There was a previous hearing by the committe on Feb. 7, 2007. For info on that hearing, including witness list, video, and statements, go to:
http://rules.senate.gov/hearings/2007/020707hrg.htm
My notes below are from the video at:
http://rules.senate.gov/hearings/2007/072507hrg.htm
The notes are close to what they said, of only selected parts. Do not rely on these for quotes.
All witnesses had prepared statements which are available from the committee website.
Audio is also available at:
http://verifiedvoting.org/downloads/20070725_Senate_Rules_full.mp3
As we saw in Sarasota, Florida, paperless electronic voting systems are the soft underbelly of our voting process -- 18,000 undervotes in a Congressional race, which was five times the rate seen on absentee ballots in the same contest. And the cause remains under investigation.
It is not a perfect bill, and I anticipate that after this hearing there will be a number of changes that will be incorporated into a Chairmans mark.
I look forward to working with the Secretaries of State and their associations and with any other interested party to try to forge a practical, doable bill.
Experts testified at a February 7th Rules Committee that about 56 percent of the voting systems now distributed throughout the states use optical scanners.
The advantage of this system is that you have an individual voter-verified paper record without having to rely on a separate printer or other mechanism that could be subject to jams. This is simple and direct. I believe this is the way to go.
I like the connect the voter as much with their mark that they can see as much as possible.
I'm proud of the fact that we currently have 11 cosponsors, Senators Biden, Boxer, Brown, Clinton, Dodd, Inouye, Kennedy, Laehe, Minendez, Obama and Saunders on this bill.
I would very much like to make it a bipartisan bill and am open to suggestions.
The committee has received several statements for the hearing record from individuals and organizations stating their views and comments and with your permission, I'd like to enter them into the record.
(She is holding a folder with probably an inch or two of papers in it).
0:08:00
Senator Bennett:
He read his opening statement, discussing whiskey,
how Washington lost
by not offering enough whiskey to voters, how a springer
spaniel voted, and vote fraud.
The whole question of making sure that our elections are legitimate, the results are verifiable, and that vote fraud does not go on, is a complicated one and I salute you for your willingness to tackle it.
0:10:45
Senator Clinton, cosponsor:
She read her opening statement, one excerpt:
I'm joined here by Congresswoman Stephanie Tubbs-Jones, who with me introduced the Count Every Vote Act in 2005 and again in 2007. Congresswoman Stephanie Tubbs-Jones and I held a hearing in Cleveland after the 2004 election where we heard very gripping and really disheartening testimony about how hard it was for registered voters to be able to exercise their right. Voters would arrive at the polls to discover their names mysteriously absent from the voting rolls. They were unable often to register due to arbitrary rules and barriers in the registration process. Voters were afraid, and with good cause, that their vote wouldn't count because the machines they were using had neither voter-verified paper records nor other safeguards.
0:21:00
Senator Chambliss:
He submitted his statement for the record but didn't read it.
One excerpt:
The current form of the bill before us still falls short of the appropriate deference to the men and women who are most suited to execute the necessary steps to ensure the protection and precision of votes cast.
Senator Feinstein:
Introductions:
Secretary Deborah Markowitz of Vermont is the immediate past president of the National Association of Secretaries of State. She is a member of the Election Assistance Commission's Standards Board. She will address the Election Administration challenges and implementation of reform.
Mr. George N. Gilbert is the director of Guilford County North Carolina Board of Elections. He is a former congressional staffer and a participant in the Election Center's task force on election law.
Miss Wendy Noren is the Clerk of Boone County Missouri. She currently chairs the legislative committee of the National Association of Counties, and serves on the Election Assistance Commission's Board of Advisors.
Doctor Michael I. Shamos, has been a faculty member in the School of Computer Science at Carnegie Mellon University in Pittsburg since 1975. He is also an attorney admitted to practice in Pennsylvania and before the United States Patent and Trademark Office. Since 1980, he's been an examiner of electronic voting systems for six states primarily Pennsylvania and Texas.
Mr. Ray Martinez, serves as a policy advisor to the Pew Center on the States and serves as adjunct law and policy faculty teaching election law at the University of Houston and the University of Texas. Previously he served as one of the original commissioners on the Elections Assistance Commission.
