The scheduled mark-up of The Voter Confidence and Increased Accessibility Act (HR 811) has been postponed once again as a result of the sudden passing of House Administration Committee Chair Rep. Juanita Millender-McDonald. This means another week before the work of the Elections Subcommittee and full committee are discussed in a public hearing. In the meantime, concerns about the language contained in the bill that was introduced on February 7 are circulating. Since introduction, some voting activists have objected to the fact that HR 811 would not prohibit the use of direct recording electronic voting machines– and indeed, it contains no such prohibition, though it would place significant restrictions on their use. Other concerns that have been expressed are less clear and appear based on inaccurate assertions about the bill’s provisions and purpose.
It has been suggested that HR 811 would require computerized voting in every precinct. In fact, even before the Help America Act (HAVA) was signed in 2002, the overwhelming majority of precincts in the country used some form of “computerized voting”. Of course, optical scanners, whether precinct based or central count, are computerized voting machines – as are punch card readers, and there were plenty of direct recording electronic machines in use in 2000 as well. As a result of the requirement for voting systems in every precinct that allowed disabled voters to vote privately and independently, HAVA had the effect of encouraging the purchase of direct recording electronic machines, and their use increased significantly. In November 2006, only 7 states had precincts in which paper ballots were counted by hand (Colorado, Idaho, Maine, Montana, South Dakota, West Virginia, and Wyoming). Except for the 26 precincts in Wisconsin that used the VotePAD (a non-computerized assistive device), all these precincts provided some form of computerized voting equipment to meet the disability access requirements of HAVA. HR 811 would not impose any new 'requirement' for computerized voting in every precinct.
The language in the introduced bill requiring that voting equipment used by disabled voters be capable of converting printed content into accessible media was included to address the concern of disability advocates that all voters should be provided the opportunity to verify the paper ballot that will be granted superiority in an audit or recount. This "conversion" language has been the focus of review in subcommittee hearings and it appears likely that the language that will be reported out of the committee will be modified. However, there is no disagreement among those working on the bill that non-recording ballot marking devices like, for example, the AutoMARK, would meet the requirements.
The suggestion has also been made that HR 811 would require or encourage the use of voting machines that could violate a voter’s privacy. This assertion may be based on the alarming potential of the use of ballot tracking software in combination with digital ballot scanners to allow the association of a voter's identity with their vote selections. This potential exists already and would exist whether HR 811 passes or not. There is nothing in the bill that encourages or requires such intrusive combinations of voting technologies. Further, it could be argued that the provision in HR 811 that prohibits the preservation of the paper ballot in any way that violates the privacy of the voter could in fact be used as a basis for challenging the legality of such combinations of systems.
Election Assistance Commission
It has been claimed that would allow White House appointees to control the nation’s elections systems. It should be noted that whether or not HR 811 extends the authorization of the EAC or not, it will continue to exist, unless there is legislation passed that specifically terminated it, or if funding failed to be appropriated for its operation. While the initial authorization of funding for the EAC in HAVA only extended until December 2005, this does not mean that the EAC was intended to 'sunset' at that time. Most government agencies have extended beyond their initial authorization. For example, the National Endowment for the Arts has continued for over a decade since the expiration of its most recent authorization. A government agency is necessary for many of the reporting and oversight requirements that would be imposed by HR 811, just as it has been necessary for many of the requirements of HAVA. For example, the little mentioned provision establishing a testing escrow account between vendors and testing labs requires a government entity to accept fees from the vendors and contract with the labs. The imposition of a government agency between the vendors and the labs takes the testing of voting systems out of the private sector and provides the opportunity for public oversight. In my opinion this is a significant improvement over the NASED/ITA regime and the newly established EAC/VSTL program.
It could be argued that removing the need for the EAC to annually justify its appropriation could have the effect of making the EAC less politicized, since they wouldn't be beholden to political pressure to remain in existence. To use the NEA as an example again, because the NEA has to fight for funding every year it has to be political in many of its decisions about grants in order to retain the favor of the appropriators. In any case, the EAC will continue to exist, whether HR 811 extends its authorization or not and there is nothing permanent about federal law. If Congress becomes convinced that the EAC should be abolished or an alternative model for federal oversight is established to replace it, there is nothing in HR 811 that would prohibit Congress from taking those actions, as they did in transferring some of the FEC's responsibilities to the EAC in HAVA. However, the merits of a continued federal presence in the administration should be considered independent of HR 811.
