PFAW (People for the American Way) is asking people lists to write their representative to support H.R. 811. Many election integrity activists believe H.R. 811 is flawed. Below is a copy of PFAW's response to that criticism from:
http://media.pfaw.org/PDF/SarasotaCD13/HoltAnalysis.pdfI have interspersed comments on PFAW's claims. My comments are indented in red italic. The comments here are about PFAW's claims rather than comments about the H.R. 811 itself. Disclaimer: I am not a lawyer, just an activist, so take my comments with a grain of salt.- Jerry Berkman, jerry at berkeley dot edu
In November 2006, voters in Sarasota County, Florida, went to vote in the highly charged race to succeed Katherine Harris in the 13th Congressional District. All but absentee voters were relegated to voting on Sarasota's paperless, unverifiable iVotronic voting machines. Unfortunately, these voters' worst fears were realized. Sarasota County's voting machines failed to register a vote for approximately 18,000 voters in that race--more than one out of every seven voters who attempted to vote on these machines. Even though almost 15 percent of the voters in Sarasota County saw their votes disappear in this election, the state certified the winner by a margin of only 369 votes--less than 0.2 percent of the total vote. Meanwhile, dozens of voters have submitted sworn testimony that the machines changed, or flipped, their votes, required multiple attempts to register their votes, or completely failed to register their votes at all.
Rep. Rush Holt of New Jersey recently introduced H.R. 811, with the bipartisan support of 191 co-sponsors (as of February 15, 2007). This bill, titled the Voter Confidence and Increased Accessibility Act of 2007, is designed to prevent what happened in Sarasota County from ever happening again, requiring all voting technology to be voter-verifiable, fully audited, and accessible to all voters. People For the American Way, Common Cause, the Electronic Frontier Foundation, the Brennan Center for Justice, Vote Trust USA, Lawyers Committee for Civil Rights Under Law, MoveOn.org, election technology expert Avi Rubin, and others support the bill. What People For, and those other groups, realizes is that it is urgent that legislation requiring verifiable, auditable, and accessible voting must be passed now, or we will likely be stuck with the status quo--millions of voters relegated to voting on technology that is not properly audited, does not allow for the voter to verify their vote, and does not provide for meaningful recounts.
While People For continues to work with Representative Holt and members of Congress to improve this bill, it is still a giant leap forward in improving the integrity of our election. Our window of opportunity is narrow. If we fail to act as soon as possible this year, the ability of jurisdictions to attempt to comply with this law will be severely compromised, thus potentially undermining the 2008 presidential elections.
Some who share our concerns about the reliability of our election technology in its present state have raised questions about the bill. This memo addresses those issues.
HOLT BILL -- There is no question that the bill would continue to permit DREs to be used, but only so long as those DREs are equipped to provide a VVPAT that complies with the bill's essential terms, providing jurisdictions with the ability to perform more complete audits based on actual voting patterns on election day, by comparing the VVPAT to the tallies as electronically recorded in the DRE. H.R. 811 states that:
The voting system shall require the use of or produce an individual voter verified paper ballot of the voter's vote that shall be created by or made available for inspection and verification by the voter before the voter's vote is cast and counted. For purposes of this clause, examples of such a ballot include a paper ballot marked by the voter for the purpose of being counted by hand or read by an optical scanner or other similar device, a paper ballot prepared by the voter to be mailed to an election official (whether from a domestic or overseas location), a paper ballot created through the use of a ballot marking device or system, or a paper ballot produced by a touch screen or other electronic voting machine, so long as in each case the voter is permitted to verify the ballot in a paper form in accordance with this subparagraph.Sec. 2(a)(2)(A)(1). This bill does not require any jurisdiction to utilize DRE machines, nor does it prohibit jurisdictions from deploying optical scan systems. It gives jurisdictions the flexibility to select the auditable, verifiable voting system that works best for their voters. It is important to note that ALL election methods, including hand counting, have error rates inherent to them, which require auditability. Indeed, the "hackable" technology at issue in the film "Hacking Democracy" was optical scan technology, not DREs. However, the scientists at the National Institute for Standards and Technology (NIST) have stated in a report after the 2006 election that, while DREs without VVPAT lack the software independence to make them adequately secure, DREs with VVPAT and optical scan systems both possess auditability such that they are software independent and therefore can be made adequately secure.
