iOS app Android app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
Brad Friedman

Brad Friedman

Posted: November 19, 2010 11:02 AM

After a week of hand-counting paper write-in ballots in Alaska's three-way U.S. Senate race between incumbent Sen. Lisa Murkowski (who ran as an independent write-in candidate), Republican candidate Joe Miller and Democratic candidate Scott McAdams, the Associated Press called the race for Murkowski.

Trailing by some 10,000 votes behind Murkowski, however, and with several lawsuits concerning the tabulation of ballots still pending, Miller is suggesting it's likely that his campaign will call for a "hand count" of all of the ballots cast in the race, not just those in contention during the counting of write-in ballots over the last week.

Given Alaska's years-long record of often-inexplicable election results, going back at least as far as the 2004 Presidential Election (and the first election as Senator for Murkowski who had previously been named by her father to replace him in the U.S. Senate when he became Governor in 2002); the repeated failure and insecurity of the state's Diebold election system; and the AK Division of Elections' truly remarkable history of blocking citizen oversight of election results -- much of which has been documented at The BRAD BLOG since late 2005 -- a thorough reconciliation of results by the Miller team would be both appropriate and helpful for all future elections in the state (and even for other states, where similar nearly-impossible-to-oversee optical-scan ballot systems are similarly used).

We have no particular dog in this race, as our coverage of issues of election integrity is, as always, non-partisan. Our only concern is for the voters, that they get to vote if they wish, that their votes are counted accurately if they do, and that the counts are performed transparently so that all citizens can know that the results are, indeed, accurate.

To that end, though we haven't consulted directly with any of the campaigns in the Alaska race, we have been following the tabulation closely since Election Day two weeks ago, and have been speaking with a number of sources in the state who have, we're told, been sharing various thoughts we've offered with both the McAdams and Miller campaigns. The advise we've offered -- as we would to anyone who asked, including Murkowski's campaign -- appears to have been taken to heart by the Miller team, at least if one of their lawsuits, and a number of their public statements given over the last week are any indication.

As mentioned, Alaska's history of election results that seem to defy mathematical explanation, along with (understating the problem here) less than transparent processes and a failure to make recommended changes to their election system and procedures, leads to a case where a full, manual, reconciliation of all ballots cast and counted -- as called for by the Miller camp, or any other -- would provide a valuable service to the state and all of its voters.

On Fox "News" Wednesday, Miller said that his team was reviewing the situation to determine whether a full "hand count" of all ballots will be called for by week's end. An election contest cannot be filed until after the race is officially certified by the state. "We'll wait and see when these numbers finally sort out here at the end of the week," he told Fox's Neil Cavuto yesterday. "The voters in the state of Alaska expect there to be integrity in the process; we are going to pursue that."

"The process that has gone down so far has been a hand count of the write in ballots," he explained. "There's not been any hand count of the other ballots. The other ballots have all gone through a machine count process. The machine count historically has had inaccuracies involved in it."

He is correct, as we'll explain below.

Last week, Miller's team made the mistake of bringing on discredited Republican operative Floyd Brown as a spokesperson. Brown is perhaps best known for producing the infamous and racially-based Willie Horton ads during the 1988 Presidential Election and, more recently, as a proponent in the Obama "birther" movement. As such, his first arguments out of the gate on Miller's behalf were classic, unsupported Republican charges of "voter fraud!" Since then, the campaign has taken a more legitimate tack of demanding accuracy and transparency in the tabulation of results.

The campaign has filed two lawsuits towards that end, to date, and now the possibility of a full election contest looms. There is good reason for such a contest.

Recent History of Impossible Numbers, Lack of Oversight in AK Elections

The Democratic Party in Alaska has, for years, been among the most aggressive in the nation towards seeking transparency following inexplicable and impossible to oversee election results. Beginning in early 2006, The BRAD BLOG covered, sometimes almost exclusively, the years-long roller-coaster ride as the Alaska Democratic Party (ADP) sought access to database files from the state's Diebold voting system and as the state presented increasingly remarkable excuses for denying the party the right to see the data containing the raw numbers of how voters voted as recorded by their e-voting system.

