The Hacking of Election Administration

 

A year ago I gave an extensive interview with the Public Radio program “Reveal” on the threat of hacking the voting machines that would be used in the 2016 Presidential election. Because of the physical security measures and procedures in place in election offices combined with the total number of machines that would have to be attacked, I was confident that attempts to hack or subvert the election through voting equipment could not be pulled off without detection in time to foil the attempt.

What I never envisioned at the time was the vulnerability of voter confidence to manipulation, from the inside and outside. I never anticipated the effectiveness of attacks on the legitimacy of our democratic institutions. I never expected the profession of Election Administration to be undermined by elected officials, by the media and the political fringes. In other words, I never expected Election Administration itself to be hacked.

The term hacking implies some kind interference, disruption, manipulation, destruction or loss of control. Hacking as it applies to elections is misused and misapplied. Election hacking invokes images of cyber villains taking control of voting equipment and manipulating and changing election outcomes. The reality is that elections are not really vulnerable to this type of hacking. Due to the de-centralized nature of voting, the number of individual machines, and the security counter-measures that each jurisdiction employs, it is a practical impossibility to pull off.

There is evidence that unauthorized and possibly hostile agents gained access to unsecured voting registration information at the state level. While this access is disturbing and a violation of voter privacy, it is not a threat to elections and voting. It is merely the virtual equivalent of dumpster diving-discovering interesting stuff but nothing really actionable. This mischief has been mis-branded as hacking and as a result has become the subject of a national security intervention- and that is a problem and a threat.

Elections have been designated as “critical infrastructure” and therefore entitled to defense and protection by the Department of Homeland Security (DHS). But what does “critical infrastructure” mean? Where is it? These are fundamental questions that no one really knows the answer too- not even those charged with protecting it (whatever it is).

I have my own definition of “critical election infrastructure” to propose for your consideration.

The foundation of the infrastructure is the laws and regulations of each state governing voter registration and voting. The second aspect is the legal and governance framework for the administration of those laws and regulations. The third piece of the infrastructure is the human, capital, and financial resources allocated for the administration of elections. The fourth aspect is the professional, managerial, and ethical qualifications of those charged with election administration. The final and least tangible piece of infrastructure is “legitimacy”; the yardstick by which all democracies are judged by scholars, by history, by the public, and by media.

Laws and regulations can suppress participation, disqualify eligible voters, invalidate valid votes, and even rig the game. Sometimes this is intentional, sometimes for advantage and sometimes the result of bad legislation or poor code revision practices.

Governance of election administration may be by a non-partisan elected official, a partisan elected official, a partisan or non-partisan appointed official, a partisan or non-partisan board, or by some other body. None of these structures are inherently better than another but all of them have their weaknesses and vulnerabilities to outside influences.

Election administration is chronically under-resourced, a fact that has become widely recognized. The cyclical nature of elections demands more people, space and money in some years than in others. This does not fit traditional governmental budgeting practices. Straight line budgeting of off election years creates a crisis in election years. Across-the-board cuts, a favorite budgeting tactic in lean times, are nonsensical as if it would be appropriate for a 10% budget cut to be offset by registering 10% fewer voters and counting 10% fewer votes.

There was a time, not too long ago, when elections were simple, clerical in nature and run by rather anonymous administrators. There was a time when election administration was not like managing an IT department. There was a time when public expectations did not require election administrators to be media savvy. There was a time when administrators were largely insulated from attack or attempts to influence by activists, interest groups, partisans and the public. Times have changed as have the required qualifications and expectations of election administrators.

What once may have been merely sour grape criticisms by losing candidates and campaigns has morphed into deliberate and shameless efforts to discredit election systems, election results, and election administrators. Extreme disappointment in a candidate’s loss (or narrow win) has become the basis to justify overt, untrue, and non-factual attacks on the integrity and legitimacy of elections. Legitimacy is undermined by the frivolous and continuous claims of fraud which have been normalized by their frequency, volume and quantity.

