From Our Archives: The Holt Bill
Quick Links
- Fixing the Machines
- FAQs
- DREs
- Paper Ballots
- Recounts
- Audits
- Secret Source Code
- Wireless/Internet
- EAC
- Cost
- Secret Ballots
- Conclusion
FAQs
Q: It seems like there’s some discord in the voter advocacy community—PFAW, Common Cause, Lawyers Committee for Civil Rights Under Law, Electronic Frontier Foundation, Vote Trust USA, and election technology experts like Avi Rubin and Ed Felten support the bill, and others, like Black Box Voting or Brad Friedman of BradBlog have been critical of you for doing so. Can you explain your differences?
A: Well, in this case, there are a lot more areas of agreement than disagreement. Everyone agrees that the status quo is unacceptable—that in 2008 we can’t have another Sarasota-like election where 18,000 ballots just disappear. We agree that there’s a need for election reform at the federal level. We agree that paperless voting has got to end—there has to be a paper trail that must be used for recounts and audits. (By paper trail we mean paper record. There is disagreement over what forms of paper records to allow. Groups like PFAW, Common Cause, MoveOn, etc. would allow paper ballots counted by hand or by optical scan machines and voter verified paper ballots from DREs. Others like Black Box Voting and Brad Friedman of BradBlog oppose the use of DRE machines even if they produce a voter verified paper ballot.)
The basic principle is the same—every American citizen should be able to exercise his or her right to vote—and that right shouldn’t be taken away because a machine fails. That’s what we’re all fighting for in the best way we know how. And it’s PFAW’s and others’ judgment that the Holt bill is a strong first step in that direction. Now there are some areas of disagreement within our community about specific policy questions—for example, whether electronic voting machines, or “DREs,”should be banned completely—and these specific areas of disagreement are discussed below.
The key point is that men and women of good will are going to disagree on some of the provisions of this bill—that’s true of every piece of legislation. But we think and hope that we all agree that we must take action. The status quo is unacceptable.
Q: Why are you supporting the Holt Bill?
A: We’ve had substantial election problems in the U.S. in recent years, and voting machines have been a big part of the problem. In Sarasota, Florida, last year, more than 18,000 votes disappeared on electronic machines that didn’t produce a paper trail. And Sarasota was hardly the only place with problems. So the status quo is unacceptable. Unverifiable, unauditable elections simply don’t work, and it’s time for change. The Holt Bill is a big step forward in correcting these problems, while ensuring that voting is accessible to all, including those voters with disabilities or language needs. The bill makes many improvements to the status quo: verifiable paper ballots, mandatory audits, requiring that source code can be examined, etc.
Q: But doesn’t the Holt Bill legalize DREs?
A: DREs are already legal, including those paperless DREs that are unauditable. The Holt Bill requires all electronic voting systems to provide a paper trail that voters can verify before they leave the polling place, and requires mandatory audits, comparing the paper record to the computer tallies. If there is any discrepancy between the paper and electronic tallies, the paper record is the official ballot to be counted. Only those DREs that provide such auditability and verifiability are permitted under this bill.
Q: Why does PFAW support the use of DREs?
A: PFAW/F supports voting systems that are verifiable and auditable, as well as accessible to all voters. Such systems may include DREs with verifiable audit trails, paper ballots read by optical scan tabulators, or ballot marking devices. While DREs with audit trails may not be the right technology for every jurisdiction, they can provide some voters, particularly those with disabilities and language needs, with enhanced access. Other civil rights groups, in their expertise, have time and again stated that electronic voting enhances access to the ballot for voters with disabilities and language needs. Jurisdictions with large numbers of such voters—particularly those with diverse communities with different needs, or multiple minority languages—should have the flexibility to utilize the best technology that will serve their voters, while also maintaining standards of integrity. There is no need to compromise access for eligible voters in order to improve integrity. Technology as it presently exists, and as it is being developed for the near future, is consistent with both ideals.
Q: But aren’t optical scan machines just as good for voters with language needs?
