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Eyes on the Prize
An Urgent Call to Action
by Bob Bancroft, July 21, 2007

Tuesday, July 17, we learned that the Senate Committee on Rules and Administration has scheduled a hearing to receive testimony on Senator Feinstein’s proposed S.1487. Entitled the “Ballot Integrity Act of 2007,” the bill is so misguided that it is beyond any amendment. Simply put: it must be defeated or withdrawn.

S.1487 boasts a dazzling list of co-sponsors, including presidential candidates Clinton, Obama and Dodd, as well as Senators Kennedy and Leahy, among others. In her dual-role as author of the bill and Chairman of the Rules Committee, Sen. Feinstein is well-positioned to put this bill on the fast track. The committee’s hearing will commence in less than a week, at 10 a.m.,Wednesday, July 25th.

Your immediate action is required.

Please contact members of the Senate rules committee, along with the bill’s co-sponsors, and voice your opposition to S.1487:

Explain that S.1487 recklessly forfeits control of our elections to a committee of four Presidential appointees, in violation of the 10th Amendment of our Constitution, and in contempt of the wisdom of our founders.

Prevent S.1487’s attempt to institute racism at the polls, and remind our senators that any attempt to meddle with our right of “one person, one vote” would undermine the consent of We the People to be governed.

Do not permit S.1487 to take $604,000,000 from the taxpayers in order to benefit a small group of corporations with a track record of shoddy products and defiance of the law.

Insist that S.1487 be defeated or withdrawn. It is beyond amendment, and not worthy of consideration by the Senate of these United States.

For more information:
Read a 2-page analysis here. Or, a more detailed analysis here or here.
Or, skip ahead to Appendix I or Appendix II.

In order to facilitate this call to action, a list of appropriate senators is below:

Committee members (D)
Dianne Feinstein (CA), 202-224-3841 -- author
Robert Byrd (WV), 202-224-3954
Daniel Inouye (HI), 202-224-3934 -- co-sponsor
Christopher Dodd (CT), 202-224-2823 -- co-sponsor
Charles Schumer (NY), 202-224-6542
Richard Durbin (IL), 202-224-2152
Benjamin Nelson (NE), 202-224-6551
Harry Reid (NV), 202-224-3542
Patty Murray (WA), 202-224-2621
Mark Pryor (AR), 202-224-2353

Committee members (R)
Robert Bennett (UT), 202-224-5444
Ted Stevens (AK), 202-224-3004
Mitch McConnell (KY), 202-224-2541
Thad Cochran (MS), 202-224-5054
Trent Lott (MS), 202-224-6253
Kay Bailey Hutchison (TX), 202-224-5922
C. Saxby Chambliss (GA), 202-224-3521
Chuck Hagel (NE), 202-224-4224
Lamar Alexander (TN), 202-224-4944

Additional co-sponsors (D except as noted)
Bernard Sanders (I - VT), 202-224-5141
Barack Obama (IL), 202-224-2854
Sherrod Brown (OH), 202-224-2315
Patrick Leahy (VT), 202-224-4242
Robert Menendez (NJ), 202-224-4744
Edward Kennedy (MA), 202-224-4543
Hillary Clinton (NY), 202-224-4451


Appendix I
The Commission v. Federalism

While election integrity activists are all-too-familiar with the Elections Assistance Commission (EAC), most Americans have never heard of it. Created in 2003, the EAC replaced an independent office within the FEC, under the auspice of providing a centralized information “clearinghouse”. The new commission is comprised of four individuals appointed by the President.

Far from correcting the mistakes of the Help America Vote Act, S.1487 proposes to greatly increase the Commission’s scope, and install it as a permanent fixture of our government, with vast discretionary power over elections. One might think that allowing a President to directly appoint those officials that may oversee his own re-election is inherently perilous. Yet, this bill does exactly that.

Here is a partial list of the new powers S.1487 has in store for this Commission:

Set different benchmarks for accuracy, based on stereotypes (SEC.201(a)(4))
Determine whether resources are distributed fairly (SEC.304.)
Determine which machines and software may be used (SEC.201.(b))
Determine which labs may be used for testing (SEC.201.(c))
Control the certification process (SEC.201.(b))
Ignore the certification process (SEC.201.(b))
Decide who is allowed to observe elections (SEC.307)
Decide who is allowed to see the secret code, within machines (SEC.201.(b))
Work closely with corporations, to protect their interests (SEC.201.(b))

The authors are positively determined not to let the Tenth Amendment get in their way.

How to Legislate Racism in Three Easy Steps

Referring to the old “Jim Crow” laws would have been a giveaway. Instead, the authors astutely renamed their provisions, calling them “benchmarks.” They accomplish the same goal, but the modern variant is more subtle, more devious.

Step 1: The bill defines a “residual ballot performance benchmark” (SEC 201.(a)(4)). This metric includes all errors that are directly attributable to machines, and other anomalies, such as overvotes, undervotes and spoiled votes.

Step 2: The authors opine an adjustment to this figure, which they call an “intentional undervote.” Historically, when undervotes (ballots cast without any legitimate selection) occur more than 0.5% of the time, it has been interpreted as a problem, and spurred investigation. “Not so,” say the authors of S.1487. The undervote is intentional. And, since it is intentional, it can be subtracted from the benchmark.

Consider that e-voting machines have been documented to lose more than 20% of the votes in some precincts. Using this tidy little loophole, the Commission could sweep that unpleasant fact right under the rug.

Step 3: The authors further explain that "Congress finds that there are certain distinct communities […] that have historically high rates of intentional undervoting." They go on to establish special "treatment of certain distinct communities", including authority to “promulgate for local jurisdictions in which that distinct community has a substantial presence either a separate benchmark or an exclusion from the national benchmark, as appropriate.”