Additionally, many civil rights and disability rights organizations that have been engaged in the protection of voting rights for many years have testified that the electronic interface inherent in DREs and Ballot Marking Devices (BMDs) offers better access options to voters with disabilities and voters who have minority language needs. Indeed, in our own experience through our Election Protection efforts and otherwise, we have seen for ourselves the opportunities such technology affords to voters with disabilities or minority language needs. Whereas optical scan technology requires the printing of thousands, if not millions, of ballots in multiple languages, the distribution of those ballots in adequate numbers for each precinct, and the training of poll workers to distribute those ballots to those voters who seem to need them, the electronic interfaces on DREs and BMDs are much more effective for minority language voters. In particular, such an interface allows voters to decide on their own whether they need a minority language ballot, all of which would be preloaded onto all DREs or BMDs in a jurisdiction (thus reducing printing costs as well). Similarly, an electronic interface affords voters with disabilities an opportunity to cast an independent secret ballot--something that optical scan paper ballots cannot fully do. It is important that jurisdictions with large numbers of minority language voters and voters with disabilities have the flexibility to use equipment with an electronic interface, so long as that equipment complies with the verifiability and auditability requirements in this bill. Of course, as noted above, nothing in this bill precludes jurisdictions from using existing optical scan technology that addresses the accessibility issues for voters that have language minority needs as well as voters with disabilities.
The PFAW text says there is an electronic interface with DREs and BMDs,
but not with optical scan. Optical scan systems now include
BMDs which do have the touchscreen electronic interface.
Optical scan paper ballots can be marked as an independent secret
ballot via a BMD.
Direct Recording Electronic Voting Machines (DREs), Ballot Marking
Devices (BMDs), and Ballot Printing Devices (BPDs) all have touchscreen
electronic interfaces.
BMDs and BPDs mark or print paper ballots which are then counted.
DREs create paper trails, but election night counts are of electronic
copies of the ballots, not the paper ballots themselves.
The complexity of DREs with paper trails and the extra problems inherent
in them have shown them to be unsuitable for large scale use.
DREs are not necessary for a touchscreen interface.
HOLT BILL -- The bill requires ALL systems in use for 2008 to provide paper ballots of
record. Just like now, in those jurisdictions that use some kind of electronic tallying
equipment (which is virtually 100% of all jurisdictions), the initial tallies would be
conducted on that equipment. However, as discussed more fully below, if the Holt bill is
passed, the paper ballot (including VVPAT) would then be required to be the official
ballot of record for the purposes of any recount.
In the case of the VVPAT, although it will be the ballot of record,
there is no guarantee it will ever be counted.
In addition, this bill requires that whatever paper is used as the ballot be of
durable quality, thus outlawing thermal paper and other flimsy records. The bill states:
All voter-verified paper ballots required to be used under this Act (including the emergency paper ballots used under paragraph (14)) shall be marked, printed, or recorded on durable paper of archival quality capable of withstanding multiple counts and recounts without compromising the fundamental integrity of the ballots, and capable of retaining the information marked, printed, or recorded on 3 them for the full duration of the retention and preservation period called for by title III of the Civil Rights Act of 1960 (42 U.S.C. 1974 et seq.) or under applicable State law, whichever is longer.Sec. 247(c)(13)(A). The Civil Rights Act of 1960 requires ballots be maintained for 22 months. Further clarification that thermal paper does not comply with this section may clear up any confusion over this issue.
In addition, it appears that this bill will not permit the use of confusing reel-to-reel printing technologies (usually printed on thermal paper). The bill requires that:
ii) The voting system shall provide the voter with an opportunity to correct any error made by the system in the voter verified paper ballot before the permanent voter-verified paper ballot is preserved in accordance with subparagraph (B)(i).Sec. 2(a)(2)(A). Since reel-to-reel systems make it difficult for a voter to correct any error before the record is preserved, and yet endanger voter confidentiality by making it much easier to associate a particular voter with their votes (since it retains the votes in the order they were cast), such systems will be discontinued if this bill is passed. The demise of reel-to-reel systems would be a positive step, given that these systems not only potentially compromise the secrecy of the ballot, but recounts and audits using long reels of papers have been demonstrated to be difficult, if not completely impractical.