In August of this year, after Murkowski announced her write-in bid following her loss to Miller in the GOP primary, we detailed how the election was likely to test the state's dubious Diebold system. But the history of problems in the state deserve closer scrutiny as the Miller team decides whether the numbers reported by the Division of Elections -- as tallied only by the oft-failed, easily-manipulated optical-scan systems -- accurately reflect the will of the voters.

Alaska blogger and radio host Shannyn Moore highlighted some of these concerns earlier today in her article at Huffington Post (and crossposted at "Mudflats"), but more detail, background and context is likely useful here.

As The BRAD BLOG reported in February of 2006, after Democrats had noticed seemingly inexplicable numbers in the state's 2004 election results, including far fewer votes reported in final results, as compared to district-by-district tallies, and a reported 200 percent voter turnout in a number of areas, then party spokesperson Kay Brown told the Anchorage Daily News, "At this point, it's impossible to say whether the correct candidates were declared the winner in all Alaska races from 2004."

It was more than a year after the election, and one of the two major parties in the state were unable to even know if the results of a Presidential and U.S. Senate election were accurate. No matter how one feels about Alaska's election system, that point highlights an out-and-out failure of it.

The ADP, as part of their attempt to see the Diebold databases released for public record review, noted some of the rather remarkable anomalies of the 2004 results in a press release issued in April of 2006 along with a lawsuit [PDF] they were forced to file after the state refused to turn over the databases for inspection, claiming they were the proprietary property of Diebold, not the voters of the state:

According to the Division of Elections' vote reports that were produced by the state's Diebold computer system and are posted on the Division's official web site, a far larger number of votes were cast than the official totals reported in the statewide summary. In the case of President George Bush's votes, the district-by-district totals add up to 292,267, but his official total was only 190,889, a difference of 101,378 votes. In the U.S. Senate race, Lisa Murkowski received 226,992 votes in the district-by-district totals, but her official total was only 149,446, a difference of 77,546 votes.

In 20 of the 40 State House Districts, more ballots were cast than there are registered voters in the district, according to information on the state's web site. In 16 election districts, the voter turnout percentage shown is over 200%.

"Alaskans must have an accurate accounting of the 2004 election results. "The accountability of our election system is at stake. Confidence in the integrity of our elections is fundamental to our democracy," [Alaska Democratic Party Chair Jake] Metcalfe said.

The history of the battle over those databases was not a pretty one, and included some astonishing claims by the state (notably, under then Governor Frank Murkowski, Lisa's father). Here's how we summarized the insane back and forth in one of our articles detailing the roller coaster as it played out over several months in 2006:

In December 2005, the Dems asked the state for the election data files from the '04 election. They were told that they couldn't have that information, because the state's contract with Alaska made that information a "company secret" of Diebold's!

After complaints to the state, and the state's consultation with Diebold, the state agreed to release the information, but only after informing the Dems they'd have to cover the cost of (and this is a direct quote from their letter), "manipulating the data" before releasing it.

Finally, before the data could be released -- "manipulated" or otherwise -- the state's top security official [ed note: working for then Gov. Murkowski] announced they would not release the information after all because it was a "security risk."

Oh, how I wish I was making this shit up. But I'm not.

So, now the Dems up there are showing a rare bit of spine and going to court to get at that highly secret and super dangerous information otherwise known as "how American citizens voted in an election two years ago."

That was then. Later that same year, the Democrats were stymied by the Division of Elections again when they'd requested to review the 2006 election result databases, only to be denied despite a court order.

That fight detailed election procedures in which no citizen ought to have confidence.

Diebold Op-Scan System Failure

Diebold's optical-scan systems, used across the entire state, have a storied history of failure, from simple scanning errors, to demonstrated vulnerabilities allowing manipulation of results via both the hardware and software. To summarize some of the most notable points in that history which are likely be of interest to the Miller campaign:

Leon County, FL Hack. In late 2005, Finnish computer security expert Harri Hursti demonstrated how Diebold's optical-scan systems could be manipulated in such a way that results reported by the system could be reversed. The only way to detect the manipulation would be to hand-count the actual paper ballots. That hack, demonstrated in a mock election in Leon County, FL, was video taped as it happened and served as the pivotal climactic scene from HBO's Emmy-nominated 2006 documentary Hacking Democracy. (You can watch that remarkable scene right here.) The system that allowed for that hack is still in use in Alaska, and much of the rest of the country today.

