Safety When Using Actual Vote

When you video-record poll tapes with Actual Vote, you are often in public, sometimes at night, conducting non-partisan election auditing activities. This entails several safety concerns:

1. The usual concerns when going out in public in the locations you plan to visit
2. The usual additional concerns that apply if you’re doing this at night
3. Concerns regarding publicly engaging in election auditing activities that are unfamiliar to most people

As noted in the Actual Vote User Agreement, as an Actual Vote user, you are a volunteer, and America Counts can’t be responsible for your safety. 

But for completeness, we record here a list of basic precautions we recommend you follow when using Actual Vote and that you may find helpful for concerns (1) and (2):

• Make a plan for which polling places, vote centers, elections offices, and/or other places you intend to visit, and share it with someone. Be especially aware that if you’re planning to visit many different polling places and/or vote centers on election night, you are likely to be working late at night or early into the morning at polling places and/or vote centers that are dark and deserted
• Be aware of your surroundings
• If anything at your location seems too risky or dangerous, forget about Actual Vote and just leave. Never do something outside of your risk tolerance just for the sake of video-recording a poll tape
• Take a friend or family member with you
• At night, take a bright flashlight, both for safety and for illuminating poll tapes in poorly-lit areas 
• Don’t use Actual Vote at a polling place or vote center while the polls are open unless you have explicit permission from poll workers
• If a poll worker or other election official tries to stop you from video-recording poll tapes with Actual Vote even though it’s legal to do so, it is up to you how much to push back—if there’s any doubt, walk away. And if this happens to you, please let America Counts know, as it will help us understand that local election administration culture, as well as help us advocate for better, safer, and more consistent poll tape procedure at vote centers

For concern (3), we must begin by noting that, unfortunately, the political climate in the US today is fraught with partisan rancor, and instances of people questioning election results—sometimes for good reasons and other times for bad reasons. Any kind of election auditing activities, no matter how irreproachable the methodology, could conceivably appear suspicious to certain groups, and this includes video-recording poll tapes with the Actual Vote app, which is part of a nonpartisan election transparency activity that is next to impossible to abuse. What’s more, the Actual Vote methodology is bound to be unfamiliar to many people, and some of them may not accept any explanation of how it works to improve election transparency and accuracy. In some cases, such onlookers may even assume that these activities must be part of an illegal partisan ploy on behalf of a party that they oppose, and angrily confront or attempt to intimidate the Actual Vote user. Unfortunately, there is no way for America Counts to prevent such situations from happening. If such a thing should happen to you while using Actual Vote, forget about the app and do what you would usually do in such a situation (which will usually be to leave as fast as possible). 

America Counts is working on making elections officials, poll workers, and the general public across the political spectrum aware of the Actual Vote process, and how it’s a much-needed non-partisan vote report auditing technique that will improve election transparency and accuracy and increase social well-being. This will have the additional benefit of increasing the overall average safety of using Actual Vote. In particular, there’s no reason for anyone, especially partisans of any kind, who are proceeding for good intent, to be upset at the use of Actual Vote.

Of course, if you explain Actual Vote to a curious onlooker, it will very often happen that they accept the explanation and thank you for what you’re doing. In such cases, don’t forget that you can always encourage them to download Actual Vote onto their device “right now” and begin using it immediately if they wish.

Here are some example scripts you can use when answering questions about Actual Vote. As you will see, in a situation with a skeptical or suspicious person, if it hasn’t yet been necessary to drop the conversation and leave the scene for safety reasons, we encourage you to be friendly yet assertive when discussing Actual Vote. While such tense situations may be rare, it’s worth being prepared.

In all of these scenarios, we assume you are using Actual Vote to video-record publicly posted poll tapes at a vote center after the polls have closed. And it’s worth mentioning that the later into the night or early morning it gets, the fewer poll workers, election officials, and bystanders are likely to be around. 

Hey, what are you doing? I’m intrigued. I’m using Actual Vote to video-record poll tapes. Here, look [show them]. America Counts will take all these vote totals on the videos and compare them to the officially reported results that will be released in a week or two, and call out any apparent discrepancies. So by taking these videos, I’m helping to improve the transparency and accuracy of this election. You can do it too if you want—just go to americacounts.us or search for Actual Vote in the App Store or the Play Store to download the app. Then you can record these tapes here like I just did, and then do the same at other vote centers.