A: Most civil rights groups view electronic voting technology as the best option for voters with language needs, particularly in jurisdictions which must provide translations in multiple minority languages pursuant to the Voting Rights Act, since it puts complete control of the translations in the hands of the voter. The translation is preloaded onto the electronic voting machine, and the voter can decide whether to access it, taking such decisions out of the hands of poll workers who are often poorly-trained. Translated paper ballots (of the sort used with optical scan machines) require that the jurisdiction identify exactly how many translated ballots in each language should be distributed to each polling place, that poll workers are trained to distribute them, and that they WILL distribute them (even if they disagree with the policy of translated ballots). Furthermore, it requires voters to admit that they are not fully proficient in English, which many are loathe to do. In ours, and other civil rights groups’ experiences, having monitored thousands of precincts nationwide, this is a substantial burden on minority language voters, and not one study indicates otherwise. We don't advocate the use of DREs nationwide, however. We believe jurisdictions should have the flexibility to use such technology if they determine that it best serves their voters, so long as the machines are fully verifiable and auditable.
Q: What if amendments banning DREs are offered on this bill?
A: We will not oppose the offering of any amendments to this bill, though we may urge Members to vote against particular amendments to the bill if those amendments weaken the bill, impose unreasonable burdens on voters, or greatly lessen the likelihood of its passage. Many disability rights and civil rights advocates believe that the accessibility touch-screen machines offer is critical and they would oppose a ban on such machines. Such opposition could scuttle hopes for passage of the Holt bill and other legislation.
Q: Isn’t this bill a huge unfunded mandate?
A: This bill currently authorizes 300 million dollars to help jurisdictions comply. Many jurisdictions, particularly those that currently use optical scan equipment (which is roughly half the electorate), will require very little money to comply. However, it may require more money to comply with the important mandates of this bill, and therefore, we are working closely with Congress to make sure that however much money it costs to ensure our elections have integrity, the federal government picks up the tab to ensure fair elections, as it should.
Q: Won’t the provision requiring that the verification be converted into accessible media for disabled voters require the expenditure of hundreds of millions of dollars?
A: No. There are many pieces of technology currently used by jurisdictions that are fully or partially compliant (such as the AutoMARK device), and even those jurisdictions that do not have such devices, can purchase several different types of technologies, including some off-the-shelf, that will comport with this requirement. While some have claimed the purchase of this equipment will cost a total of one billion dollars, compliant off-the-shelf equipment is available for far less, perhaps costing as little as forty million dollars nationwide. Most importantly, though, disabled voters, like all voters, should have just as much right to truly verify their ballots as anyone else. Any bill that requires that voters be able to verify their ballots MUST afford disabled and blind voters that same opportunity.
Q: Doesn’t the Holt Bill make the EAC a permanent fixture?
A: No. The EAC was created by HAVA (the Help America Vote Act), and that Act did not make the EAC temporary. The Holt Bill does not change the status of the EAC at all, except to LIMIT its discretion by establishing explicit statutory standards that it, and all jurisdictions, MUST follow.
Q: Does the Holt Bill eliminate secret ballots for military voters?
A: No. It further protects those ballots, by expressly requiring that any system put in place for military and overseas voters “preserve the privacy of the voter.”
Q: Are the audit protocols in the bill sufficient?
A: Those audit protocols were the result of the work of a coalition of advocates, experts and computer scientists, including the Brennan Center, the Center for Election Integrity, and experts at UC Berkeley, Stanford, and Cornell. In their opinion, the audit protocols in the Holt Bill provide for a high degree of confidence, while also taking into account practicalities of election administration. As with the entire bill, these protocols establish the MINIMUM standards—any state could require more rigorous protocols if that’s what its citizens demand.
Q: Why doesn’t the bill require that ANY citizen have the ability to demand a FULL audit?
A: Allowing any citizen to demand a full audit would be unworkable—it could clog the system and cause more problems than it would solve. Computer experts have reviewed the audit protocols, and determined that they will work well. Citizens also do have a private right of action under this bill to demand that election technology complies with the requirements of the bill. However, it is not our intention to see the machinery of elections be ground to a halt. The goal is to make sure that such machinery accurately reflects the will of the voters, and the current audit protocols are a good way of doing that, while also taking into account the practicalities of running elections.
Q: Does the Holt Bill allow a loophole for some states to conduct electronic recounts of the computer records, rather than recounts using the paper ballots or paper trails?
A: Absolutely not. The bill is explicit that ONLY voter verified paper ballots may be used in any and all recounts, as well as audits. Even if the paper ballots have been compromised, through printer jams, or any other event, the paper ballots are STILL the ballot of record for recounts, unless anyone seeking to use the electronic tally can prove by CLEAR AND CONVINCING EVIDENCE (a higher standard than that usually required in civil litigation) that a sufficient number of the paper ballots have been so compromised that the result of the election would be changed.
