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Stopping H.R. 550 Because We Can't Compromise on Democracy

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This article co-authored by Nancy Tobi and Paul Lehto

Following the General Election of 2006, which returned control of the U.S. House and Senate to the Democrats, Common Cause sent a mass email to its members exhorting them to support House Resolution 550, also known as the Holt Bill. H.R. 550 provides for the addition of "paper trails" to electronic voting, provides for audits of 2% or more of the paper trails with discrepancies to be resolved in favor of the paper trail, makes permanent and further strengthens the Election Assistance Commission (EAC), and requires that source code for e-voting machines be disclosed and placed in escrow.

Yet Common Cause is DEEPLY wrong about H.R. 550 as a solution to the problems in America's election systems. Citing the Sarasota Florida's now-famous 18,000 undervotes in a disputed Congressional race, they suggest we lobby for H.R. 550 paper trails, yet Sarasotans themselves learned from their experience, blew right past H.R.550's paper trails for touchscreens, and went to paper ballots. If citing Sarasota, why not follow the Sarasotan example and ban touchscreens instead of validating them?

Touchscreens make one's own ballot invisible, and at best create a paper trail that studies suggest only 25% of people actually check, and most of those who do check still miss many errors, making errors, fraud and legitimate votes equally "voter-VERIFIED" to use H.R. 550's deceptive terminology. Thus, H.R. 550 paper trails as applied to touchscreens is the gold standard of fraud-approval, allowing 75% and then some to sail through totally unnoticed, but nevertheless earning public confidence. With H.R. 550, Common Cause seems to want to do something "realistic", but these "realistic" Band-Aids don't help; they actually make things worse.

In the case of H.R. 550, this is not entirely unsurprising. The legislation, in its first iteration (H.R. 2239), was first proposed in 2003, shortly after the passage of the Help America Vote Act (HAVA) that it purports to favorably amend, and a lot has happened since then.

The election integrity movement has shown that the technology solutions HAVA foisted on the American public--with the full support of the federal government to the tune of an appropriated $4 billion-- were based on a singularly faulty premise that was not fully disclosed to the American public: the idea that private ownership of elections through proprietary technology and trade secret software has a legitimate place in a truly democratic election system, and that the safekeeping of our ballots and the counting of our votes should be outsourced to private corporate interests who claim the Constitution is inapplicable to them as private actors, rather than held in the hands of our American communities and overseen by local citizens.

This premise of HAVA, that secret vote counting and privatization of elections and removal of public oversight is somehow OK, flies in the face of one of the most widely held political values ever measured. This political value is the 92% of the American public which support, as measured in an August 2006 Zogby poll, the right of the public to witness vote counting and obtain information about vote counting: the necessities of public oversight of elections. That HAVA is trying to make this sacred democratic value extinct is the brewing scandal of the century in elections.

Because it questioned this faulty premise, the citizens' election integrity movement was able to uncover many other holes in the approach taken by HAVA.

The movement discovered that HAVA undermined community-centered, paper ballot-based voting systems, along with transparency in elections. It discovered that by giving primacy to technology, HAVA spawned a myriad of voter suppression nightmare scenarios: (1) voters waiting hours in bottlenecked lines because there weren't enough expensive e-voting machines in their polling stations (2) Voters being handed provisional ballots, many of which were never counted, because their names had been stripped from the HAVA-mandated computerized voting registration systems, and (3) Voters stripped of their ability to understand the basics of election vote counting due to the complexity of computerization even if the software were not secret.

The movement discovered that the HAVA-created Election Assistance Commission effectively hands oversight of the nation's elections squarely to the Oval Office and the Executive Branch, causing a dangerous shift in the balance of governmental powers. This shift takes a sharp turn away from the time-honored system of checks and balances necessary for election integrity, and toward the dangerous precedent of consolidating the power of incumbents to control the terms and circumstances of their own re-election in unhealthy ways.

And the movement also discovered, with astonishment and sadness but not surprise, that HAVA was largely written and funded by lobbyists working for an industry for whom profit trumped patriotism. It should go without saying that elections are to be utterly neutral, and the need for accuracy and transparency and checks and balances should not be limited by profitability concerns. Indeed, state Supreme Courts have observed that the integrity of our Republic is only as strong as the integrity of our elections, and sometimes doing the right thing involves falling on a sword that a for-profit entity may not wish to fall on.

Rather than taking into account these lessons, H.R. 550 continued to build on the false premises of HAVA, and as a result, H.R. 550, if passed as written, now promises to become HAVA II, building an even more expensive and elaborate superstructure on top of an undemocratic foundation that is radically hostile to the public's right to supervise its own elections and be a watchdog on the only mechanism of power and money transfer to government: elections.

H.R. 550's defects are stated below in brief form.

Paper Trails Can't Work
H.R. 550 calls for "paper trails" and "verified voting". Paper trails might be paper ballots, but H.R. 550 still allows for machine-produced records rather than voter-produced ballots. Paper trails can not work to protect American democracy. Placing technology, as opposed to the tried and true paper ballot, as the start and end of the voting system, H.R. 550 invites the e-voting industry to open its palms for the federal handout to pay for the development of printing "add-ons" to its already substandard product, at around $1000 per printer.

Printing technology solutions provided in 2006 to many jurisdictions around the nation have already failed to deliver on this promise. The printers jam, the paper records can not be used effectively in any kind of a recount, and then there is always the question of the software that programs the machine and its printer. In black box technology, we never really know if what is printed out on a paper trail is what has actually been recorded and counted inside the e-voting machine's bits and bytes, and there's no way to guarantee the two are in fact the same. Under H.R. 550, the electronic ballot is always still the first ballot counted, and in almost all cases is the only ballot ever counted (barring a recount or 2% audit).

When voters mark their ballots by hand, they know exactly where they are making their marks, and,through the experience of marking the ballot, they express their political will and intent without having to look back and "verify" a second time that what they have marked reflects their intent.

Legislation like H.R. 550 supplants definite visible indelible ballots with the notion of indefinite "verifiable" paper trails, or trails "able to be verified" instead of those that most certainly are verified (paper ballots). But voters do not inspect paper trails at rates greater than 25% or so, just as customers in grocery stores don't typically inspect the secondary paper receipt handed to them by the teller after electronic entry of the prices. In fact, studies that show that even when voters do check the paper, they don't catch most of the errors, so the true rate of "error approval" when paper trails are used is significantly higher than 75%.

The verified paper trail directly causes false voter confidence and tells the election hacker that at least 75% of his hacks and more will get through and further get the Good Hacker Seal of Approval by the misleadingly 'verified' paper trails themselves! This has got to keep the hackers and riggers laughing as they prepare for Election Day in e-voting jurisdictions!

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