February 13, 2007
Essential Revisions to HR 811
There are some needed changes to the new Holt Bill HR-811, "Voter Confidence and Increased Accessibility Act of 2007". In order for the endorsing groups and individuals to support the legislation those changes must be made.
::::::::The groups and individuals endorsing this statement commend Congressman Rush Holt for all that is excellent in HR 811, the "Voter Confidence and Increased Accessibility Act of 2007" -- such as the ban on wireless communications, requirements for disclosed source code and hand audits, and the mandate that testing labs be contractually independent from vendors. However, we cannot, with good conscience, give our endorsement to HR 811. We believe we have a duty to call attention to the bill's unacceptable shortcomings and to call for the needed amendments. 1) We strongly object to the co-opting of the term "paper ballots," by inaccurately applying that term to a DRE printout, often called a "voter verified paper trail" or just a "paper trail." The bill must be amended to require real, first-hand voter-marked paper ballots (counted by hand or by optical scanner) and to ban the use of direct recording electronic (DRE) voting systems, which have proven themselves to be dangerously unreliable and only produce second-hand machine-printed paper trails that require voter-verification as a separate step by each voter. Evidence overwhelmingly confirms that, even with the addition of a voter-verified paper audit trail, DREs cannot be made to serve our nation's need for universal citizen enfranchisement. Florida's Congressional District 13 race is only one recent example of how elections using this technology cannot be verified, audited, recounted, or trusted; and how confusing the technology can be to voters. It would constitute a grievous error to further codify the use of DRE systems, as is currently done by the redefinition of "voter verified paper ballot" found at the beginning of HR 811's Section 2(a)(1). We believe that all voters should have equal access to accurate, secure, meaningfully observable, and verifiable election systems. DREs have been touted as providing this kind of election system, but America's experience with hundreds of documented DRE failures and thousands of voters disenfranchised by them proves otherwise. Any voter required to use a DRE is at once relegated to second-class status, given that other voters can vote on voter-marked paper ballots. Evidence shows that voter-marked paper ballots, combined with existing ballot-marking interfaces, provide both equity and parity to disabled and language minority voters in full compliance with ADA and HAVA. By banning DREs, HR 811 would encourage the use of voter-marked paper ballot systems - currently available and deployed in many jurisdictions - and would provide America with a fair, consistent, unified, and superior method of conducting elections. Conversely, HR 811 as written would require upgrading or replacing all DREs currently deployed and would foster a fresh round of DRE technology development, rushed to market and certain to continue the technology's historical pattern of disenfranchising voters as well as wasting taxpayer dollars. Recommended revisions: In the proposed HAVA Section 301(a)(2)(A)(i), after "created through the use of a ballot marking device or system," delete "or a paper ballot produced by a touch screen or other electronic voting machine." At the end of subparagraph (i), add "Paper printouts produced by a direct recording electronic voting machine are specifically excluded." In the proposed HAVA Section 301(a)(2)(D), change "voting machine" to "tallying machines", and change "voting-machine-to-voting-machine" to "tallying-machine-to-tallying-machine". In the proposed HAVA Section 301(a)(12)(B)(v), change "voting machine" to "voting equipment". 2) We support continued innovation, and we believe better alternatives will emerge more quickly when DREs cease to distract innovation. To foster this process, the bill must be amended to also allow the development of low-tech innovations to provide accessibility and verifiability to people with disabilities, rather than mandating that such verifiability be accomplished only through computerized means, as HR 811's proposed HAVA Section 301(a)(3)(B)(ii)(I) currently does. Recommended revisions: Change the proposed HAVA Section 301(a)(3)(B)(ii) to: ''(ii) meet the requirements of subparagraph (A) and paragraph (2)(A) by using a system that allows the voter to privately and independently verify the selections from the permanent paper ballot itself." and delete subparagraphs (I) and (II). In the proposed HAVA Section 301(a)(13), regarding readability requirements for paper ballots, after "clearly readable by the naked eye," change the remainder of the paragraph to: "and verifiable by a device equipped for voters with disabilities." 3) Studies show that most voters do not verify a "paper trail" of their ballot, when printed by a DRE. By contrast, voter-marked paper ballots are inherently verified by the voters, and thus provide a true record of voter intent. Since all computerized counting methods (including optical scanners) are vulnerable to error, statistically significant audits, conducted by hand counting the paper ballots, are essential for all elections counted by software. All recounts must also be conducted by hand counting the paper ballots. However, as currently written, HR 811 (unlike its predecessor HR 550) contains a loophole that would allow this crucial hand counting to be bypassed if State-mandated recounts, which HR 811 exempts from an audit, are conducted by machines rather than by hand. HR 811's proposed HAVA Section 301(a)(2)(B) must be amended to require all recounts to be conducted by hand-counting the voter-marked paper ballots (as HR 550 did), including recounts mandated by State laws for races with narrow margins. Recommended revisions: At the end of the proposed HAVA Section 301(a)(2)(B)(iii), after "true and correct record of the votes cast", add ", and" and delete "and shall