Technology has bestowed a stunning twist of fate in the arcane world of counting how America votes.

A decade ago, activists railed against private companies who made the computer-driven “black boxes” that tabulated election results. That opacity, to protect their trade secrets, fueled sore losers, conspiracy theories and thwarted journalistic investigations of miscounts or tampering.

But today, the voting machine industry’s newest devices are producing digital images of individual paper ballots, accompanied by devices that mark the ballot or its image, and include audit systems that can trace disputed ballots back to their precincts—by using technology that’s akin to how banks allow smart phones to securely deposit checks.

These newest systems vary—some are better than others. Yet taken together, they suggest technology in on the brink of ushering in a new era of vote counting transparency. This is before winners are certified, not afterward as an academic exercise or audit.

“After the election, I can look at the computer and I can see every single vote, every single marking on every single ballot,” said Stan Martin, Clerk and Recorder of Adams County, Colorado, which includes the northeast Denver metro area, speaking of a system developed by Clear Ballot, a relative newcomer in the industry. “And what that gives me is confidence that that election is tallied 100 percent correct.”

Too Good To Be True?

Martin has used the ballot images to convince political parties and local candidates—some whose winning and losing margins were less than 10 votes apart—to accept the counts, and not file for emotional, costly and time-consuming recounts.

“I said there is no way that I am not going to give these candidates an opportunity to look at their election before the requested recount deadline,” he said. “You can take a specific contest and break it down into just those ballots. Then you can further it down even more and you can take a specific candidate. While the candidates were in there, we showed them what we were looking at.”

“We narrowed down and agreed on every on of those ovals,” Martin said, adding they found one had been miscounted. “And when the candidates left that room—these were races that were six votes apart—we had two candidates on the losing side say they felt 100 percent confident that the election [result] was 100 percent accurate.”      

This sounds almost too good to be true—and in some ways it is. The system Martin used is newer and more flexible than other ballot imaging systems that are more widely used—which means they take longer to get comparable bottom-line results. But elections being elections, and politics being politics, the existence and use of the digitized ballot images has become the subject of a handful of recent lawsuits, pitting transparency advocates against less open-minded election officials and establishment-protecting politicians.

The lawsuits—as recent as one filed in Ohio last week before Tuesday’s May 8 primary, as well as in Alabama during the finale of ex-Supreme Court Chief Justice Roy Moore’s failed 2017 U.S. Senate race, another from New York that was recently decided in favor of disclosure, and a still-simmering dispute in Arizona—all suggest that available tools that could make elections more transparent and trustable are not fully being deployed.   

Taken together, their legal briefs state that many of the localities that have this latest voting technology—and not all counties or states do—are not saving the digitized ballot images; not using them to verify vote counts before certifying winners; nor sharing them with campaigns, the press and public. Instead, some swing counties in swing states are instead erasing the digital images after they are used to electronically tally the votes; operators are directing on-board software not to save the images on hard drives.

This apparent failure to use available technology in 2018 is not happening in a vacuum. It comes as state election officials are participating in war games—literally training to stop Russian meddling or hackers in this year’s voting. It’s happening as these same officials cringe every time President Trump lies that millions of people voted illegally in 2016. In other words, some election officials are shelving technology that could restore trust in voting, prompting activists to file the recent lawsuits.   

“With all this concern about foreign interference and Russians, why wouldn’t you want to make the ballot count as transparent as possible, when the technology is designed to do exactly that?” said Robert Fitrakis, an Ohio-based attorney, publisher and sometimes Green Party candidate who has repeatedly sued election officials to follow federal and state laws to preserve all election records for 22 months.

“You create this technology that serves transparency and audit logs, to be able to get down to the precinct level and individual ballots, and then you turn it off or you destroy the images needed?” he said. “It’s like you buy a house and you buy a state of the art security system with real-time cameras and motion detectors, and you turn it off?”

Lawsuits First Seek to Preserve Ballot Images 

Fitrakis is seeking an emergency order from Ohio’s Supreme Court to preserve all of the digital ballot images—in the counties whose voting machinery offers that option—during May 8’s primary. The legal brief notes that some Ohio counties are doing that, but two of the biggest counties—where Cleveland and Columbus are located—are not. Instead they have been destroying the images collected during the early voting period, the brief said.