He is currently chair of the Overseas Vote Foundation which focuses on the rights of military and overseas voters.
If you could give us the bottom line of your written comments in about five minutes, it will leave time for questions.
0:25:00
Deborah Markowitz:
Keep the following principles in mind. The first is provide
reasonable time frames for implementation.
We greatly appreciate that S. 1487 includes
implementation deadlines that are more reasonable
than those offered in other bills.
We are also concerned that the paper trail and accessible verification equipment described in this bill don't yet exist for all types of voting systems.
Our second principal we would like you to consider is guaranteeing full funding for mandates. To date the states have not received the full amount allocated under the Help America Vote Act.
$800 million is still owed to states for Help America Vote Act. Full funding for the changes you are seeking on the state level are really necessary for success.
Finally and most important, I ask that as you craft new legislation you allow for maximum flexibility and seek to avoid the preemption of state authority.
Vermont has fewer than 450,000 registered voters, we still run all of our elections using paper and pencils or pen and in the vast majority of our communities, we still count those ballots by hand.
Because we don't require federal certification of voting equipment, we were able to purchase a vote by phone system to meet the accessibility requirements of the Help America Vote Act.
0:30:00
Mr. Gilbert:
Guilford County represents 300,000 registered voters,
and we have twenty years of direct electronic voting experience.
Can this bill accomplish its goals? The primary focus of this legislation as Senator Clinton pointed out is to enhance public confidence in our elections.
Public confidence is being eroded in some quarters, whether by the events of history or the drums of doubters or both. The bills primary ammunition is paper record of votes and manual tabulation. The fact that the two most celebrated recent attempts to manually count ballots dealt severe blows to public confidence should raise a red flag to this committee.
I refer to the manual counts of paper in Florida in 2000 and in Washington State in 2004.
In my written testimony, I offer detailed documentation and discussion on why such attempts are counter productive.
I also contend with confidence that no audit would have changed the outcome of those two events.
Los Angeles County contains one quarter of California's twenty three million registered voters.
Salt Lake County contains forty percent of that state's voters.
The New England Townships may be able to conduct their manual counts of paper, although recent studies question even this assumption. Faced with nine million votes cast in the chairwoman's recent election, it requires different methods.
Many of the bills goals can only reach their full potential with the aid of direct electronic voting
With federal support of research and development in electronic security, 2010 is no further out of reach for 21st century options than it is for a universal paper trail and there will be far fewer unintended casualties.
I would like to ask that a couple of additional items be placed in the record. Connie McCormak of L.A. County has recently issued a report on their one percent manual audit. Also a Web Security Sourcebook that talks about the fact that, it basically says audit is best where it is largely automated. And I would note that the primary author of that book is Avi Rubin.
Senator Feinstein:
Those items will be added to the record.
(The book is probably the one at: http://www.amazon.com/Web-Security-Sourcebook-Aviel-Rubin/dp/047118148X, published June, 1997. Do they copy all 368 pages into the Congressional Record? I hope not.)
0:36:30
Wendy Noren:
I'm Wendy Noren, County Clerk for Boone County, Missouri.
I'm testifying on behalf of the National Association of Counties.
Give states until 2009 to craft meaningful plans with local officials and stakeholders. Build an emergency certification process for pre-election software changes.
0:42:00
Michael Shamos
I have recently completed my 121st voting systems examination
and this January, I served on the task force of the Florida
Secretary of State which examined the source code used
in the disputed Buchanan/Jennings Congressional race.
The proposed bill, though it makes repeated reference to verification, does not come close to providing it. While the paper trail shows the voter that her choices were properly understood and recorded on at least one medium, it offers no assurance whatsoever that her ballot was counted, that it ever will be counted, or that it will even be present when a recount or audit is conducted.
That is not voter verification regardless of how it may be denominated in the text of the bill.
Even advocates recognize that scrolled paper trail make it easy, not just possible, to determine how every voter in a precinct voted.
This problem is so bad that in Nevada in 2006, the Secretary of State refused to allow an unsuccessful candidate access to the paper trail citing ballot secrecy as the reason.
In Cayahoga County, Ohio in 2006, 10% of the paper trail records were found to be illegible, defaced or entirely missing after the election. Reliance on paper for trust-worthy elections is thoroughly misplaced.
