Will Your Next Vote Count?
Though he never ran for council, Brotherton irrevocably changed politics in the city. He’s peripherally responsible for some of the upheaval in last November’s mayoral race—involving close-but-no-cigar write-in candidate Frye—that languished for months in California’s Superior Court.
Back in 1984, maverick election-law attorney Mike Schaefer filed a lawsuit in his friend Brotherton’s name against the city of San Diego, contending its ban on write-in candidates was unconstitutional. Brotherton never made the ballot, but California’s Supreme Court agreed with Schaefer, and the prohibition against write-ins was overturned.
Uncanny parallels align the current mayoral situation with the 1984 circumstances that generated Schaefer’s lawsuit. Incumbent Roger Hedgecock was under indictment for campaign finance fraud, and his challenger was a former TV anchorman-turned-bank executive who was untried in local politics —not an attractive choice for voters. Unhappy with the limited alternatives, Schaefer approached Brotherton, and the two agreed to change the system.
Today, however, Brotherton is not happy with what was wrought.
“[Donna Frye] should never have been allowed to run for mayor,” says Brotherton, adding write-ins should only be allowed in the primary, not the general election. “The whole thing [has been] a comedy of errors, and [it] makes me want to vomit,” he says.
VOTING IN THE NEW CENTURY has been a study in turmoil and contention. After a rash of high-profile, court-decided races, it’s begun to look as if the judicial branch is appropriating the heart of the democratic process—waylaying the system of checks and balances.
Four years before Frye’s supporters decided to take San Diego’s mayoral election results to California Superior Court, the United States Supreme Court was taking unprecedented action in deciding the winmidelections for congressmen and recovered about 50 percent of what we’d lost.
In Tijuana’s mayoral race last August, a close win by controversial PRI Mayor Jorge Hank Rhon was challenged, and upheld, in court. After 15 years of PAN domination in Baja, the victory might portend the comeback of the country’s old ruling party.
“In 2000, we lost the presidency of the country,” Hank says. “In 2003, we had the win midelections for congressmen and recovered about 50 percent of what we’d lost. That gave a start to the wheels turning back to the PRI. Now, the people know that we [PRI] are bad, but we’re not that bad. So they’re voting for us again. I think [PAN] didn’t do their job in the less-privileged classes; they weren’t so close to the people, solving the little-people problems.”
In August, PAN won the Mexicali battle for mayor by a matter of mere percentage points. That decision was later overturned by a Baja California electoral tribunal. Since then, numerous other mayoral and gubernatorial contests have been decided in that country’s court system.
In December, the Ukraine’s presidential race was settled by the country’s supreme court. And while San Diego’s embattled registrar of voters, Sally McPherson, scrambled to interpret local voting law concerning optically read bubbles, a battle raged in Washington over that state’s gubernatorial race. The contest was eventualy decided in court. All of which has given the impression the backbone of democracy —the free vote—is in jeopardy.
But local voting experts say that’s not so.
Thad Kousser, assistant professor of political science at UCSD, says tight races have historically meant court cases. The recent rush to the courts is a sign races are becoming more competitive, he says, not that anything has changed in the way elections are decided.
“The United States holds lots and lots and lots of other elections,” Kousser says. “You had [a] presidential [election], senate races, governors’ races, congressional races, state legislative races, local elections, mayors, county supervisors, initiatives, all those going on, and there were two that were really close, across the nation—the governor’s race in Washington and the mayor’s race in San Diego.
“The reason we think court decisions are a commonplace thing is that we just happen to live in one of the jurisdictions where it was close. There’s nothing new about courts coming in [following] incredibly close elections and looking hard at exactly what rules were used.”
Mikel Haas, San Diego’s new registrar of voters (who also held the office from 1994 to 2001 before taking what he thought was a temporary position as head of the county’s Animal Services department), talks about a tight 2000 race for the board of the Otay Water District. It came down to a tie (voters used San Diego’s punchcard machines that year) and, pursuant to the law, was eventually decided with a coin toss.
“There’s no such thing as a perfect election,” Haas says. “You try to get as close as you can. There have always been close races, there have always been recounts, and there have always been [contested] elections, but nothing of the magnitude of what was at stake in [the] 2000 [presidential race]. That started the whole look at how we vote in America and what systems we use.”
THE WRITERS OF THE U.S. CONSTITUTION left the power of the vote—and responsibility for it—in the hands of the states. Voting procedures (and technology) vary from jurisdiction to jurisdiction across the nation, sometimes dramatically. Before 2000, it was common to have a jurisdiction with antiquated (though reliable) Vote-amatic punch-card machines bordering a jurisdiction with cutting-edge electronic technology.