While these vulnerabilities and attacks on election administration as an institution are not new, I never anticipated their cumulative effectiveness in “hacking” the system and  voter confidence.  It is time to focus on securing the real “election infrastructure” whose legitimacy is visibly and actually under attack every day on all sides rather than being distracted by the hypothetical and unrealistic threats of hacking registration databases and voting machines.

 

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The Best Laid Ballot Plans Go Awry…

m650_1The California Presidential Primary Election is the most complicated election in a four year cycle and has to be among the most complicated in the nation. The ballot for this election features presidential candidates for six political parties.  Each party establishes their own rules and formats for their candidates.  This year, three of the parties have closed their primary which means that only voters already registered with the respective party may vote their candidates.  Three other parties have opened their presidential preference ballot to unaffiliated voters but have closed the election of their party officers.  The result is seven flavors of party ballots for each precinct in the county.

Because the regular Voter Nominated Primary (Top Two) is also on the same ballot for federal, state and county offices, there is also a non-partisan ballot. All voters, affiliated with a party or not, get to vote this portion of the ballot which gives us a total of eight flavors of ballot per precinct with a convoluted decision tree to decide who gets which ballot.  Typically the Top Two primary is straightforward to design and administer, unless there are 34 candidates and a write in for US Senator.  More about that later.

Because a presidential primary is always the most complicated election and the hardest to explain to voters, we spent months developing a plan for both the official ballot and the voter guide to facilitate voter education. Weeks before the candidate filing period ended we had developed and tested mock ups of the ballots and our voter guide.  We accommodated all the variables and constraints of outdated and meaningless formatting, mandatory language, and font size and face requirements in the Election Code and were satisfied that we had everything covered.

We have actively followed and engaged with the President’s Commission for Election Administration (PCEA), and the Center for Design and we tried to adopt their recommendations. We have embraced plain language practices and have considered and adopted many suggestions from language minority groups, from accessibility advocates and from election reform do-gooder organizations of all stripes.

Our designs were the easiest to read and understand, our instructions were as simple and clear as possible, each voter’s ballot was to have offices appear in the same location, and the risk of voter confusion and error would be minimized. As a bonus, our design would save printing and postage costs (for us and the voter) while also reducing the time required to tabulate the voted ballots.

At the last minute, all our work was blown to hell. We now are reduced to a ballot design which is hardly adequate for our needs and the needs of our voters.  The inferior design is driven by a sequence of events entirely outside our control.  The 34 candidates for US Senate triggered a domino effect.  Inflexible, mandated and redundant primary instructions constituted the second domino.  Top down, arbitrary and micromanaging office sequences were the third domino.  The next domino was the 1960s voting system software and hardware which is limited to logic and processing speed only slightly more capable and sophisticated than an abacus.  The next largest domino is the federal and state voting system certification regime that prohibits even the most rudimentary and common sense solutions to programming and database problems which could be fixed by today’s average middle schooler or a free mobile database app.  The final and fatal domino is the reality that there are no better solutions for inadequate voting systems for California for 3-6 years at a minimum.  And then the choices will probably be between various versions of 1990 technology.

The field does not to appear to have learned much since the 200 Presidential election. Despite the recurring cries from commissions, foundations, attorneys, advocates, scholars, think tanks and the public for fixing the things that are wrong with our elections, for making things simpler and less complex, for increasing engagement and participation, for removing barriers and for creating more confidence in our elections; election administration is being smothered by the status quo.

The accretion of outdated and conflicting laws, rules and regulations usually devised by legislators for their own political gain has stressed the system to a near breaking point.  The energetic and blind administration and selective enforcement of purposeless, contradictory laws and regulations actively undermines the integrity of elections.  The inertia of “the way we have always done it” or to choose the most onerous of conflicting statutes is thwarting meaningful reform. The absence of courage to do “what is right” when “what is right” is unpopular or new guarantees election administration to perpetual stasis in an unhealthy state.  In short, election administration is suffering from self-interest, abuse and neglect.

