Last week’s surprising outcome in a party primary in South Carolina for United States Senate was accompanied by anecdotal reports of voting problems on election day, and many questions about the accuracy of the vote count. Whether specific reports of irregularities in this election are confirmed, the most important fact about South Carolina’s voting system is that most ballots cannot be effectively audited or recounted. Serious concerns about the integrity of the primary (and of other elections conducted using the same technology) are inevitable, and legitimate. South Carolina uses paperless touch-screen electronic voting machines for all but absentee voting, which is done using paper ballots. Thus for the vast majority of votes, voters cannot check to be sure their votes were recorded as intended, and election officials cannot conduct legitimate recounts or audits to prove that the machines were counting the votes correctly. When there is no reliable hard-copy record of the voters’ intent to fall back on, election officials, candidates and the public are at the mercy of the counting software, which may or may not function correctly.   Absent a “do-over” election using a system that can be recounted or audited, there is simply no way to know if the outcome was correct. In our 2008 joint report report “Is America Ready to Vote,” Common Cause, Verified Voting, and the Brennan Center for Justice rated South Carolina inadequate for failing to offer the basics of a verified election: an auditable system, and manual audits of the system to check electronic counts.

When electronic scanning equipment is used to tabulate voter-marked paper ballots, effective hand-counted audits can greatly limit the risk of an incorrect outcome. In a statewide election verified by a risk-limiting audit, many more people would have to commit egregious error or collude actively in order for electronic vote miscounts to cause an incorrect winner to be certified. By contrast, a paperless system such as South Carolina’s requires the error or malfeasance of a relative small number of individuals to change an election’s outcome.

In addition to lacking an effective means of verifying the results, this type of voting machine has been challenged in the past. The same system was used in Sarasota County, Florida’s 2006 general election, which saw an abnormally large undervote rate in the 13th U.S. Congressional District race.  Some interpreted a GAO report on the FL-13 undervote as exonerating the iVotronic machines, but we noted in our report that the GAO did not analyze firmware for the cards that enable voting for each voter; and verified only that the firmware found on the sampled machines contained the certified firmware – not whether the certified firmware contained bugs that could have contributed to the undervote.

A 2007 report commissioned by Ohio’s Secretary of State also found:

“…taken as a whole, the security failures in the ES&S system are of a magnitude and depth that, absent a substantial re-engineering of the software itself, renders procedural changes alone unlikely to meaningfully improve security. Nevertheless, we attempted to identify practical procedural safeguards that might substantially increase the security of the ES&S system in practice. We regret that we ultimately failed to find any such procedures that we could recommend with any degree of confidence.” (p.30)

We support calls for the forensic investigation of available records in the South Carolina primary, and urge that such records be preserved in the same way that paper ballots are retained for examination for a sufficient period of time post-election.  Election experts and computer technologists have published a reference document describing what records and election media should be preserved for forensic investigation. However, like in Sarasota County, absent evidence of voter intent the ultimate findings may still not be sufficient to generate confidence in the outcome of this contest.

South Carolina election officials have argued in the past that their paperless systems do not require a means of conducting a recount the election independently of computer software because the machines “safe and secure” without them.  But questionable elections like this one are inevitable no matter what voting system a state uses.  And when questions arise in jurisdictions that use paper ballots, they can be resolved almost immediately, as happened in Pottawattamie County, Iowa in 2006, when a ballot programming error led to suspicious results.  Luckily, Pottawattamie used only paper ballot tabulating equipment, and a hand recount of the ballots discovered the correct winners of multiple races.  But in the case of South Carolina’s Senate primary, the questions may never be answered.

Whatever the outcome, we strongly urge citizens and policymakers in the state and in the nation at large to use this moment to insist on their right to voting systems that demonstrate trustworthiness rather than demand trust. Congressman Rush Holt’s and Senator Bill Nelson’s Voter Confidence and Increased Accessibility Act would require that all Federal elections employ a system of paper ballots marked by the voter, with random hand-counted audits to check electronic tallies of the ballots. There has never been a better time for Congress to pass this critically needed legislation. The voters and the public deserve no less.