Nelson and Co-Sponsor Whitehouse Rewrite Originally Introduced Bill to Do Away with Discredited Systems by 2012 and 'Any Subsequent Year'
By Brad Friedman on 11/1/2007, 11:07pm PT  

-- By Brad Friedman

After months of being told over and over by Rep. Rush Holt's (D-NJ) office, People for the American Way (PFAW), and many of the other most ardent supporters of Holt's flawed Election Reform Bill (HR811) that "there is no support in Congress for a ban on DREs," it looks like they must have been wrong. Sen. Bill Nelson (D-FL) and co-sponsor Sheldon Whitehouse (D-RI) filed such a bill today.

Here's the complete bill [PDF] which we've yet to read in full. But note this item from page 41, Line 7:

A direct recording electronic voting system may not be used to administer any election for Federal office held in 2012 or any subsequent year.

A ban on such machines, finally? Yes! By 2012? Unfortunately, yes. But let's overlook that last point for a moment.

In a statement issued by Nelson today, pointing out that DRE (often referred to as "touch-screen") voting systems are "unreliable and vulnerable to error," the senator says, "The bottom line is we have to ensure every vote is counted – and, counted properly...Citizens must have confidence in the integrity of their elections.”

The new language banning DREs was added today to a previous version of the same bill which Nelson had introduced originally in early Summer. This version "would be the first [bill] to seek a ban on electronic touch-screen voting machines in federal elections nationwide," according to his statement, which adds that the language was updated after a recent meeting with Florida's Republican Secretary of State Kurt Browning, once an ardent support of DRE voting systems.

When Nelson's original version of the legislation was introduced some months ago, it was largely a "clone version" of Holt's original HR811 introduced in the House, but with a number of extra provisions addressing concerns of voter intimidation and suppression.

Little attention had been given to Nelson's bill at the time, since the Rules Committee was regarded as having jurisdiction for any Election Reform bills in the Senate, and the committee chair, Sen. Diane Feinstein (D-CA), had made clear she intended to introduce her own version of Election Reform as the Senate counterpart to Holt's. She eventually introduced S. 1487, which has been subsequently criticized by Election Integrity advocates as being even more flawed then Holt's much-criticized bill.

(FULL DISCLOSURE: We were invited to work on the Holt bill prior to its introduction, and succeeded in adding several much-improved provisions. Yet the bill, as currently written --- and far more so since being drastically watered down throughout the committee process --- has failed to garner our support.)

DREs: "Not a Reasonable Voting System"

Neither Feinstein's nor Holt's bill had called for a ban on DRE voting systems, however, despite an outcry among Election Integrity advocates and a host of computer scientists and security experts who argued that DREs were vulnerable to hacking, non-transparent, prone to error, antithetical to democracy, and thus simply could not be used safely in elections. With or without a so-called "Voter Verified Paper Audit Trail" (VVPAT) printer attached.

Johns Hopkins computer professor Avi Rubin testified earlier this year that "after four years of studying the issue, I now believe that a DRE with a VVPAT is not a reasonable voting system."

Stanford professor and founder David Dill, arguing in favor of the Holt bill, admitted, "I would personally prefer to see optical scan machines used nationwide."

And former legislative director of Warren Stewart, now also of VerifiedVoting, had told a Senate panel earlier this year that while there were disagreements among some in the EI movement, most had agreed that touch-screen systems must not not be used. "While this broad based movement embraces a wide range of proposals and positions," he testified, "it is unified in the conclusion that the direct electronic recording of votes to computer memory is inimical to democracy."

And yet, all three of the above advocates, along with many others, continued to argue --- while failing to offer any actual evidence for the claim --- that there was simply no support for the idea of a DRE ban in either house of the U.S. Congress.

All the while, The BRAD BLOG had maintained that they, and the other Holt supporters, had fallen victim to a hoax by People for the American Way (PFAW). The popular public advocacy group had long pushed the unsupported notion that there was no congressional support for such a ban, in order to see the bill passed specifically without such a ban. It was one of several false notions being forwarded by the group in favor of the bill, as we argued both here and at Alernet early in the year.

A careful examination of PFAW's on-the-record statements, and numerous on and off-the-record conversations with their Executive Director and legislative leaders by The BRAD BLOG over many months, revealed that PFAW (almost inexplicably) has actually been advocating in favor of the use of dangerous DRE voting systems in American elections. It's fair to say that Holt's bill had thus been held hostage to ensure that such systems would not be banned.

But then came the fallout from the failed 13th Congressional District election last November in Nelson's home state, followed by California Sec. of State Debra Bowen's landmark scientific findings, Rep. Susan Davis's (D-CA) amendment this past summer, and a killer editorial from the New York Times as the tide began to slowly turn...