Q: Who are the Holt bill’s supporters?
A: The Holt bill has attracted broad and growing support from voter advocates, civil rights, and progressive organizations. In addition to People For the American Way and People For the American Way Foundation, supporters include SEIU and the NEA, Avi Rubin and Ed Felten, Common Cause, the Electronic Frontier Foundation, the Brennan Center, the Lawyers Committee for Civil Rights Under Law, Vote Trust USA, MoveOn, and others.
DREs
Status Quo
Many states and jurisdictions use DREs (Direct Recording Electronic voting machines), and many of these machines do not provide the voter with a Voter Verifiable Paper Audit Trail (VVPAT), which would allow the voter to verify that their vote has been recorded properly on paper. Unfortunately, a number of states use such unverifiable, unauditable systems, such states as Georgia and Maryland.
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.
Paper Ballots
Status Quo
Currently, some states require some sort of paper ballot (either optical scan or VVPAT), and some jurisdictions use completely paperless, unauditable voting (DREs without VVPAT, for instance). In those jurisdictions with optical scan or VVPAT, the tallies are computed on the machines only, with no national standards for auditing the technology that computes those tallies. Only in rare instances are the paper records reviewed for either auditing or recounting. Those jurisdictions using paperless systems have no method to audit the tallies based on a voter-verifiable record.
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 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).
(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.
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.
Recounts
Status Quo
Recounts are conducted pursuant to state law, often requiring only a punch of a button to “recount” (or simply re-report) the machine tallies conducted inside the voting machines. Many states do not require manual recounts, even if paper ballots or paper trails exist.
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.
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.
Audits
Status Quo
There are currently no mandatory federal standards for auditability or audits of election technology. Each state sets its own standards, and many do not require any kind of auditable electronic technology. Some states, like Georgia and Maryland, utilize unauditable election technology statewide. Citizens in virtually every jurisdiction enjoy no rights to oversee any audit process, if that process exists at all.
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.
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.
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.
Secret Source Code
Status Quo
Voting machine companies maintain private, secret source codes, and require all jurisdictions with which they contract to keep them absolutely secret. When issues arise relating to the accuracy of the machines, the companies fight tooth and nail to prevent any independent examination of that source code. In Sarasota County, for instance, the manufacturer, ES&S, opposes any examination of the source code, even under a protective order restricting any disclosure.
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.
Wireless/Internet
Status Quo
There are no current federal standards outlawing the use of wireless technology or the internet. Many jurisdictions use technology that has wireless capabilities and that may be connected to the internet at some point.
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.
EAC
Status Quo
The Election Assistance Commission (EAC) was created by HAVA, and it was not created as a temporary agency. HAVA Sec. 201. It exists so long as it receives funding. The EAC is granted authority to develop voluntary standards for voting systems. It comprises four presidential appointees, but those appointees must be submitted by the Speaker of the House, the Majority Leader of the Senate, and the Minority Leaders in the House and Senate (one each), thus maintaining partisan balance. HAVA Sec. 203.
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.
Cost
Status Quo
Many jurisdictions are currently using unverifiable, unauditable equipment, and there are some jurisdictions, like New York's, that are still not in compliance with HAVA. Meanwhile, we have elections, like the one in Sarasota County, Florida, where it appears our election technology has let us down again, resulting — according to experts on both sides of the litigation — in an election that did not accurately reflect the will of the voters.
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.
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.
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.
Secret Ballots
Status Quo
While not expressly laid out in the U.S. Constitution, most states require that ballots, including those cast by absentee, provisional, overseas, or military voters, be kept secret.
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.”
Conclusion
If this bill had been in place before the 2006 election, Sarasota would likely have never happened. First, Sarasota would have had to have technology that accommodated paper ballots (including VVPATs), allowing the voters to verify their choices. Second, the voting system software would have been reviewable before and after the election. Third, the most rigorous of the audit provisions would have kicked in, requiring comparison of the electronic tallies to the paper ballots. Fourth, the paper ballot would have been the ballot of record in the recount. When those 18,000 votes disappeared, we would have had a paper record to fall back on, which would supersede any machine tally. If all these provisions had been in place, it is likely that 18,000 votes would not have disappeared on the machines, and even if they had, the paper record of those votes would have survived, and been counted, and perhaps the results of that election would have been different.
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.
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