hopkins University, produced an "Analysis of an Electronic Voting System".1 The report and Rubin’s findings are featured prominently in Hacking Democracy. While the assumptions made by Rubin and his team regarding how the system functions during a real election have been criticized, Rubin makes a valid point about paperless DRE systems:

The most fundamental problem with a [paperless DRE] voting system is that the entire election hinges on the correctness, robustness, and security of the software within the voting terminal. Should that code have security-relevant flaws, they might be exploitable either by unscrupulous voters or by malicious insiders [election officials, developers of the voting system, developers of the embedded operating system on which the voting system runs].”2

In “The Paperless Chase”, Tokaji, also writing in 2004, was correct that the debate that was and is raging in the US over paperless electronic voting, traditional paper-based electronic voting and electronic machines that generate a contemporaneous paper record, would not be resolved in time for the 2004 election.3 With the 2008 election now is sight, the debates are still raging with no sign of a resolution by November.

Rubin and his team found significant and wide-reaching security flaws in Diebold's 2002 source code (which Diebold inadvertently made available on a public FTP where it was discovered by Black Box Voting founder Bev Harris). Rubin's team found voters can easily program their own smartcards in order to cast multiple ballots with no built-in traceability, administrative functions can be performed by regular voters, and the threats posed by insiders such as poll workers and software developers is even greater. They also found multiple flaws in the written code itself, the details of which go beyond the scope of this project.4

Online Voting

Some concerns are specific to online voting. Mike Smit has his Masters and Bachelors degrees in Computer Science from Dalhousie University and is currently a PhD student at the University of Alberta Department of Computing Science. He wrote the online voting system yourVote for the Dalhousie Student Union. The system is designed for use in any online voting situation. I asked him what vulnerabilities he sees in online voting. He pointed out that many aspects of online voting are secure. “Assuming we can somehow get everyone a username and password, we have little problem encrypting the traffic, keeping hackers out, and so forth. We do online banking, and that's a much bigger target than online voting,” Smit writes. He went on to highlight some of the problems that have yet to be solved:

The biggest one is that anyone can be 'shoulder-surfing' while you vote. [Election officials] have no way of guaranteeing that no one is standing there with a gun to your head, forcing you to vote a certain way. Or that someone isn't looking over your shoulder to make sure you vote a certain way before they give you the $10 they promised.

The second concern that Smit raises is that there is no way to guarantee that the correct person is casting a ballot online. All that is known is that they have the necessary information. One could hypothetically gather up all their apathetic friends who are not planning to vote and ask for their information, thus gaining the ability to cast multiple votes. Smit points out that this is not a problem with the current system where identification is verified at polling stations, which could also be done at a polling station where machines are used.

A security concern Smit highlighted is that in an online voting system, “your computer is necessarily part of the voting system,” and because the people running the election are unable to control individual computers, the system becomes open to the vulnerabilities present on each computer (viruses, trojans, etc.)

Online voting also has the potential for ‘stolen votes’ by way of ‘phishing’, whereby voters are defrauded into entering their voting information into what appears to be a trustworthy website, not knowing that the information is being collected and used by the fraudster.

These many concerns, if widely held by the electorate, could have a detrimental effect on the confidence of voters in the electoral system and call the legitimacy of the government elected under such a system into question.

Transparency

A lack of transparency in e-voting systems arises because the technology used in such systems is often subject to certain protections that prevent its availability to the general public. In Hacking Democracy, we learn, “the [Diebold] software is a trade secret. It’s against federal and state law to look inside Diebold’s voting machines.” Even the technical advisor to California’s Secretary of State, David Jefferson, was not allowed to look at the software. The inability of the people running the elections to examine the software they use (and that the government has paid a significant amount of money for) is troubling given that there is no secret to how paper ballots work.

Regarding code for an online voting system, Smit explains, "In theory the code we write is copyrighted. We can patent algorithms and ideas, though not code." In spite of not being able to patent code, there are methods available to programmers to prevent people from being able to verify that the code does what it is supposed to do.

