2. Humboldt County, Cali<strong>for</strong>nia, November 2008In November 2008, election officials in Humboldt County, Cali<strong>for</strong>nia implemented a post-election“Transparency Project,” whereby a separate scanner not manufactured by the voting machine vendorelectronically counted every paper optical scan ballot during the election. The purpose was to verify theofficial vote totals and to post ballot images on the internet in order to allow any member of the publicto conduct independent recounts. 47The Transparency Project turned up a counting error on Humboldt County’s voting machines: theyfailed to count approximately two hundred ballots. 48 According to Humboldt County Clerk CarolynCrnich, the first batch of absentee ballots scanned into the voting system, known as “deck zero,”disappeared from the totals produced by the voting system be<strong>for</strong>e officials finished scanning all ofthe ballots and certified the vote totals. 49 Upon learning of the problem, Crnich contacted the votingsystem vendor. 50wired and computerworldmagazines have reported that thevoting system vendor was aware ofthe “deck zero” problem <strong>for</strong> years,but did not notify the electionassistance commission, the nationalassociation of state electiondirectors, or the cali<strong>for</strong>niasecretary of state, cali<strong>for</strong>nia’s chiefelection official.Crnich states that after examining copies of the county’sdatabase, the vendor told her that a programming errorin its election management system, the software usedto aggregate the votes from all of the county’s votingmachines, caused the problem. 51Wired and Computerworld magazines have reportedthat the voting system vendor was aware of the “deckzero” problem <strong>for</strong> years, but did not notify the ElectionAssistance Commission, the National Association of StateElection Directors, or the Cali<strong>for</strong>nia Secretary of State,Cali<strong>for</strong>nia’s chief election official. 52 Instead, according toa report issued by Cali<strong>for</strong>nia Secretary of State Bowenafter the Humboldt County incident came to light,the vendor sent “a vague e-mail to election officials” inCali<strong>for</strong>nia that used the software with the programmingproblem, recommending a “workaround” procedurewithout identifying the problem or the potentialconsequences (i.e., lost votes) of failing to implement theworkaround. 53The voting system vendor has testified that once it first identified the software problem in October2004, it “communicated” its findings, and “a simple procedure workaround to mitigate this issue, viaemail to all Cali<strong>for</strong>nia counties then affected.” 54 Carolyn Crnich does not dispute that the vendor mayhave in<strong>for</strong>med her predecessor of the problem. She is certain, however, that her predecessor did notleave any documentation about the problem when she took over, or institute procedures that wouldhave prevented the problem from causing the voting system to lose votes. 55Nor did the vendor report the problem to the Cali<strong>for</strong>nia Secretary of State’s office. As the vendor noted intestimony, at the time there was no “mandate <strong>for</strong> reporting issues of this nature” to the Secretary of State. 5612 | Brennan Center <strong>for</strong> Justice
Humboldt County Election Director Crnich has stated that if there were an EAC database within<strong>for</strong>mation detailing problems that other counties had experienced using the same voting system usedin Humboldt County that she could have accessed be<strong>for</strong>e the November 2008 election, she almostcertainly would have used it. Such a database would have alerted her to the programming issue with hercounty’s tally server, as well as the workaround. Crnich stated that she believed it was well within theEAC’s mandate to provide this kind of in<strong>for</strong>mation to local election officials and that new officials, whomight have little experience with the systems they are charged with using, would particularly benefitfrom this kind of database. 573. Orange County, Florida, November 2006In 2007, the Florida Division of Elections listed Orange County as experiencing the highest undervoterates in the state on absentee ballots cast in the 2006 general election <strong>for</strong> both the U.S. Senate race and thestate Governor’s race. 58 Alarmed by the exceptionally high rate of undervoted ballots in a major election– nearly 5 percent – the Florida Fair Elections Center’s Associate Director contacted the Orange CountyElections Administrator, who promised to investigate the issue. 59 According to the Center, Orange Countyofficials responded to the inquiry by stating that their manual inspection of the ballots confirmed thatsome legitimately cast ballots had not been counted. The Center adds that when they questioned thevendor of the county’s OpTech optical scan machines about the problem, the vendor’s representativeidentified the problem as the scanners’ failure to read certain types of gel ink used by voters to completetheir ballots. 60On further investigation, the Center discovered that the same problem seemed to have occurred onsimilar scanning equipment in March of 2004 in Napa County, Cali<strong>for</strong>nia. In that election, opticalscanners manufactured by Sequoia failed to count some ballots voted with gel ink. 61 This problem wasonly discovered during the state’s legally-mandated hand count of 1 percent of the ballots cast in theelection. 62 Sequoia told Wired magazine that the problem was not with the machines themselves, butrather with the county’s calibration procedures – the machines were calibrated to read only carbon ink,not dye-based ink found in many gel pens. 63 According to Sequoia, the issue could have been avoidedthrough more thorough pre-election testing. 64When the Florida Fair Elections Center delved more deeply into the history of this type of problem,they learned that in the 2000 election, Orange County’s optical scan machines failed to count morethan 400 votes in the presidential race <strong>for</strong> no apparent reason. 65 At the time, it was postulated that onepossible explanation <strong>for</strong> the machines’ failure to count these ballots was “low carbon content in theink pens used to mark them.” 66 Kitty Garber, Associate Director of the Center, believes that both thevendor and the state were well aware of this be<strong>for</strong>e the time she discovered the issue in 2007 – in partbecause the vendor so quickly identified the source of the problem. For some reason, she states, thiswas not adequately “communicated to the people actually running the elections” in Orange County in2004 or 2006. 67Bill Cowles, Supervisor of Elections <strong>for</strong> Orange County noted in an interview with us that the countyswitched to a different model of ES&S scanner after the 2006 general election. 68 Florida has alsoimplemented a post-election audit law in the intervening years, though a 2008 study by the BrennanCenter and others has been critical of that audit as being insufficiently robust to catch many problems. 69Brennan Center <strong>for</strong> Justice | 13
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ennancenterfor justiceAt New York U