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Towards Open Elections

Many in the election integrity movement have written about deficiencies in this year's version of the Holt bill (H.R. 2894 download). I'd like to offer my perspective.

To start, this web site, www.CountedAsCast.com makes clear that I have long been opposed to secretive vote counting.

I will also note that we cannot rely on hand-counted paper ballots alone to ensure fair and accurate elections. 50 years ago, if you were black and living in the Deep South, or a republican living in Chicago, you could rest assured that your vote was not being hand-counted accurately. This is one of the reasons why very good people were in favor of HAVA. They were hoping that their votes would be counted less unfairly if it was an impartial machine and not racists or Mayor Daley doing the counting. What the hopers did not realize was that they could not count on the secretive machines either.

Since history clearly shows that neither machines nor hand-counting by themselves can ensure fair and accurate elections, it is useful to inject redundancy - double checks - into the process. That's where both hand counts and computers come in, to provide at least two different ways to count the results; by hand and by machine.

I agree with the German Constitutional Court decision of March 3 that elections must be checkable without the use of computers; what NIST calls "software independence". At the same time, the Court also understands that it is also necessary to have well-run elections. So it specifically and explicitly stated in paragraph 121 that computers such as scanners may be used in elections, so long as the results are checkable without specialized knowledge, ie. hand-checkable.


VerifiedVoting.org

In the US, we are a long way from hand-checking results. 32 states do not require, by law, paper ballots and/or do not require by law spot checks (see VerifiedVoting.org). These include the important swing states of IN, MI, OH, PA, and VA. Let me repeat that. 9 years after the Florida fiasco, most states do not require by law even spot-checking of election results, much less hand-counted paper ballots.

So where does the H.R. 2894 stand in all of this?

• H.R. 2894 requires, over time, the use of paper ballots in all 50 states - Sec 101(a)(2)(A), pgs. 3+. The phrase "a paper ballot marked by the voter by hand or a paper ballot marked through the use of a nontabulating ballot marking device or system" (pg. 4) means no DREs, no VVPATS. Paper ballots, in all 50 states.

• H.R. 2894 ensures, over time, spot checks of election results in all 50 states - Sec 301.

This is a good start, but there's more.

• H.R. 2894 bans Internet connections, including voting on the Internet - 103 (a)(9), pg. 19. The wrong people are pushing that dangerous idea very hard, and we must stop it, now, in all 50 states.

• H.R. 2894 bans the use of wireless communications devices<b> in election systems, except for infrared - Sec 103(a)(8), pgs. 18+. Many computers, including almost all laptops, have wireless devices built-in on the motherboard. Someone can sit with a laptop in a car outside the building, and have all day to hack their way in. It is important to close off this security gap, now, in all 50 states.

• H.R. 2894 requires that the testing labs disclose the computer source code to anybody "conducting an investigation or inquiry concerning the accuracy or integrity of the technology" - 103 (a)(7), pgs. 13+. The persons checking the software have to sign a non-disclosure agreement (NDA), but those persons may report on what they saw, so long as they do not go into such detail as to disclose trade secrets. I read this to mean that they could write reports similar to the California Top-to-Bottom Reviews of '07 which were very eye-opening to much of the public and the media. I want to see open-source for all software, firmware, hardware and data. Currently, we have to fight just to look at the paper ballots and the data. The more we can look at, the better off everybody will be, in all 50 states.

• H.R. 2894 improves complaint procedures - Sec 401(b), pgs. 45+. This is an unnoticed, but useful provision that, given a good Attorney General, could lead to actual enforcement of election laws. Real enforcement is starkly missing today, in all 50 states.

There are more useful provisions, but I won't go into detail here. The bill does have a notable flaw - it requires systems for the disabled that can mechanically cast ballots - 102(a)(B)(ii)(II), pg. 9. Noel Runyan, a blind expert on voting systems, finds this requirement unnecessary, a privacy sleeve does the job. I agree and the clause should be improved. But do not think it warrants scuttling paper ballots, spot checks, and Internet- and wireless-free elections.

The Holt bill also gives more authority to the EAC, a corrupt, crony-driven institution. The problem here is that the EAC is already alive and kicking, and nobody has proposed legislation that repairs the situation. It would be better to work on serious proposals for such legislation, than to scuttle paper ballots, spot checks, and Internet- and wireless-free elections.

The Voting Rights Task Force (Berkeley/Oakland, CA) has read through the Holt bill carefully. We have also reviewed the other bills that have been proposed. *No* other bill that we know of addresses the issue of being able to hand-check results on paper ballots. This is the best bill that exists. After months of serious study and debate, the VRTF has endorsed H.R. 2894.

I look forward to supporting legislation that improves on H.R. 2894. In the meantime, this bill opens the door in many states for paper ballots, spot checks, and disclosed source code; i.e. this bill strengthens both hand counting and machine counting. H.R. 2894 also closes the door on DREs, the Internet, and most wireless devices, all of which are dangerous. Congress needs to pass this bill, ASAP, to advance our democracy towards open elections, in all 50 states.

Nobody, and no machine, should be counting American votes in secret.