Georgia’s HB-316 to provide for electronic ballot markers

On Feb 15, 2019, at 6:20 PM, Harvie Branscomb  wrote:

Georgia’s HB316 is remarkable. It has 39 references to “electronic ballot marker” of which five are in the definitions. It has six references to “ballot marking device”, of which all six are in the definitions. In other words the definition for ballot marking device (the one definition that does include a pen and suggests the possibility of in-person hand marking ballots) is not even used in the remaining text of the bill. It may turn out that this bill is so much cultivated to support electronic ballot markers it may have shot itself in the foot. We do know that hand marking of some Georgia ballots is inevitable. A lot of hand-marking of paper ballots in Georgia would produce a more verified, evidence-based election.

These definitions are in my humble opinion defective. So much so they merit a review here with [my emboldened annotations and remarks are in square brackets]:

Link to legislative source:

‘Ballot marking device’ means a pen, pencil, or similar writing tool, or an electronic device designed for use in marking paper ballots in a manner that is detected as a vote so cast and then counted by ballot scanners.

[Pencil is far from the wisest ballot marking device to use, for some obvious reasons (e.g. erasure), and some not so obvious – one being the property of pencil lead to reflect light into the scanner sensor. The unspecified “electronic device” is a carte blanche for any kind of ballot marker of any design whatsoever with or without any verifiability built in.]

36 (2.1) ‘Ballot scanner’ means an electronic recording device which receives an elector’s
37 ballot and tabulates the votes on the ballot by its own devices; also known as a ‘tabulating
38 machine.'”

[There is no mention here of a requirement for human readability of voter intent or hand tabulation. Here is the opening for unreadable bar coded voter intent to be tabulated. Here the bill fails to ensure that what the voter could read and understand is what will be tabulated, audited and recounted.]

39 “(4.1) ‘Direct recording electronic’ or ‘DRE’ voting equipment means a computer driven
40 unit for casting and counting votes on which an elector touches a video screen or a button
41 adjacent to a video screen to cast his or her vote. Such term shall not encompass ballot
42 marking devices or electronic ballot markers.”

[ So we know from this that the electronic ballot marker Georgia will use isn’t going to be labeled a DRE even if it is one. Note that recent devices that evolved from and are sold as ballot marking devices (BMD) do have the property mentioned, namely casting and counting votes, such as Dominion’s latest touch-free ballot marker:]

43 “(7.1) ‘Electronic ballot marker’ means an electronic device that does not compute or
44 retain votes; may integrate components such as a ballot scanner, printer, touch screen
45 monitor, audio output, and a navigational keypad; and uses electronic technology to
46 independently and privately mark a paper ballot at the direction of an elector, interpret
47 ballot selections, communicate such interpretation for elector verification, and print an
48 elector verifiable paper ballot

[ I don’t know any credible authority on what “compute votes” means. I don’t like the sound of it. Good thing it isn’t allowed. Do ballot marking devices “compute votes” before printing ballot images on paper? This is a duplicate electronic marker definition that has more meat, but the meat doesn’t taste good.  If my understanding of the Smartmatic proposal for Georgia that is related to VSAP (LA’s Voting Solutions for All People), it does “retain votes” whether or not it “computes” them.  “May integrate” is vague to the point of meaningless. “Uses electronic technology to mark at the direction” sounds promising, but again no mention of human  readability. “Interpret ballot selections” appears to mean to detect onscreen gestures. “Communicate for verification” would be good, except paper hasn’t yet been mentioned. Finally then, print an elector verifiable paper ballot – in other words there is no expectation that technology is to be involved in assisting the voter who needs it to verify what is on paper. ]

49 “(18) ‘Official ballot’ means a ballot, whether paper, mechanical, or electronic, which is
50 furnished by the superintendent or governing authority in accordance with Code
51 Section 21-2-280, including ballots that are read by
52 ballot scanners.”

[ This appears to allow any kind of representation of vote to be official. Probably that’s not what most Georgia citizens thought was going to happen via this bill. It may allow multiple official representations and seems to allow entirely electronic representations.]

53 “(19.1) ‘Optical scanning voting system’ means a system employing paper ballots on
54 which electors cast votes with a ballot marking device or electronic ballot marker after
55 which votes are counted by ballot scanners.”

[ No mention here of “counting” of any sort by hand – for recounts, audits, or at counties with broken optical scanners. By the way this and the next definition are the only places that “ballot marking device” is actually used to some, but unclear effect in the bill. ]

56 “(32.1) ‘Scanning ballot’ means a printed paper ballot designed to be marked by an
57 elector with a ballot marking device or electronic ballot marker or a blank sheet of paper
58 designed to be used in a ballot marking device or electronic ballot marker, which is then
59 inserted for casting into a ballot scanner.”

[ So “scanning ballot” actually means paper – either pre-printed and not voted or blank and not printed or voted. “Scanning ballot” is probably not a voted ballot either marked by hand or machine.

I highly recommend local activists (and well versed officials) to become careful readers of prospective legislation like this bill. Because you will likely be reading it again once the language goes to court, as it inevitably will. At that time the court will examine each word in the law with focus and patience that no legislator has applied to the bill.

Being an advocate for audits and evidence-based elections, I looked for audit language in the bill and found some. Audits are enabled and RLA (Risk Limiting Audit) is mentioned for pilot purposes deep in the document: ]

1257 SECTION 43.
1258 Said chapter is further amended by revising Code Section 21-2-498, which was previously
1259 reserved, as follows:
1260 “21-2-498.
1261 (a) As soon as possible, the local election superintendents shall conduct precertification
1262 audits for any federal or state general election in accordance with requirements set forth by
1263 rule or regulation of the State Election Board.
1264 (b) In conducting each audit, the local election superintendents shall:
1265 (1) Complete the audit prior to final certification of the contest;
1266 (2) Ensure that all types of ballots are included in the audit, whether cast in person, by
1267 absentee ballot, advance voting, provisional ballot, or otherwise;
1268 (3) Provide a report of the unofficial final tabulated vote results for the contest to the
1269 public prior
to conducting the audit;
1270 (4) Complete the audit in public view; and
1271 (5) Provide details of the audit to the public within 48 hours of completion.
1272 (c) The State Election Board shall be authorized to promulgate rules, regulations, and
1273 procedures to implement and administer the provisions of this Code section.

[ Five of many desirable principles of audits are represented here- if not fully voiced. The attention to public access is laudable.

1) Prior to certification -good;

2) all types of ballots included (but not the same as all ballots included in audit)- leaves room for an audit of insufficient scope;

3) unofficial results produced prior to audit (but not necessarily published and not necessarily per audit unit)- the results of each “unit” sampled for audit need to be committed to in public;

4) “complete” it in public view – (this might or might not be enough transparency); and

5) provide details to the public (this actually might be the best part of  this bill- an excellent requirement). ]

1274 (d) The Secretary of State shall conduct a risk-limiting audit pilot program with a risk limit
1275 of not greater than 10 percent in one or more counties by December 31, 2021. The

[ A specified risk limit is good, but in the absence of any definition of a risk limiting audit, meaningless. This could turn into something very useful or fail to do so. ]

1276 Secretary of State shall review the results of the pilot program and shall provide the
1277 members of the General Assembly with a comprehensive report no later than 90 days
1278 following the election in which such pilot program is used. Such report shall include an
1279 implementation plan on how to implement risk-limiting audits statewide.

[ If the Georgia SOS has the best intentions and is well advised and well informed, this pilot could result in best-practice statewide Risk Limiting Audits. Comments above represent only two pages of a 40 page bill.]

Harvie Branscomb