If the Commission were to discover that black voters in a particular precinct of Florida had suffered an unusually high rate of undervoting, it would be under no obligation at all to inform us or investigate further. Far from it! The Commission would be empowered to use this inequity as justification, to declare any African-American vote, in any State, exempt from benchmarking and oversight altogether.

Far from discouraging racism, this bill promotes racism in our elections.

Follow the Money

One cannot help but notice a pattern in the fiscal priorities set by this bill.

Money to help States develop training programs: none
Money to help States establish early voting programs: none
Money to help States perform rigorous audits: none
Money to give to manufacturers for research: $4,000,000
Money to give to manufacturers for machines: $600,000,000

The bill is quick to clarify that the $600 million grant in no way prevents States from also tapping the $650 million granted by HAVA. That would put the total amount of American taxpayer dollars siphoned off to voting-machine manufacturers at $1.25 billion. Are the authors certain that the American people agree with these priorities? Even after handing so much of our money over to these business interests, the bill still does not provide the one thing we have requested: a paper ballot.


Appendix II
The Frying Pan and The Fire

Because S.1487 and HR. 811 are both election reform bills under consideration by this Congress, it is instructive to compare both bills, and note what is different between them. The devil is in the details, or in this case, the differences:

While neither bill assures our right to “one person, one vote”, votes are less safe, and less likely to be counted, in S.1487:
S.1487 correctly replaces references to “paper ballot” with “paper record”, a stinging reminder that the two are not equal.
S.1487 removes the test of “clear and convincing evidence” with regards to tampering, making the paper records easier to ignore.
S.1487 allows the paper records of an entire precinct to be ignored, if there is any hint of “mischief”, while H.R.811 suggests that tampering be considered on a machine-by-machine basis
S.1487 omits language in H.R.811 that would require prominent reminders for voters to double-check their paper records before casting the vote.
S.1487 adds dangerous, racist “residual benchmarks”, and deletes the accuracy standard originally established by HAVA.
S.1487 alters disclosure requirements, to offer improved protection for corporate “trade secrets” and anything else the corporations consider confidential information, at the expense of vote integrity.
S.1487 permits machines used in vote tabulation to be connected to the internet, creating an obvious vulnerability.
S.1487 omits language in H.R.811 that would require polling stations to offer real, paper ballots, as an alternative to electronic voting. (Update: the committee that marked up H.R.811 also appears to have stealth-deleted this requirement from H.R.811, a violation of normal procedure, as the deletion occurred after committee markup sessions had concluded.)

While H.R.811 expands the role of the Commission to an unconstitutional degree, S.1487 goes hog-wild:
H.R.811 relies on the Director of the National Institute of Standards and Technology to develop best practices, but S.1487 hands that responsibility over to the Commission.
H.R.811 would like States to play some role in the voting system certification process. S.1487 hands control to the Commission, even permitting the Commission to break its own rules on a whim, under the guise of “emergency certification.”
H.R.811 requires limited disclosure between manufacturers, labs and state election officials, but S.1487 makes the Commission the central command.
H.R.811 mandates that the Commission shall select labs at random “to the greatest extent practicable”, but S.1487’s language is weaker.
H.R.811 requires the Commission to inform the public if it has “credible evidence of significant security failure at an accredited laboratory”, but S.1487 omits this, preferring such knowledge remain a secret between the lab and the Commission.
H.R.811 allows the Director of the National Science Foundation to determine who is eligible to receive grants for research, but S.1487 gives this responsibility to the Commission too.

While H.R.811 offered an insufficient audit regime, S.1487 audits are meaningless:
H.R.811 requires that States may not give any advance notice as to which precincts will be selected for audit. S.1487 omits this line.
H.R.811 allows audits to be skipped if the winning candidate received 80% or more of the total votes, S.1487 does not.
H.R.811 requires the entity conducting the audit to “meet the standards established by the Comptroller General to ensure the independence” of all parties, and requires that audits be performed “under generally accepted government accounting standards.” S.1487 omits all of this.
H.R.811 attempts to outline several additional requirements for the audit, including that at least 10% of all precincts be audited in the case of a particularly close race. S.1487 suggests 2%.
H.R.811 provides States the opportunity to develop their own audit standards, so long as the National Institute of Standards and Technology verifies the proposed method is at least as accurate as the method that H.R.811 outlines. S.1487 omits this; why consult NIST or permit States’ rights when one can simply defer all judgment to the Commission?
H.R.811 requires audits to be random, but also insists that at least one precinct from each county be audited. S.1487 omits this safeguard.
H.R.811 insists that the Commission adopt model audit procedures before the next Presidential election. S.1487 is content to wait until 2010.
H.R.811 appropriates $100,000,000 to assist states in paying the cost of a rigorous audit regime. S.1487 tells States to go lay an egg.

Other curious differences:
S.1487 omits several of HR. 811’s legal protections for “aggrieved persons”, who have been disenfranchised, to seek remedy.
S.1487 cuts the total research spending by $2,000,000.
S.1487 cuts the total grants for purchase of equipment by $400,000,000.
S.1487 bases funding allocation on the number of precincts, while H.R.811 bases it on voting age population.
S.1487 expands and clarifies the protection of voters who speak certain languages other than English, as described in the 1965 Voting Rights Act.
S.1487 is lax with deadlines, setting most of them back, until after the next Presidential election.
S.1487 declares the EAC exempt from the Paperwork Reduction Act.


The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States,
are reserved to the States respectively,
or to the people.
~ Tenth Amendment to the U.S. Constitution
 
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