The Ohio suit is based on the premise that the images must be saved as public records—the first step to actually using them to bring transparency to contested election results. They’re seeking an order telling all Ohio counties that have digital imaging scanners counting votes to save those images in Tuesday’s primary. Ohio’s Supreme Court is expected to issue its response on Monday.

But, again, the big picture transcends the particulars of the Ohio lawsuit and others, such as a New York State suit that led to an April appeals court ruling that all election records, including electronic ballot images, were public records. That meant they had to be saved and made available to citizens, campaigns, reporters, academics or anyone.

For example, recall what happened last November in Virginia, where the majority in the state’s lower legislative chamber came down to a reported tie in one race. There were several contradictory recounts before that contest was finally decided by drawing a slip of paper from a bowl with the candidates’ names on it. The voting system used had digitized ballot images, but they weren’t used, said Chris Sautter, a District of Columbia-based attorney who specializes in recounts and has been involved in the Ohio litigation.

“The computation of ballots totals could have been different if they’d gone to the ballot images. They may have come up with a different number. I don’t know but it’s possible,” he said, adding that prolonged recounts increase suspicions of foul play, which did occur in that Virginia count. “I heard grumbling that maybe somebody tampered with that controversial [tie-reversing] ballot between Election Night or sometime between the [unofficial count] canvas and when they [the winners] were certified... The question was whether or not that was tampered with. I’ve seen ballots like that, so my instinct is it probably wasn’t. But again, one of the benefits of ballot images is to confirm or not confirm what you’ve got there.”

Sautter noted that some Virginia counties, notably in the Washington suburbs, do save and use the digital ballot images. But other counties across the state—echoing the situation in Ohio—apparently do not save and use the images. This lack of uniformity might be due to local control in elections. But as Fitrakis said this week, new technology has changed the advocacy agenda—remarkably uniting those previously derided as gadflies and the voting machine industry itself. 

“Two years ago, when I sued [in Ohio] over this, there were a dozen counties—some that are now keeping their images—that said, when I requested the ballot images, that they didn’t exist,” he said. “The key to this new suit is the revelation they [the ballot images] are designed to be saved, that you have to take actual steps to eliminate them… Look at the tone of our brief. Essentially, we are quoting the manufacturers. We’re not at odds with ES&S anymore. We’re at odds with the election officials.”

Embracing Vote Count Transparency

It’s not all election officials, by the way. Stan Martin, the Adams County, Colorado, clerk was thrilled to be part of pilot project using Clear Ballot’s new technology, which earlier this year was certified by the US Election Assistance Commission. Ironically, his county needed to replace its voting machinery before then, so they bought a system from another manufacturer, Dominion Voting Systems. It uses digitized ballot images to count votes but it was not as flexible with rapidly compiling images of mismarked or questionable votes.        

“Where I’m most excited about this technology is we have the technology. We should be able to produce that election, and be fully transparent with it, with the digital images, before the deadline occurs with a requested recount,” he said. “Why couldn’t you be able to see that election? Why couldn’t the public be able to see that election before the requested recount? And let them look at it, and let them decide. ‘Okay, it’s enough. I disagree with five of these ovals that were adjudicated by the election judges. I would challenge those in court. And I’m going to file a file and pay for a requested recount, because I thoroughly believe that this could be overturned in court, even if I’m on the losing side of that.’ Let them see that before this [count] gets certified and we put this ballots to bed and we put them on a shelf where nobody else can see them.”    

Why don’t all election officials share Martin’s sentiments—who is an elected Republican by the way. There are various kinds of reasons given why some officials don’t want to use, keep or disclose the digital ballot images—all but ignoring federal and state law that says election records are to be preserved for 22 months, which is echoed in the best practices recommendations from the U.S. Election Assistance Commission.

One consultant working with officials said, on background, that they don’t want the open the Pandora’s Box to litigation. Thomas Ryan, a retired engineer who for four years was chair of the Pima County Election Integrity Commission, in Arizona, said many people who run elections want to keep things as simple as possible.

