The Executive Branch Defines America’s Voting Systems
HR811 makes the Election Assistance Commission (The Commission) the final authority to define “what is a voting system”, and “how a voting system meets accessibility standards”.
This means that The Commission’s Voluntary Voting System Guidelines (VVSG) actually become federal law. It also means that the only way that states can find safe harbor in complying with the law it to adhere to the VVSG.
What are The Commission’s Voting System Standards?
The Commission’s standards, VVSG I, become effective December 13, 2007. VVSG I represents a dramatic change from currently existing 2002 Voting System Standards in voting system specifications and the testing and certification requirements. This might be compared as moving from Windows 3.1 to Windows 98.
VVSG II, estimated to become effective in 2010, represents another complete change in computerized voting system architecture, and goes so far as to encompass paper ballot systems as well. This can be compared as moving from Windows 98 to Windows Vista.
As anyone with a home PC knows, it is quite impossible to run software applications designed for Windows 98 on a Windows 3.1 system, and even more impossible to run applications designed for Windows Vista on a Windows 98 system. In fact, most software companies simply don’t support the earlier versions of Windows, which means that PC owners need to upgrade their systems to the new version of Windows, or forego using any new features or software designed for it.
By creating a situation wherein states need to comply with The Commission’s standards as the de facto “safe harbor”, states will all need to constantly upgrade accordingly, as they will not have the option to “forego using new features,” no matter how costly, unwieldy, or unnecessary, unless they want to risk legal action.
What Affect Do the Commission’s Voting System Standards Have on Running Elections?
The practical implications of codifying The Commission’s standards into federal law, as the only possible safe harbor for states to find compliance with said law, is that every voting system in the United States must undergo a complete overhaul.
Just like the hapless PC owner, election administrators who don’t upgrade to the new voting system requirements will find they have no support (legal or otherwise) for running their old systems, and they will not be able to integrate new accessibility or other voting system requirements into their existing systems.
They will be unable to comply with The Commission’s standards, which HR811 will have codified into Federal law.
They will also find themselves at legal risk for unlimited lawsuits by citizens unhappy with their interpretation for implementing the far reaching and currently unachievable requirements of the law.
For a look at post-Holt America, where states are backed against the wall in the face of unlimited lawsuits if they don’t meet The Commission’s standards for accessible voting, have a look at what happened following the passage of HAVA:
June, 2004. Voting equipment giant Diebold, in collusion with the National Federation for the Blind, engaged in the lawsuit shakedown, as reported on BlackBoxVoting.ORG at the time:
In June 2004, a story about Diebold's million-dollar payment to the National Federation for the Blind (NFB) ran in the New York Times. At the time, Diebold was trying to get its voting system into the state of Ohio and the NFB was helping out by threatening to sue counties that didn't execute contracts for Diebold touch-screens…The NFB settlement letter was worded only slightly more politely than this: "We'll make our lawsuit go away if you hurry up and buy those touch-screens."
Nancy Tobi is cofounder, former Chair, website editor for Democracy for New Hampshire (DFNH), and Chair of the NH Fair Elections Committee. Nancy is the author of numerous articles on election integrity, including "The Gifts of HAVA: Time to Ask for a Refund," "What's Wrong with the Holt Bill," "We're Counting the Votes: An Election Preparedness Kit," and "Hands-on Elections: An Information Handbook for Running Real Elections, Using Real Paper Ballots, Counted by Real People". Her article about election reform fallacies is included in the April 2008 book "Losers Take All" edited by Mark Crispin Miller.
Nancy believes in the principles embodied in our Constitution, and that groups like Election Defense Alliance and DFNH can play a unique role by empowering ordinary people to do extraordinary things.
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