Game of Margins—Part II

Following our previous post about the recount process in general, and in particular what it normally would mean in Georgia, this article is an “explainer” on the effort begun recently to “audit” the Georgia election per a directive that Georgia Secretary of State Brad Raffensperger announced this week (and which we try to sort out below[1]). The results are due by next Wednesday. Let’s first reset the situation.

Georgia on Our Minds

Georgia has been watched for years, as a cornucopia[2] of issues related to election administration, election technology, and yes, allegations of voter suppression. We’ve written and commented extensively on the technology issues, for example in this paper last year.

Today, several national media sources, including NBC, CBS and CNN (among others), projected Joe Biden to be the apparent winner in Georgia, with a current margin of over 14,000 votes.

Importantly, there is no evidence that calls into question the legitimacy of the results that the Georgia election officials have reported. However, Georgia Secretary of State Raffensperger has essentially intervened prior to the election certification, to engineer a complete hand “recount” of the ballots (more on those quotation marks in a moment), by relying on the state’s provision for conducting a post election audit.

Core to the OSET Institute’s mission is advocacy and support for evidence-based elections. However, if elections are to be properly audited they must be carefully planned and executed so that:

1. Election officials can follow detailed procedures in accordance with laws and administrative rules; and
2. Voters can transparently understand what is going on and properly assess whether post-election audits and recounts show meaningful evidence to bolster public confidence.[3]
3. And finally, audits must be sufficiently well-organized and rigorous that they do not potentially risk becoming yet another “political football” for partisans to argue over; the whole point of a post-election audit is to produce clear evidence that reduces uncertainty – not to give politicians a fresh set of new “irregularities” to argue about. In the current context, this is especially important because Georgia’s 159 counties are being asked to perform a daunting and labor-intensive task on a very tight time frame, and hand counts are generally less reliable than machine counts; so some discrepancies are likely to emerge.

Next, let’s sort through the Secretary Raffensperger’s press conference earlier this week.

• Undoubtedly Secretary Raffensperger’s press conference raised more questions than answers—we’re in a position to say so because we engaged in these topics every day.
• Raffensperger announced that Georgia would perform a “hand count” of approximately five million ballots in the presidential race; and stated, “it will be a full hand recount… it will be an audit… and a recount and a re-canvassing, all in one.” No. No, it won’t. More on why below.
• There is no reason to believe Georgia is doing anything nefarious, although the Secretary is not helpfully explaining to the public exactly what the State is, and is not, doing, (At worst, it could be costly and introduce new uncertainty; but that’s different than being malicious or misguided.)
• The problem is that Secretary Raffensperger is using phrases such as “risk-limiting audit,” (RLA) and words like “recount,” and at times it appears as if he is using them interchangeably. That’s confusing to the public, and the distinctions matter.
• What’s more, the “hand recount” (or, as the state has recently starting saying, a “re-tallying” – a term which only further muddies the waters) audit activities related to the presidential race do not appear to align with Georgia state law and election procedures, which further adds to the confusion.
• Counties across the state had until today, Friday, November 13th, to certify election results. Then, the Secretary of State’s Office must certify the state’s results by Friday, Nov. 20. And that is why the window for this “audit/hand-count” is today until 11:59 PM next Wednesday, November, 18th.
• And one more thing, to be very clear:

whatever comes out of this hand recount will not change or affect the results of the presidential election.

President-elect Joe Biden has 306 electoral votes as of today, and losing Georgia’s 16 electoral votes would have no impact on the overall outcome.

However, this is a fast-moving story, and details are subject to change. Although questions remain, if the Georgia SOS disseminates additional details (and we hope he will), we will update “the state of the state” through social media channels.

To be sure, as we discussed in Part I of this “game of margins,” recounts rarely change outcomes, especially when the number of votes in question grows beyond several hundred ballots. Joe Biden sits on a 14,000 vote margin.