No commercial DRE system is currently available which meets the requirements of the bill. All of them either: 1. violate privacy, 2. fail to produce records which are clearly readible by the voter, or 3. are not accessible to the disabled.
The main problem with voting machines today is not security, but reliability. Almost ten percent of them fail on election day. Machines with paper printers fail at nearly double the rate of machines without them, with one in five becoming inoperative on election day.
Based on tests conducted in California and Georgia, it would take about 16,000 man hours to obtain a reliable count of just two percent of the ballots in a state with five million voters.
There has to be a better way, and indeed there is.
(He then talks about a conference last week in Oregon on electronic voting where a system from Auburn University, called Prime 3, a witness system, which allows post election verification by individuals that their vote was counted.)
Election dedicated software should be publicly disclosed. The public interest trumps any claim of confidentiality.
(He also submitted a markup of changes he wants in the bill, but it is missing from the written statement on the web.)
0:50:20
Mr. Ray Martinez:
Policy Adviser, The Pew Center on the States, former EAC commissioner
He didn't say anything of note.
0:55:00
Senator Feinstein:
Miss Markowitz, you mentioned paper trails don't exist for
all types of voting systems. Would you expand on that?
Deborah Markowitz:
While with Direct Recording Electronic systems, there may
be paper trails, those paper trails don't necessarily
meet the requirements of durable paper, and in addition
the bill requires that the VVPAT be accessible for people
with disabilities, and that technology doesn't exist yet.
Statisticians have looked at this issue, and if about 1.5% of the voters look at the paper trail, that's sufficient to give you 99% certainty that the machine is accurate. So not every voter needs to participate in the audit. The bill is silent on what happens if you find an error.
0:58:00
Senator Feinstein:
I asked my staff what is wrong with he is saying
and the response was well it's one black box connected to another
black box...
Michael Shamos:
The ballot box is another black box.
In 2004, ballot boxes were found floating in San Francisco Bay
three weeks after the election.
The entire history of ballot fraud has been caused by simple manipulation of paper ballots. Lost, alterations, substitution, etc.
In the Auburn system, there is one black box and then there is another black box, but the output of the boxes is visible to the voter. That's the difference. And also, we test black boxes all the time and with sufficient testing, it is possible to determine that there hasn't been any chicanery, going on in the boxes, not with 100% certainty, that is never possible, and it is certainly not possible with paper ballots systems.
1:00:00
Senator Bennett:
I find a theme running through your testimony, which is you think
we're on the right track, but you don't think we're there yet.
Is that a safe summary? (no dissention) Ok.
I find the biggest area of fraud is not with the system, but with individuals. You talk about the ballot boxes floating around in San Francisco Bay. The system didn't put them there. Some individual who wanted to prevent those ballots from being counted physically took them out and dumped them in San Francisco Bay.
He gives an example "some official allowed a dog to vote". Then a joke about dead people voting.
These are the areas where we've seen the greatest vote fraud. It's easier to manipulate paper ballots. We're focusing so much on the system that we fail to recognize that the problems that have arisen, ballots being stolen or votes being changed, comes on the part of individuals.
Michael Shamos:
The Auburn system has a very high level of security built into it.
The records are maintained in such a way that
even if someone gains access to the computer and attempts to alter
or destroy them, it is impossible for that person to determine
which are real records and which are dummy records.
There are all kinds of checks and balances built in
to that system to prevent even determined manipulation.
There are independent records. There is one system recording the votes and then there is the other system that is the witness that is watching all of the events. Those things have to be in synchrony and if they are not, then we know the election has been tampered with.
Senator Bennet:
That sounds great. It also sounds very expensive.
Michael Shamos:
That's always the problem.
Comparison is often made between ATM machines which we all believe
are highly reliable, and voting machines and we wonder why we can't
get the same level of reliability. And the answer is an ATM costs
10 times as much as a voting machine.
1:05:40
Senator Bennett:
How far away are we? And how much money are we talking about if
we were to mandate in all 170,000 voting places the
kind of thing you describe?
Michael Shamos:
We need to convince the commercial sector that these developments
are worthy of going forward into a viable commercial product.
Senator Bennett:
In the state of Utah, we feel very good about what we've got,
and it doesn't qualify under this bill.
