Is a flawed bill better than no bill?
The "empty chair" is the faceless voice of quotes from high profile leaders in the election reform movement who have refused to publicly debate the sweeping changes in democracy that they are seeking. We have invited them to weigh in with their faces any time.
There are two bills currently being pushed through the US Congress that will change the way elections are run in America. The voting rights community is split as to whether the proposed legislation will make things better, or kill our republic altogether. Below is a peek behind the scenes at the arguments among leaders about whether flawed election reform is better than none at all.
A mutation of what has been known as “The Holt Bill” called HR 811 – 62 pages long – is the first bill, with the second bill – S1487 (submitted by Diane Feinstein) the companion bill that must be reconciled with whatever the Holt Bill turns out to be in order to enact reform.
In a nutshell: The current mutation of the Holt Bill provides for a paper trail (toilet paper roll-style records affixed to DRE voting machines) in 2008, requires more durable ballots in 2010, and requires a complex set of audits. It also cements and further empowers a concentration of power over elections under the White House, gives explicit federal sanction to trade secrets in vote counting, mandates an expensive “text conversion” device that does not yet exist which is not fully funded, and removes “safe harbor” for states in a way that opens them up to unlimited, expensive, and destabilizing litigation.
The current version of the Feinstein Bill does nothing at all for 2008, concentrates power over elections under White House appointees, authorizes discriminatory practices for “distinct communities” (read: minority voting districts), and legislates trade secrecy, along with explicit provisions to enforce trade secrecy in voting systems.
Before the Holt and Feinstein bills can become law, they must be “reconciled” into a single Act which will change just about everything about how elections are run in America. Several organizations, including People for the American Way, Common Cause, MoveOn, Verified Voting, and VoteTrustUSA are pushing hard to pass the Holt Bill (which leads directly to the Feinstein Bill) right away!
Does this deserve a debate?
We think so. The topic of this debate is whether we should accept the “flaws” (federally sanctioned secret software, concentration of electoral power under the White House, unfunded mandates, destabilizing and untested changes in procedures for certifying elections, alterations in legal terrain) for the benefits of having paper trails and an untested type of audit.
This is your country. Weigh in with what you think! Is it worth it? Is this even Constitutional? Here is what some of the election reform leaders are saying, with proponents of the new legislation represented by empty chairs due to their unwillingness to debate:
FIX IT BY 2008:
Empty Chair: If we don’t pass this bill, we are still stuck with tamper-ready voting machines (paperless DREs) in large parts of the country (surely enough to sway national elections).
Bev Harris: All voting machines currently used are tamper-ready. HR 811 does nothing whatsoever about that.
Empty Chair: If Holt does not pass, the 2008 presidential election will be held with some states and counties still voting on paperless DREs.
Bev Harris: But this is misleading, because the question is not “do we want a paper trail by 2008” it’s “do we want a paper trail by 2008 if we have to give up some of our rights for it.”
We don’t want anyone to have to vote on a paperless DRE. Or any DRE. But suppose you suggest this to my husband, “Because of your skin color, you will not be able to vote any more, but on balance this is alright because we are getting a paper trail into a handful of states for 2008. Or 2010. We’re not sure which.
Is that appropriate? Is that even legal? If that’s not legal or appropriate, how is it appropriate to ask that all Americans give up their rights in order to (maybe) get a paper trail into a handful of states by 2008?
Isn’t the argument here really: Does this bill require us to abandon fundamental rights in order to get the paper trails?
Because if so, it’s inappropriate to ask that of us at all.
Empty Chair: You and others are arguing against HR 811, but you're not arguing for anything that can actually be achieved. I am unable to comprehend this unless your agenda is completely different from mine. I want to move towards a solution to our problems. Maybe you want to complain, or maybe you want to use the controversy to achieve something else. But I don't see that you genuinely want to solve the problem, otherwise you would be proposing a real solution.
Another Empty Chair: That’s right. We are talking about trying to make something perfect vs. trying to be realistic.
Paul Lehto: You are applying a pragmatist approach, but we are applying a democracy approach, or a rights approach. If they [congress] reject the principles of the Declaration of Independence, that would give us a real dramatic contrast between what we expect of our government and what the government dictates to us is "realistic." If our rights are somehow not "realistic" then democracy itself is not "realistic."
