Bill 'improved' to require paper ballots, but they may be marked or printed by computer devices which offer most of the same dangers as current Direct Recording Electronic (DRE) devices...
Additional concerns remain in the previously-defeated, newly-rewritten draft version of the landmark legislation...
By Brad Friedman on 2/20/2009, 12:54pm PT  

-- Brad Friedman

Congressman Rush Holt (D-NJ) is preparing to drop a new version of the "Voter Confidence and Increased Accessibility Act" legislation which met so much resistance during the last Congress from both Election Integrity advocates and those opposed to any reform whatsoever alike.

A recent draft of the new legislation [PDF], as obtained by The BRAD BLOG, is an improvement over last session's controversial HR 811 bill (which we covered, at the time, in exhausting detail, as indexed on this special coverage page) in that it would ban the use of Direct Recording Electronic (DRE) voting devices by the 2012 general election. However, the new bill fails to ban all forms of computerized touch-screen voting and, indeed, encourages it through federal funding to help jurisdictions move from DREs to similar, but non-tabulating, Ballot Marking Devices (BMDs).

We could well jump out of the frying pan, and into yet another frying pan, if the legislation passes as currently drafted.

BMDs, which often use touch-screens to allow voters to make selections, offer many of the same flaws and dangers that DRE voting systems do, such as: the possibility that votes may be flipped on the touch-screen to selections other than those chosen by the voter (as seen in state after state on DREs over the last several election cycles); failures to boot up and power outages which keep citizens from being able to vote at all; machine shortages which cause long lines, discouraging voters from waiting to vote; and the requirement for voters to attempt to verify the accuracy of their ballots on three separate occasions, before the computer-marked version of the paper ballot is actually cast.

Holt has offered The BRAD BLOG a fairly puzzling response to our concerns, at least as we read it, which we'll share in full below.

Moreover, in addition to encouraging the use of troublesome, expensive, and hackable electronic BMDs, the new bill would federally institutionalize the ability of private election companies to keep their hardware and software from public review by requiring that anyone who wishes to examine the systems and source code for integrity, must show cause, get "approval" from a governmental body (largely, only scientists, academics, or election officials need apply) and sign a non-disclosure agreement before being allowed to do so.

While the bill offers some improvements over previous versions, the major flaws still inherent in the legislation --- as it's currently drafted --- will fail to ensure the security, accuracy, and transparency that American democracy requires and deserves. As a sweeping piece of (much-needed) federal reform, we'd better make sure that we get it right this time, since it'll be years, perhaps decades, before we get another bite at that apple should this legislation actually be signed into law this time...

On Paper, Two Steps Forward, One and a Half Steps Back

During the last session of Congress, Holt's office, and many supporters of HR 811, had told The BRAD BLOG, on numerous occasions, that banning DREs would be an impossibility in Congress, though they had failed to offer the name of even a single legislator who, but for the inclusion of a ban on DREs, might otherwise approve the bill. Happily, forever whatever reason, it seems that things have now changed (somewhat) on that score this year, as evidenced by the new legislation which finally bans them.

Nonetheless, while the requirement for "the use of an individual, durable, voter-verified, paper ballot" for every voter's vote is most welcome, such ballots may be either "marked by the voter" or "marked through the use of a nontabulating ballot marking device or system," according to the bill's current language.

The BRAD BLOG would remind readers of our own experience during last year's primary election in June, here in Los Angeles, when a Ballot Marking Device, similar to the ones that would be recommended for use by the new Holt bill, misprinted 4 out of the 12 votes we'd cast on our ballot.

While that system, like many BMDs, was largely meant for use by disabled voters who may require assistance in voting privately and independently, had we actually been a blind voter, for example, we'd have never known that the system had misprinted our ballot. We would have cast 4 votes for candidates not of our choosing. As is, it took several examinations of the computer-printed ballot before we were certain it had actually printed incorrectly, and even then, the first instinct was that it must have been our own fault. (As it turns out, it wasn't our fault, but how many others would have taken the additional time to check as thoroughally, and bothered to follow all the steps to correct the misprinted ballot --- particularly after spending all the extra time that voting on a BMD requires, versus a hand-marked paper ballot?