be used as the official ballots for purposes of any recount or audit conducted with respect to any election for Federal office in which the voting system is used." Add the following subparagraph to HAVA Section 301(a)(2)(B): "(iv) the individual permanent paper ballots produced pursuant to subparagraph (A), and subject to subparagraph (D), shall be used as the official ballots for purposes of any recount or audit conducted with respect to any election for Federal office in which the voting system is used." 4) There must be no undisclosed voting system software. However, HR 811's proposed HAVA Section 301(a)(9), as currently written, fails to exempt software that is truly Commercial Off the Shelf (COTS) from public disclosure. The bill must be amended to require true COTS software, such as the Windows operating system and standard printer drivers, to be escrowed and available to officials under confidentiality, but not publicly disclosed. Recommended revisions to the proposed HAVA Section 301(a)(9): After "The appropriate election official shall disclose" insert "all system documentation and". After "executable representation of the voting system software" delete "and firmware" and add ", firmware, and modified off-the-shelf (MOTS) software" At the end of the proposed HAVA Section 301(a)(9), delete the period and insert ", except that the system documentation, source code, object code, and executable representation of unmodified Commercial off-the-shelf (COTS) software shall be disclosed only under confidentiality agreement to persons authorized by the State." 5) There must be no connection of systems or the transmission of system information over the Internet. However, HR 811's proposed HAVA Section 301(a)(11), as currently written, would allow the central server of a voting system to be connected to the Internet. The central server of a voting system is arguably the most important component that should be prohibited from Internet connection. The bill must be amended to ban all Internet connections for all components of a voting system, including a ban on the Internet transmission of voted overseas ballots referenced in HR 811's proposed HAVA Section 301(a)(2)(C). Recommended revisions: Change the proposed HAVA Section 301(a)(10) to: "No component of any voting system shall be connected, either directly or indirectly, to the Internet at any time." In the proposed HAVA Section 301(a)(2)(C), after "the requirements of such Act and this Act," delete "except that to the extent that such protocols permit the use of electronic mail in the delivery or submission of such ballots, paragraph (11) shall not apply with respect to the delivery or submission of the ballots." and add "and are in conformance with paragraph (11)." 6) We believe that the EAC has failed every part of its mission statement. We do not support extending the authorization of the EAC permanently. However, it isn't feasible to remove the EAC without having a structure in place to fill the gap. Therefore, the bill must be amended to extend the authorization through 2008 only, with provisions that enable and encourage the proactive oversight of the EAC by Congress and the public. Recommended revisions: In Section 4 of HR 811, change: "each fiscal year beginning with fiscal year 2003'' to "each of the fiscal years 2003 through 2008, contingent on the Commission's compliance with Section 202(7)." Amend HAVA Section 202 by adding at the end: "(7) publishing a report, submitted to Congress and posted prominently on the Commission's website on the first day of every quarter, detailing the activities and actions of the Commission for the previous quarter, explaining how those activities and actions relate to the fulfillment of the Commission's duties and deadlines under HAVA, and including an appendix quoting complaints the Commission has received from officials and citizens regarding its activities and actions and the Commission's responses to those complaints." 7) Citizen oversight of the audit process is essential. The bill must be amended to authorize official complaints from the public when the audit process is violated. Recommended revision: In the proposed HAVA Section 401(b)(1), after "A person who is aggrieved by a violation of section 301, 302," delete "or" and insert "303, or the requirements of subtitle C of title III". In addition to these seven essential amendments, we believe HR 811 would be significantly improved by the following. 8) The selection of the audit board should be amended to avoid conflicts with the authority of existing independent election oversight bodies in many states. Recommended revision: In HR 811 Section 321(a), change "chief auditor shall appoint" to "the state election oversight body independent of election administration, or where none exists, the chief auditor shall appoint". 9) The bill should state when the audits of precinct ballots should begin, as it does for absentee and provisional ballots. Recommended revision: At the end of Section 321(a)(1), add the following: "The audits shall commence no later than 24 hours after the announcement of precincts selected for the audit." 10) Banning wide area networks would ban modem transmission of results. The bill should allow the use of dial-up or other hard-wire connections, with or without a modem, as long as they are not concealed. Recommended revision: Change the proposed HAVA Section 301(a)(10) to: "No voting system shall contain, use, or be accessible by any wireless, power-line, or concealed communications device at all." We urge the appropriate Congressional committees to incorporate these amendments into HR 811 and any companion bill introduced into the Senate. We, the following election integrity organizations and individuals, endorse the above revisions as vital to ensuring accurate, auditable, accessible, and transparent elections in the United States. In alphabetical order: (NOTE: The list of signatories can be viewed by going to the original at VotersUnite.Org
Authors Website: www.votersunite.org
John is the Executive Director of VotersUnite.Org