Essential Revisions to HR 811

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On Tuesday, May 8, 2007, the House Administration Committee passed out of committee a substitute to H.R. 811. The substitute bill resolved our concerns expressed in the Essential Revisions numbers 2, 3, 4 and 7 to a large extent.

Revision 1 (banning electronic ballots) and 8 (time for initiating audits) were not addressed. Not only were revisions 5 (software disclosure) and 6 (EAC) not resolved, in both cases, the substitute bill presents even larger concerns than the introduced bill.

The substitute bill reverses the intent of the original software disclosure provisions by validating secret vote-counting, explicitly declaring voting system software a trade secret and prohibiting public disclosure.

While the substitute bill no longer explicitly makes the EAC permanent, it does so implicitly yet thoroughly by assigning additional duties to the Commission and providing $100 million for 2008 and “each succeeding year” to be appropriated to the Commission for audit payments.

Momentum for Essential Revision #1 continues to build, as civil rights organizations are better understanding that our goal is not to eliminate the accessibility provided by non-tabulating DRE-type devices. Our focus now is to educate Congress and others of the necessity of requiring that all “voter-verified paper ballots” be counted, rather than allowing unverifiable “electronic ballots” to be official ballots for the all-important initial tally.

See the signatories.

Original statement - February 13, 2007

The groups and individuals endorsing this statement commend Congressman Rush Holt for all that is excellent in HR 811, the “Voter Confidence and Increased Accessibility Act of 2007” -- such as the ban on wireless communications, requirements for disclosed source code and hand audits, and the mandate that testing labs be contractually independent from vendors. However, we cannot, with good conscience, give our endorsement to HR 811 in its current form.

We believe we have a duty to call attention to the bill’s unacceptable shortcomings and to call for the needed amendments. (Full text of HR 811 marked up with recommended revisions. pdf)

A brief look at the most urgent

1) We caution against redefining the term "paper ballots" to include printouts from direct recording electronic (DRE) voting machines, more typically called a "voter-verified paper trail" or just a "paper trail." "Paper ballot" should retain its historical definition as a ballot marked by the voter's hand or by a non-tabulating ballot-marking device. We need different names for different things so that people can discuss these issues without confusion.

The bill must be amended to require real, firsthand voter-marked paper ballots[1] (counted by hand or by optical scanner) and to ban the use of direct recording electronic (DRE) voting systems, which have proven themselves to be dangerously unreliable and only produce secondhand machine-printed paper trails that require voter-verification as a separate step by each voter.

Florida's Congressional District 13 race and the report of conflicts between the paper trail records and the electronic ballots in Cuyahoga County, Ohio are only two recent examples of how elections using DRE technology cannot be trusted and how confusing the technology can be to voters. Evidence overwhelmingly confirms that, even with the addition of a voter-verified paper audit trail, DREs cannot be made to serve our nation's need for universal citizen enfranchisement. It would constitute a grievous error to further codify the use of DRE systems, as is currently done by the redefinition of "voter verified paper ballot" found at the beginning of HR 811's Section 2(a)(1).

We believe that all voters should have equal access to accurate, secure, meaningfully observable, and verifiable election systems. DREs have been touted as providing this kind of election system, but America’s experience with hundreds of documented DRE failures and thousands of voters disenfranchised by them proves otherwise.

Any voter required to use a DRE is at once relegated to second-class status, given that other voters can vote on voter-marked paper ballots. Evidence shows that voter-marked paper ballots, combined with existing ballot-marking interfaces, provide both equity and parity to disabled and language minority voters in full compliance with ADA and HAVA.

Banning DREs would encourage the use of voter-marked paper ballot systems — currently available and deployed in many jurisdictions — and would provide America with a fair, consistent, unified, and superior method of conducting elections.

Conversely, HR 811 as written would require upgrading or replacing all DREs currently deployed and would foster a fresh round of DRE technology development, rushed to market and certain to continue the technology's historical pattern of disenfranchising voters as well as wasting taxpayer dollars.

Recommended revisions: (integrated language with changes tracked)

In the proposed HAVA Section 301(a)(2)(A)(i), after "created through the use of a ballot marking device or system," delete "or a paper ballot produced by a touch screen or other electronic voting machine."

At the end of subparagraph (i), add "Paper printouts produced by a direct recording electronic voting machine are specifically excluded."

