'Final' draft for introduction, committee process sees important improvement following criticism from BRAD BLOG last month; But substantive concerns still remain
A review of the good, the bad and the still ugly...
By Brad Friedman on 3/31/2009, 2:32pm PT  

Due, in no small part, to the concerns expressed in our February analysis of the January draft version of this year's Election Reform bill being introduced by Rep. Rush Holt (D-NJ) in the U.S. House, along with a bit of "lobbying" his office for a key change after the publication of that article, the updated version of the bill [PDF], said by his office to be the "final" one before introduction, has been slightly --- one might even say, significantly --- improved to meet one of our major concerns.

Still, while there is a lot of much-needed reform in this federal legislation, there remain many concerns with it as well. So let's take a quick, updated look at the good, the bad and the ugly in the soon-to-be-introduced "final" version of Holt's "Voter Confidence and Increased Accessibility Act of 2009"...

Important improvement; Remaining concerns...

Though we'd been told it was "impossible" during the long and brusing fight over the 2007 version of Holt's bill, his January draft this year finally succeeded in calling for a ban on Direct Recording Electronic (DRE) voting systems by requiring paper-ballots for all voters. But that draft still allowed for either hand-marked paper ballots (good) or computer-marked paper ballots (not good, though arguably helpful, in some cases, for disabled voters who wish to use them), on an equal basis.

Given our own personal experience with a computerized Ballot Marking Device (BMD) misprinting 4 out of 12 votes on our own ballot last year, and Holt's direct admission to us in 2007 that he "hope[s] that someday all voters would use a ballot marking device," the idea of federal legislation encouraging, indeed paying for, jurisdictions to jump from an all-DRE frying pan into an all-BMD fire was less than comforting to say the least.

The provision, as it had been written on the very first page of the January draft [PDF], would have allowed, and helped pay for, states such as GA or PA or UT --- all of whom use 100% unverifiable DREs almost exclusively --- to simply swap out their horrible DREs for horrible electronic BMDs to print voters' selections on a paper ballot, instead of allowing them to select their choices with their own hand on a paper ballot which can reliably be known to reflect actual voter intent. Thus, the bill could have continued the use of electronic touch-screen BMD voting systems, and all of the myriad failures inherent in them, for decades.

The new "final" draft still bans DREs (which, unlike BMDs record "results" invisibly to the computer memory) and requires a paper ballot for every vote cast, but it has now been amended to include the short phrase: "...so long as the voter shall have the option to mark his or her paper ballot by hand." That addition should go a long way towards ensuring that most voters will vote on a hand-marked paper ballot and that every voter in America will, at the very least, have that right. If passed, as currently written, that provision could bring a rather positive sea-change to elections in this country. Finally.

But the bill still fails to ban the practice of computerized, privatized, secret vote counting by proprietary "trade secret" protected optical-scan devices. With the protections written into the bill for the private companies who manufacture and sell those devices, BlackBoxVoting.org's Bev Harris argues the bill would amount to "the surreptitious dismantling of self-government".

The legislation even bolsters the continuing use of such secret vote-counting software in elections, even as the bill takes pains not to require the use of such devices. The latest version also pushes the timeline back, by four years, to 2016*, before DREs will finally be banned, though pre-printed, hand-markable paper ballots must be offered to voters in the grandfathered interim beginning in 2010.

So, the amended provision allowing all voters the right to a hand-marked paper ballot, as noted above, is the good news. The bad news is that there still remains a number of troubling provisions in the bill, alongside other good ones, keeping this bill a still-mixed bag, though one that is arguably getting closer to not doing more harm than good, as we see it, as previous versions have represented. The secret software provisions, however, remain very troubling.

Here's a quick, summarized look into the still-mixed bag of the latest, "final" version of the bill soon to be introduced, before it will then head through the committee mark-up and amendment process. Our hope is to help you decide whether you wish to support, to oppose, to keep lobbying to improve the bill, or to simply ignore its existence all together in hopes that a truly progressive election reform bill will somehow, someday, somewhere emerge with the possibility of being enacted into law...

A Quick Review of the Good and the Bad...

GOOD: Eventually will require a paper ballot for every vote cast. Most of them will likely be hand-marked now that they've added "...as long as the voter shall have the option to mark his or her ballot by hand." But they still need to append ", at the polling place during Early Voting and on Election Day" to that clause, so that absentee balloting cannot be used as the voter's "option" to mark a paper ballot by hand. We've asked Holt's office about this several times, and they've promised a response, but have yet to offer one.
BAD: The ban on DREs will not be in full effect until 2016*. So we'll have to go through three more major general elections, including one of them the 2012 Presidential Election, with the likely use of 100% unverifiable DREs across the country.
GOOD: Hand-marked paper ballots must still be offered to voters, beginning in 2010, even where the jurisdiction uses DREs. And a notice must be given to every voter that they are allowed a pre-printed, hand-marked paper ballot before voting.

BAD: BMDs must be invented, certified and marketed to allow disabled voters to both vote and CAST their ballot, "Without requiring the voter to manually handle the paper ballot." Why? This is a sop to a couple of overly-powerful Capitol Hill disabilities lobbyists, and there is no reason to require the automatic-casting of paper ballots. There are no machines that currently meet this requirement, yet ALL jurisdictions will be required to buy them, from someone by 2010 as the bill is now written. See below, concerning the recently withdrawn endorsement of VotersUnite.org due to this recent change to the bill.
BAD: Due to the above, tactile (non-computerized) assistive voting systems for the disabled will be effectively outlawed.