While BMDs are largely used, at this time, on a limited "one per precinct" basis at many polling places, in order to meet the 2002 Help America Vote Act (HAVA)'s "one per polling place" requirement for assistive devices for disabled-voters, there is nothing in the new version of the bill to keep all-DRE jurisdictions --- such as the states of UT, GA, MD, NV, SC, and many counties in states like OH, IN, PA, CO, and elsewhere --- from becoming all-BMD jurisdictions instead, after passage of this bill as drafted.

In fact, during the tussle over HR 811 in March of 2007, Holt himself told us during a phone conversation that he would prefer that all voters in the United States voted on BMDs!

"I hope that someday all voters would use a ballot marking device, since it keeps people from overvoting and undervoting by avoiding stray marks," the Congressman told us on a personal phone call. That was then, and is now, a very disturbing thought.

As if the dangers of BMDs, as described above, aren't bad enough, further concerns about computer-printed ballots was illustrated by several academic studies. One, from Caltech/MIT described how some 80% of voters do not take the time to verify the accuracy of computer printed records or ballots. Another, even more disturbing, from Rice University in the Summer of 2007, found that, among those few who do bother to review the computerized summary of their selections at the end of the voting process, two-thirds of them don't notice at all when the computer has flipped a selection from one candidate to another, or changed a vote on a ballot initiative.

We'll hope the current draft language in the bill can be modified to allow the use of BMDs for those voters who wish to use them, such as disabled voters, on a "one per polling place" optional basis, as HAVA allows for. Allowing --- and indeed encouraging as the bill does --- jurisdictions to move to all BMD voting is simply a terrible and dangerous idea, which could well leave us very much in the same mess that we're in now, in 2010, 2012, and beyond.

One section of the bill provides an excellent option for jurisdictions that have not made the transition away from DREs by 2010. That provision requires that all voters be notified when they check in to vote, and via signage at the polling place, that they are allowed to vote on a pre-printed, hand-markable paper ballot if they so choose. Those ballots would then be counted as normal ballots (not provisional ones) along with all other ballots on Election Night. That provision, ensuring hand-markable paper ballots for all, should apply to all voters in every jurisdiction. For all time. At least if this nation cares about transparency and verifiability for all.

Holt Responds to Our Concerns about BMDs

We requested comment from Holt's office to the concerns expressed above. This morning, we received the following response from him, which we run in full:

Preserving and enhancing accessibility, both for individuals with disabilities and for language minorities, have always been cornerstones of the Voter Confidence and Increased Accessibility Act. Therefore, it requires a voter-marked paper ballot for every vote cast, it requires that accessible ballot marking devices be made available to assist voters in marking those paper ballots, and it treats all such ballots as equal under the law.

Given that any reasonable reading of even just the first two pages of the first section of the bill as currently drafted [PDF] seems to counter Holt's assertion that it "requires a voter-marked paper ballot for every vote cast," we gave him an opportunity to re-word his response. He chose not to, with his communications director replying in response: "Please run the statement in full because in full it is completely accurate."

Maybe it's just us, but we're having trouble figuring out how that could be the case, though we welcome further input from either his office, or readers here, to explain what we may be missing.

There seemed to be a similar disconnect between the statements of Holt and his actual bill during the brouhaha over his 2007 version, which, unlike the current version, clearly allowed for DREs. He and his staffers had told us, personally, time and again, that that version of the bill had required paper ballots for all, when it clearly did not. The changes in the new version would seem to bear that out. (He would also make the same claim to Alternet's Steve Rosenfeld and others, repeatedly in 2007, incorrectly asserting that "By November 2008, every voter would be given a verifiable paper ballot," if his bill had passed.)

Again, where we may be misunderstanding something here, we welcome input. But we don't believe that we are.