In the proposed HAVA Section 301(a)(2)(D), change "voting machine" to "tallying machines", and change "voting-machine-to-voting-machine" to "tallying-machine-to-tallying-machine".

In the proposed HAVA Section 301(a)(12)(B)(v), change "voting machine" to "voting equipment".

2) We support continued innovation, and we believe better alternatives will emerge more quickly when DREs cease to distract innovation. To foster this process, the bill must be amended to also allow the development of low-tech innovations to provide accessibility and verifiability to people with disabilities, rather than mandating that such verifiability be accomplished only through computerized means, as HR 811’s proposed HAVA Section 301(a)(3)(B)(ii)(I) currently does.

Recommended revisions:

Change the proposed HAVA Section 301(a)(3)(B)(ii) to:

"(ii) meet the requirements of subparagraph (A) and paragraph (2)(A) by using a system that allows the voter to privately and independently verify the selections marked on the permanent paper ballot itself."

and delete subparagraphs (I) and (II).

In the proposed HAVA Section 301(a)(13), regarding readability requirements for paper ballots, after "clearly readable by the naked eye," change the remainder of the paragraph to:

"and verifiable by a device equipped for voters with disabilities and minority-language needs."

3) Studies show that most voters do not verify the "paper trail" of their ballot, printed by a DRE. By contrast, voter-marked paper ballots are inherently verified by the voters, and thus provide a true record of voter intent. Since all computerized counting methods (including optical scanners) are vulnerable to error, statistically significant audits, conducted by hand counting the paper ballots, are essential for all elections counted by software.

All recounts must also be conducted by hand counting the paper ballots. However, as currently written, HR 811 (unlike its predecessor HR 550) contains a loophole that would allow hand counting to be bypassed in some situations when the hand counting is most important. HR 811 Section 327 provides an exemption from the audit requirements for an election in which a recount is triggered by State law due to a narrow margin. So, if the State only requires a machine recount, the election would be exempted from all hand counting of that narrow race.

HR 811's proposed HAVA Section 301(a)(2)(B) must be amended to require all recounts to be conducted by hand-counting the paper ballots (as HR 550 did), including recounts mandated by State laws for races with narrow margins.

Recommended revisions:

At the end of the proposed HAVA Section 301(a)(2)(B)(iii), after "true and correct record of the votes cast", add ", and"

and delete "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."

Add the following subparagraph to HAVA Section 301(a)(2)(B):

"(iv) the individual permanent paper ballots produced pursuant to subparagraph (A), and subject to subparagraph (D), 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."

4) Connecting voting system components to the Internet or transmitting system information over the Internet facilitates hacking. However, HR 811's proposed HAVA Section 301(a)(11), as currently written, would allow the central Election Management System (EMS) computer of a voting system to be connected to the Internet. The EMS computer of a voting system is arguably the component most critical to protect from Internet connection.

The bill must be amended to ban all Internet connections for all components of a voting system. In addition, the bill should include a ban on the Internet transmission of voted overseas ballots referenced in HR 811's proposed HAVA Section 301(a)(2)(C).

Recommended revisions:

Change the proposed HAVA Section 301(a)(11) to:

"No component of any voting system shall be connected, either directly or indirectly, to the Internet at any time."

In the proposed HAVA Section 301(a)(2)(C), after "the requirements of such Act and this Act,"

delete "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."

and add "and are in conformance with paragraph (11)."

5) There must be no undisclosed voting system software. However, HR 811's proposed HAVA Section 301(a)(9), as currently written, fails to exempt software that is truly Commercial Off the Shelf (COTS) from public disclosure. The bill must be amended to require true COTS software, such as the Windows operating system and standard printer drivers, to be escrowed and available to officials under confidentiality, but not publicly disclosed.

Recommended revisions to the proposed HAVA Section 301(a)(9):

After "The appropriate election official shall disclose" insert "all system documentation and".

After "executable representation of the voting system software" delete "and firmware" and add ", firmware, and modified off-the-shelf (MOTS) software".

At the end of the proposed HAVA Section 301(a)(9), delete the period and insert ", except that the system documentation, source code, object code, and executable representation of unmodified Commercial off-the-shelf (COTS) software shall be disclosed only under confidentiality agreement to persons authorized by the State."

6) We believe that the EAC has failed every part of its mission statement. We do not support extending the authorization of the EAC permanently. However, it isn't feasible to remove the EAC without having a structure in place to fill the gap. Therefore, the bill must be amended to extend the authorization through 2008 only, with provisions that enable and encourage the proactive oversight of the EAC by Congress and the public.

