Transparency and legitimacy in Ontario elections using e-voting

Many Ontario municipalities are currently involved in debates over the adoption of e-voting.  I recently wrote a report that I submitted to the City Council of Guelph (where I live) urging against its adoption here.  I also delegated to the Council on this issue (24 April).  Since other speakers were covering matters such as security and accessibility, I decided to use my five minutes to raise the issue of transparency. 

I will put my little speech below.  Further details can be found in my own submission in the addendum to that Council meeting.


Remarks for Council, 24 April 2017

I urge the Council not to adopt e-voting for the upcoming election.  I have given a number of reasons for this recommendation in a report included in the addendum.  At this time, I will just draw your attention to the issue of transparency.

Computerized voting systems lack the transparency that paper ballot systems have.  That is, e-voting is neither open to the scrutiny of candidates for office, neither is it readily understood by them.  Consider the following example (Corrigan 2008, p. 148):

There was a wonderful illustration of the difficulty in monitoring electronic elections in the 2002 Governorship election in Nebraska. The law in Nebraska states that the candidates are entitled to watch the count when the votes have been cast. One of the candidates, eager to see democracy in action asked if he could be allowed to monitor the count. He was shown an optical scanning machine and then a computer in another room with a blank screen.

It seems that the Nebraska law was intended to allow stakeholders to monitor ballot handling so that they could ensure that everything was done properly and above board.  Whoever wrote the law clearly assumed that a layperson, without special assistance or expertise, could simply arrive in a room where ballots were being counted and monitor the process in a meaningful way.

When e-voting is introduced, this assumption no longer holds.  E-vote counting is not transparent: it occurs in a black box, possibly in a far-away location, that candidates are not allowed to look into.  Indeed, since e-voting systems are typically proprietary, candidates and the public are not allowed to inspect them or to know how they operate.  Even if they were allowed to inspect e-voting systems, very few candidates would understand what they found.

Note that the Ontario Municipal Elections Act (Ontario 1996) contains provisions similar to those found in Nebraska:

     Scrutineers at election of candidate

     16. (1) A candidate may appoint scrutineers to represent him or her during voting and at the counting of votes, including a recount. 

     …

     Objections

     [54.] (3) A scrutineer or certified candidate may object to a ballot, or to the counting of some or all votes in a ballot, on the ground that the ballot or votes do not comply with the prescribed rules.

The Ontario Act clearly makes the same assumptions as in the Nebraska case:

  1. That a candidate who is “at” the counting or recounting of votes would be able to see and understand what is going on, and
  2. That this candidate, in the light of being “at” the counting and being able to see and understand what is going on, can lodge objections if anything appears improper.

E-voting systems violate both of these assumptions. Even if a candidate is placed next to a computer where e-votes are being counted, as was the case in Nebraska, that person cannot see or understand what the computer is doing.  So, its inner workings are not open to inspection or to challenge.  As a result, candidates will never have an opportunity to object to the counting of a ballot.

Suppose that your municipality adopts e-voting.  In the event that candidates demand to exercise their right to scrutinize ballot counting, what will the Clerk do?  It is hard to see any way a Clerk could satisfy the transparency requirements laid out in the Act.  So, in the best case, e-voting is not in keeping with the spirit of this provision of the Act.  In the worst case, e-voting is illegal and thus exposes the municipality to lawsuits from unsatisfied candidates.

As noted in the report of the Independent Panel on Internet Voting (British Columbia 2014, §5.6), governments often replace transparency with audits.  Audits typically consist of an e-voting system being made available to some experts in the field who, under controlled conditions, are allowed to kick the tires and slam the doors, as it were, and ask some questions of the vendors. 

However, an audit is also not an adequate response to the needs of transparency.  Recall that the Act says that candidates may be “at” the counting of ballots and lodge objections, depending on what they see.  The fact that a municipality has conducted an audit is neither here nor there.  To put the matter another way, a Clerk cannot really honour a candidate’s demand to be present at vote counting and recounting by noting that an audit of the e-voting system was conducted by a municipality at a prior time.  The transparency requirement laid out in the Act remains unmet.

Why is transparency important?  Transparency in ballot counting is a condition that serves a vital purpose: It has evolved over many years of electoral experience to instill public trust in the result of elections and, thus, the legitimacy of the winners.  After a transparent count of ballots, no one can object that the fix was in or that errors were made that undermine the result.  No, the count was done in plain view for the stakeholders to see and comprehend, all complaints were dealt with under the rules, and so the result stands.

Speaking for myself, if I ran for office, I would want a ballot count that was transparent so that, if I won, no one could use the lack of transparency to say that I was not the duly elected holder of that office.

So, for this reason, among others discussed in my submission, I urge you not to adopt e-voting for your upcoming municipal elections.

References

British Columbia (2014). Recommendations report to the Legislative Assembly of British Columbia—February 2014, Independent Panel on Internet Voting British Columbia. URL: http://www.internetvotingpanel.ca/docs/recommendations-report.pdf

Corrigan, Ray (2008). “Technology is just a tool,” Digital decision making: Back to the future, ch. 7, Berlin: Springer Verlag.

Ontario (1996). “Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched.” URL: https://www.ontario.ca/laws/statute/96m32

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