Some Basic Terms

Exact definitions of what constitutes recounts and audits vary from state to state, according to law and rules, but the general concepts are as follows (and to avoid this becoming a legal treatise, we acknowledge up front that we’re going to stay with basic principles and avoid the inevitable legal nuances—this is simply to help the reader grasp the situation). Here are three terms you’ll want to basically understand:

1. Recount: Re-tabulating the votes on existing paper ballots to see if the outcomes/results are different the second time around. A “machine recount” uses automated voting system equipment to re-scan ballots and re-tabulate results; a “hand recount” relies on human review of voter choices on the paper to manually tabulate results.
   • A recount is intended to answer the question, “If we total up the voters’ choices a second time around, will the outcomes still be the same? Will the same candidates be declared winners and losers?”
2. Risk-limiting audit: A human review of a sample of ballots, and a comparison of the results to the voting system’s reported results for the same sample, to detect whether an incorrect outcome was reported. The size of the sample depends on the total number of ballots cast; the margins in the race; and the jurisdiction’s own tolerance for how much “risk” it will set for the possibility of reporting an incorrect outcome. The smaller the risk, the greater the sample size of ballots that must be reviewed with human eyes.
   • A risk-limiting audit (RLA) is intended to answer the question, “Can we have confidence that the voting system has interpreted and tabulated voters’ intended choices properly, and that we have not declared an incorrect outcome?” (Notice how that’s a different question from the term, “recount.”)
   • Dr. Philip Stark of U.C. Berkeley, the inventor of risk-limiting audits, offers this important observation.  When many of us lay people hear about “samples” and “audits” we may think of old classroom terms like “statistically significant” and the like.  Importantly, none of that applies here.  In fact, the ballot samples are not “statistically significant” or “statistically insignificant.” The sample needs to be random. The size of the initial sample is irrelevant for an actual RLA: all that matters is when one stops auditing. And here’s the point: a genuine RLA does not stop until (and unless) there is convincing statistical evidence that the reported results are right. If they don’t find that evidence, they keep going… eventually to a full hand count. That’s the mechanism that limits the risk that a wrong reported outcome will become final, by replacing the reported outcome with the outcome according to the full hand count.
   • Most important to this discussion, Dr. Stark makes the point that Georgia’s regulations make the “RLA” not an actual risk limiting audit, because they do not have the statutory ability to correct wrong outcomes. Their audits cannot limit the risk that a wrong reported outcome will be certified (for many reasons, but as Philip notes, that’s an obvious one).
3. Canvass: Before certifying results, the canvass is the process of officially confirming every valid ballot cast and counted—absentee, early voting, Election Day, provisional, challenged, and ballots cast by military and overseas voters.

So with those three terms in mind and their high-level descriptions, let’s return to the Secretary’s soup of terms, from the press conference and from related statements.

Disambiguating the Georgia Secretary’s Comments

That six-syllable fancy word means, “sorting out and clarifying.” And we need to do that because the first question is,

Why is the Georgia Secretary of State mashing up the terms “recount” and “audit”?

Sometimes it appears as if Secretary Raffensperger does not completely understand the difference between a recount and an audit, or is being too imprecise with words. For example, an official SOS tweet on Nov 11 stated,

“According to law Georgia passed in 2019—Georgia is required have a state-wide hand Risk Limiting Audit (RLA), trigging [sic] a recount.”

This appears to be incorrect. Strictly speaking, RLAs and recounts are distinct animals under Georgia regulations, and an RLA would not typically “trigger” a recount.

The Secretary’s frequent sliding between “recount,” “audit,” and “hand count” is confusing (even for us) because Georgia sets forth specific rules for each, and Secretary Raffensperger’s announcement appears different from how most anticipated a “risk-limiting audit” in Georgia would be conducted. Let me break that down for you in three points:

1. This year, Georgia was supposed to conduct a “pilot” or “dry run” audit for the first time, in accordance with Georgia legislation HB 316. Until the recent press conference, the Georgia Secretary had signaled for several days that the race selected for the RLA would not be the presidential contest, and that it was likely going to be a down-ballot race, which would require a small sample size. Most observers and election officials were expecting to “get familiar” with RLA procedures in a far less contentious race, with a smaller number of ballots, and—most importantly—the pilot RLA was not anticipated to amount to a “full hand count.”
2. At the November 11th press conference, however, Secretary Raffensperger changed his position and declared that the presidential race would be the statewide race to be used for the RLA. That is where the situation quickly grew confusing.
3. Although the Secretary did not explain this, others have pointed out that to conduct a proper RLA in the presidential race, with the current margins, as I mentioned in Part I of this discussion, mathematical calculations reveal that a sample of approximately 1.5 million ballots out of approximately 5 million ballots would need to undergo human review by audit teams. And more importantly, according to RLA procedures, those “random” ballots would need to be individually identified and removed from boxes and boxes of scanned ballots—essentially like finding needles in a haystack. Needless to say, that would significantly add to labor time. So it appears that the SOS concluded that it would simply be easier to hand count all ballots, rather than doing the extra work of “hunting for” and “extracting” over a million randomly-selected specific ballots.

That leads us to the next question:

Why is the Georgia Secretary of State calling for the hand count (and not a candidate, or an election official)?