It would have to be thrown out.
After a lot of research, a lot of work, and a lot of money
to put it in place and experience with it in an election, and it worked!
And then we say, ok, you've got to throw it out.
I know I'd get significant resistance because they'd say,
demonstrate that what we've got isn't working before you
insist that we have to throw it away.
Michael Shamos:
And demonstrate that the substitute would be better.
1:07:00
Senator Chambliss:
We must be careful as policy makers to make sure that we listen
very closely to what these folks have had to say
and the other folks which will be here today, because we should
never substitute our judgement for the judgement of the
folks who are on the ground and doing the Lord's work in
making sure that all of our elections are conducted properly.
Ms. Markowitz and Ms. Noren, You further indicate that the goals, timetables of HAVA have yet to be met, going on five years later.
Wendy Noren:
We had hoped we would have standards before we purchased
new equipment. That didn't occur. Many of us faced funding short-falls.
My own state got coverage for 70% of the purchase of the equipment.
We don't know the equipment we will have.
We don't know if the funding which is in this bill is adequate.
My cost has doubled since we implemented last year.
1:11:45
Deborah Markowitz:
We can't make changes overnight.
In part it is because we first have to change our state laws
to take into account the new federal requirements,
and we have many requirements for public bidding.
We really need quite a bit of lead time to successfully
implement change.
The statewide voter registration database,
the advice from the EAC on
the standards those databases needed to meet,
came out two months before we were
supposed to have them fully functioning.
So realistically in our states,
we have to make a best guess as
what those standards would be requiring.
1:13:20
Senator Chambliss:
Are the timelines in this bill doable?
Deborah Markowitz:
In so far as they require some technology that does not yet exist,
I think there is a problem.
Wendy Noren:
They don't require any technology that does not exist.
Deborah Markowitz:
It would require people to purchase optical scan machines.
The accessibility piece on a paper trail doesn't yet exist.
That is problematic for those states which use DRE machines.
1:14:40
Senator Alexander:
Include in record letter from Tennessee Secretary of State
and the state coordinator of elections.
Elaborate on time for compliance and proper funding.
What will the cost be?
Mr. Gilbert:
The biggest cost in the bill as it is,
is the cost of manually tallying the ballots.
The document I submitted from Los Angeles addresses that.
Maintaing flexibility in the mandate itself is probably
the biggest things you can do.
If you mandate independent verification of ballots,
the vendors will compete and come up with the most
cost effective system.
1:19:00
Senator Alexander:
If we mandate it, must pay for it.
How much will it cost?
Mr. Gilbert:
Price of electronic voting machines are coming down.
The certification process right now adds at least two years to
the process.
By 2010, the technology can be ready; probably not ready and
certifiable by that time.
1:20:00
Senator Alexander:
How can we know what the bill is going to be?
Mr. Gilbert:
You can't.
Senator Alexander:
Well then I will vote against the bill.
We have a tenth amendment and a tradition that says if we
are going to mandate it we will pay for it.
1:20:45
Wendy Noren:
Get NIST and EAC to specify a guideline.
At that time, it is the time to start determining cost estimates.
We need the EAC to tell us what does comply and what does not.
Will we able to use our equipment and just get a bar code reader
for accessibility; can I keep my continuous reel VVPAT, ...
Senator Alexander:
I'd like to suggest that some collaborative process
between mayors and governors and states might be a good
preamble -
Senator Feinstein (interrupting):
I think that is a good idea. I will do it.
As a former mayor, I strongly believe in local control
so I am happy to do that.
This bill authorize $600 million over two years. It is almost impossible to predict exactly what costs will be and people have different views of the cost.
This is not an exclusive process; we've tried to make it as inclusive as possible. I don't plan on moving this bill until we believe there is a wide buyin to it.
1:24:30
Senator Bennett:
I've been handed timelines which have been developed by the
Electronic Technology Council.
The timeline for a minor software change to a voting system is 18 months,
for a minor hardware change to a voting system: 24 months
for a major software change to a voting system: 36 months
for a major hardware change to a voting system: 42 months
(and we are 42 months away from 2010),
for a new product to a voting system: 54 months
Senator Feinstein:
The house bill is 2008; this bill at this time is 2010,
and we may well have to adjust that date.