On Secret Software, This Bill is Very Bad

The originally introduced version of Holt's 2007 bill, HR 811, was very strong in the area of full public disclosure of all software and hardware used in voting systems. [Speaking of Disclosure: We had been asked, by Holt's office, for feedback on that version of the bill, through several drafts, before introduction, and had a hand in improving the language in a number of provisions, including the hardware/software disclosure section.]

However, the provisions for public disclosure were quickly amended once that version of the bill reached the House Administration Committee. The previously excellent, very open and transparent disclosure provisions were all but gutted.

"They lobbied very heavily against the language that was in the bill as introduced," Holt's legislative aide Michelle Mulder famously wrote to a group of Election Integrity advocates about the software industry said to have been instrumental in severely re-writing the disclosure provisions in committee. "You can take up your concerns with Microsoft and others in the proprietary software industry," she said. "The software industry won. It's very simple, really."

Mulder's boss, Congressman Holt, would later confirm at a public meeting in 2007: "Unfortunately, the committee that made this change heard from Microsoft. They heard that voice...It wasn't just was software --- the software industry."

Mulder is still in charge of drafting Holt's election reform legislation. [Though we have not been allowed input on it this time around. Likely a result of our pointing out similar problems last time as well.]

The re-written provisions from the last version of the bill are, essentially, what remains now in the new version of the bill. Neither Microsoft, nor the private "software industry" as a whole, will likely have a problem with the bill today. Now, only "qualified" individuals who have "entered into a nondisclosure agreement with respect to the technology" will be allowed to examine the public's voting hardware and software, according to the bill's language.

"Qualified persons" are defined as "a government entity with responsibility for the administration of voting and election related matters", "a party to pre- or post-election litigation challenging the result of an election or the administration or use of the technology used in an election", or one who "reviews, analyzes, or reports on the technology solely for an academic, scientific, technological, or other investigation or inquiry concerning the accuracy or integrity of the technology."

While that last qualifier, "other investigation" might allow someone like us to review the hardware and software --- maybe --- the general public (read: the voters for whom the systems are theoretically there to serve) is entirely shut out of the process. And even we, presuming we were granted permission to look, would still be required, in any event, to sign a non-disclosure agreement first, limiting what we could, and couldn't report publicly about the system in question.

Corporate trade secrets, fully protected, take precedence, apparently, before you, the voter. Not good for a public voting system, designed for, and paid for by, the public, who deserve no less than 100% transparency for any system used to carry out public elections, the very heart of our democracy.

[Update: says the "so-called 'new' Holt basically exactly the same as the old Holt Bill, and every bit as much a danger to our liberty." And adds: "What we are seeing in elections today is the surreptitious dismantling of self-government." Full details here...]

Not All Bad

The rest of the bill, we'll call a mixed-ish bag, with some good stuff and some not so good stuff. Inside that mixed bag, the bill offers:

  • Prohibition of wireless communications devices in any system "upon which ballots are programmed or votes are cast or tabulated." That's good. Though apparently, regular old wired LAN is still allowable on such systems for some reason.
  • Federal voting system test labs must disclose test results, good or bad, and make them "available promptly to election officials and the public" after testing is completed. That's good.
  • Grants are being made available "for research on development of election-dedicated voting system software." While grants might be useful for researching computerized solutions to disability voting issues, we don't need any more federal money spent to develop new ways to do what can be done more reliably and transparently for almost nothing (e.g., mark paper ballot with pen, put ballot in clear box, count ballots at end of night in precinct. Done).
  • A large section of the bill speaks to post-election, random hand "audits" of some ballots, as based on a tiered system (eg. If the margin between the two top candidates is reported by the tabulator as less than 1%, then a random 10% of the paper ballots are to be counted by hand. If a 2% margin, then just 5% are randomly "audited," etc.). We can't speak to whether the required statistical protocol for determining the number of ballots to count is sufficient to detect fraud, but we recognize that such post-election spot-checks would be a landmark change in the way federal elections are handled in the days after polls close. Nonetheless, while that's fine, we'd all be better off if those ballots were counted (hopefully by hand) on Election Night, at the polling place, in front of everyone, before the ballots ever moved anywhere.
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