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National Issues

HR 550 and the EAC PDF Print Email
By Warren Stewart, VoteTrustUSA   
March 31, 2006
As momentum builds for the passage of  The Voter Confidence and Increased Accessibility Act (HR 550) introduced by Rep. Rush Holt's (pictured at right), some concerns have been expressed about some of the provisions in the bill. They are discussed below. HR 550 is a critical first step in repairing what's wrong with our electoral process. It would establish common sense safeguards - safeguards that have been adopted in many states already. The passage of HR 550 will be especially welcome in states that do not yet have those safeguards like Florida, Pennsylvania, Georgia, Tennessee, Kentucky, Indiana, Texas, and many others.

Most people reading already know that HR 550 would require all voting systems used in federal elections to produce or require the use of a voter verified paper record of every vote, establish a nationwide requirement for random, unannounced manual audits of those records in 2% of the precincts in every State, and prohibit the use of undisclosed software and wireless communications devices in voting systems.
 
One aspect of the language of HR 550 that has not received much attention is the fact that it provides an opportunity for citizen-based voting integrity groups to actually conduct those manual audits themselves! It is important for everyone who reads this to know that that opportunity exists.  

The EAC Is Not A Regulatory Agency

Some of the questions raised about HR 550 involve  the role of the Election Assistance Commission (EAC) in HR 550. The EAC was created as part of the Help America Vote Act and it has  been suggested that the creation of this new agency, allows executive, i.e. Presidential, power over the nation's election systems.

Technically, the EAC is an "Independent Agency" and it's not as "new" as it looks; the EAC took over the duties of a pre-existing entity - the Office of Election Administration (OEA), which was part of the Federal Election Commission. Added to the OEA's pre-existing duties were the various oversight and standards-development responsibilities of the EAC as set forth in HAVA. The EAC does not have broad executive powers. Per Section 205 of the HAVA, the EAC can (1) hold hearings; (2) obtain information from other agencies (such as the FEC) as needed in order to carry out the provisions of the Act; (3) send mail; and (4) engage in contracts.

The EAC has no rulemaking or regulatory powers. It cannot "postpone" elections. It cannot institute election "laws" that would effect the results of the 2006 elections.  HR 550 would not change the non-regulatory nature of the EAC. HAVA says explicitly (in Section 209) that the EAC "shall not have any authority to issue any rule, promulgate any regulation, or take any other action which imposes any requirement on any State or unit of local government" other than as already authorized under the National Voter Registration Act. Keep in mind, the "voluntary voting systems guidelines" developed under EAC oversight are just that - "voluntary."  Other materials available on the EAC website constitute "guidance" and recommended "best practices," not "mandates."

The EAC has been a disappointment to election activists. It has not fulfilled its mandate to serve as a "clearing house" of information on voting systems. It has been unresponsive to citizen concerns about the accuracy, cost, and reliability of electronic voting systems and seems to be more concerned about the interests of election officials and the voting industry than voters. However, it is too weak as an agency to pose a threat in the ways that have been suggested.


HR 550 and the Opportunity for Voting Integrity Groups to Conduct EAC Audits


Another concern raised about HR 550, as well as Senator Clinton's Count Every Vote Act, is the permanent extension of the authorization of EAC and the EAC's role in choosing "at the option of the State or jurisdiction involved," to conduct recounts of state and local elections.

HR 550 mandates that the EAC conduct "random" audits in at least 2% of the precincts in each State, including at least one per county. The EAC may not pick and choose where it will conduct audits. The States also may not pick and choose where those audits will be. The State may only include local races in a Federal audit if the locality was chosen at random. HR 550's "at random" language was vetted very carefully with computer scientists and it explicitly states that "The selection of the precincts in a State in which the Commission shall conduct hand counts under this section shall be made by the Commission on an entirely random basis using a uniform distribution in which all precincts in a State have an equal chance of being selected."

EAC recounts are of "precincts." The bill does not authorize the State to request a recount of an entire state race. By extension, as to any local race, the "precincts" relevant to that race would have to have been chosen at random for a federal audit in order to also be recounted under HR 550 in a local audit. No entire contest, federal or local, may be selected for audit. Only precincts are recounted, and only 2% of them, and only those chosen at random.
 
Most importantly of all, it is not the EAC itself that will conduct the audits, as it has fewer than 20 employees. The EAC will be required to contract with outside entities to conduct the audits - and those entities may be citizen-run voting integrity groups. HAVA had exempted the EAC from being subject to government contracting regulations (that is, from the public bidding process). HR 550 revokes that exemption. If HR 550 passes, every EAC contract will have to go through the public bidding process, and that includes contracts pursuant to which State audits will be conducted.  Election integrity organizations (such as VoteTrustUSA.org!) could submit bids to do those audits.
 
Citizen-based voting integrity groups should all be preparing for that most rare and valuable of opportunities!
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