Generally I have been optimistic and have embraced progressive election reforms but I am increasingly concerned that, in the current state of affairs, talk of reform and improvement is only happy talk and wishful thinking. The mass of the whole system may be so weighty as to make it impervious to a paradigm change even by the most intelligent, committed and determined reformers.

But that won’t prevent me, and others, from continuing to tilt at windmills.

Carry on.

 

The Opposite of Courage is Conformity

“The opposite of courage in our society is not cowardice, it is conformity.” ~Rollo May

Almost every definition of courage recognizes that courage is not the absence of fear.  Without over-emphasizing or being over-dramatic, we all have fears.  Some of them are deeply personal and private- self doubt, failure, change, acceptance, self worth, control, etc.  These private fears derive from our own experiences and insecurities and we inevitably take them to work with us.  These fears might be either exacerbated or soothed by our workplace environment and interactions.  In any case, they are always present and we act in response to them in one way or another.

Rather than responding to fears, the challenge as a leader is to act courageously and to foster courage in others.

               Act.  Courage is action in spite of fear.   Fear paralyzes.  Fear prevents thinking and reasoning.  Fear stifles our voice.  Fear is embodied in the silent, empty-eyed and frozen appearance of the proverbial “deer in the headlights.”  Just as fear and inaction seal the fate of the deer as a car barrels towards its unwitting target; fear, inaction, and conformity seal the fate of individuals and organizations (although not as suddenly or dramatically.)

               Risk making a mistake.  Inaction because of the fear of making a mistake is the greatest single cause of mediocrity in the work place.  The drive for perfection, when it delays or prevents action out of fear of erring or misjudging, robs a person or team of success rather than ensuring it.  When we fail to act in order to avoid embarrassment and the judgment of others if we make a mistake, we reveal fear and weakness.  We are saying that we prefer to be passive and mediocre rather than risk success.

Courage recognizes that mistakes and mis-steps are not failures; they represent the opportunity to learn and grow for ourselves and others. Michael Eisner, Disney CEO, is reported to have said “To punish failure is yet another way to encourage mediocrity.”  When we recognize that mistakes are an essential part of achieving success and withhold harsh judgments, we empower ourselves and others.

Privilege Principle over Expediency. In the public sector administrators and managers operate by a different set of incentives and motivations than our counterparts in the private sector.  Rather than being motivated and incentivized by profits, losses and bonuses, public administrators and elected officials are often motivated by pleasing others and by not causing any waves.  Elected officials place great value on the views and desires of their constituents which they weigh heavily when setting policy and making decisions.  Administrators tend to be risk averse and generally seek to please as many people as possible- the public, peers, and subordinates.

Perhaps more often than we think, pleasing others and doing the right thing come in conflict, creating a situation in which a choice must be made between expediency (pleasing others) and principle (doing the right thing). Expediency considers each decision in a vacuum with the criterion being the optimal outcome for that specific situation. The criteria for decisions based on expediency are expressed in terms of “Who will benefit?”; “Who will get hurt?”; “Who will be angry?”; “Who will know?”; “How will this affect me?”, etc.  The aggregation of decisions based upon expediency result in inequities, inconsistencies, inefficiency, unpredictability, and chaos while maximizing the benefit to the decision maker personally.

On the other hand, decisions based upon principle place self interest in a subordinate position to “doing the right thing.” “Doing the right thing” is another way of describing decisions that treat everyone equally; that enforce or apply rules, policies, ordinances, and laws rather than ignore them. Doing the right thing is consistent over time and across similar cases.  Doing the right thing does not always win friends or bring personal rewards.  It takes courage to make decisions on principle over expediency when the two are in conflict.  It takes a certain courage to even acknowledge that the two are often in conflict.

Have the Courage to Let Go. There is a paradox that the more an administrator wants to touch everything, the more limited and less effective the administrator becomes.  There are things that are so important to us, things that are so threatening, and things that are such a source of insecurity that we will not yield control even over them even when clinging to them is counter-productive.  For example, when we are jealous of our power and authority we insist on being the final word on everything under our control in order to protect our egos and reputations.  We fail to see that this insistence on control actually limits us and increases the probability of some kind of damage to our reputation and standing.

How is that the case? First, it is an inefficient use of an administrator’s time.  The administrator can easily become overwhelmed by minutiae and delay important actions and decisions.  Insisting on having everything one’s way cuts off the introduction of new ideas and approaches from subordinates.  Such control communicates a lack of trust in the judgment and abilities of others and leads to discouragement and the stifling of initiative in the organization.  At best, this level of control maintains the status quo.  At worst it produces untimely and less than optimal decisions.  It leads to staff morale issues and turnover.

Expressing this paradox in terms of its positive rather than negative outcomes, consider the results of giving up some of the things we cling to:

  • More authority and control given to subordinates increases the span of control of the administrator.
  • More trust in the judgment of subordinates increases the timeliness, quality and quantity of decisions.
  • More credit for success given to others reflects more credibility upon the administrator.
  • Fewer secrets and proactive, top-down sharing of information results in more timely, accurate and complete information being reported to the administrator.
  • Greater transparency in decision making leads to greater confidence and trust in the administrator.
  • More kindness and consideration expressed and demonstrated for others leads to more respect being shown to the administrator.

Reward Courage in Others. Our society is quick and willing to recognize and reward heroism but workplace courage is personal and exhibited without fanfare.  It is seldom heroic and it is often non-conforming in character.  Our culture and bureaucratic environment values and rewards conformity and it is uncomfortable with and often punishes non-conformity.  As administrators, one of our obligations as courageous leaders is to foster an environment where the exercise of personal courage by members of our organization is positively recognized and rewarded.  This might mean having the courage oneself to intervene and re-characterize the organization’s view of the behavior from disruptive and “boat rocking” to admirable and positive.

The value and need for courageous words, ideas, and actions in the workplace has been unrecognized and undervalued. It appears certain to me than courage begets courage.  As leaders, we can foster courage in our organizations by developing and exhibiting greater personal courage to act, to risk, to be principled, to “let go” and to reward courage in others.  We can encourage and inspire others to be courageous.  We can choose courage to be great or we can choose mediocrity, conformity and expediency.

Stay Tuned

(Author’s Note: A version of this article was written and published to an audience of public administrators almost exactly four years ago while ramping up for the 2012 Presidential Election. The observations that triggered the article were drawn primarily from the field of election administration but are also representative of conditions in the public sector generally. As election administrators gear up for another, and potentially raucous, presidential election, the moral and practical value of courageous leadership is even more important.)

Hiding Behind the Words

Zebra_in_black_and_white There is comfort in seeing the world as black and white.  When the duties of election administrators require decisions, solutions which are black or white are highly preferred.  Shades of gray, interpretation of rules and codes, and the use of discretion are fatuously avoided.  No administrator wants to take unnecessary risk or to explain and justify a decision.  Bureaucrats and administrators carefully seek out simplistic and unambiguous responses from statutes, procedures, precedents, and even the practices of others.

A fundamental premise of this decision making style is that the right answer can be found in rules and statutes and, further, when an answer is found in the rules (or in past practices or best practices), it is, by definition, the right answer.   The right answer is the answer that stands on its own without the decision maker having to accept any responsibility for the answer, i.e. the codes says…”, past practice is…”, other jurisdictions do…”, etc..  The ability to insulate oneself from the consequences or criticism of a decision is not the sole advantage, however, in the minds of those who employ this approach.

There is a normative mindset inherent in those who demand black and white and eschew shades of grey which condemns the interpretation and application of rules and laws.  This approach condemns permissive interpretations and liberal construction of the election code, even when the code provides a range of solutions or directs the application of judgment based upon facts for specific cases.  In this framework, there is no discretion and interpretation is always wrong.  Those who maintain this approach see not only the decisions based upon interpretation and discretion as wrong but also see those who would interpret and use discretion as being corrupt and unethical.

The presumed moral superiority of those who read rules and laws restrictively and who assume to correctness and rightness of pat answers is based upon a false sense of neutrality that such an approach provides.  This view is steeped in the tradition of the politics-administration dichotomy which dominated late 19th and early 20th century public administration theory.  Political leaders made the rules and laws based upon a mandate received by the electorate and the role of the virtuous administrator was to faithfully, and with neutrality, implement the will of legislators.  This theory assumes that all situations can be/should be/are addressed in legislation and that the legislators have the expertise to provide technical solutions to complex questions.  Scholars, ethicists, legislators and administrators have all recognized practical and theoretical limitations of governing in this manner but the mindset persists in many current administrators.  It is these administrators who I refer to as bureaucrats.

Bureaucrats do not seem to realize that, in an attempt to avoid errors of discretion and interpretation, they themselves make their own interpretations and use their own discretion.  They use to use choose restrictive and literal interpretations regs, rules and laws even when these decisions are not consistent with facts or with other sections of code. 

There are two important points I am trying to make in this post.  First, a literal, restrictive, black and white reading of governing documents for decision and policy making is equally, although unconsciously, interpretive and discretionary as the approaches of deliberate interpretation and the conscious use of administrative discretion.  There is no legal, ethical or moral high ground to be gained by appeals to literal readings when there is space for interpretation.  In fact, the opposite may be true. 

Let me refer to a recent discussion regarding the mailing of information to voters pertaining to a specific election.  The Election code directs administrators to mail the material to voters as early as 40 days prior to the election.  At the time the code was written, the deadline for registering was 29 days prior to the election and there is a provision in the code that indicates that voter information should be sent to everyone registered 29 days prior to the election.  Since that time, the registration deadline has been moved to 15 days prior to the election but the practice of cutting off mailing voter information at 29 days continues in many places.  When I asked why people who register between the 15th and 29th day dont get voter information, I was told that the 29 day cut-off was interpreted to prohibit sending voter information even when new voters were legitimately registered and there were adequate time and resources to do the mailing.  The suggestion of mailing to these voters was perceived to be provocative and subversive, not to mention reckless.

To be clear on the matter, the code did not direct nor did it prohibit mailing information after 29 days.  It was simply interpreted to mean that registrants after 29 days would not be mailed the same information that other voters received.  At some point in time the 29 day cut off made sense but over time, as other laws changed and printing and mailing technologies evolved, the interpretation somehow evolved to a prohibition on mailing to these voters.  When I challenged this interpretation by asking why it was good service and good policy to withhold the mailing, the answer was predictable– “the code says…”  When I pointed out that it was actually cheaper to do the mailing after 15 days, it reduced returned mail, and it was a greater service to voters; I received a slightly different yet obstinate response-“the code doesn’t say we can….”

My second point is that hiding behind a literal or black and white interpretation sets up intransigent and counter-intuitive policy positions that serve no public interest and often result in high visibility lawsuits which are costly and undermine confidence in our institutions.  There are many notable examples: the 2004 San Diego County case in which clearly legible write-in votes were not counted, reversing the apparent outcome of the election, because the write-in votes were not machine readable (the bubble was not filled in) but were clearly human readable;  the 2009 Hamilton County, Ohio case in which provisional ballots were not counted because the ballot was cast at the right polling place but the wrong precinct ballot was used (even though the ballot contents were identical); and the 2012 Allegheny County, PA case in which reporters were banned from entering a polling place and reporting on voting on Election Day.  The list could go on and on.

Good elections are based upon good decisions- not bureaucratic decisions.  Good decisions are based upon an ethic that seeks the protection of constitutional principles, individual rights, and the respect for the rule of law. 

Stay tuned.