Let’s examine that in three more points:

1. Pursuant to Georgia law, if the margin is within 0.5%, then the trailing candidate can call for a recount, or an election official may call for a recount.
2. Georgia law specifies that “recounts” be performed by re-tabulating ballots through automated voting machines, but not by a hand count. A “hand count” is authorized only if such voting machines repeatedly fail in pre-recount testing and the failures cannot be resolved; or a hand recount can be required by a court order.
3. None of those conditions apply in the present situation: all results have not been certified; we are unaware of the Trump campaign having officially requested a recount (although that is also unclear); and finally, automated machine technology is not being used to re-count the ballots.

So what is going on?

My answer is that it appears that the Georgia Secretary came up with a novel and unanticipated approach:

Use the legal requirements to conduct an RLA as a justification to also require a hand-count of the most contentious race, by setting the “risk limit” for the audit to zero percent – which results in a full hand count of all the ballots.

Remember that the lower the risk limit, the larger the required sample set of ballots, so “zero risk” means effectively a full hand count. Therefore, the full hand-count is the RLA, and for the same reason, what looks like a recount doesn’t need to comply with “typical” Georgia laws and regulations governing recounts, because it’s not, legally/technically speaking, a Georgia “recount.”

I believe this also answers why Secretary Raffensperger announced the decision to hand-count the presidential race, rather than having the request come from a candidate, or a county election official.

OK, with that, let’s look at the next issue in this confusion:

What is meant by “full hand count? Is it actually a hand count?

Performing an audit of the presidential race on every ballot is happening based on a manual human review, and it appears that machines will play no significant role, if at all.[4]

Since Georgia apparently will not use automated scanners for tabulation (which, again, would normally be used under typical Georgia recount requirements) then human eyes will count voter choices in the following manner:

1. Traditional format absentee ballots (with columns and ovals) will be counted through manual examination of the marked ovals to determine intent of choice.
2. Summary-format in-person ballots printed by Georgia’s Dominion ballot marking devices (BMDs) will be counted by manual examination of the human-readable text of voter choices. (Paper records from ballot marking devices contain a combination of human-readable text and an obfuscated QR code that encodes voter choices for purposes of automated scanning).

That leads to another question:

What are the issues/controversies associated with doing a hand-count?

Generally speaking, the concern with Secretary Raffensperger’s imprecise and lazy use of these terms and laws is that it may result in insufficiently rigorous audit procedures.[5]

Furthermore, even worse, an insufficiently rigorous process could lead to additional discrepancies that partisan campaigns could use to sow confusion, and to cast doubt on election results for which there is no credible evidence of fraud or other ballot counting irregularities.

Whether one labels the process of hand-counting the presidential race in five million ballots an “RLA” or (non-legally speaking) a “recount,” the fact is that the Office of the Georgia Secretary of State has been relatively quiet on many important protocols that are required to protect the integrity of such a process, including:

1. “Chain of custody” requirements (the related term is a “compliance audit”);
2. Detailed provisions for “watchers” or “observers,” to allow transparency while ensuring that ballots are only physically handled by authorized personnel;
3. Any guidance on Georgia statewide standards for determining voter intent on hand-marked ballots.
4. Procedures to detect and resolve potential human error during the hand-count (which is common).

And there are several other concerns, many involving unclear legal justifications for some of the activities being proposed. The Coalition of Good Governance enumerated many of these in a letter that was sent to all county officials in Georgia this week.

In addition to concerns over a scarcity of well-documented statewide procedures for this process, there is one more controversy:

With respect to the machine-marked paper records generated by ballot marking devices (BMDs), even if human eyes manually review votes by reading only the human-readable text of choices, can those paper records rightly be called a trusted and auditable record of voter intent that was verified by the voter?

Dr. Stark has explained in many forums that when voter’s choices on paper records are machine-marked (i.e., in other words an imperfect complex electronic computing device is inserted between the voter and the act of recording a choice) and furthermore, given research indicating that most voters do not take time to review and verify the machine-marked record, then it is problematic to assume that the BMD records are “auditable” records of voter intent.

This last controversial point is not going to be solved in the present moment. However, it remains a concern. There is little choice other than to note the controversy, which creates additional uncertainty, and to let Georgia election officials move forward with the assets they do currently have. Improving technology and procedures to achieve better and better evidence-based elections is a race that never ends.

And finally, to wrap up this confusing exercise, here’s where the rubber meets the road:

If the audit reveals discrepancies as compared to results that election officials originally reported, how does the audit impact the overall results that the Georgia SOS will certify on November 20th?