This is a difficult area, we appreciate all the help we can get.
Panel 2:
1:26:00
Senator Feinstein:
Unfortunately, I've got to leave at noon (45 min.). Be brief.
Mary Wilson, President of League of Women Voters. She is also an attorney. She will address voter registration issues and other core Title 3 provisions.
Mr. Doug Lewis is the executive director of the Election Center, a national organization of election and voter registration professionals, established in 1994. He is also a consultant and owner of a computer software business. He will address the federal role in elections and the concerns of state and local elections officials regarding Title 3.
Miss Tanya Clay House is an attorney who serves as the director of public policy of the People for the American Way, an organization associated with voting rights for decades and a leader in election reform since 2000. She is also a former Senate staffer in the office of Senator Barbara Boxer. She will discuss election reform issues at the federal, state, and local levels, focussing on election observers, voter registration, distribution of election day resources, and conflict of interest problems.
Because of the time bind, confine your remarks to 5 minutes.
Mary Wilson:
We support those election practices which increase voter participation
and protect votes. And we oppose those that raise barriers to voting.
First of all, I'd like to address the issue of whether or not Congress should act, whether or not Congress should legislate and mandate on a federal basis certain election administration practices. We in the League of Women Voters certainly do not advocate federalizing elections.
"Given our history in the League of Women Voters recognizing that we worked for many many years to succeed in getting women the right to vote, we are very well aware that the right to vote is a Constitutional right, it is a federal right guaranteed by the Constitution."
We view Congress's role as two fold. It is Congress's role we believe, to stop any practice which would undermine the right to vote, "that precious right guaranteed by the Constitution". It is also Congress's role to when there are practices which indeed would increase voter participation or better protect the votes of our citizens, it is a true appropriate role to play to assure those practices are adopted across the country.
We believe state chief election officials should be required to review ballot design because we still see a lot of disenfranchisement beause of poor ballot design.
Doug Lewis:
The Election Center was actually started in 1985.
We represent the elections officials at the local and state level
all over the country.
The Help America Vote Act was bipartisan and was really needed.
We are now at a point where we are starting to talk about Election reforms
that are not as universally accepted.
We see it differently than some of the advocacy groups, and we're the folks that are actually going to have to run this and make it work.
We believe that this prescriptive stuff that comes from the federal government is probably not as good as vetting goals and objectives.
The HAVA timelines were out of whack. It takes from the day EAC and NIST get done with standards, it takes them a year to two years to develop those standards, it takes five additional years to actual get that into the marketplace to where somebody can use it.
So what you are looking at there, is a minimum six years for whatever you want to do in this.
I love your handling of the source code issue, you and your staff did a marvelous job of making that revealed rather than open and revealed is a better concept here.
Senator Feinstein:
Should we extend the time line another two years?
Doug Lewis:
I think two is a minimum. Two is a minimum.
Some of these things you can have happen in stages
which don't take as long as others.
If you want the best goal,
set everything for 2014, so that we are
not doing it in a Presidential year.
From our standpoint, the better strategy is to say here are the goals we want, here are the objectives we want, we want the states to come up with the answers to this, and we will have it ready by 2014.
In terms of the audit provisions, that is going to be the part that just cost us billions of dollars and is an ongoing cost and really satisfies not much. We need to know what your objective is in terms of audits; what you want out of these audits. Maybe what you really want is asking for and insisting on automatic recounts rather than ongoing audits that eventually are going to have little meaning but will be left as a residue that local governments will have to live with.
The definition that's in the bill right now basically kills DREs. We wipe them out by 2010 the way the legislation is spelled out. That's probably not useful.
If we can sort of live with that we may want to add some kind of paper trail to them before then, but if we can live with that until 2014 until that next generation can be designed to meet all the goals and objectives, I think we are going to be better off.
Costs are going to go up. All the vendors just raised their costs. All the vendors just told their jurisdictions that they will have to pay money.
Tanya House:
PFAW has more than one million members and supporters.
The Ballot Integrity Act is a well intentioned bill and People For supports the substantive goals of this bill for what it would mean for so many voters, a removal of barriers to the ballot.
We strongly support the need for voter verification and auditability, preferably by the 2008 Presidential election.