Andi Novick - In the course of this recent debate, and assuming for the purposes of this email that there are potentially some positive aspects to Holt, the question of whether one should temporarily accept the destruction of our rights to be a free people in exchange for what we might be getting from Holt -- that is the question.
We should look to what Frederick Douglass said:
Find out just what the people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.
Empty Chair: I am not willing to give up having any control over our elections in 2008, to insist on a one-leap way to get to our "pie in the sky".
Bev Harris: The Feinstein Bill won’t go into effect until 2010, and at some point the Holt Bill has to be reconciled with the Feinstein Bill. According to an e-mail from a Holt staffer, they are already looking at pushing their 2008 to 2010. I don’t think we have any control over whether that 2008 promise will hold at all.
Alan Dechert - Keep in mind that HAVA [Help America Vote Act] was passed in 2002. Many of its features were never realized (e.g., R&D money never appropriated). New guidelines are still not in operation. All the systems in use are under pre-HAVA certification process. There is no basis to think the federal government will accomplish things in a few months that it has been fumbling for years. I've been listening to this for six years. "Yes, but we have an election next year and we have to focus on that."
We need to have a plan that's off the treadmill. We need a longer-term vision.
Michael Waldman from the Brennan Center said at the Take Back America Conference that having no [Holt] bill would be worse than a flawed bill [being passed].
Paul Lehto: Okay, there was obviously no Holt bill in time for the November 2006 federal elections. Just exactly how bad do they think the "no Holt bill" federal elections were in 2006? As I recall, the Democrats captured the majority in both Houses.
The Brennan Center is largely if not totally in denial that there was election fraud for 2006, and [Waldman is] speaking to Democrats. Given the Democratic gains in 2006 how in the world can "no bill" be such a frightening thing such that it is worse than a flawed bill?
Granted, somebody who believes that election fraud is real and happened in 2006 and 2004 can make an argument that "no bill" is worse than a flawed bill, no matter how difficult that argument may be. But one is not free to completely contradict one's self and have that be accepted by everyone at face value.
If Michael Waldman said this, he is asserting a threat that they refuse to expressly acknowledge even exists, as a way to stampede support for the Holt bill. Meanwhile, back in the Senate, Feinstein's bill has some things that are so laughably improper that it is hard to imagine that they are anything but scarecrows designed to make HR 811 look good by comparison and create the appearance of compromise when they come out of the bill.
Empty Chair - For those who think it's easy to get 'the right' legislation passed, consider: Millions of people - millions of people - have marched all over the world to end the Iraq war. It has helped not one whit. The Democrats, who control the House but are checkmated in the Senate, have wanted to pass some sort of time limit on the war after which we can bring the troops home. They failed. Why?
I can assure you it is not because the Democrats are spineless. I think that's a naïve, politically ignorant position to take. The point it, they simply didn't have the votes, pure and simple. They had to make a hard choice. They bargained for as much as they could to let that deadline provision go. They made the most of the options in front of them.
But if the "Democratically controlled" Senate and House couldn't get this thing so fundamental to our country's best interests passed, one they overwhelmingly wanted and supported, and an issue in which millions of people have already voted with on their feet, how incredibly more naïve and politically ignorant is it to think that a) DREs could be banned even if say, some 20 activists spoke with a single voice, or b) that we could ever get hand counted paper ballots when you can't even get 1000 people to march in protest of a stolen election?
Paul Lehto: We have no right to be free of war. It is at best a political question. We do have rights, and powerful ones, in the area of elections.
Empty Chair: I mean, seriously. That's some incredible naivete and political ignorance.
Paul Lehto: Rights trump, rights can invalidate legislation, rights mean compromises are wrongful acts toward the holder of the rights. If you are in DC lobbying for democracy, what makes you think any of it is negotiable, such that you or anyone else would compromise it without a fight? In all seriousness, do you believe that these questions of voting systems are quite outside the realm of rights?