Recommended revisions:

In Section 4 of HR 811, change: "each fiscal year beginning with fiscal year 2003'' to "each of the fiscal years 2003 through 2008, contingent on the Commission's compliance with Section 202(7)."

Amend HAVA Section 202 by adding at the end:

"(7) publishing a report, submitted to Congress, made available to the public, and posted prominently on the Commission's website on the first day of every quarter, detailing the activities and actions of the Commission for the previous quarter, explaining how those activities and actions relate to the fulfillment of the Commission's duties and deadlines under HAVA, and including an appendix quoting complaints the Commission has received from officials and citizens regarding its activities and actions and the Commission's responses to those complaints."

In addition to these six essential amendments, we believe HR 811 would be significantly improved by the following revisions.

7) The selection of the audit board should be amended to avoid conflicts with the authority of existing independent election oversight bodies in many states.

Recommended revision:

In HR 811, Section 321(a), change "chief auditor shall appoint" to "the state election oversight body independent of election administration, or where none exists, the chief auditor shall appoint".

8) The bill should state when the audits of precinct ballots should begin, as it does for absentee and provisional ballots.

Recommended revision:

At the end of Section 323(a)(1), add the following:

"The audits shall commence no later than 24 hours after the announcement of specific sample design of the audit."

We urge the appropriate Congressional committees to incorporate these amendments into HR 811 and any companion bill introduced into the Senate.

We, the following election integrity organizations and individuals, endorse the above revisions as vital to ensuring accurate, auditable, accessible, and transparent elections in the United States.

In alphabetical order:

Asian American Public Policy Institute (AAPPI)
Alliance for Democracy
Alliance for Democracy - Portland Chapter
Black Box Voting
Broward Election Reform Coalition
Coalition for Voting Integrity (PA)
Illinois Ballot Integrity Project
Las Vegas (NM) Peace & Justice Center
MidHudson Verified Voting
Mainstreet Moms (
Missourians for Honest Elections
New Yorkers for Verified Voting (NYVV)
North Jersey Impeach Group
Progressive Democrats of America (PDA)
Puerto Rican Legal Defense & Education Fund, Inc. (PRLDEF),
Reach Out America, Nassau Co. NY
Voter Action
Voting Integrity Alliance of Tampa Bay (VIA Tampa Bay)

Theresa Alexander, TX
Robert Bancroft, VA
Steve Belosi
Ruth Benson, NY
Susan Bernhard
Gavin Black, NJ
Phillip Caine, USAF Vet, Electronics, Networking, Programming, Broadcast TV
Jerry Ann Campbell, CA
Bridget Cooke
Michael R. Dean Ph.D., AZ
David e. Delk, OR
Dr. Peter W. Deutsch, PA
Constance Dondore
Ana-Lia Duchowney, FL
Suzanne Erb, PA
Jessica Flagg
Dr. Vince and Dianne Foster, WA
Alan Frankel
Beth Franzese
Gerald Ganann, Computer Systems Engineer, MN
Carol K Garey, MO
Marjorie Gersten, NY
Barbara Glassman, PA
Leon and Selma Gortler
Lawrene Groobert
Amy Harlib
Sherry Healy, CA
Teresa Hommel, Chair, Task Force on Election Integrity, Community Church of New York
Philip N. James, Ph. D., AZ
Daniel Kozminski
Jay Jackman
Shirley G. Muney, AZ
Carroll Nast
William J. O'Neil, Jr.
Jason Aaron Osgood, WA
Ray Padgett
Victoria Perry, Voting Machine Coordinator, Dutchess County Board of Elections, NY
Roberta Price
Leroy M. Rockwell
Abe Rosen
Joan Sanders
Laura Schafer, MD, NJ
Karen R. Searle, NJ
Derek Sellin
Howard Stanislevic, Computer Networking Consultant, NY
Katherine Anne Stansbury, OR
Maura Stephens, NY
Ellen J. Stone, NY
Barbara Sullivan-Parry, Esq., NY
Kathleen Unger
Rachelle Ward, AZ
John Washburn, Certified Software Quality Engineer, WI
Reverend Nadja West

[1] "Voter-marked paper ballots" are paper ballots hand marked by the voter or marked for the voter by a non-tabulating ballot-marking device or system.

Originally published on February 13, 2007. Content, not including signatories, last updated on February 17, 2007