The solution to this problem that Smit highlights is to make the software open source so that anyone can download it, submit patches for it, and so on. Smit explains, "Then the government's contract is with a company that provides service and the technical support, not the company that wrote the software (though in practice, one company is writing most of the software)."

This myriad of issues has the potential to raise questions among the electorate which threatens the legitimacy of the systems and thus the outcome of elections.

1 Kohno, Tadayoshi, Adam Stubblefield, Aviel D. Rubin, and Dan S. Wallach. "Analysis of an Electronic Voting System." Johns Hopkins University Information Security Institute Technical Report. TR-2003-19, 23 July 2003. [Rubin Report]
2 Ibid. at p. 3.
3 Tokaji, supra. at p. 3.
4 Rubin Report, supra. at pp. 4 and 21.

Saturday, March 29, 2008

Rationale For Electronic Voting

From a Canadian perspective, there are two major benefits to electronic voting technologies, both of which relate to accessibility, namely physical accessibility and linguistic accessibility.

Newer DRE systems can be built to allow voters with a variety of disabilities to vote secretly and independently. Some include an audio component for voters with visual impairments or literacy limitations, and “sip and puff” devices for voters with dexterity limitations.1 The benefits in this regard are undeniable, as some disabled electors are unable to cast their vote on a traditional paper ballot without the assistance of a friend or poll worker. “To the extent that casting a secret ballot is considered an integral component of the right to vote, the failure to allow secret voting by people with disabilities raises serious equality concerns.”2

A 2000 Elections Canada survey found:
Groups representing persons with disabilities were the most supportive of using the Internet for such activities as registering to vote, finding out where to vote and even voting itself. Fully 64% indicated they would be interested in voting on-line during future elections, if technology allows. By comparison, support for on-line voting among the general population was only 47%.3

The benefit for disabled voters of voting online rather than on a voting machine is that disabled voters who use computers regularly will likely have their own computer tailored to accommodate their unique needs while a standard machine at a polling station may not have all the specific features of one’s personal computer.

In addition to their being physically more accessible than a pencil and paper, DRE systems can be programmed in numerous languages so that voters may fully understand what is on the ballot, regardless of their language.4 This feature is increasingly attractive given the large immigrant population in Canada and the number of these new citizens whose grasp of either English or French may be limited to the minimum required to gain citizenship.

Other Motivations

There are a number of other motivating factors behind voting technologies that are important, but arguably less integral than accessibility is to an individual’s right to vote. Some of these motivations are also arguably less influential in Canada than they are in the US. In a 2001 issue of POSTnote [PDF], the UK Parliamentary Office of Science and Technology (POST) cited three factors for considering changes to the way votes are cast in the UK (in spite of high public confidence in the integrity of the voting process): declining turnout, constitutional innovations and new technologies5.

In theory, electronic voting methods, particularly online voting, have the potential to increase voter participation, though this is not always a driving force behind introducing these technologies. Online voting, in particular, does allow for easier participation, especially for those voting by absentee ballot. One can easily vote from anywhere that has Internet access. The current absentee ballot system requires the voter to know that they will be outside of their jurisdiction well in advance of voting day. Online voting would allow those who must go out of town at the last minute to vote from wherever they might be at the time. There is also reason to believe that online voting might appeal to younger voters, a demographic in which turnout is particularly low.

New voting technology also offers the advantage of being able to assess whether the voter has cast their ballot correctly. The machines can be programmed to detect overvotes and undervotes and allow the voter to correct this so as to avoid unintentionally spoiled ballots. This ensures that everyone’s vote is cast and counted as intended by the voter.

One of the key motivators in the US for using innovative means of voting is the deficiencies in current paper-based voting systems, particularly punch-cards and optical scanners, which electors have experienced as of late. Very few people in the USA still vote with paper and pencil on a ballot that is manually counted by poll clerks, so the focus tends to be on the disadvantages of voting technologies that predate DRE systems. Some research does suggest that the new DRE systems are, in the US context, more effective in attaining and maintaining voter equality than the older systems:
While the public debate has largely focused on the security flaws in electronic voting, the empirical research reveals that second-generation DREs offer considerable advantages, when it comes to the equality norms defined above [racial equality, disability access, multi-language access, and inter-jurisdictional equality]. Prof. Kimball’s research reveals that they perform even better than precinct-count optical scans in this respect.”6

While the machines produced by Diebold and other manufacturers cost millions of dollars7, online voting has the potential to reduce the cost of holding an election. The reduction in cost would not be immediate assuming online voting is initially offered as an alternative to current voting methods. The theory is that once implemented, electors would increasingly vote online and the number of traditional polling stations could be gradually scaled back.

