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May 22, 2007

The Real Threat from the Holt Bill as Written

By Michel Collins

The real threat from the Holt Bill as written is that it presents infinite opportunities for litigation challenges and judicial resolution rather than citizen determination our election results and outcomes. Now for all you activists jumping with glee over the opportunity to sue the pants off your corrupt state and local election officials, bear one single thought in mind: Florida 2000.

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The real threat from the Holt Bill as written is that it presents infinite opportunities for litigation challenges and judicial resolution rather than citizen determination our election results and outcomes.

Now for all you activists jumping with glee over the opportunity to sue the pants off your corrupt state and local election officials, bear one single thought in mind: Florida 2000.

This single litigative challenge to an election outcome from a single state threw the nation into chaos and resulted in the Judiciary Branch (about as nonrepresentational a branch as we have) selecting the President. Is this the future you want?

Hold that thought and consider four things now:
1) The testimony of Jill Lavine regarding the time required to count DRE toilet paper trails by hand
2) The results of a Cuyahoga County study regarding error rates in counting toilet paper trails
3) An analysis of the conflicting and impossible mandates combined with the nonsynchronous effective dates of the Holt Bill provisions
4) Another choice different from the false choices of "Holt Bill now or something worse or nothing at all for 2008"

1) Jill Lavine's testimony:
http://www.eac.gov/docs/Transcript%20042006.TXT

My name is Jill LaVine, I'm from Sacramento, California.I'm the Registrar and I have been working in elections for a little over 20 years.... A total of 1,612 valid ballots were counted at the early voting locations. And at this time I believe we were the first jurisdiction in the nation to go out with the voter verified paper audit trail. This experiment was very closely watched and it was controlled under some very controlled conditions. We had experienced people at each staff. We had -- from the vendor at each of the polling places.

The equipment had to meet of course all of the Secretary of State's requirements and our requirements and expectations. At the end of this project, knowing the California code requires that during the canvas of any vote that 1 percent of the precincts chosen at random will be manually recounted to verify the equipment, as part of the canvas, we chose one of the units or one of the polling sites and recounted these ballots.

The precinct we selected had 114 ballots. Because it was possible for a voter from any one of the 246 ballot types in the county to vote at the early sites, it made this recount very difficult and our tally sheet consisted of not just one page but several pages to accommodate all the choices.

We had four teams of two sit at tables with tally sheets to handle all the contests. The paper ballots were held together with large binder clips. Because they varied in length from 11 inches to over 20 inches, they rolled and it was very difficult to handle. I was watching several of the teams. They would put a brick on paper and paper weighted each end of these little curled ballots and start counting, and as soon as it moved or something bumped it, it rolled back up again and they'd be starting all over. The vendor also used a heat sensitive thermal paper that left kind of an icky residue on our recounters' hands, and so they said, can we have some rubber gloves? So those were provided, too.

We allowed provisional voting for this early -- for this ballot project and processing the provisional ballots was a very quick and easy process. We also allowed for write-in votes in this process and that was very quick and easy also, because in one case presentation of the reports made it very easy to count those write-in votes. So knowing that this project was under scrutiny, we verified the number of voters on the machine with the report. We verified the report with the paper record. Then we verified the machine totals with the paper records, so we did several cross checks to make sure we got it all together. And when the counting was all completed we were off by one ballot.

So what we learned is after printing out a report, that a fleeing voter who actually voted who didn't, you know, push the cast button, cast ballot button didn'tproduce a paper record for privacy reasons. So therefore, going back to the report, we found the fleeing voter and then we actually confirmed the number of that voter and we took that activity report and everything came out right.

But it took 127 and a half hours to recount 814 ballots, or approximately an hour and 15 minutes for each ballot.

The number from the machine count did match the paper of votes for the paper ballots exactly. Now, we are very thankful that this project was a November election, because had it been a primary election in California with our eight parties and our three non-partisan crossover opportunities that California allows, I think we'd still be counting. Also the paper audit trail did not print in Spanish, so we recounted in English only. This is before we had any true rules about what a paper audit trail should be and we were kind of stabbing in the dark here.