Gore vs. Bush changed everything. Congress reacted to that contentious 2000 race with the Help America Vote Act (HAVA) of 2002. The measure mandated minimum requirements for voting districts across the country and, more importantly, made $4 billion available to bring local systems up to speed. Meanwhile, in California, then–Secretary of State Bill Jones, citing Florida’s problems with hanging chads, decertified the perennial punchcard systems in 2001.
In her first year on the job as registrar of voters, San Diego’s McPherson strove to implement Jones’ requirements and the HAVA mandates. The 2003 gubernatorial recall was the last election in California to use punch-card machines.
By 2004, San Diego County had signed a contract with Diebold—a controversial behemoth in the field of voting systems—to provide cutting-edge, ATM-like voting technology. Its machines complied with the federal and state mandates, plus stringent new Americans with Disabilities Act requirements that made it possible for the nonambulatory and the blind to vote unassisted.
But the March primary of 2004 exposed problems with the new system —though Haas says the problems had more to do with the training of the county’s 6,000-plus temporary polling personnel than with Diebold technology.
As a result, then–Secretary of State Kevin Shelley (charging that Diebold misrepresented the certification of its machines) decertified San Diego’s $31 million system, requiring that all California voting jurisdictions provide a voter-verifiable paper trail. It was a move that haunts the sleep of registrars everywhere.
McPherson found herself at the helm of the fourth-largest voting district in the nation (locally, 1.1 million people voted in November) with an expensive, cutting-edge system that was suddenly worthless. Unable to go back to the reliable punch-card systems, McPherson’s office elected to go to optical scan machines.
Here’s where forward-thinking county negotiators really earned their salaries. Thanks to a good contract with Diebold, the company is responsible for outfitting the county with a workable, certified voting system—at no further cost. Diebold hasn’t yet been paid a cent, McPherson says, and they won’t be until certified machines prove themselves in action. That won’t happen until 2006. July’s special vote for San Diego mayor will employ the same optical scan technology used in November elections.
Whatever the case, McPherson says the county is in good shape for the 2006 vote, which is also the deadline for compliance with HAVA mandates and the voter-verifiable paper trail required by Shelley.DIEBOLD IS SET TO ROLL OUT its improved system—with printed paper receipts—sometime this summer. Tadayoshi Kohno, a Ph.D. candidate at UCSD, is satisfied.
In July 2004, Kohno was part of a small team of electronic security experts picked to report to the U.S. Congress on Diebold’s electronic voting systems. His involvement started in 2003, when the source code for Diebold machines was leaked and showed up on the Internet. Ever the inquisitive computer scientist, Kohno stripped the code like a mechanic tearing down a V-8 engine, to understand its inner workings.
“I was shocked, because the level of problems was very serious—not what you’d want in something so important,” Kohno says. “I was used to seeing lots of problems—they were making grade-school computer security [mistakes] —so I was not surprised to see [them]. But I was really disappointed they were there in a voting system. It was clear they didn’t have security experts go with them when they designed the system. If they’d done that, some of the very simple problems we uncovered wouldn’t have been there.”
In May 2004, Secretary of State Shelley lowered the boom on Diebold, claiming it lied in 2003 when it told California that federal approval of its TSX voting system was imminent (it qualified at the federal level in April 2005). San Diego was one of four jurisdictions using the system; all were forced to quickly come up with new procedures.
Now, with federal qualification and the verifiable paper trail, the system is expected to be state-certified before 2006 elections. Controversy continues to swirl about the company, however —its president was a prominent Bush supporter in 2004—giving rise to infinite clamor that elections could be rigged or manipulated electronically.
“Computers have been used in elections for 40 years,” Haas says. “How do you think they tally 40 million votes in a single night? The potential for corruption has always been there, [same as it has] for a box of ballots to end up at the bottom of a lake.”
Ironically, as the voice of the avantgarde of computer science, Kohno talks of taking a step back to proven systems (he’s content with the opticalscan technology the county used in 2004) while the integrity of new technology is tested. He has seen the twisted minds of code manipulators in a virtual vis-à-vis, and he’s not comfortable with the idea of rushing headlong into the technological horizon, clutching cargo as fundamental as the backbone of democracy.
But his point should become moot soon.
If a certified system with a verifiable paper trail can be achieved—a voting machine that gives a paper receipt— Kohno says his anxieties would be appeased and he would give it his endorsement. Diebold is expected to deliver that machine this summer.
Not a moment too soon. Experts believe San Diego should expect tighter and tighter political races at all levels. Redux registrar Haas smiles in the face of simmering controversy and the contentious political horizon it heralds.
He talks about the potential for fallibility in all elections—the San Diego model is no exception, with its thousand moving parts and potential for human, mechanical and technological error—and says he’s ready for the challenge.
“I’ve been blessed with interesting assignments; this one may be more interesting than most,” he says. “Just another adventure for ‘Mikel Haas, Thrill Seeker.’”