In the US, ballots tend to be quite long with multiple races occurring and questions being asked of electors simultaneously. Proponents of electronic voting systems argue that such systems can make it easier for electors to navigate a long ballot. This argument cannot be made as easily in Canada where ballots tend to be short, particularly in federal and provincial elections where electors are electing one representative and occasionally answering a referendum question. Municipal elections include races for multiple positions; it is perhaps for this reason, in part, that electronic voting systems are beginning to roll out in municipalities.

A Sample Elections Canada Ballot
Source: Elections Canada

Obviously, there is no shortage of reasons why a jurisdiction, such as Canada, might want to explore the use of new voting technologies. However, as we will see, there is a balancing act to be performed as part of such an exploration.

1 Tokaji, supra. at p. 13.
2 Tokaji, supra. at p. 58.
3 Davidson, Diane R. and Miriam Lapp. “The Evolution of Federal Voting Rights For Canadians with Disabilities.” Electoral Insight. April 2004.
4 Tokaji, supra. at p. 35-6.
5 UK Parliamentary Office of Science and Technology. "Online Voting." Postnote. May 2001.
6 Tokaji, supra. at p. 56.
7 VotingMachineProCon.org. "How much does it cost to purchase an electronic voting machine?"

Friday, March 28, 2008

History & Methods of E-Voting

Currently, Elections Canada and all provinces still use traditional paper ballots, which are hand-counted by poll clerks, though some smaller jurisdictions in Canada have begun to explore various alternative means of casting and counting votes. Other countries have been much more innovative.

Electronic Voting Machines

A lever-style voting machineMachines have been counting votes in various parts of the world since the 1960s, first by way of punch card ballots and mechanical lever machines, and more recently using optical scan voting machines, similar to answer sheets used in standardized testing, whereby voters fill in a circle on the ballot and a machine counts the selections based on the darkened areas of the page.

Even more recently, partly in response to the infamous “hanging/dimpled/pregnant chads”1 of the 2000 US Presidential election, voters cast their vote on an “electronic input device” (for example, a touch screen). There are two distinct possibilities as to what can happen once a vote is cast electronically. Some systems will produce a paper confirmation. Others, known as direct-recording electronic (DRE) voting systems, record the votes and store the ballot images in memory. The machine tabulates its own results and produces a number or transfers its information to a central location where the votes from a number of machines are tabulated together.2

Online Voting

The advent of the Internet has had huge implications for politics and elections. Candidates recruit people to their campaign and collect donations online. Debates are broadcast on YouTube, where candidates and elected politicians post videos in an attempt to reach out to young voters. Facebook users can broadcast their political views to friends by linking to those politicians whom they support, should those politicians be savvy enough to have a Facebook account (currently, Stéphane Dion has 10,496 supporters, while PM Harper has 8,371). Political parties produce podcasts, and Parliamentary proceedings can be viewed live online at cpac.ca.

In the face of all this and the Internet’s ability to allow voters to participate easily from wherever they are in the world, it is inevitable that the possibilities of online voting would be explored. Online voting is currently being rolled out in a number of Canadian municipalities, including Markham and Peterborough, and is very popular among private organizations, such as corporations and university student unions and societies, including the Dalhousie Student Union and Dalhousie Law Students Society.

The focus of this analysis will be on the two most recent developments, electronic voting machines (both paper-based and DRE) and online voting. [The Elections Canada Report also addresses telephone voting, but this method is currently far overshadowed by machines and the Internet.]

1 Wikipedia. "Chad (paper)". and CNN.com. "Egad! What's the 'chad' blocking the path to the White House?" 12 November 2000.
2 Tokaji, supra at pp. 11-12.