We were grateful that there were no challenged contests and it was not necessary to count any more than the 114 ballots. Otherwise, there would be significant delays in those election results.

I want you to know that we canceled that RFP and we've learned now with the third time after that.

2) Study on toilet paper trails:

In April 2006, prior to the May 2 primary, the Cuyahoga County Commission contracted with the Election Science Institute (ESI) to conduct a comprehensive review of how their new voting system actually worked on an election day. ESI's report, including the performance of the Diebold Accuvote TSX voting system, was released by the Cuyahoga County Commissioners:

"…members of the manual count team found that 10 percent of the paper ballots were physically compromised in some way."

(Election Science Institute, 08/22/2006)

3) Analysis of conflicting and nonimplementable mandates and the nonsynchronous effective dates of the Holt Bill provisions:

Holt Bill Provision, Effective date 2008: Only completely paperless systems, like Georgia and Maryland, must meet the new equipment requirements for text conversion and durable paper. All others using toilet paper roll DRE-printer systems may stay in place until 2010, but still must meet audit provisions in 2008.

Holt Bill Provision, Effective date 2008 : ALL jurisdictions must meet audit provisions as defined in the bill.

HR 811 Audit requirements:
''(2) With respect to votes cast at the precinct or equivalent location on or before the date of the election (other than provisional ballots described in paragraph (3)), the Election Auditor shall administer the hand count of the votes on the voter-verified paper ballots required to be produced and preserved under section 301(a)(2)(A) and the comparison of the count of the votes on those ballots with the final unofficial count of such votes as announced by the State.

''(1) IN GENERAL.—If the Election Auditor finds that any of the hand counts administered under this section do not match the final unofficial tally of the results of an election, the Election Auditor shall administer hand counts under this section of such additional precincts (or equivalent jurisdictions) as the Election Auditor considers appropriate to resolve any concerns resulting from the audit and ensure the accuracy of the results.

''(2) ESTABLISHMENT AND PUBLICATION OF PROCEDURES GOVERNING ADDITIONAL AUDITS.—Not later than August 1, 2008, each State shall establish and publish procedures for carrying out the additional audits under this subsection, including the means by which the State shall resolve any concerns resulting from the audit with finality and ensure the accuracy of the results.

Now answer these questions about the Holt audit provisions:
  1. How does one meet the specifications for auditing the "voter verified paper ballots" in 2008 when they have been granted a 'delay' in the mandate to have a voting system that provides the 'voter verified paper ballots'?
  2. How does one conduct an "audit" using toilet paper rolls?
  3. How long does it take to count toilet paper rolls?
  4. Are 10% unreadable/spoiled toilet paper records (a la Cuyahoga County results) considered part of audit discrepancies that must be addressed? How does one address this for the purposes of an audit, which is designed to "verify" results?
  5. How does one reconcile discrepancies using toilet paper rolls?
  6. How does one complete the following reporting requirements after conducting an "audit" using toilet paper rolls?
''SEC. 325. PUBLICATION OF RESULTS. ''(a) SUBMISSION TO COMMISSION.—As soon as practicable after the completion of an audit under this subtitle, the Election Auditor of a State shall submit to the Commission the results of the audit, and shall include in the submission a comparison of the results of the election in the precinct as determined by the Election Auditor under the audit and the final unofficial vote count in the precinct as announced by the State and all undervotes, overvotes, blank ballots, and spoiled, voided or cancelled ballots, as well as a list of any discrepancies discovered between the initial, subsequent, and final hand counts administered by the Election Auditor and such final unofficial vote count and any explanation for such discrepancies, broken down by the categories of votes described in paragraphs (2) and (3) of section 323(a).

What happens if a state does not meet Holt mandated requirements for auditing and reporting in time to certify election results?