Montesquieu (probably the most influential writer on the Founders outside America) wrote in the Spirit of Laws that the manner of exercising suffrages was just as fundamental in terms of rights as the right of suffrage itself. If this is within the realm of rights, Holt has no right to compromise these rights. In fact he has a duty to secure these rights completely. (See para. 2 of the Declaration of Independence).
These are not a rhetorical questions. If it is democracy's needs we are pushing for, it is improper for anyone to compromise them, or to purport to act on behalf of others to compromise/violate their rights. Rights are required to be granted by the government, not taken away.
Andi Novick: As Frederick Douglass said,
“Power concedes nothing without a demand. It never did and it never will.”
Empty Chair: What rights are you referring to? If you can't refer to the rights you ask others not to give up, perhaps you should give it up? We are talking about trying to make something perfect vs. trying to be realistic.
Paul Lehto: Freedom, quite literally, depends on the ability of citizens to control their own elections, holding them beyond the power of the government to manipulate.
Nancy Tobi: But the proposed legislation codifies secret vote counting and then consolidates and cements power under the executive branch; then it assigns power to design the secret vote counting systems to the EAC, under four White House appointees.
Empty Chair: The other empty chair is right, Paul that you've never yet proposed anything that is achievable and that acknowledges that a solution must begin with moving from where we are now to where we want to go, one step at a time.
Bev Harris: But where are the next steps, and why do the steps begin with taking away our rights? And by “rights,” I mean our rights to prevent government insiders from keeping themselves in office, against our will. Because these bills allow government insiders to count votes in secret and prohibit us from either watching our votes get counted or even obtaining any information after the fact about how they were counted. These bills not only do not secure our rights, they strip them away.
Empty Chair: I suggest that one way to push election integrity forward while not precluding further improvements is to use the ratchet technique. When an opportunity presents itself for advancing on our agenda, take it. But then explain to all concerned that this is just the first step and that more improvements are necessary. This will prevent those who want no improvement to say, accept these crumbs or nothing at all.
Paul Lehto: But this is the worst kind of talking point. Claiming incremental progress as the only realistic thing, yet the bill locks in secret vote counting for the first time in history, and new rounds of contracts in addition to the ones in existence are protected from impairment under the Contracts Clause of the US Constitution and trade secrets (with endless lifetimes) under the Takings doctrines of the US Constitution. Within the scope of contracts entered into, more progress becomes impossible.
Empty Chair: [If the Holt Bill is not passed] There will be no national mandatory random manual audits. Vendors will still be selecting and paying the entities that are supposed to evaluate their voting systems.
Bev Harris: Let’s break this apart. “Vendors will still be selecting and paying the entities that are supposed to evaluate their voting systems.” – This has nothing whatever to do with “fixing it by 2008” because it’s irrelevant to 2008.
The truth is, experts who were not paid by the vendors have still withheld the truth from the American public about these systems. And experts are another form of consolidation of power. It is inappropriate to tell the American people that we must trust a group of experts – many of whom have already proven themselves to be untrustworthy, but that’s besides the point from a structural point of view – in order to “secure” our elections.
Paul Lehto: The real "secure-ity" is whether our inalienable rights are secured by our government, the very purpose for which goverments are instituted.
Bev Harris: And this jumps us ahead to the debate on audits, but the statement that if the Holt Bill is not passed, there will be no national mandatory random manual audits, needs a closer look. With this bill, assuming the Holt Bill doesn’t get swallowed by the Feinstein Bill which has even less meaningful audits – let’s say we get the Holt Bill as currently written.
This gets precinct results released, a step in the right direction.
But then we get hit with a series of problems, and the upshot is, not only will these audits be unlikely to catch fraud, they will publish a road map for exactly how to commit fraud without getting caught, they will complicate timelines, in some cases the equipment makes it impossible to follow the Holt requirements.
In a truly appalling lack of understanding of basic project management, or event management, which is what running elections really is, there is no mention of ever pilot testing these audits! So what we have is the equivalent of staging a mission-critical event in 10,000 locations at once with a complex new set of procedures that has never been tested.