Introduction

While Canadians still vote using paper ballots in federal and provincial elections, some municipalities have started using a variety of new voting technology in their elections, predominantly in Ontario, but also in Edmonton and Saint John1. In October’s municipal election here in Halifax we will likely be able to vote online. The implementation of new voting technology in Canada is recent and appears to be happening quite gradually. By contrast, in the United States, paper ballots are only used by a small segment of the population2 and electronic voting machines “count about 87% of votes cast in America today”3.

The issues that have arisen in recent US elections4 have brought voting technology to the forefront. Amid some arguably conspiratorial concerns surrounding Premier Election Solutions, a subsidiary of Diebold Election Systems, Inc., which makes and sells voting machines (for example, Diebold chief executive Walden O’Dell’s status as a top fundraiser for President Bush) there are more general concerns about security, transparency, and voting irregularities associated with electronic voting methods. At the same time, proponents of electronic voting methods point out the advantages of such technology, particularly with regard to accessibility.

In a report entitled Technology and the Voting Process [PDF|HTML] prepared for Elections Canada by KPMG/Sussex Circle, the study team reached the following two conclusions with respect the new voting technologies and their potential for use in Canada:
The key point here is that none of the new technologies has yet been adequately tested in a way that would satisfy the requirements of electoral democracy in Canada.
and
The most important general finding from this study is that the new technologies-—and especially the selected three of electronic kiosk, telephone and Internet—-offer the prospect of significantly improving both the accessibility and the efficiency of the electoral process in Canada5.

How do we reconcile these two findings? At what point will Elections Canada deem new technologies to have been “adequately tested”? “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly”6, but based on the research coming out of the US from computer scientists which consistently show vulnerabilities in electronic voting methods that are currently used across that country, it will be difficult to reassure voters that their vote will be counted correctly. It is paramount that voters have confidence in the electoral process, specifically in the way their vote and the votes of others are recorded and counted.

At the same time, accessibility of the electoral process is important for gaining the satisfaction of disabled electors with the electoral system, and to potentially improving, or at least maintaining, voter turnout. As a result, we must balance the risks associated with new technologies (and the perception voters have about the security of their vote) with a desire to encourage participation in the electoral process by making voting easy and accessible to as many people as possible.

According to s. 18.1 of the Canada Elections Act, any test of electronic voting technology in a federal election will require “prior approval of the committees of the Senate and of the House of Commons that normally consider electoral matters.” What considerations should the Chief Electoral Officer and the committees make when deciding whether to test new voting technologies in an official vote? What possible constitutional challenges exist to innovation in the way Canadian electors cast their vote?

This blog will explore the Canadian constitutional issues that arise in the face of electronic voting methods, specifically electronic voting and counting machines, and online voting. Following entries providing background information on e-voting and both the rationale for voting technologies and the concerns they raise, I will explore the current situation in the United States including litigation that has arisen out of recent election controversies, the Canadian jurisprudence surrounding the right to vote guaranteed in section 3 of the Charter, and highlight the United Kingdom as a more useful comparator than the United States, as Canada balances the potential benefits and detriments of voting technologies. This analysis leads to the conclusion that based on the current status of electronic voting systems and the situation in the United States, the most reasonable course of action for Elections Canada and its provincial counterparts is to wait and see how the technology develops and how the American litigation progresses.

1 Wikipedia. "E-Voting in Canada"
2 Tokaji, Daniel P. "The Paperless Chase: Electronic Voting and Democratic Values." Fordham Law Review Vol. 57, 2005 at p. 7
3 Hacking Democracy. Dir. Simon Ardizzone and Russell Michaels. Teale-Edwards Productions, 2006.
4 For example, CNN.com "Scattered computer glitches slow voting." 08 November 2006; Walton, Marsha. "Electronic Voting No Magic Bullet." CNN.com 12 December 2003; and CNN.com "Florida voting official's decision next on docket." 16 November 2000.
5 KPMG and Sussex Circle for Elections Canada. Technology and the Voting Process. 15 June 1998. [Elections Canada Report]
6 Charter of Rights and Freedoms, s. 3.