The polls are closed now. Who on earth are you and why are you filming the poll tapes? Who gave you permission to do that? Hi there, my name is [name]. I’m a democracy-loving resident of this county. Right now, I’m exercising my right to observe and film the poll tapes right here, that are in plain public view and therefore legal to record. I don’t need special permission to do this. The activity is nonpartisan and next-to-impossible to abuse for partisan gain.  Since the polls closed hours ago and there are no longer any voters or poll workers around, none of my activities here in public outside of the vote center could possibly pose a threat to either group. 

The end goal is to double-check that the vote reporting was done correctly by comparing the information in my videos, and others like mine, to the official results when they get released. In almost all cases, the process confirms that our hard-working and honest poll workers and election officials have done their job to the usual high standard of professionalism. Every once in a while, though, we identify an apparent discrepancy between the poll tapes and the officially reported results. Sometimes such apparent discrepancies end up being completely explained by vote reporting logic that we weren’t aware of. Other times, they could suggest that there was error or fraud in the vote reporting that wouldn’t have otherwise been discovered. 

All of this will improve election transparency and accuracy, which should be welcome.

Why on earth would you care about video-recording poll tapes taped to the window? Why not just wait for the official results to be posted on the county website? It’s the same information, after all. Unfortunately, history shows that vote reporting in the United States is vulnerable to error and fraud. And if error and/or fraud take place in the vote reporting in your county, the official results may not match the totals on the poll tapes! And while many counties have some internal audit procedures, this is no substitute for independent audits, for the same reason you wouldn’t let a corporation audit its own books or an airline to certify its own airplane models as suitable for carrying passengers. Indeed, some past Actual Vote analyses have discovered unexplained discrepancies between poll tape data and official results, which further illustrates the need for independent vote report auditing. Meanwhile, when an Actual Vote analysis confirms that the official results are reported correctly, it’s not a waste of time—it increases the transparency of the election by providing independent evidence of the correctness of the results. This expands the voting public’s shared pool of evidence that the election was indeed fair.

Why on earth would you care about auditing vote reporting? The county already does its own internal audits. Are you saying we’re incompetent? Nope—I’m sure that most poll workers and election officials in [this county] are professionals of the utmost integrity. It’s just that the stakes of US elections are very high, and vote reporting is always vulnerable to error and fraud. This means that it’s critical that a process like vote reporting receive independent scrutiny. You’d demand a similar degree of independent scrutiny over the surgeon who removes your appendix or the pilot who flies your airplane, since both of these are also very high stakes situations that are vulnerable to error and fraud. It’s our hope that our Actual Vote analysis here will end up making this county look good by verifying that the vote reporting process was done correctly, and increasing the transparency of the official results.

What you’re doing with Actual Vote is obviously election tampering. If you don’t stop what you’re doing and delete the videos you already took, I’m calling the police. Ok, I’m leaving. But video-recording poll tapes like I’m doing here is legal, and definitely not election tampering. 

Privacy When Using Actual Vote

Actual Vote video-recordings that you take and submit will be put into a queue to be vetted by America Counts. Videos that contain poll tapes, and that don’t have anything inappropriate or private in the audio or video portion, pass the vetting process and become available to be viewed by the public. At this stage, America Counts will typically transcribe the numbers on the videos and compare them with the official results. But anyone else in the world could do this too—the videos and the official results are freely available on the internet. 

This is why we designed the vetting process to reject recordings that contain no poll tape content (like a recording of someone’s shoes that accidentally got submitted) or recordings that contain sensitive information other than just poll tape content (like someone saying their address out loud during a conversation while recording). While we strive to do this vetting process accurately (as well as quickly, so that the analysis process may begin), it is possible that on rare occasions a video that should have been rejected will accidentally get approved. In these situations, the mistake is usually identified during the analysis process, and the video is immediately set to ‘rejected’ (ie, it is no longer in public view). All of this is why you are strongly encouraged to make sure your Actual Vote video-recordings contain only footage of poll tapes with no extraneous video or audio—and why it is especially important that you avoid including anything that could compromise your privacy in your video-recordings. If you are using Actual Vote as it is designed and intended, as the instructions indicate, and with awareness of the considerations above, you can avoid these specific privacy concerns.

If we are forced to reject your video, it can’t be used in an analysis the usual way (because it doesn’t appear on the website with all the other approved videos), and your effort might end up going to waste. If your rejected video contains poll tape images that are critical to completing an analysis in addition to whatever got it rejected, America Counts might edit the video and audio and release a “cleaned up” version of the video on the website.