The likeliest result will be that the election ends up in the courts. This kind of recklessness can cause a meltdown. The harm could be very serious. People think the 2000 election melted down, or that the 2004 election melted down. No. A meltdown in a presidential election carries with it the very real possibility of a stock market crash. Riots. Destabilization. Lockdown. Which of course would be followed by more rushed and bad legislation, further curtailing our liberties.
And all this for audits that are not even designed to catch fraud, because the official position seems to be that it doesn’t exist. Instead, the audits are designed to create “confidence.” We really need a full debate on audits.
Paul Lehto: Well “confidence” is what is needed to perpetrate a fraud. It isn’t a fraud unless it misleads you. In order to mislead someone, you have to gain their confidence. Creating a structure based on mutual distrust is a better way to look at this.
Empty Chair: They want perfect legislation (meaning, perfectly acceptable to them) or no legislation. And because Holt's bill is #1 (federal legislation) does not provide solely for #2 (HCPB), and allows DREs to be used, they think this is reason enough to oppose the legislation.
Mark E. Smith: What happened to this country? Why are otherwise intelligent people saying that we have only a choice between the greater evil and the lesser evil, and that if we don't accept the lesser evil, we'll have nothing at all? Are they totally ignorant of goodness? When you get rid of evil, what is left is not nothing …I know many of the people writing here. Many of us care about democracy—we know that our ancestors fought and died for it and that it is our heritage and our inalienable right.
But who are the people who care only about pragmatism, the art of the deal, compromising away half a million innocent lives in Iraq because Congress believes that the war has momentum, caving in to unelected legislators as if they were kings and queens and kneeling at their feet?
Empty Chair: I offer this challenge and plead for response from everyone with an informed opinion. Can you name any other feasible way to work for fair elections in 2008? HR811 is feasible because it has over 216 sponsors and already has been committed to the Committee of the Whole House. Please state specifically what makes any alternative feasible.
Nancy Tobi: I have succeeded in communicating the flaws of these bills, but what I have failed to do is to communicate this: The Holt Bill and its companion, the Feinstein Bill, are not just flawed. They – are – dangerous.
1) The proposed legislation codifies secret vote counting
2) The proposed legislation cements control of secret vote counting to the executive branch
3) The proposed legislation provides sets the scene for unlimited litigation on election challenges.
4) The proposed legislation has many big ticket items that are unfunded.
5) The proposed legislation will not provide relief for 2008.
What – we – WANT: A stripped down bill.
Empty Chair: Here is the menu of choices:
* HR 811
You don't believe me?
Alan Dechert: No, I don't. There are state and local measures that have been positive, and there are more in the works. There is also the potential for better federal legislation later. HR 811 is an abomination. The re-work made it even worse. Kill it, and work on better legislation at state and local level.
Mary Ann Gould: I ask for discussion of components of a "stripped down" bill of those most critical actions (based on foundation of overarching Principles ) to help improve 2008 election.
Alan Brau: Yes! To insist that we lack the time or the muscle to make change happen by November 2008 is absurd and defeatist. We the people are the rulers of this government, not the usurpers and con-artists who are trying to tell us otherwise.
If we can agree on legislation, I have no doubt that we can find someone to sponsor it. If we can find someone to sponsor it, I have no doubt that we can find someone to promote it. If we promote it, we can get it passed. What's the alternative? To give up without trying?
We debate. We reach a consensus. We propose legislation. We find someone to sponsor the bill. We lobby. The bill will pass.
Empty Chair: Holt's is the only bill that may pass at all this year, NOTHING ELSE HAS ANY MOMENTUM!!!
…to be continued
You can join this debate by registering with this site and posting your comments.
One new debate topic will be posted each day through the Fourth of July.
June 28 - Thursday
1) Debate over whether to have a debate
June 29 - Friday
2) Debate over whether flawed election legislation is better than no election legislation
June 30 - Saturday
3) Debate over voter intent vs. voter verification (DRE controversies, are audits the way to go…)
July 1 - Sunday
4) Debate over concentration of power vs. dispersed power (EAC issues, etc)
July 2 - Monday
5) Debate over the public right to know
July 3 - Tuesday
6) Debate over litigation and enforcement issues
FOURTH OF JULY
7) Debate over the road map back to a real representative democracy