(iii) The voting system shall not preserve the voter-verifiable paper ballots in any manner that makes it possible, at any time after the ballot has been cast, to associate a voter with the record of the voter's vote.
HOLT BILL -- Recounts in federal elections will be conducted according to national standards, whereby the paper ballot (whether an optical scan ballot or VVPAT) must be counted as the official ballots:
In the event of any inconsistencies or irregularities between any electronic vote tallies and the vote tallies determined by counting by hand the individual permanent paper ballots produced pursuant to subparagraph (A), and subject to subparagraph (D), the individual permanent paper ballots shall be the true and correct record of the votes cast 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.Sec. 2(a)(2)(B)(iii). This language is unambiguous, requiring the paper to trump the electronic tallies in both audits and recounts. In the case of VVPATs, those ballots would be recounted by hand (since there are no machines equipped to count these paper ballots), and optical scan ballots could either be retabulated by optical scan tabulators or recounted by hand (most likely the former). To the degree that these provisions can be improved or clarified, we will continue to work with Congress.
In fact, I actually watched a recount of the VVPAT's in Alameda County, California, after the November election in 2006. The text on the VVPATs was ignored; the recounting consisted of scanning the bar codes on the VVPAT. The VVPATs were handled by hand, but the recounting was via machine.
Indeed, even if the paper ballots appear to have been compromised in some way, those seeking to have the electronic tallies supersede the manual paper count must meet a high burden of proof:
In the event of any inconsistency between any electronic vote tallies and the vote tallies determined by counting by hand the individual permanent paper ballots produced pursuant to subparagraph (A), any person seeking to show that the electronic vote tally should be given preference in determining the official count for the election shall be required to demonstrate, by clear and convincing evidence, that the paper ballots have been compromised (by damage or mischief or otherwise) and that a sufficient number of the ballots have been so compromised that the result of the election would be changed. For purposes of the previous sentence, the paper ballots associated with each voting machine shall be considered on a voting-machine-by-voting-machine basis, and only the sets of paper ballots deemed compromised, if any, shall be considered in the calculation of whether or not the election would be changed due to the compromised paper ballots.Sec. 2(a)(2)(D). The "clear and convincing" standard is among the highest in civil litigation, requiring more than a "preponderance of the evidence," as is generally required. Only if, by the clear and convincing standard, it can be proved not only that the paper ballots were compromised but also that enough of them were compromised to change the outcome of the election, can a court consider accepting the electronic tallies.
Some have raised concerns that there is a loophole in the bill, permitting
electronic-only recounts. However, the section to which they refer (Sec. 327) applies
ONLY to the subtitle relating to audits, not to recounts (see below). Consequently, the
provisions above would continue to govern all recounts, requiring paper ballots be
counted.
The companion bill, S. 559, Sen. Nelson, omits section 327.
HOLT BILL -- The bill sets up a comprehensive framework of mandatory manual audits, conducted by mandatory state election audit boards. Sec. 321 of the bill requires that each state appoint an Election Audit Board, and Sec. 322 sets up a tiered auditing approach that is designed to detect problems in an election, no matter how close the margin of victory. The audit scheme in the bill was endorsed by experts, including computer science and statistical experts, under the auspices of the Brennan Center for Justice, and balances the practical ability to conduct audits in precincts with the need to maximize the probability of discovering a flaw in the technology. Furthermore, the bill mandates that the audits be random, that additional audits beyond those expressly required by the bill be conducted if appropriate, and that the results of the audits be published. For those concerned with "unfunded mandates" (see below), the bill authorizes that federal funds be dispersed to cover the costs of the audits.
Some have raised a question as to whether there is a loophole with regard to some audits. The statute states that:
This subtitle does not apply to any election for which a recount is required automatically under State law because of the margin of victory between the two candidates receiving the largest number of votes in the election. Nothing in the previous sentence may be construed to waive the application of any other provision of this Act to any election (including the ballot verification and audit capacity requirements of section 301(a)(2)).Sec. 327. This does not appear to absolve jurisdictions of their duty to audit pursuant to the other provisions in the bill, but to the degree there is any confusion over this section, we and other groups are working with Congress to clarify that no jurisdiction can avoid the mandatory audit provisions of this bill.