Routinely Mistallied Ballots. Following the reported upset victory of Hillary Clinton over Barack Obama in New Hampshire's "first-in-the-nation" primary election in January 2008, questions about the results -- which were in contradiction to all pre-election polls as well as exit polls taken the day of the contest -- Democratic candidate Dennis Kucinich filed for a hand tally of ballots that were counted by the same type of Diebold op-scan systems as used in Alaska's elections and in the Leon County, FL hack. That, after a number of anomalies were noted in the results, including the fact that Obama had beaten Clinton in the 40 percent of NH towns where hand-counts are performed, by an almost identically reversed percentage to the one he lost to Clinton in the rest of the state where Diebold op-scanners are used to tally ballots.

Kucinich's partial hand-count revealed, as he detailed at the time, miscounts from 4.9 percent to 10.6 percent at various precincts when hand-counts were compared to the original Diebold op-scan results. The miscount rates were all far in excess of the accuracy rate required for voting systems by the federal Help America Vote Act (HAVA). Here, for example, are the results from the Kucinich-requested hand-count of Nashua's Ward 5 precinct:

CLINTON 1,030 959 -71 7.40
EDWARDS 405 377 -28 7.42
OBAMA 673 678 +5 0.73

The latest tallies in the Alaska Senate race show less than a 1 percent difference between Miller and Murkowski's totals.

The "Deck Zero" Bug Following the Presidential Election in 2008, Humboldt County, CA carried out a a first-of-its-kind "Transparency Project" in which an open source ballot-scanning program and an off-the-shelf scanner were used to count paper ballots previously counted by Diebold's scanners. That experiment revealed that hundreds of ballots had been dropped, without notice to system operators, by the Diebold scanner.

The bug, as Diebold would later admit in a state investigation of the problem, was known as the "Deck Zero" bug and existed in many versions of Diebold's op-scan system. Given the disparity between the reported number of votes in the 2004 Presidential and Senate races summarized above by the ADP, as compared to the District-by-District numbers detailed in their lawsuit, a check to determine if the "Deck Zero" bug came into play this year in the Senate race (or in any other races, or in any previous elections) is certainly reasonable.

That same California investigation would also find that Diebold's audit log system similarly allowed for audit logs to be modified and/or deleted by operators of the system, in violation of federal certification requirements. In other words, unless Alaska is using a more updated version of the Diebold software, it's relatively simple to modify results in the central tabulator and delete virtually all evidence that one has done so. Incredibly, some versions of the software even include a "clear" button which, when pressed, will delete audit logs entirely, and without notice.

Did any of those things affect the results of Alaska's Senate race? It's impossible to determine that one way or another without a complete hand count and reconciliation of all ballots cast and uncast in the race.

Following the 2004 and 2006 disputes in Alaska, as well as a number of state studies finding serious deficiencies in the Diebold system, Alaska's Division of Elections commissioned a "Security Project" with the University of Alaska Anchorage in order to audit the state's election system.

The project, as detailed by the University and the DoE in October of 2007, was to be implemented in four phases, with completion in January of 2009. Based on the preliminary recommendations from the project, the state determined that a planned "upgrade" of the state's Diebold systems to the newer Assure 1.2 platform (also made by Diebold, then renamed as Premier Election Solutions), would take place in 2009 following the 2008 Presidential Election.

This afternoon the DoE's Executive Director, Gail Fenumiai confirmed to The BRAD BLOG that that system was not implemented. "We did not upgrade and do not know at this moment what our plans are," she wrote via email in response to our query.

That may actually be a good thing. As The BRAD BLOG reported in July of 2008, despite 79 violations of federal certification standards, the U.S. Elections Assistance Commission (EAC) approved the new Assure 1.2 system anyway. In 2009, one of the computer scientists who worked on California's landmark "Top-to-Bottom Review" of all e-voting systems used in the state (whose findings were cited in Alaska still-unimplemented "Security Project") objected to the EAC's misuse of security data from that study in their federal testing and blasted the commission for having inappropriately certified the Assure 1.2 system at the federal level in the bargain.


Follow Brad Friedman on Twitter: