For over 15 years, election security experts and election integrity advocates have been communicating to their state and local election officials the dangers of touch-screen voting machines. The danger is simple: if fraudulent software is installed in the voting machine, it can steal votes in a way that a recount wouldn’t be able to detect or correct. That was true of the paperless touchscreens of the 2000s, and it’s still true of the ballot-marking devices (BMDs) and “all-in-one” machines such as the ES&S ExpressVote XL voting machine (see section 8 of this paper*). This analysis is based on the characteristics of the technology itself, and doesn’t require any conspiracy theories about who owns the voting-machine company.

In contrast, if an optical-scan voting machine was suspected to be hacked, the recount can assure an election outcome reflects the will of the voters, because the recount examines the very sheets of paper that the voters marked with a pen. In late 2020, many states were glad they used optical-scan voting machines with paper ballots: the recounts could demonstrate conclusively that the election results were legitimate, regardless of what software might have been installed in the voting machines or who owned the voting-machine companies. In fact, the vast majority of the states use optical-scan voting machines with hand-marked paper ballots, and in 2020 we saw clearly why that’s a good thing.

In November and December 2020, certain conspiracy theorists made unsupportable claims about the ownership of Dominion Voting Systems, which manufactured the voting machines used in Georgia. Dominion has sued for defamation.

Dominion is the manufacturer of voting machines used in many states. Its rival, Election Systems and Software (ES&S), has an even bigger share of the market.

Apparently, ES&S must think that amongst all that confusion, the time is right to send threatening Cease & Desist letters to the legitimate critics of their ExpressVote XL voting machine. Their lawyers sent this letter to the leaders of SMART Elections, a journalism+advocacy organization in New York State who have been communicating to the New York State Board of Elections, explaining to the Board why it’s a bad idea to use the ExpressVote XL in New York (or in any state).

ES&S’s lawyers claim that certain facts (which they call “accusations”) are “false, defamatory, and disparaging”, namely: that the “ExpressVote XL can add, delete, or change the votes on individual ballots”, that the ExpressVote XL will “deteriorate our security and our ability to have confidence in our elections,” and that it is a “bad voting machine.”

Well, let me explain it for you. The ExpressVote XL, if hacked, can add, delete, or change votes on individual ballots — and no voting machine is immune from hacking. That’s why optical-scan voting machines are the way to go, because they can’t change what’s printed on the ballot. And let me explain some more: The ExpressVote XL, if adopted, will deteriorate our security and our ability to have confidence in our elections, and indeed it is a bad voting machine. And expensive, too!

It’s been clearly explained in the peer-reviewed literature how touch-screen voting machines–even the ones like the XL that print out paper ballots–can (if hacked) alter votes; and how most voters won’t notice; and how even if some voters do notice, there’s no way to correct the election result. And it’s been explained why machines like the ExpressVote XL are particularly insecure–as I said, see section 8 of this paper*.

And it’s pretty clear that the folks at SMART Elections are aware of these scientific studies, and are basing their journalism and advocacy on good science.

I’ll summarize here what’s explained in the paper: how the ExpressVote XL, if hacked, can change votes. If the machine is hacked, the software can do whatever the hacker has programmed, but the hacker can’t change the hardware. The hardware includes a thermal printer that can make black marks (i.e., print text or barcodes or whatever) on the paper, but the hardware can’t erase marks. Therefore you might think the ExpressVote XL, even if hacked, couldn’t alter votes. But consider this: suppose there are 15 contests on the ballot; suppose the voter makes choices for all 13 contests and chooses not to vote for State Senator. Then what the legitimate software does is, in the line for State Senator, print NO SELECTION MADE. But the hacked software could simply leave that line blank–then, when the voter has reviewed the ballot (or not bothered to), the ballot card is pulled past the printhead into the ballot box, and the printhead (under control of hacked software) can print in a vote for Candidate Smith. Few voters will be worried that the line is blank rather than filled in with NO SELECTION MADE.

You might think, “OK, the ExpressVote XL can fill in undervotes, that’s bad, but it can’t change votes.” But it can! Here is the mechanism: Suppose the voter makes choices in all 15 contests, and chooses Jones for State Senator. The hacked software can print a ballot card with only 14 contests, and leave blank spaces for State Senator. Then, after the voter reviews the ballot card behind glass, the card moves past the printhead into the ballot box. At this time the hacked software can print the hacker’s choice (Smith) for State Senator. If most humans were really good at checking their printout line-by-line with what they marked on the touchscreen, this wouldn’t succeed because the voter would notice the missing line, but voters are only human.

More details and explanation are in the paper*.

* Ballot-Marking Devices Cannot Assure the Will of the Voters, by Andrew W. Appel, Richard A. DeMillo, and Philip B. Stark. Election Law Journal, vol. 19 no. 3, pp. 432-450, September 2020. Non-paywall version, differs in formatting and pagination.

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Author Of this post: Andrew Appel

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