BAD: Federally institutionalizes secret software and non-disclosure agreements for those who may be allowed to review voting system hardware and software. All hardware and software used in public elections should be fully open to inspection by any member of the public. Period. No exceptions. While the new provisions may prove useful to attorneys and other parties to pre or post election litigation, it's not good for the people over all and sets a terrible precedent by writing such corporate protections into federal law.

GOOD: Wireless networking is banned on all voting systems...
BAD: Except for infrared, for some reason.

GOOD: Internet connection for voting systems are banned at all times.
BAD: Local Area Networking (LAN) is not banned! (Unless Sec. 103 (9)(A), which says "No system or device upon which ballots are programmed or votes are cast or tabulated shall be connected to the Internet at any time" actually results in banning LAN connectivity, but we doubt it.)

GOOD: $5m in grant money is included for development of disability-access voting systems requiring that "any technology developed...shall be treated as non-proprietary and shall be made available to the public."
BAD: $1.5m for "Development of Election-dedicated voting system software." Why do we need that? And why no money at all for development or pilot programs for non-computerized election practices, such as hand-counting?

GOOD: Bans conflicts of interest for federal voting system testing labs.
GOOD: Federal testing procedures and results must be made fully available to the public.

BAD: Would effectively make the U.S. Election Assistance Commission (EAC) permanent, despite the fact that they remain a still-compromised, very bad federal agency controlled by the Executive Branch.

GOOD & BAD: Hand-counted post-election "audits" (more accurately: spot-checks) will be required for all federal elections, except where the "winning" candidate has won by more than 80%. Though this provision would also represent a sea-change in elections across the nation, the required "audit" protocol is fairly watered down and relies on machine-reported numbers to determine the percentage of ballots to be randomly counted as part of the post-election spot-check. Probably a net plus, overall, but it's hard to say for certain. We'd have to see how/if it actually works.

To Endorse or Not: A Few Final Thoughts for Now...

Remember, the bill is just now being introduced, and will then have to go through mark-up in the House Administration Committee where the 2007 version was considerably watered-down (and we're putting that nicely) last time around. So we could well see the same thing happen this time around, making the bill far more troubling than it currently is, after it gets through committee.

As it stands for the moment, The BRAD BLOG is neither opposing the bill, nor endorsing it, for the time being, but rather, continuing to educate about the bill, and doing our best to advocate that it be improved, on the premise that it may actually pass and be signed into law.

For some additional perspective, however, we'll point out that while our esteemed colleague John Bonifaz of VoterAction.org now strongly endorses this bill, in its current form, our other equally esteemed colleagues John Gideon and Ellen Theisen of VotersUnite.org have withdrawn their previous endorsement.

Their withdrawn endorsement is due to the newly added provision which would require all voting jurisdictions in the nation to "upgrade" to electronic disability-voting systems which don't even exist yet. The vendor currently believed to be closest to releasing such technology is ES&S, who is said to have a version of their Automark electronic BMD in development which would include the silly "auto-cast" feature --- the machine must not only help disabled voters mark their ballots "privately and independently", it must also pick up the paper ballot and place it into a ballot box or op-scan system for them --- as required in the current draft of the bill. As ES&S is the only company currently believed even close to manufacturing such a product, Gideon and Theisen have argued the bill would amount to an "ES&S Stimulus Bill", as they recently detailed in a public statement [PDF] outlining the reasons for the withdrawal of their previous endorsement.

For more thoughts, we recently "debated" the pros and cons of the bill with Bonifaz on a PDA-sponsored conference phone call, which you can listen to right here. In short, we argued that there will be opportunities to endorse later, if PDA desires, once the bill has emerged from committee, and when we can see what it all finally amounts to. Why give away any and all negotiating leverage until then? For now, its our belief that it should be progressives like PDA's role --- as we feel it is ours --- to educate as to what the bill really says, what it will require, what it will and won't do, and to advocate for improving it.

Remember, Holt moved his position, big time, from claiming it was "impossible" for Congress to pass a ban on DREs in 2007, to writing precisely such a ban into his legislation this year. He also moved from allowing jurisdictions to go all-BMD in the January draft this year, to requiring the right to a pre-printed, hand-marked paper ballot for all voters by the time the March draft was done. Had previous versions of the bill been accepted by Election Integrity advocates as is (as many had previously done), none of those requirements would likely have finally made it into the bill at all.

PDA currently has an online poll up on their blog asking whether they should endorse the bill as it's currently written. PDA's Executive Director Tim Carpenter has told us that the final result of the online poll will not determine, on its own, whether or not PDA endorses the bill, but that it may be instructive in helping to reach their decision one way or another, as they gauge whether or not there is a consensus among their members concerning endorsement, or even opposition, at this time.

If you have a position on that, please go vote in their poll. If you have any questions about the the bill itself, please read it for yourself [PDF], and if you still have questions, feel free to ask them in comments below. We'll do our best to offer straight answers.

* - Update: The 2016 date for a full ban on DREs has been changed to 2014 in the bill as finally introduced in the U.S. House. It is now H.R. 2894.
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