HR 811:
''(c) DELAY IN CERTIFICATION OF RESULTS BY STATE.— ''(1) PROHIBITING CERTIFICATION UNTIL COMPLETION OF AUDITS.—No State may certify the results of any election which is subject to an audit under this subtitle prior to:
''(A) to the completion of the audit (and, if required, any additional audit conducted under section 323(d)(1)) and the announcement and submission of the results of each such audit to the Commission for publication of the information required under this section; and ''(B) the completion of any procedure established by the State pursuant to section 323(d)(2) to resolve discrepancies and ensure the accuracy of results. '

'(2) DEADLINE FOR COMPLETION OF AUDITS OF PRESIDENTIAL ELECTIONS.—In the case of an election for electors for President and Vice President which is subject to an audit under this subtitle, the State shall complete the audits and announce and submit the results to the Commission for publication of the information required under this section in time for the State to certify the results of the election and provide for the final determination of any controversy or contest concerning the appointment of such electors prior to the deadline described in section 6 of title 3, United States Code. In the case of an election for electors for President and Vice President which is subject to an audit under this subtitle, the State shall complete the audits and announce and submit the results to the Commission for publication of the information required under this section in time for the State to certify the results of the election and provide for the final determination of any controversy or contest concerning the appointment of such electors prior to the deadline described in section 6 of title 3, United States Code.

Section 6 of title 3 US Code states:
    1. "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
    2. It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State;
    3. The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.
Now answer these questions about the Holt audit and reporting provisions:
  1. Would we require a US Constitutional amendment now to change the date of our elections so that we can adhere to Holt auditing timelines?
  2. Can a state certify results for presidential electors in the Constitutional time frame of roughly 4 weeks, even if it has not met Holt-EAC audit and reporting requirements?
  3. What role, if any, does the EAC play with respect to "accepting" audit reports from the States or follow up if the States do not meet the audit reporting requirements?
  4. Does the EAC need to 'sign off' on States meeting this requirement before States can certify election results?'
  5. What are the consequences for States NOT filing a report with the EAC as required in Holt?
  6. How will states meet Holt's requirements to "resolve (audit) discrepancies" to the EAC if the discrepancies result from unusable DRE paper "trails"?
  7. Have we ever had a situation where any state has missed the constitutional deadline for certifying results in a presidential election?
Isn't the Constitutional timeline one of the reasons given in Bush v Gore for aborting the electoral process of vote counting resulting in the Supremes deciding the outcome of the 2000 presidential "election"?

________________________________

4) Another choice: ALTERNATE SIMPLE AND STRAIGHTFORWARD AND IMPLEMENTABLE, PRACTICAL, LEGISLATIVE PROPOSAL FOR REAL PAPER TRAIL AND CHECKS AND BALANCES WITH INCENTIVES FOR REAL PAPER BALLOTS AND HAND COUNTS

1) In support of the principle of checks and balances, citizen oversight: REQUIRING BALLOTS TO BE OFFERED AND PROVIDED.—The appropriate election official at each polling place in an election for Federal office shall offer each individual who is eligible to cast a vote in the election at the polling place the opportunity to cast the vote using a pre-printed paper ballot which the individual may mark by hand and which is not produced by a direct recording electronic voting machine. If the individual accepts the offer to cast the vote using such a ballot, the official shall provide the individual with the ballot and the supplies necessary to mark the ballot, and shall ensure (to the greatest extent practicable) that the waiting period for the individual to cast a vote is not greater than the waiting period for an individual who does not agree to cast the vote using such a paper ballot under this paragraph. Jurisdictions will ensure that a sufficient supply of paper ballots be available, that notice of the option is provided, that the ballots are treated with equal dignity provided to other ballots, including canvassing/counting those ballots on election day, and that consequences are provided for violations. The choice of the voter as to the form of their ballot shall be prominently posted at the polling place in all areas where informational posters are placed and in any event shall be prominently posted at the point where the voter is required to choose ballot form. Pollworkers shall verbally inform voters of their choice as to each voter, and nothing shall be construed to prohibit citizens from providing the same or other additional information concerning choice of ballot and such informational activities shall not be considered electioneering, so long as they do not expressly refer to the choices on the ballot, but only to the voter's choice of a type of ballot. In the event of violations related to the provision, canvassing, and handling of paper ballots, any citizen eligible to vote in the jurisdiction will have standing to go to court to require compliance and authority for the court to grant immediate relief. Funding for training and documentation for election officials and election workers in the proper hand counting methods and election administration using paper ballots will be appropriated to support this provision. Prior to election certification, appropriate protocols must be implemented to ensure the integrity of election results as authenticated by transparent vote counting methods.