The Beginning of the End?

The flawed FL-13 House election, where 18,000 votes disappeared on touch-screen voting systems --- in a race decided by just 369 votes --- led the state's new Republican Governor, Charlie Crist, to take the lead in an effort to ban DREs in Florida once and for all. He was (mostly) successful in that effort and, for the first time in too many years, Floridians will soon return to voting on far more transparent paper-ballot systems.

Early this year in California the new Democratic Secretary of State, Debra Bowen, commissioned the University of California for an unprecedented "Top-to-Bottom Review" of all e-voting systems used in the state.

"The independent teams of analysts were able to bypass both physical and software security measures in every system tested," she announced as the results of her landmark, independent study were released over the summer. Every DRE voting system used in the state was immediately and easily penetrated in such a way that election results could be flipped without detection. The study led to a return to paper ballots, and restrictions of no more than one DRE per polling place --- with the exception of machines made by one company --- in order to marginally meet federal standards for voters with disabilities. The so-called "paper trails" for each such DRE system still to be used will have to be 100% hand-counted after every election.

In the wake of Bowen's findings, and with the Holt bill --- now greatly compromised by PFAW, Majority Leader Steny Hoyer (D-MD) and the software industry that had lobbied to remove important source-code disclosure provisions --- on the verge of going to the floor of the House for a full vote, the first call for a restriction on the use of DREs in the Holt Bill was attempted in the U.S. House.

In a modest amendment filed to the Holt Bill in September, and with the wind of the findings of her home state's Secretary of State at her back, Rep. Susan Davis (D-CA) called for a federal restriction on the use of DREs by 2012, similar to the one imposed by Bowen in California.

"As we have looked closely at all the issues concerning Election Day voting systems, we are still ignoring the 800 pound gorilla in the room," Davis said in a statement issued to The BRAD BLOG. "Although Rep. Holt’s bill has looked at many tough issues, there is one controversial issue that seems to come up again and again in my discussions with voters, activists and elections officials," she wrote in reference to the debate about DREs taking place nearly everywhere but in the U.S. Congress.

"The wealth of data and opinions on this topic are so strong that I feel Congress would be remiss if we do not allow a debate on the question of whether and how Direct Recording Electronic (DRE) Voting Machines should be used in federal elections....It is my hope that Congress will address this issue in the near future," announced the Congresswoman from San Diego. Her office told us they were delighted about the support they'd subsequently received from other offices in favor of their amendment.

The day after Davis filed her amendment, a New York Times editorial said of Holt's HR811, "It is unfortunate that the bill does not contain a provision banning the use of touch-screen voting machines."

"There is still time before the bill becomes law to add a ban on touch-screen voting," the Times continued. "If the House fails to do so, the Senate should, and it should fight for it to be in the final bill...There have been calls for putting a solution off until 2012. That is too long to wait."

The Path Ahead

Still mired in dysfunction, still not having made it to the House floor, the Holt bill languishes for the moment --- to either the pleasure or disdain of various elements of the Election Integrity community, depending on which of them are yelling at you. It's unclear whether or not Davis's amendment to the Holt bill will be allowed for debate, should the bill ever be allowed to come to the House floor for a vote.

While Nelson's bill, as introduced today, may yet have many flaws and controversial provisions within it --- as mentioned earlier in this article, we've yet to read the entire 64-page bill, and the devil in this sort of legislation is most definitely in the details --- the fact that a ban on DREs is finally being discussed, in the open, via legislation in the United States Congress, is certainly a positive sign.

A ban on DREs for 2012, as Nelson's legislation now calls for, will do little protect the 2008 election, of course. Yet the new bill most certainly augurs a move in the right direction, even if it never makes it through Feinstein's committee or to the Senate floor in its current version.

As well --- and contrary to yet another bit of misleading argument made by PFAW and Holt in their attempt to garner support from an unsuspecting public for their flawed HR811 --- still other possibilities for reform that may have a real effect on 2008 exist. Even at this late date. But action on that front is currently being held up, at least in the House, by Holt's not-completely-dead-yet HR811.

All the while, however, as VerifiedVoting's Stewart testified, there is virtual, across-the-board unanimity (with the exception of PFAW) among those who know the dangers of E-voting best, that DREs should immediately be sent the way of the butterfly ballot --- to the trash bin of history.

We'll hope that Nelson and Whitehouse's bill sparks discussion in the Senate on the inevitable and once-and-for-all end to DRE voting. As Davis smartly said, as her amendment began to do just that in the House; "Our democracy is too important to ignore this issue any longer."