On this all-important question, the Georgia Secretary of State appears to have fully waded into unclear legal territory. According to Georgia laws, audits alone cannot change an election result in Georgia; so it appears as if the 100% hand-count, which looks like a recount, but which is not a recount, cannot change the election. But the Secretary of State has not clarified what significance the resulting numbers from the audit will have. Some observers have suggested that it seems reasonable that the results from a full hand-count would become the results that are certified, but the legal basis for doing so is unclear. And that leads to a somewhat uneven set of concluding thoughts, in terms of assessing the value of this entire exercise.

A Few Closing Thoughts

To begin, I probably cannot make this point enough given the climate, but…

There is no credible evidence to undermine the legitimacy of Georgia elections results.

Second, whatever questions remain about this process, the fact that election verification has taken center stage in the highly visible venue of Georgia, with all its controversial voting history is a good thing. Even this confusing, uneven, and fitful affair showcases the importance of paper trails, audits, and the imperative of evidence-based elections. To put it candidly, it makes the point that if Georgia—for all its unfortunate history and problems—can take steps toward higher-integrity elections, then any of the states can do so.

Third, time and again, we’ve observed that public confidence in elections is a product of communication and transparency. Secretary Raffensperger has room to improve in this regard. We remain hopeful in the days ahead that his office has an opportunity to clarify matters. I believe this is important because the audit, or recount, or “re-tally” (or however one wants to characterize it) is very unlikely to alter reported results as they stand today.  This final point deserves extra emphasis.

Given the fact that the re-counting of the presidential race in Georgia will not change the outcome of the presidential election, it is reasonable to set a high bar for precision, because in addition to the upsides noted above, very real risk also remains for damaging downsides.

In order for this costly and time consuming effort to be determined “worth it,” the execution and transparency of the process will need to be provably on par with best practices. If not, this exercise could amount, at best, to a waste of time, taxpayer dollars, and charades that fails to convince anyone of anything. Or, even worse, a sloppy process could potentially introduce “new cuts” of discrepancies for partisans to fight over. As stated earlier, the whole point of a post-election audit is to produce clear evidence that reduces uncertainty – not to give politicians a fresh set of new “irregularities” to battle over. In an environment where disinformation is rampant, the last thing America needs is new opportunity for fear, uncertainty and doubt (“FUD”) to reduce trust in the vote.

We’re hoping that in the days ahead, Secretary Raffensperger runs a tighter ship than we’ve seen so far, and we are wishing him and Georgia election officials success and transparency in this high-stakes Game of Margins.

 

Footnotes

[1]     That “sorting” begins by noting that the NY Times article cite-linked above about the Secretary’s announcement deserves some clarification of its own, which we attempt to do so with this article; notably: what is happening in Georgia is not a recount (although its not really a genuine audit either—yes, its kind of complicated which is why we’re trying to sort it out for you here.)

[2]     Literally for want of a better word, it is after all nearing Thanksgiving, and “cornucopia” really captures the abundance of topics and issues in Georgia when it comes to election administration.

[3]     Alternatively put, so voters can understand whether such activities (when poorly executed) might be unnecessary and costly forms of “election integrity theater” that amount to little more than public relations exercises.

[4]     The Secretary’s press conference and subsequent commentary from Georgia election officials initially added to the confusion on what “hand-count” means. After the press conference, for example, the Secretary of State’s Chief Operating Officer Gabriel Sterling made comments to the effect that, after paper ballots are manually placed into stacks in order to audit them, they would be run through automated scanners—but only to count the raw quantity of ballots (e.g., confirm that there are 50 ballots in the stack), but not to count voters’ choices in the presidential race. Initially, Sterling’s remarks led some to suggest that Georgia will not actually be performing a “hand count.” However, after the SOS backtracked further on the use of scanners at all, that appears not to be the case.

[5]    There are some “training materials” associated with Georgia’s statewide audit materials, supplied by a third-party vendor that is assisting the State. However, they can rightly be characterized as relatively “high-level” and lacking in details. See this article.

 

About the Author
Gregory Miller is the co-founder and Chief Operating Officer of the 501(c)(3) OSET Institute, Inc.  He also serves as a senior election infrastructure analyst.  A computer engineer/scientist and a (nonpracticing) intellectual property lawyer, Mr. Miller has spent nearly a decade immersing himself in election law and technology policy.  He recently published an essay on New America’s Commons explaining why election technology is public interest technology and a Theory of Change essay about the Institute’s mission.