But setting aside political-celebrity hype, the bigger question is: Are the mechanisms in place to ensure accurate election results?
Prior to the 2000 presidential election, who would have foreseen that a national election in the United States could hinge on a few hundred votes? Prior to the hanging chad era, any potential inaccuracies or irregularities in vote counting did not capture major attention from our first-world nation.
We now know that every single vote in that election truly mattered and election accuracy was likely not achieved. The United States experienced weeks of uncertainty about the choice for our next president while election officials pored over the ballots. All the while, the country endured multiple lawsuits all the way up to the United States Supreme Court.
And then, the very Supreme Court that had supported states' rights took away the Florida Supreme Court result in favor of Al Gore, and effectively resolved the election in favor of George W. Bush (even though history tells us that Gore nationally received over 500,000 votes more than did W.). This truly was the stuff of history. Had vote counting been more accurate, perhaps Gore would have become president.
Clearly, we need to explore what is being done to ensure that vote counting is more accurate and effective. A study by Election Data Services earlier this year concluded that at least 69.5 million registered voters will cast optical-scan ballots in elections this month, while at least 66.6 million voters will use electronic equipment. Jurisdictions with about 22.5 million voters are still reporting the use of punch cards and lever machines, but voting equipment procurement is under way in those areas as well.
The study shows that more than a third of counties have changed voting equipment since 2000. In fact, at least 1,395 counties will have changed or are planning to change voting equipment by the time of the election next week.
Accordingly, almost 82 million registered voters will have seen voting systems changes over the past six years. Therefore, the number of counties using hand-counted paper ballots by the time of the elections this month will be only about half as many as many as in 2000.
The Election Data Services study informs us that the methods for vote counting are changing significantly. Does this mean that all previously experienced problems with vote counting are solved?Unfortunately, the answer is no. As most of us know from daily experience, you can encounter difficulties dealing with various forms of electronic technology. On top of that, we've seen all sorts of reports about specific problems with new "high-technology" voting methods.
For example, the Brennan Center released a report (click for PDF) earlier this year analyzing the security vulnerabilities of three of the most commonly used electronic voting systems, and the results are sobering indeed. Long story short, all three voting systems have significant security and reliability vulnerabilities which "pose a real danger to the integrity of national, state, and local elections."
Three electronic voting systems were analyzed. One is called Direct Recording Electronic (DRE), which directly records a voter?s selections in each contest using a ballot that appears on a display screen. Another is called DRE with Voter Verified Paper Trail, which is a DRE that captures a voter's choice in electronic form and on paper. Lastly, there's the Precinct Count Optical Scan, which allows a voter to mark a paper ballot with a pen or pencil, and the voter then takes the ballot to a scanner.
The good news is that the most troubling of these vulnerabilities can be substantially remedied if adequate countermeasures are put in place at the state and local levels. And a few jurisdictions have initiated the countermeasures that could make the least-difficult attacks against voting systems much more difficult to execute successfully.
The bad news is that all three voting systems are vulnerable to software attack programs. Furthermore, voting machines with wireless components are much more open to various attacks. At this point, only New York and Minnesota ban wireless components on all voting machines.
The Brennan Center does make certain security recommendations in its report. For instance, there should be automatic routine audits comparing voter-verified paper records against electronic records following every election. There also should be "parallel testing" on Election Day of randomly selected machines to try to detect software attacks and bugs. In addition, more states should ban wireless components.
Steps like these should make electronic voting systems more likely to be relied upon, according to the Brennan Center. Plainly, reliability and accuracy are essential in our elections to ensure a fair democracy.
So, go out there and vote, and let's hope that your vote ultimately gets counted. Even if every single vote is not counted accurately, let's cross our fingers that the upcoming elections trigger sufficient turnout and consensus, so that any irregularities wouldn't affect the outcome and that truly elected officials take public office.
is a partner in the San Francisco office of . His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to email@example.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.