The companion bill, S. 559, Sen. Nelson, omits section 327.
Some have also complained about the perceived lack of citizen oversight in this process. These concerns are misplaced. First, the bill expressly provides for a private right of action.
Nothing in this section may be construed to prohibit any person from bringing an action under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) (including any individual who seeks to enforce the individual's right to a voter-verified paper ballot, the right to have the voter-verified paper ballot counted in an election, or any other right under subtitle A of title III) to enforce the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, and 303.
I did not see "the right to have the voter-verified paper ballot counted in an election" anywhere else in H.R. 811.Second, the bill requires publication of all audit records (as described above). In addition, we understand that Congressman Holt also intends to introduce the Vote Tabulation Audit Act, which is designed to afford even greater citizen oversight over this process. In short, citizens will enjoy more power of oversight over election technology audits under this bill than they have ever enjoyed before.
HOLT BILL -- All source code must be disclosed on demand. The bill requires:
PROHIBITION OF USE OF UNDISCLOSED SOFTWARE IN VOTING SYSTEMS--No voting system used in an election for Federal office shall at any time contain or use any software not certified by the State for use in the election or any software undisclosed to the State in the certification process. The appropriate election official shall disclose, in electronic form, the source code, object code, and executable representation of the voting system software and firmware to the Commission, including ballot programming files, and the Commission shall make that source code, object code, executable representation, and ballot programming files available for inspection promptly upon request to any person.Sec. 247(c)(9). Thus, "any person" who requests inspection of source code, etc., may examine it "promptly." This is a tremendous improvement over the status quo.
HOLT BILL -- This bill explicitly outlaws any wireless technology in election
technology. Sec. 247(c)(10). Additionally, the bill also outlaws the connection of any
device on which ballots are cast to the internet. Sec. 247(c)(11). To the degree that it
does not address the status quo regarding potential for connecting other election-related
technology to the internet, we are continuing to work with Congress and others to assess
how big a threat internet connectivity of tabulators may be, how practical a prohibition on
such connectivity would be, and what language might be adopted to accommodate the
greatest level of security.
Hooking tabulators to the internet has already been shown to be dangerous.
As for whether not hooking the system to the internet, many jurisdictions
already prohibit internet connections without any problem.
HOLT BILL -- This statute does not affect the permanence of the EAC in any way. The
EAC's existence as an agency would be exactly as it is now. However, the EAC's
powers would be significantly limited under this bill. No longer would the EAC have
free reign to develop voluntary voting systems guidelines, many of which are adopted by
the states as law. These explicit requirements LIMIT the discretion of the EAC.
HAVA authorized the EAC at up to $10,000,000 for "for each of the fiscal
years 2003 through 2005".
H.R. 811 changes that to "each fiscal year beginning with fiscal year 2003";
i.e. permanently. An unfunded agency is different than a funded agency.
HOLT BILL -- The bill contemplates the spending of hundreds of millions of dollars to help comply with its requirements. At latest, 300 million dollars is authorized, and perhaps more is needed. However, our democracy is too precious for us to be penny- wise and pound-foolish, and we have certainly spent far more money on far less worthy endeavors.
With regard to costs associated with individuals with disabilities, some have raised the concern that this is a "billion dollar unfunded mandate." Specifically, some point to the provision in the bill requiring that a voting system allow:
the voter to privately and independently verify the content of the permanent paper ballot through the conversion of the printed content into accessible media....Sec. 2(b)(1)(B)(ii)(I). This provision was inserted at the request of disability rights groups, and we support it. It is a matter of fundamental fairness and equality. Voters with disabilities are not second class-citizens, and if all other voters have the opportunity to independently verify the content of their paper ballot, as they should, then we cannot deny voters with disabilities that same opportunity. We cannot improve our democracy through verifiability and auditability without affording that opportunity to ALL voters.
The question is what "the conversion of the printed content into accessible media" means. Does this rule out non-electronic assistive devices like the Vote-Pad and EqualiVote?