In the past few months, the EAC has experienced more intense public scrutiny and oversight than ever before in its brief life. Many see its failures and perceived politicization as reasons to abolish it while others see it as a flawed but potentially useful institution. Many of the criticisms of the EAC that have been raised are hypothetical. They are not about anything the EAC has done or even has the power to do, rather they are about what the EAC might do or might be granted the power to do. The powers of the EAC are extremely limited and its annual budget is smaller than most county elections offices. HAVA specifically restricted the powers of the EAC:
"The Commission 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, except to the extent permitted under section 9(a) of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg-7(a))." The NVRA regulatory power was previously given to the Federal Election Commission (FEC) – another Federal agency. Responsibilities imposed by federal law must be housed in some federal agency. The Department of Justice actually enforces HAVA and were the EAC to disappear, the DoJ would no doubt fill some of the minimal void left by their departure. Theoretically, the EAC could be granted the power to abolish elections or whatever is being claimed, but then the president could declare martial law – and that would not require the EAC.
The characterization of the EAC commissioners as "White House appointees" is misleading. While they are officially 'appointed' by the White House, such appointment is done with the advise and consent of the party leadership in each chamber of Congress - the Senate Democratic leadership recommends one commissioner (originally Martinez, currently Rodriguez), the Senate Republican leadership recommends one (originally Soaries, currently Davidson), the House Democratic leadership recommends one (currently Hillman) and the House Republican leadership recommends one (originally DeGregorio, currently Hunter). There is no question that Commissioners Hillman, Martinez, and Rodriguez were/are Democrats and that Commissioners DeGregorio, Soaries, Davidson, and Hunter were/are Republicans. EAC actions require a majority in favor, so any action has to be bi-partisan. Oversight of the EAC is the responsibility of the Rules Committee in the Senate and the House Administration Committee in the House.
It is true that HAVA transferred the authority for developing and adopting voluntary voting system standards from the Federal Election Commission (FEC) to the newly formed EAC, working in conjunction with the National Institute of Standards and Technology (NIST). HAVA also mandated that the EAC establish a new program for testing and certifying voting systems to those standards, a task until recently undertaken by NASED, which is a non-governmental association of state election directors. As an amendment to HAVA, HR 811 does not grant the EAC any significant new control over the nation's election systems beyond the responsibility they already had and will continue to have whether 811 becomes law or not. While some may feel that it is inappropriate for any federal agency to be involved in developing federal voluntary voting system standards or in overseeing the testing and certification of voting systems to those standards, it is inaccurate to claim that HR 811 places the nation's election systems under the control of the EAC, much less the White House.
The $300 million authorization in HR 811 as introduced is indeed too low. The purpose of my testimony at the March 23 hearing, and the research that went into it was specifically intended to provide the justification for a $1 billion authorization and I am confident that the authorization will be increased. The question of logistics is a serious one. If the bill were law today (and the funding appropriated), every DRE County in the country would be provided funding to purchase optical scanners and ballot marking systems. Several states are moving toward paper ballots, but have encountered resistance based on funding - Iowa and Indiana in particular. Maryland's bill is contingent on federal or state funding. HR 811 (unlike HR 550) would provide funding to these states to buy opscans. Florida would also receive additional funding to implement the Governor's plan for a statewide paper ballot optical scan voting system, but they would be unable to use current VVPAT printers for disabled voters.
The delays of the public mark-up HR 811 have provided NASS, NACo, NASED, the Election Center, and the vendors several weeks to pound their message home to legislators that HR 811 is a solution to a problem that doesn't exist - everything is fine - just a few glitches, that's all - and that it imposes unreasonable burdens and deadlines on counties to replace their equipment. The latter point in particular has had some impact on some legislators. (See the recent USA Today article).
The battle being fought in Congress right now over HR 811 is not about whether to ban DREs or eliminate the EAC - it is about whether or not anything will be done before the 2008 elections and the degree to which voting system source will be disclosed. For states that use paperless DREs and for states like Iowa, Maryland, and Florida that are moving toward paper ballot systems but may lack funding, allowing the status quo in 2008 would be particularly unfortunate.
While HR 811 doesn't accomplish everything voting activists might like, the status quo, in which entirely unverifiable DREs are used in 60,000 precincts is areal threat to our democracy. An argument might be made to leave the status quo in place (no audits, no restrictions on sleepovers, no emergency paper ballots, no public disclosure of source code, no prohibition of wireless communications devices, no ban on connection to the internet, no public oversight of vendor-lab relationships, etc.) and build support for a mandate for paper ballots only and all the rest in the next Congress. This is an ill-advised gamble.
Comment on This Article
You must login to leave comments...
Other Visitors Comments
You must login to see comments...