“So if they don’t use the images for anything themselves, they don’t see any reason to keep them,” he said. “So the only reason they are going to keep them is if somebody tells them they have to. And the law seems to be moving in that direction.”

Ryan partly is referring to an unfinished political fight in Arizona over making the ballot images public. Transparency activists who he supports won a lower court order to save those images in Arizona. But the GOP-majority legislature recently passed a law saying those ballot images were exempt from its open records law, which means they don’t have to be disclosed. While that new law is likely to be contested in court, it underscores that there’s not a consensus of how transparent vote counting should be.

Ryan said litigation fears were a “red herring,” because “if somebody’s putting out a fake story about the images, it will be discredited… there’s going to be a lot of analysis of that data.” That latter point—that some campaigns and their supporters will likely scrutinize the digital ballot images, akin to crowd-sourcing verification of the vote count—may be closer to some of the resistance. But partisan power plays have also come into play.

And those partisan power plays have also spectacularly backfired—suggesting that just getting the facts out on the open, via scrutiny of marked ballots—has no downside and is far better that attempting to stream-roll the process, which is what happened in the close of last year’s contentious Senate race in Alabama.

Backfiring in Alabama’s Senate Race

There, a new county judge ruled that the ballot images should be saved. The Republican Secretary of State, thinking that his party’s candidate, the retired state Supreme Court Chief Justice, Roy Moore, could be hurt by that, refused. His lawyers went to Moore’s old courtroom and got a last-minute order to not preserve the digital ballot images. But after Democrat Doug Jones won an upset victory, Moore complained that he could have used the images in a recount.

“What was interesting to me about Alabama was it showed both the best and the worst,” Sautter said. “Here you had a local circuit court judge, in Montgomery, Alabama, in the heart of Dixie, appointed by a Republican governor, who immediately understood what this case was about and completely rejected what the Secretary of State and the Attorney General were trying to argue. Understood and just said, ‘Can you tell me, I understand where you're going but I don't agree with you. Can you tell me if there's a public cost?’ That was basically all he was interested in and they said, ‘It's nominal.’ He ruled for it. That was the best.”

“Then you had the secretary of state and the attorney general going to Roy Moore’s former colleagues and getting that ex parte order” to destroy the ballot images, Sautter continued. “This is just me guessing what happened, but I’m sure the secretary of state was thinking, ‘These guys are on the side of Doug Jones.’ Most of the polling showed Moore with a slight lead in the late stages of the campaign. If there’s a recount these guys are going to file some kind of lawsuit to prevent Roy Moore from winning. Then he goes and he gets Roy Moore’s colleagues to stay the [ballot preserving] injunction. Then afterwards, Roy Moore blasts the secretary of state for destroying the ballot images.”

Sometime during the week of May 7, the Ohio Supreme Court will decide if the state’s counties with ballot image software will be required to save the digitized records in Tuesday’s primary. But Sautter and a handful of other election transparency activists have been talking with top election officials in a handful of states, such as Maine and Maryland, who have agreed to save those images.

Will The Available Technology be Used?

While no one knows what will happen in 2018’s primaries and midterm fall elections, what’s clear is election officials in many states have a powerful tool to increase both the transparency and confidence in the process—should they decide to fully use it. Until now, most talk surrounding election security in 2018 has focused on vulnerabilities—staring with Russian meddling in voter rolls to combating deeper hacking.

What is missing is giving the public the tools to see for themselves what the ballots say and to accept or contest the results. This capability is built into many of the newest voting machine systems, although some, like Clear Ballot, are more user friendly than others. If trust in elections is so important, prompting this Congress to make its first major new appropriation since 2002, on has to ask, ‘Is the available technology being used?’

“I want to prove elections are real,” said John Brakey, an Arizona-based transparency activist who leads AUDIT-USA (Americans United for Democracy, Integrity and Transparency in Elections). “I know they only steal in the dark. We want to make the black box transparent. Wed know it won’t solve everything, but it’s a big start.”