Furthermore, these concerns have been greatly inflated. This provision basically
requires each precinct to have a scanner (either optical scan or character-recognition,
depending on the type of paper ballot) that can independently read the ballot back to the
voter. There are at least five, and perhaps more, types of election technology currently in
use, technologies that are fully or partially compliant with this provision, requiring
limited expenditures. For those precincts that require a separate scanner to be present,
such scanners are much less expensive than many have claimed, and some may even be
purchased off-the-shelf. Internet retailers are selling equipment capable of complying
with the "conversion of the printed content into accessible media" requirement for a few
hundred dollars--many times less than what some have claimed. While the costs to
implement this provision are likely nowhere near one billion dollars, we stand with the
disability rights community in demanding that any improvement in our election system
that benefits voters without disabilities must also benefit those voters with disabilities.
Buying one AutoMark for each precinct which does not already have one
would cost at least $1 billion.
Are they considering just buying an optical scanner and hooking it to the DRE?
This would improve detections of accidents, such as the printer jamming or
running out of ink. However, that is a bad choice from a security point of view.
The DRE would still announce the results to the voter, just as it does now in
verification. The voter would not know if the results came from the DRE memory
of the vote or the paper.
None of the current DREs meet this requirement. They may be deemed "partly compliant",
but it is not clear the conversion to fully compliant is practical.
The ES&S AutoMark is compliant, but it is expensive.
What are the other ones, currently in use?
Finally, we will continue to fight for full federal funding of this mandate, as we have continued to fight for full funding of HAVA. The costs of complying with these national standards are properly borne by the federal government, and we will resist any efforts to pass them off to the states.
HOLT BILL -- The bill expressly codifies this requirement, and takes particular care to ensure that the votes of military voters be kept secret. First, with regard to all voters, it makes the unambiguous statement that:
The voting system shall not preserve the voter-verifiable paper ballots in any manner that makes it possible, at any time after the ballot has been cast, to associate a voter with the record of the voter's vote.Sec. 2(a)(2)(A)(iii). Furthermore, with regard to military and overseas voters, the bill states that:
In the case of votes cast by absent uniformed services voters and overseas voters under the Uniformed and Overseas Citizens Absentee Voting Act, the ballots cast by such voters shall serve as the permanent paper ballot under subparagraph (A) in accordance with protocols established by the Commission, in consultation with the Secretary of Defense after notice and opportunity for public comment, which preserve the privacy of the voter and are consistent with the requirements of such Act and this Act, 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.Sec. 2(a)(2)(C). The bill therefore requires that the ballots cast by these voters "preserve their privacy."
The "except that ..." clause would allow votes by electronic mail. Email is easy to intercept, especially in a closed environment such as a military base. It is also not private as the email must be printed at the election official's office and put together with identification for the voter.
This is pure speculation. It is not clear what happened in Sarasota. At the beginning of this analysis, PFAW stated:... dozens of voters have submitted sworn testimony that the machines changed, or flipped, their votes, required multiple attempts to register their votes, or completely failed to register their votes at all.The machines were supposed to be programmed to warn voters of undervotes. It didn't work. A paper trail would not have changed that. If fraud was involved, there are ways to "game" systems which include DREs and paper trails.What we know for sure is that paper ballots (optically scanned) in neighboring counties and for absentee votes in Sarasota County had low undervote rates in the Congressional race (2-5%), while the voting on DREs (early voting and election precinct voting in Sarasota County) had a high rate of undervotes for Congress (18%). There is no reason to assume H.R. 811 would have changed that.
While H.R. 811 is not a perfect bill (no piece of legislation is), it vastly improves
the status quo, requiring a much greater level of integrity be put into place in time for the
2008 elections. There is substantial momentum, due to the Sarasota disaster and other
factors, to legislate in this area this year, in time for next year's elections. However, if
this momentum is halted, we will have missed our window of opportunity, and we will be
stuck with the same flawed election system that resulted in millions of disenfranchised
voters in the past four federal elections. We will work with Congress and allies to ensure
that the bill that gets passed is the most complete bill possible, but we will not sit back
and allow the next Sarasota--or something far worse--to happen again.
It is questionable whether H.R. 811 can be implemented for elections in 2008.
While PFAW's response talks about the 2008 elections, H.R. 811 will only
apply to federal elections, i.e. general elections. It will not apply to primaries.
Reminder: the purpose of this web page is to document large holes in PFAW's
analysis. They are additional problems in H.R. 811 not mentioned here, because
they were not discussed in PFAW's analysis. Also, there are other criticisms
by activists which PFAW did not counter in their analysis.