(Compliance to be determined by each state in a state plan process that supports the standards for democratic elections, those being citizen oversight and security, and which process includes diverse stakeholders group including citizen representation, published plans, and consequences for noncompliance. State Plans will be published in the Federal Register.)

Effective Date State Plan: February, 2008

Effective Date Implementation: General Election November 2008

2) In support of the principle of fiscal responsibility and stabilization of state governmental administration, checks and balances, citizen oversight: BUYOUT funding for states wishing to replace DRE systems with paper-based voting systems. (BUYOUT funding can be applied to paper ballot, optical scan voting systems, paper ballot, hand count systems, or a combination thereof. In the case of buyout funding as applied to hand count systems, training costs may be included.)

(Compliance to be determined by each state in a state plan process that supports the standards for democratic elections, those being citizen oversight and security, and which process includes diverse stakeholders group including citizen representation, published plans, and consequences for noncompliance. State Plans will be published in the Federal Register.)

Effective Date: February, 2008

3) In support of the principle of checks and balances: Dissolution of EAC and responsibilities reallocated to appropriate representational groups, as described below)

Effective Date: January 2008

4) In support of the principle of fiscal responsibility and stabilization of state governmental administration: Prohibition on any additional unfunded mandates being added into the bill

5) In support of the ninth amendment that no single right can trample or trounce others: Appropriations for real study, with real stakeholders including citizen representation and broad range of disability activists, election officials, and other solution makers, to find consensus, practical, implementable solutions to support the often conflicting voting rights of citizen oversight, security, accuracy, and accessibility.

Effective Date: Upon passage

EAC reallocation of responsibilities:

  • Generate technical guidance on the administration of federal elections. – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
  • Produce voluntary voting systems guidelines. – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
  • Research and report on matters that affect the administration of federal elections. – HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
  • Otherwise provide information and guidance with respect to laws, procedures, and technologies affecting the administration of Federal elections. – HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
  • Administer payments to States to meet HAVA requirements. – HAND OVER TO GENERAL SERVICES ADMINISTRATION
  • Provide grants for election technology development and for pilot programs to test election technology. – ELIMINATE THIS FUNCTION.
  • Manage funds targeted to certain programs designed to encourage youth participation in elections. – HAND OVER TO DEPT. OF EDUCATION
  • Develop a national program for the testing, certification, and decertification of voting systems. – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
  • Maintain the national mail voter registration form that was developed in accordance with the National Voter Registration Act of 1993 (NVRA), report to Congress every two years on the impact of the NVRA on the administration of federal elections, and provide information to States on their responsibilities under that law. – HAND BACK TO FEC
  • Audit persons who received federal funds authorized by HAVA from the General Services Administration or the Election Assistance Commission. – HAND OVER TO GAO
  • Submit an annual report to Congress describing EAC activities for the previous fiscal year. – HAND OVER AS APPROPRIATE TO ENTITIES PICKING UP FUNCTIONS AS DESCRIBED ABOVE


--
Nancy Tobi
Co-Founder, Democracy For New Hampshire
Chair, NH Fair Elections Committee
Legislative Coordinator, Election Defense Alliance
nancy.tobi@gmail.com
www.DemocracyForNewHampshire.com

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