While state laws protect the ability of partisan observers to monitor elections, currently there are no uniform provisions that allow non-partisan organizations to monitor elections in the polling place.
In 2006, through election protection, People For was witness to the insertion of large numbers of partisan challenges into an electoral mix, that among other things, already included new voter technology, voter identification, and provisional ballot problems. This created chaotic conditions that had the effect of disenfranchising large numbers of eligible minority voters.
Non-partisan observers help create transparency, boost voter confidence, protect against any inconsistencies, or potentially illegal activities, thus assisting in creating a fair and impartial polling place.
In 2006, problems related to voter registration remained consistent and pervasive throughout the U.S. Next to voting systems problems, voter registration issues were the most frequently reported problems reported to the election protection coalition accounting for 16.3% in 2006 and 25% in 2004.
Hence the urgency of the chairman's bill can not be overstated.
Regulatory interpretation that effected registration groups such as People For voting program subjected volunteers to fifth degree felony convictions for immaterial mistakes on a registration form.
Although some of these more egregious barriers were ultimately eliminated, the practical effect of these interpretations was to stifle voter registration drives.
Addressing concerns about conflict of interest is equally important. In recent years, this country has faced very public conflicts or the appearance of conflicts that jeopardize voters faith in the fairness of our elections. In the 2000 and 2004 elections there were examples of two Secretaries of State that also served as the campaign co-chairs of a Presidential elected. These dual roles severely color their actions to oversee their state elections. This should not be allowed to continue.
We salute the chairman and your staff for introducing this bill and critically needed legislation.
Senator Bennett:
This is a tough problem. We want everyone to vote.
We want as many people to vote as we possibly can.
At the same time, we don't want anybody voting twice,
we don't want anybody voting fraudulently.
So we create a system where people have to register
in advance, presumably, so that somebody can check
that registration to make sure nobody is voting twice.
I think that system has been overwhelmed by the numbers. I don't think anybody checks any registration in advance.
We like the idea of third party registration. Then we see efforts being made where fraudulent names are put in by third party registration and nobody knows about it and nobody checks it and the opportunity for vote fraud is very real.
So that's the balance we have to face.
If you read the political history of Lyndon Johnson, I think he probably won the first Senate race, but got counted out by vote fraud after the fact. I don't think anybody knows or ever will whether he won the second race that actually put him in the Senate, because both sides were manufacturing votes like crazy on election night, and it was a question if his side could manufacture votes faster than the other side and finally he became known as Landslide Lyndon by an 87 vote margin.
Tanya Clay House:
Some of the restrictions that we encountered particularly in
the state of Ohio which required us to return
the voter registrations in such a short time without allowing
us to go through the registrations and insure there were not
any duplicates and to insure everything was corrected and
signed the proper way.
That was an inhibition against us exercising quality control.
Doug Lewis:
From an election administrator standpoint,
we have some voter registration problems.
The groups are well meaning, we love the fact that they are
involved. But many of those groups on both sides of the aisle,
are holding on to those registrations and in effect,
disenfranchising voters. They hold on to them for
months at a time.
Many times, they're dumped at a point, into the mail, to where they don't arrive in time for us to make that voter an eligible voter.
There has to be a recognition that integrity in a process is important to. If you allow people who are not legitimate eligible voters to be on the rolls and or cast ballots, they negate the ones that are eligible.
We want to do it administratively, so that voters have a good experience with this, and yet at the same time, we can't say there will be no rules on this or no restrictions on it.
Senator Bennett:
I had a campaign worker in my campaign, when I found out he was
doing this, I told him absolutely stop.
But he was going on the Internet
and registering to vote in a wide number
of states, through groups that were
trying to facilitate these voters. He would create
a fictitious name and he deliberately picked states
that did not require an ID in order to vote to see
if he could be registered to vote in these states;
would not have to show an ID and he was, this
particular group which was out
soliciting people to vote, he said
"I'm registered to vote in 7 or 8 states."
I said stop it, it's illegal. But it there was no way
anybody could have gone after that, so it's very very
easy.
Senator Feinstein:
I very much agree with you Senator.
If a group failed to turn in their signatures,
you can ban them for ever collecting.
This will remain a work in progress. I urge everybody that has an interest in this subject or an idea, please communicate it either to Senator Bennet or myself or our staff.