All of this means that you should studiously avoid taking any videos in which the audio or video contains anything private or anything that you don’t want to be available to the public. For example:

• If you don’t want your face associated with the video, be sure it’s not in the shot (and be sure it’s not visible as a reflection in the glass when you are filming)
• If you don’t want your voice associated with the video, don’t speak while recording
• If you are fine with your voice being associated with the video, feel free to speak while recording (some people announce the poll tape’s precinct code at the beginning of each video, which is helpful). But please don’t say any private information, like your name, address, private health information, phone number, etc., even if you are just casually talking to a friend
• Be careful about capturing other people’s faces, voices, and conversations on your recording. If you are recording alone at night at vote centers, you are often the only one around. But if your recording situation is busier, you may want to ask that people be quiet or clear the area
• Some Actual Vote efforts involve teams of volunteers at a table recording many poll tapes in succession at a county elections office. This process can be tedious, and having a conversation while recording can help pass the time. But please take care to not let the conversation drift into personal details that you’d rather the public not know—don’t forget that your conversation is being recorded in your Actual Vote videos. For example, in one such situation, someone was captured at the table discussing their private health information. We were forced to reject the recordings that contained this part of the conversation
• We read and transcribe vote totals off of the video portion of the poll tape recording, and audio is technically not required for the analysis. You might propose that America Counts capture only video and not audio with Actual Vote, but it turns out that this is not at all straightforward from a software perspective. Furthermore, the presence of audio in a video recording can provide evidence of its authenticity should that ever be challenged
• It’s okay to record the outside of a vote center, for instance to show where the poll tapes were posted (or should have been posted but weren’t!) but avoid recording other people or car license plates

America Counts strives to do the vetting process accurately, but during an election we are also working under time pressure to vet and analyze all the videos before the election is certified. But we can’t guarantee that we won’t accidentally approve a video that should have been rejected—with a human-run process like this, it’s simply impossible to be perfect. Of course, such a thing is often quickly discovered (say, when a transcriber views the video the next morning), and we set the video to “rejected” and it no longer appears on our website. Fortunately, it’s easy to avoid all of this: just make sure your recordings are only of poll tapes and that nobody is speaking while you record.

Your Videos as Legal Evidence

During the Actual Vote analysis process, America Counts treats the publicly available video-recordings of poll tapes taken by people like you as evidence about how the official vote reporting should turn out. 

If the data on the poll tapes is consistent with the official reporting, we say that the video-recordings are independently-collected evidence that increases our certainty that the vote reporting was done correctly. 

If we find an apparent discrepancy between the evidence and the official results, however, it’s truly correct for us to call it a discrepancy because we have evidence showing that it exists. But from a legal perspective, this is all at best an informal analysis—it can be used to escalate apparent discrepancies to election officials and inspire them to provide an explanation or correction. And if the apparent discrepancy persists after this stage, this evidence could inspire someone to initiate a legal challenge against the official results. 

Without legal action, evidence of an apparent discrepancy can’t legally force anyone to do something. But if we actually get to the point where someone initiates a legal challenge to a race based on this evidence, especially one in which the outcome of the race is in question, the plaintiff will submit the video-recordings as real, true legal evidence to be used in determining the outcome of the case. As such, it is likely to be carefully analyzed by the defense, who will want to independently confirm or disprove its authenticity and meaning. In the unlikely event that the process gets this far, there’s a small chance that the defense could subpoena you to testify before the court that you took the video. In such a case the question would simply be “To the best of your knowledge, did you shoot this video/these videos?” This would verify your part in the chain of custody of the video. You obviously have no legal risk in this situation, though complying with such a subpoena would cost you some time and inconvenience. 

In particular, if you took the Actual Vote video-recordings in question in the county in which you live, the courthouse will be relatively close to where you live. In the rarer case that you took the Actual Vote video-recordings in question in a county other than the one you live in, your trip to the courthouse may be longer. 

And don’t forget—at that point, your part in taking the videos, generating the court case, and testifying that you truly shot those videos, constitutes a major boon for democracy. On the one hand, the evidence you uncovered in your videos could be part of forcing the official results to be corrected, which is a huge win for the accuracy and transparency of the race in question. On the other hand, the existence of the court case demonstrates that democracy-loving people like you are on the job, engaging in nonpartisan independent audits of vote reporting with actionable results—results that create a powerful incentive for bad actors to think twice before attacking vote reporting, and for election officials to continue working carefully to ensure that the vote reporting in their county is done correctly.